Full opinion text
MEMORANDUM AND ORDER ON DISTRIBUTION ON REMAND WEINSTEIN, District Judge: TABLE OF CONTENTS I.PROCEDURAL HISTORY A. Post-Settlement B. Appeals C. Post-Appeal Hearings and Advisory Boards II.SUMMARY OF ALLOCATION OF FUNDS A. Original and Revised Payment Program B. Australian & New Zealand Class Members C. Class Assistance Program D. Attorneys’ Fees and Expenses E. Division of Funds III. PAYMENT PROGRAM A. Inclusion of Opt-Out Claimants and Late Claimants B. Additions and Modifications 1. Exposure Criteria 2. Length 3. Claims Administrator 4. Special Master for Appeals 5. Other Implementation Actions IV. CLASS ASSISTANCE PROGRAM A. Original Foundation Concept B. Post-Appeal Modifications 1. Veterans Advisory Board, Advisor, Executive Director and Staff 2. Alternatives Under Consideration a. Information and Referral Network b. Family- and Child-Related Needs c. Homeless and Disadvantaged Veterans d. Genetic Counseling e. Assistance with Rights and Benefits f. Reserve g. Tentative Conclusions 3. Data Required 4. Avoiding Duplicative Programs V.MONEY MANAGEMENT AND ACCOUNTING A. Present Method B. Challenges Confronting Financial Management During Distribution C. Selection of Contractors to Provide Financial Services D. Investment and Depositary Arrangements E. Accounting Services F. Further Details of Distribution Planning VI. APPENDICES A. Sample Letter to Claimants B. Sample “Application for Payments” Kit On June 30, 1988, the Supreme Court denied the last two of the seven petitions for certiorari filed in the multidistrict litigation “Agent Orange” case. The only phase of the case now unresolved, and the subject of this memorandum, is the final distribution of the settlement fund. After three and a half years of appeals, the distribution of the settlement fund is at hand. The court regrets any inconvenience or harm suffered by members of the class as a result of the delays caused by the legal process. Detailed consideration of the issues raised by the lawyers for plaintiffs on appeal was necessary to ensure fairness to members of the class and to their attorneys, and to guarantee compliance with the law in unique and highly complex circumstances. Issuance of mandates to this court addressing all appeals made in the “Agent Orange” case had been stayed by the Court of Appeals for the Second Circuit, pending the Supreme Court’s determinations on the seven petitions for certiorari. See Court of Appeals’ Orders of July 17, 1987 and August?, 1987; Fed.R.App.P. 41(b). The stay of the mandates was lifted on June 30, 1988 upon denial of the last petitions for certiorari. The case has now been returned to this court for determinations required on remand by the decisions of the Court of Appeals and for implementation of the plan for distribution of the settlement fund. This order makes necessary modifications to this multidistrict court’s earlier order, In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396 (E.D.N.Y.1985), on distribution of the Agent Orange settlement fund. These modifications are required in light of the rulings of the court of appeals and subsequent developments. In particular, the affirmance of the grant of summary judgment against plaintiffs who opted out of the class, and the disapproval of the proposed form of the Class Assistance Foundation, require reconsideration of aspects of the distribution plan. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223 (E.D.N.Y.1985), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied sub nom. Lombardi v. Dow, - U.S. -, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988) (opt-outs); In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396 (E.D.N.Y.1985), aff'd in part, rev’d in part, 818 F.2d 179, 184-86 (2d Cir.1987) (addressing, inter alia, Class Assistance Foundation). The court now (1) orders that the opt-out claimants and the claimants who filed late be included within the class which may receive benefits of the Agent Orange Settlement Fund, (2) makes modifications to the Payment Program, (3) appoints a claims administrator for the Payment Program, (4) appoints a Special Master for Appeals from denials of Payment Program benefits, (5) establishes the basis for a set of Class Assistance Programs in place of the Class Assistance Foundation, (6) formally appoints Veterans Advisory Boards for the Payment Program and the Class Assistance Program, (7) takes steps for the prompt funding of projects designed to assist the class, (8) establishes a reserve fund, (9) appoints investment managers and a depositary to hold funds subject to the court’s control, (10) appoints an accounting consultant, and (11) reallocates the settlement fund in light of the decisions of the court of appeals and in order to distribute the interest earned during the appeals. I. PROCEDURAL HISTORY A. Post-Settlement Early on the morning of May 7,1984, the class of veterans exposed to Agent Orange reached a $180 million settlement with the several defendant chemical companies. No payments could be made from the settlement fund to class members or to plaintiffs’ attorneys because of the pendency of the appeals. Investment of the settlement funds during the period from settlement on May 7, 1984 to the present has yielded interest which has increased the total amount of the fund from the original $180 million to some $240 million, after payment of interim expenses. Following the settlement, the court held extensive hearings on the fairness and adequacy of the settlement, in New York, Chicago, Houston, Atlanta and San Francisco, at which some 500 witnesses were heard. The court has considered hundreds of additional written communications from veterans, members of their families, veterans’ organizations, and others. In September of 1984 the court issued a preliminary memorandum and order approving the settlement as fair, reasonable and adequate under the circumstances. See In re “Agent Orange” Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y.1984) (Preliminary Memorandum and Order on Settlement). After the further determinations required by that order were made —the plan for distribution to eligible class members and the amount of reasonable attorneys’ fees awards to plaintiffs’ attorneys — final approval of the settlement was granted. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396 (E.D.N.Y.1985) (Memorandum, Order and Judgment on Distribution of the Settlement Fund), aff'd in part, rev’d in part, 818 F.2d 179 (2d Cir.1987); In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1296 (E.D.N.Y.1985) (Memorandum and Order on Attorney Fees as Modified and Final Judgment), aff'd in part, rev’d in part, 818 F.2d 216 (2d Cir.1987) and 818 F.2d 226 (2d Cir.1987), cert. denied sub nom. Newton Schwartz v. Dean, - U.S. -, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). The original total settlement was $180 million. Since that time, the funds have been held by the Clerk of the Court for the Eastern District of New York, and additional interest has been earned, bringing the total to approximately $240 million on June 30, 1988. On the advice of Special Master for Investment Policy Richard Davis, Esq. and financial consultants to the court, the court has directed that investments be made in short-term federal Treasury Bills for maximum security and liquidity. These consultants and Special Master Davis gave extensive time to the investment and fund protection problems without any receiving fees or reimbursement for expenses. The court is grateful for these unselfish services as well as for the assistance provided by the advisors and consultants named in the body of this opinion and by the numerous persons who advised the court at hearings and by letters. B. Appeals Appeals were taken from numerous orders including the orders certifying the class action, approving the settlement, outlining the distribution plan, awarding counsel fees, granting summary judgment against the opt-out claimants, dismissing untimely claims, dismissing all the claims against the United States, and unsealing discovery materials. In nine unanimous opinions dated April 21, 1987 a panel of the Second Circuit Court of Appeals disposed of all of the numerous individual appeals except those from the order of the district court providing for public access to documents sealed from public view during the discovery phase of the litigation. Following the denial of several petitions for rehearing and for rehearing en banc, six petitions for writs of certiorari were filed with the Supreme Court by the opt-out plaintiffs, by class members who objected to the settlement and distribution, by other plaintiffs whose claims were dismissed, and by one of plaintiffs’ attorneys who sought reversal of the appellate court’s rulings on counsel fees. The petitions for writs of certiorari were all denied by the Supreme Court. See In re “Agent Orange” Product Liability Litigation, 818 F.2d 145 (2d Cir.1987) (affirming class certification and approving of settlement), cert. denied sub nom. Pinckney v. Dow, - U.S. -, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988), and Krupkin v. Dow, - U.S. -, 108 S.Ct. 2899, 101 L.Ed.2d 932 (1988); 818 F.2d 179 (2d Cir.1987) (approving Payment Program but rejecting Class Assistance Foundation); 818 F.2d 187 (2d Cir.1987) (affirming summary judgment entered against opt-out plaintiffs on ground of government contractor defense), cert. denied sub nom. Lombardi v. Dow, - U.S. -, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); 818 F.2d 194 (2d Cir.1987) (affirming dismissal of Federal Tort Claims Act claims of servicemen and their relatives against the United States, on the grounds that they are barred by the Feres doctrine and by the discretionary function exception to the Federal Tort Claims Act); 818 F.2d 201 (2d Cir.1987) (affirming dismissal of “direct” claims against United States brought by wives and children of servicemen, on Feres grounds), cert. denied sub nom. Adams v. United States, - U.S. -, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988); 818 F.2d 204 (2d Cir.1987) (affirming dismissal of claims of “Agent Orange” manufacturers against United States for contribution and indemnity for the class action settlement payments); 818 F.2d 210 (2d Cir.1987) (affirming dismissals of Hawaiian civilians’ actions against the United States and the chemical companies), cert. denied sub nom. Fraticelli v. Dow, - U.S. -, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988); 818 F.2d 216 (2d Cir.1987) (rejecting plaintiff class’ attorneys’ fee-sharing agreement and reinstating fee award determined by district court), cert. denied sub nom. Newton Schwartz v. Dean, - U.S. -, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987); 818 F.2d 226 (2d Cir.1987) (approving district court’s calculations of attorneys’ fee awards, with abrogated award reinstated), cert, denied sub nom. Newton Schwartz v. Dean, - U.S. -, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). In an opinion dated June 10, 1987, a separate panel of the court of appeals affirmed the district court’s order unsealing materials produced or generated during discovery in the Agent Orange litigation. Defendants filed a petition for writ of certiorari with the Supreme Court, which was denied on November 17, 1987. See In re “Agent Orange” Product Liability Litigation, 104 F.R.D. 559, 562 (E.D.N.Y.1985) (Magistrate’s Pretrial Order No. 33, dated December 17, 1984) (“Protective Orders Opinion”), aff'd, 821 F.2d 139 (2d Cir.1987), cert. denied sub nom. Dow v. Ryan, - U.S. -, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987). C. Post-Appeal Hearings and Advisory Boards Following the April 1987 opinions of the court of appeals, this court held a public hearing on distribution on May 26, 1987. Members of the bar, individual class members, representatives of veterans’ organizations, and others participated. Beginning in September of 1987, the court convened a representative Class Assistance Advisory Board to advise the court on the best ways to allocate the monies originally designated for the Foundation. Members of the Class Assistance Advisory Board are: * Reverend Robert Certain, Minister of an Episcopal Church in Memphis, Tennessee. Rev. Certain flew B-52 missions in Vietnam during 1971-72; he was shot down in 1972 and made a Prisoner of War for 102 days until his release in March of 1973. He was awarded a Purple Heart and remains a member of the armed forces reserves. Rev. Certain is also involved in establishing a Vietnam veterans memorial in Memphis. * Steven Champlin, aide to U.S. House of Representatives Majority Whip, Rep. Tony Coelho. Mr. Champlin is not a veteran, but has been deeply involved with Vietnam veterans affairs for many years. He is the author (with Rep. David Bonior and Tim Kolly) of The Vietnam Veteran: A History of Neglect. * Ron Gardner, Assistant Vice Chancellor for Clinical Affairs, Louisiana State University Medical Center in New Orleans, Louisiana. Mr. Gardner served in Vietnam as a combat medic and a military policeman during 1970-72, and has since worked for the Ford, Carter and Reagan Administrations on veterans’ medical needs. He is also involved in the establishment of a Vietnam veterans memorial in New Orleans. Charles T. Hagel, President, United Service Organization (“USO”). Mr. Hagel is a former Deputy Director of the Veterans Administration. He was a Sergeant in the U.S. Army and served with the 9th Infantry Division in Vietnam in 1967-68; he earned two Purple Hearts, the Army Commendation Medal, and several other honors for his service. Since 1985, Mr. Ha-gel has served as Chair of the Agent Orange Payment Program Veterans Advisory Board. In addition, he is actively involved with the Vietnam Women’s Memorial Project, Inc., the National Advisory Committee of the Friends of the Vietnam Veterans Memorial and the Veterans Administration Vietnam Veterans Readjustment Advisory Committee. Just prior to his election as President of the USO in early 1987, Mr. Hagel was co-founder, Director and Executive Vice President of Vanguard Cellular Systems, Inc. Mary Lou Keener, Esq., attorney in private practice in Atlanta, Georgia, specializing in medical malpractice and personal injury cases. Ms. Keener was a U.S. Navy nurse in Vietnam from 1968-69, and later became a Professor of Nursing at Georgia State University. After her service in Vietnam she returned to Washington, D.C. to work for U.S. Rep. D.W. Riegle. Ms. Keener is currently a Lt. Colonel in the U.S. Air Force Reserve Nurse Corps. She has been involved in a variety of Vietnam veterans activities, including serving as Vice-Chair of the National Veterans Leadership Program from 1985-86 and as Chair of the Board of Directors of the Georgia Vietnam Veterans Leadership Program from 1984-86. Gary May, clinical social worker, Evansville, Indiana. Mr. May was a U.S. Marine in Vietnam in 1968, until he lost both his legs in a landmine explosion. He has worked with the Veterans Administration and the Vet Center Program, and now practices private social work while teaching at the University of Southern Indiana. Much of his current social work involves counseling Vietnam veterans and their families. * Frank McCarthy, President, Vietnam Veterans Agent Orange Victims International, Inc. (VVAOVI), Stamford, Connecticut. Mr. McCarthy served in the 1st Infantry Division in Vietnam from 1965-67 until an injury forced his return to the United States; he received a Purple Heart, a bronze star, and several other decorations. The VVAOVI organization focuses on assisting Vietnam veterans and their families. He also heads the Brandie Schieb Fund, which assists Vietnam veterans’ children born with birth defects. Before taking office as President of VVAOVI in 1978, Mr. McCarthy was President of Artasion Productions, Inc., a documentary and feature film production company. Mr. McCarthy has played a central role in the Agent Orange Litigation since its inception. * Jan Ott, nurse in private practice, Seattle, Washington. She has worked as a psychiatric clinical nurse specialist and has been a consultant to the Veterans Administration Medical Center in Seattle. Ms. Ott served in the U.S. Army in Vietnam in 1970-71 as an emergency room triage nurse at the 67th Evacuation Hospital. She has experience in counseling veterans with post-traumatic stress disorder (PTSD), and was a member of the First National Women’s Working Group on Veterans Issues. * Hon. Matthew Railey, District Judge, Fourth Judicial District of the State of Colorado, Colorado Springs, Colorado. Judge Railey served in the U.S. Army in Vietnam as a member of the Judge Advocate General’s Corps from 1970-71; he frequently defended “fraggers” (soldiers accused of directing fire toward their own officers). He was awarded two bronze stars. Judge Railey has been very active in community affairs, and is particularly active in community legal services programs and criminal justice issues. * Dr. Oscar Salvatierra, M.D., Professor of Surgery and Urology and Chief of the Transplant Service at the University of California at San Francisco. Dr. Salvatierra was a U.S. Army urologist and surgeon at the 8th Field Hospital in Vietnam and at hospitals in Nha Trang, Vietnam during 1966-67; he received the Army commendation medal and several other honors. He is particularly active in the area of organ transplants and is Past President of the American Society of Transplant Surgeons, a member of the Board of Governors of the American College of Surgeons, and a member of the National Kidney and Urologic Diseases Advisory Board, as well as many other medical societies. He has also done work with the National Institutes of Health. * Solomon Watson IV, Esq., Secretary and Assistant General Counsel of the New York Times Company, New York, New York. Mr. Watson served in the Ninth Infantry Division of the U.S. Army as a lieutenant in the military police from 1967-68. He was awarded two bronze stars and two Army commendation medals. His brother, a marine, was killed in service in Vietnam. Mr. Watson now serves on the board of the New York Vietnam Veterans Leadership Program, Inc., which assists veterans seeking job placements. He has also helped in the production of a television film about Vietnam veterans. * Joseph Zengerle, Esq., attorney in private practice, Washington, D.C. Mr. Zengerle attended the U.S. Military Academy at West Point and served in Vietnam from 1967-68 as Special Assistant to General Westmoreland, including during the Tet Offensive, and also as a unit commander in I Corps at Da Nang. He received a bronze star. He clerked for Chief Justice Burger on the United States Supreme Court in 1973-74 and was Assistant Secretary of the Air Force under President Carter. In private practice, Mr. Zengerle continues to do much pro bono work for veterans, including serving on the Vietnam Veterans Memorial National Board and handling cases for veterans suffering from post-traumatic stress disorder. Mr. Zengerle had devoted extensive time and effort to setting up the proposed Foundation (see part IV-A, infra). This arduous work, accomplished at the court’s request, provided valuable information that is being used in current planning. This group served without fee or compensation for their time. The Board met with the court, Special Master Kenneth Feinberg and consultant Ira Hirschfield, a nationally recognized expert on foundations and methods of allocating private non-profit resources, to develop the Class Assistance Program. This program is described in section IV-B-2 below. In addition, a second group of veterans met repeatedly over a number of years with Special Masters Kenneth Feinberg and Richard Davis to consider the details of the Payment Program. Members of this Payment Program Advisory Board are: * Donna-Marie Boulay, Esq., an attorney in private practice in Minneapolis, Minnesota. Ms. Boulay served as a Captain in the U.S. Army Nurse Corps from 1966-68, including one year in Vietnam. Her legal work focuses on problems in the health care industry. She has had a fundamental role in establishing the Vietnam Women’s Memorial Project. * Albert S. Dandridge, III, Esq., an attorney in private practice in Philadelphia, Pennsylvania. Mr. Dandridge served in combat with the U.S. Marine Corps in Vietnam during 1964-65 and 1968-69. Before entering the private practice of law, he was a Special Counsel at the Securities & Exchange Commission. * Charles T. Hagel, President of the USO. Mr. Hagel also serves on the Class Assistance Advisory Board, and his background is discussed above. * Vincent J. Martin, Jr., an account executive at a large investment bank in Paramus, New Jersey. He was a First Lieutenant in the U.S. Army and served as a Recon Platoon Leader and Company Commander of the 2nd Battalion, 27th Infantry in Vietnam during 1968-69. * John L. McElrath, a principal and division director of Management Systems Designers, Inc., a company specializing in automated data processing operations in Virginia. He has managed such operations for the distribution of class action settlement funds in other litigations, and has devoted significant time and effort to assisting the court in designing the Agent Orange Payment Program. Mr. McElrath served as a Sergeant in the U.S. Marine Corps in Vietnam from 1966-68, stationed with I Corps and in Saigon, Mr. Hagel served as chair. This group met on many occasions, without compensation. It assisted in developing the complex program for investing and paying out funds, considered many possible contractors, and advised on retention of the contractors who will execute the Payment Program. These arrangements are described in parts III-B and V, below. The court is most grateful for the unselfish and uncompensated contributions of those just listed and the many others who have advised the court. The court is especially grateful to Charles Hagel and Joseph Zengerle, who met repeatedly with the court and Special Master Feinberg, both in person and by telephone, and thereby provided extraordinary assistance to the class. This order is based upon the court’s hearings, on its oral consultations with the assembled Advisory Boards, and on the communications it has received in writing. It sets out the manner in which the settlement fund is to be allocated. The court urges all those in a position to do so to assist it in expediting payments to members of the class. II. SUMMARY OF ALLOCATION OF FUNDS General principles and specific suggestions for distribution were put forward at the 1984 Fairness Hearings. See In re “Agent Orange" Product Liablity Litigation, 597 F.Supp. 740, 858-61 (E.D.N.Y.1984). The district court held a hearing on proposals for a distribution plan on March 5, 1985 and also considered voluminous written submissions, and issued its distribution order on May 28, 1985. See id., 611 F.Supp. 1396 (E.D.N.Y.1985). Now that appeals have been completed, numerous questions concerning distribution remain to be resolved on remand. The court held an additional hearing on distribution on May 26, 1987, shortly after the court of appeals’ nine decisions were announced. The court has convened the two Advisory Boards composed of veterans mentioned above, and has worked with those boards, with the Special Masters, and with numerous advisors to design a distribution plan that will simultaneously meet the needs of the class and comport with legal policy as determined by the court of appeals. A. Original and Revised Payment Program In May of 1985 the court issued an order directing distribution of approximately three-quarters of the fund (approximately $130 million of the original $180 million total) to a Payment Program which would compensate individual veterans and their family members in the form of disability benefits to 100% disabled veterans and payments of death benefits to the families of deceased veterans. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396 (E.D.N.Y.1985), aff'd in part, rev’d in part, 818 F.2d 179 (2d Cir.1987). The Payment Program was designed to run for ten years, beginning January 1, 1985 and ending December 31, 1994. The Payment Program was intended to provide annual payments to veterans for past and future continuous disabilities. Vietnam veterans exposed to Agent Orange who suffered total (100%) disabilities arising from non-traumatic, non-accidental and non-self-inflicted causes would be eligible for payments. See id., 611 F.Supp. at 1412. The definition of total disability was taken from the Social Security Act, and Social Security Administration determinations of disability would be taken as evidence of disability for the Agent Orange Payment Program. Independent determinations of disability would be made for veterans who had not obtained a Social Security ruling. See id. at 1412-13. Variation in the award would be based on age at the onset of disability, duration of disability, and the year of occurrence. Extension of the Payment Program over a ten year period, beginning January 1, 1985, would permit the inclusion of veterans not disabled at the time the program began and would maximize the amount available for payment. See id. at 1417-1422, aff'd in relevant part, 818 F.2d 179, 183-84 (2d Cir.1987). Based on a variety of data, the court estimated the kinds of payment amounts the original (1985) Payment Program would entail. These estimates were only that, and did not purport to specify actual award levels or in any way bind the court to eventual payments. The court estimated that the maximum disability award, for a veteran disabled in 1970 and continuously disabled through 1995, would be a total of $12,790.00, distributed over the ten years of the program. For disabilities incurred later and lasting fewer years, payments would be correspondingly smaller. See id., 611 F.Supp. at 1418-20. In addition, death benefits were to be paid in a lump sum to the surviving spouses or dependent children of veterans who died before the Payment Program began and, in lesser amounts, to survivors of veterans who die during the years of operation of the Payment Program. See id. at 611 F.Supp. 1420-22, aff'd in relevant part, 818 F.2d 179, 183-84 (2d Cir.1987). Death benefits would not be paid for deaths arising out of traumatic, accidental or self-inflicted causes. In its 1985 order, the court estimated that the maximum death benefit, for families of veterans who died before 1985, would be approximately $3,400.00, paid in one lump sum. Families of veterans who died during the ten years of the program would receive proportionately smaller sums. See id., 611 F.Supp. at 1420-21. The court orders that the Payment Program now created will operate along the same standards for eligibility and methods of computing benefits as the program originally proposed. The total sum now allocated to this portion of the settlement distribution must be increased, however, because of interest earned and the court of appeals’ suggestion that it looks more favorably on this part of the program than it does on the class assistance portion of the program. $170 million is now allocated to this portion of the program, plus interest earned on this sum in the future. As indicated below, this sum may be increased or decreased by shifts in funds from or to other programs. Individual payments to claimants will be adjusted to take into account this increased sum and the other modifications described in part III, infra. The court reserves the power to modify or adjust all of these arrangements should the number of eligible claimants or other variables substantially depart from current estimates. B. Australian and New Zealand Class Members The distribution plan allocated two percent of the fund (now approximately $240,-000,000) for class members from Australia (1.8%) and New Zealand (0.2%). The percentage allocated to these veterans reflects the percent of exposed Vietnam veterans from the Australian and New Zealand armed forces. Australian members of the class will receive $4,500,000 U.S. and New Zealand veterans $500,000 U.S. These figures are rounded off to the next highest half million. These veterans are not covered by the Payment Program but instead are to be paid in accordance with distribution plans adopted by the trustees of special trust funds created for that purpose in each country. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1443-45 (E.D.N.Y.1985), aff'd in relevant part, 818 F.2d 179 (2d Cir.1987). Responsible people in those two countries are obviously in a better position than this court to develop the details of local distribution. Distribution plans have been developed in both countries. Upon court order after written request of lawful representatives of these two special trust funds, the depositary shall: (1) deliver a check for $4,500,000 U.S. (or its equivalent in Australian currency) to the Consul General of Australia made payable to The Australian Trust Fund or its lawful designee; (2) deliver a check for $500,000 U.S. (or its equivalent in New Zealand currency) to the Consul General of New Zealand made payable to The New Zealand Trust Fund or its lawful designee. C. Class Assistance Program The remainder of the fund, originally $45 million, was directed to the endowment of a Class Assistance Foundation “to fund projects and services that will benefit the entire class.” In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1432 (E.D.N.Y.1985). The class includes all Vietnam veterans who may have been exposed to “Agent Orange” and related phenoxy herbicides in Vietnam, and the family members of such veterans. The class is therefore significantly larger than the group of people who have filed claims as part of the Payment Program. The Payment Program and the Foundation were designed in tandem to maximize the benefit to the class of a multimillion dollar fund that might otherwise degenerate into some quarter of a million small awards incapable of providing any real aid to any class member (amounting to only about $80 each). Through the funding of services, the Foundation would have offered “some benefit from the settlement” to the majority of claimants who will not meet the eligibility requirements for cash compensation under the Payment Program. 611 F.Supp. at 1431. More generally, the Foundation was intended to fund services, under the court’s control, for the benefit of all members of the class, including all Vietnam veterans who may have been exposed to Agent Orange and the families of those veterans. Funding priority was directed to the benefit of children with birth defects born to class member veterans, reflecting the agreement within the class that the fund should be used to aid the children with birth defects and their families. The Foundation was also directed to fund other projects in the areas of health, counseling, and the provision of services which were designed to benefit the class or sub-classes, including the many members of the class who remain outside the mainstream of society. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1432-34 (E.D.N.Y.1985), aff'd in part, rev’d in part, 818 F.2d 179, 184-86 (2d Cir.1987). This portion of the program must be modified in view of the court of appeals’ decisions. The court of appeals expressly approved the concept of funding such services, but disapproved the specific Foundation mechanism. See In re “Agent Orange” Product Liability Litigation, 818 F.2d 179, 184-86 (2d Cir.1987). Although the court of appeals rejected the original foundation proposal, it “explicitly note[d] ... that the district court may in the exercise of its discretion and after consultation with veterans’ groups undertake to use portions of the funds for class assistance programs that are consistent with the nature of the underlying action and with the judicial function. Accordingly, the district court on remand may designate in detail such programs and provide for their supervision.” Id., 818 F.2d at 186. A sum of $40 million plus interest earned from this date is immediately allocated to this portion of the program, to be devoted to service programs for the benefit of the entire class. This “Class Assistance Program” will be administered and monitored by the court, in accord with the direction of the court of appeals. See id.; see infra Part IV. In addition, a sum of $10 million must, in accordance with the settlement agreement, be placed in reserve for a period of twenty-five years from the date of the settlement. The court will retain discretion over this reserve. Under the terms of the Settlement Agreement, this reserve will be used to cover possible claims in state courts. It will be available to compensate injured Vietnam veterans exposed to Agent Orange, should future evidence indicate a legally cognizable link between Agent Orange exposure and specific ailments. While it is unlikely that claims will be viable in state courts in view of the court of appeals’ holding that there is no basis for the claims, this sum will be invested in reserve against that possibility. At the end of the reserve period, the sum will be added to whatever remains of the $40 million now set up for the Class Assistance Program, as described infra. Interest earned on the $10 million reserve will be regularly transferred to the Class Assistance Program for distribution through that Program, as the court determines. Any funds remaining after paying costs of administration of the entire settlement fund will be added to the Class Assistance Program. This remainder is currently estimated to be on the order of $2 million. Thus, a total of some $52 million plus interest, including the $10 million reserve, will ultimately be available for the Class Assistance Program. The court reserves the power to transfer any portion of these funds to the Payment Program. See Part II-A, supra. D. Attorneys’ Fees and Expenses The original total of allowed attorneys’ fees and expenses was $10,767,443.63 plus interest accrued since the final judgment on June 18, 1985. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1296, 1346 (E.D.N.Y.1985) (Memorandum and Order on Attorney Fees as Modified and Final Judgment), aff'd in part, rev’d in part, 818 F.2d 216 (2d Cir.1987), and 818 F.2d 226 (2d Cir.1987), cert. denied sub nom. Newton Schwartz v. Dean, - U.S. -, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). The court of appeals generally approved the fee awards listed at 611 F.Supp. 1344-46, with certain revisions: an adjustment of the division of the attorney fees and expenses among the members of the Plaintiffs Management Committee, and an adjustment of the fee of one fee claimant, Ashcraft & Gerel. As to the latter, the court of appeals eliminated the district court’s offset against Ashcraft & Gerel to reimburse the class for discovery materials used by the firm in assisting the claims of the opt-outs. See id., 818 F.2d at 238-39. The appeals have not appreciably increased the total fees awarded. Because of the elimination of the offset against Ashcraft & Gerel, the grand total of attorneys’ fees and expenses is now $10,906,-331.63, plus interest from June 18, 1985. The average rate of interest earned on the Agent Orange Settlement Fund is over 6.9%. To simplify computations, the clerk, in making payments to attorneys, shall add interest of 7% from June 18, 1985 (the date attorneys’ fees were finally ordered) until July 1, 1988. See 611 F.Supp. 1329, 1346. The total payable as attorneys fees and expenses with interest will therefore be approximately $13,225,000.00. Even at the time of determination of the attorney fee awards in 1985, the settlement fund had already earned over $15,000,000.00 in interest — more than enough to pay the total fees and expenses allowed without impairing the original fund of $180,000,000.00. See 611 F.Supp. 1296, 1301. Pursuant to the court’s order, any counsel receiving a fee is deemed to waive any private contractual right to a fee; if such a private fee was received it must be returned to the client before payment is sought. See 611 F.Supp. 1318. If the client cannot be located, compliance by paying the fee into the court for the Agent Orange Fund or deducting the fee from the request for payment from the clerk will suffice. Attorneys are also reminded that they must file with the clerk, at their own expense, any discovery materials in their possession before receiving their fee award. See 611 F.Supp. 1346. These materials should be suitably boxed and indexed so that they can conveniently be made part of the Agent Orange files to be available to the public in a depository chosen by the court. Materials not received in suitable form will be rejected by the Clerk of the Court. E. Division of Funds Summarizing these decisions, present funds are allocated as follows (rounded to the nearest million): Purpose Amounts Payment Program (Death and Permanent Total Disability) $170,000,000 Purpose Amounts Class Assistance Program $52,000,000 Australian and New Zealand Trusts 5,000,000 Attorneys’ Fees and Expenses with Interest 13,000,000 Total $240,000,000 III. PAYMENT PROGRAM The main features of the Payment Program, having been approved by the court of appeals, will be retained in their original form, except that the amount of money in the Payment Program will increase from its original planned sum in 1985. These features and the sums slated for disbursement are described at parts II-A and II-B, supra. This section describes the alterations and modifications to that program now adopted by the court. A. Inclusion of Opt-Out Claimants and Late Claimants Under the terms of the court of appeals’ affirmances, those plaintiffs who opted out of the class on the advice of counsel would be entitled to no recovery. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223 (E.D.N.Y.1985) (Opt-Out Opinion); 611 F.Supp. 1267 (E.D.N.Y.1985) (Lilley Opinion), aff'd, 818 F.2d 187 (2d Cir.1987) (approving grants of summary judgment against opt-out plaintiffs), cert. denied sub nom. Lombardi v. Dow, - U.S. -, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988). As of May 7, 1984, the date of the settlement, 2,440 requests for exclusion from the class had been received by the Clerk of the Court. See In re “Agent Orange” Product Liability Litigation, 597 F.Supp. 740, 756 (E.D.N.Y.1984). This is almost precisely one percent of the 244,162 timely filed claims. As noted in part II-D, supra, the opt-out plaintiffs’ attorneys will now receive substantial legal fees and expenses for work done on behalf of the class pursuant to the order of the court of appeals. See In re “Agent Orange” Product Liability Litigation, 818 F.2d 216 (2d Cir.1987) (rejecting attorneys’ fee sharing agreement), cert, denied sub nom. Newton Schwartz v. Dean, - U.S. -, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987); 818 F.2d 226 (2d Cir.1987) (approving district court’s award of attorneys’ fees), cert. denied sub nom. Newton Schwartz v. Dean, - U.S. -, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). Those attorneys have not moved to obtain benefits from the settlement for their clients. To protect these opt-out veterans, the court is now compelled to act on its own motion. In view of the special obligation of the court to veterans and their families, the court inquired of class members present at the May 26, 1987 hearing on implementation whether those who opted out should now “be permitted to opt in so they (or their families).can share equally with those who were their comrades-in-arms?” See Memorandum and Order dated April 23, 1987, No. MDL-381 (E.D.N.Y.1987). Unanimously, veterans, representatives of veterans’ organizations, and the veterans’ attorneys have answered this question in the affirmative. Equity requires that those who opted out of the class on the advice of counsel for the opt-outs be given the opportunity to be reinstated as members of the class. Inclusion of all the opt-out claimants would not result in any substantial dilution of the fund. Reinstatement now, while not required, is consonant with the court’s grants of requests for reinstatement which were received prior to the settlement, and is desirable in light of the fact that these plaintiffs have been barred from any recovery as a result of the advice of their attorneys and the rulings of the court of appeals which were unfavorable to them. See In re “Agent Orange” Product Liability Litigation, 818 F.2d 187 (2d Cir.1987). The court has previously indicated that it would consider sympathetically the numerous late applications to rejoin the class received after settlement and after the fairness hearings. See id., 597 F.Supp. 740, 756-57. The affirmances are dispositive of 287 appeals in cases brought by opt-out plaintiffs against whom summary judgment was granted. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223 (E.D.N.Y.1985); Lilley v. Dow Chemical Co., 611 F.Supp. 1267 (E.D.N.Y.1985), aff'd sub. nom. In re “Agent Orange” Product Liability Litigation, 818 F.2d 187 (2d Cir.1987), cert. denied sub nom. Lombardi v. Dow, - U.S. -, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988). The court of appeals affirmed the grants of summary judgment against the opt-outs on the grounds that: (1) the military contractor defense provides a shield from “liability for injuries caused by products ordered by the government for a distinctly military use;” and (2) “the chemical companies ... could not have breached a duty to inform the government of hazards” resulting from exposure to Agent Orange since “[ejven today, the weight of present scientific evidence does not establish that Agent Orange injured personnel in Vietnam, even with regard to chloraene and liver damage.” In re “Agent Orange” Product Liability Litigation, 818 F.2d 187, 190 (2d Cir.1987), cert. denied sub nom. Lombardi v. Dow, - U.S. -, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988). Some of the remaining opt-outs apparently have never filed suit; if they do, their cases will be governed by the unfavorable rulings of the affirmances. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1230 (E.D.N.Y.1985), aff'd, 818 F.2d 187, 189 (2d Cir.1987). Notice of this order shall be given by their attorneys to any opt-out plaintiffs they represent in order that they may consider whether they wish to submit requests for continued exclusion from the class. Requests for exclusion must be received by the court by January 1, 1989 (which is also, as indicated below, the deadline set for filing late claims). Failure to request exclusion in writing by January 1 will be deemed a request for reinstatement into the class — a request that will be deemed automatically granted. Late claims filed before January 1, 1989 will also be accepted for inclusion within the class of claimants against the settlement fund. The equities with regard to late claims compellingly favor inclusion. The late claimants are class members who were eligible to file their claims but did not do so until after this court’s May 28, 1985 order on distribution of the fund. Publicity concerning the court’s distribution opinion and the extensive appeals has generated thousands of inquiries to the court and is primarily responsible for the filing of approximately 3,500 late claims. As was the case with claimants who missed the original filing deadline, these individuals cite as common reasons for their failure to file timely claims that they were unaware: “(1) of the lawsuit or (2) of the need }to file a claim, or (3) of the deadline itself.” In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1417 (E.D.N.Y.1985). The court had already extended the deadline to include as timely “all claims filed by the date of this opinion,” id. at 1417 (extending deadline to May 28, 1985). As the court of appeals noted in one of the affirmances, a “district court overseeing settlement distribution has inherent power to accept late claims despite contrary terms of agreement.” In re “Agent Orange” Product Liability Litigation, 821 F.2d 139, 145 (2d Cir.1987) (citing Zients v. LaMorte, 459 F.2d 628, 629-30 (2d Cir.1972)). Since the settlement agreement here is not to the contrary, the issue is even simpler. “Until the fund created by the settlement is actually distributed, the court retains its traditional equity powers.” Zients v. LaMorte, 459 F.2d 628, 630 (2d Cir.1972). See also In re Gypsum Antitrust Cases, 565 F.2d 1123, 1128 (9th Cir.1977); In re Folding Carton Antitrust Litigation, 557 F.Supp. 1091, 1103-04 (N.D.Ill.1983), aff'd in pertinent part, 744 F.2d 1252 (7th Cir. 1984), cert. dismissed sub nom. G. Heilman Brewing Co., Inc. v. Folding Carton Administration Committee, 471 U.S. 1113, 106 S.Ct. 11, 86 L.Ed.2d 269 (1985); Seifer v. Topsy’s International, Inc., 70 F.R.D. 622, 625 n. 1 (D.Kan.1976). The filing deadline for veterans who later learn of adverse health effects previously unknown to them remains 120 days from the date of discovery of the disability. See, e.g., In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1401 (E.D.N.Y.1985), aff'd in relevant part, 818 F.2d 179 (2d Cir.1987). Similarly, the deadline for claims filed by the survivors of veterans who later die is 120 days from the date of death. See id., 611 F.Supp. at 1417. Thus the cutoff date for filing a claim will be January 1, 1989, or 120 days after death or discovery of disability, whichever is later. The cost to the fund of admitting late claimants and readmitting the opt-out claimants to the class action should be relatively small. No significant administrative costs need be incurred to allow the late claims and opt-out claims. The number of late claims and opt outs — approximately 3500 late claims to date and between 287 and 2440 opt-outs — is de minimis in relation to the roughly quarter of a million claims filed, though each claim is, of course, of considerable importance to the claimant. The late claims and opt-out claims will be subject to the same requirements for qualification for the Payment Program and participation in the projects funded by the Class Assistance Programs as the other claimants. It is anticipated that the same approximate percentage of the late claims and the opt-out claims will qualify for cash payments as is true of the timely filed claims. “[Allowing these ... claims would result in only a miniscule reduction in recovery by timely claimants.” Zients v. LaMorte, 459 F.2d 628, 630 (2d Cir.1972). There can, therefore, be little prejudice to the claimants whose claims were timely filed by admission of these claimants to the class for consideration on an equal footing. Moreover, since no payments have yet been made to any claimants, earlier estimates of possible payment amounts did not confer on the early claimants any right to those particular amounts. Figures previously cited by the court as statistical approximations of the possible payment schedules do not vest in any individual claimant, or in the class as a whole, anything more than a generalized and unquantified expectation of payment to qualifying class members. See In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1419, 1423 (E.D.N.Y.1985). The equities require that the qualifying late claimants and opt-out claimants be permitted to participate in the fund. B. Additions and Modifications 1. Exposure Criteria Exposure criteria must be chosen in order to meet the definition of the class and establish a claims procedure that compensates Vietnam veterans who probably were exposed to a herbicide in Vietnam. “Some substantial showing of exposure ... must be made to ensure that only class members who were exposed receive payment____ A presumption that all claimants were exposed is not workable [and] would be unfair to a truly exposed class member whose award otherwise would be higher.” In re “Agent Orange" Product Liability Litigation, 611 F.Supp. 1396, 1415 (E.D.N.Y.1985). Selecting appropriate criteria for determining exposure, however, is not a simple task. “The events in question occurred many years ago, and exposure through ingestion of water or food is a matter of considerable speculation. Nevertheless, given the nature of the scientific evidence, the character of exposure is a critical element.” In re “Agent Orange” Product Liability Litigation, 818 F.2d 145, 173 (2d Cir.1987). In addition, the scientific community has not reached a consensus on either the manner in which a veteran could have been exposed or the most appropriate way to assess exposure several years after the event. The court must choose a method of determining exposure which generates reliable and credible results at affordable cost. The court’s original distribution plan adopted, in part, a system in which computerized military records of the precise areas' sprayed with Agent Orange (the “HERBS” tapes) were combined with the claimant’s testimony on a claims questionnaire as to the veteran’s locations and dates in service. See 611 F.Supp. at 1415-17. Under this system, the veterans’ locations and times of service in Vietnam were compared to the spray dates and locations on the HERBS tapes to determine whether the veteran was located within a certain distance of the spray site either during or shortly after spraying. Both HERBS tapes — the tape recording aircraft spraying and the tape showing helicopter and backpack spraying —were employed in this procedure. This method has shortcomings. The “HERBS” computer tapes are estimated to account for 86% of herbicide use in Vietnam; some spray areas are omitted. See id. at 1416. Claimants’ own declarations about service in Vietnam may be inaccurate, or the information may be lost (particularly where the claim is made on behalf of a deceased veteran), or the information supplied may not be an acceptable basis for an award. The HERBS matching mechanism is also of uncertain value because scientists dispute whether various methods of determining exposure can accurately identify veterans with unusually high blood levels of dioxin, the toxin contained in Agent Orange. For example, the Centers for Disease Control (CDC) has recently concluded that the use of certain military records does not reliably identify veterans who were exposed to Agent Orange. See Centers for Disease Control, Comparison of Serum Levels of 2, 3, 7, 8 TCDD with Indirect Estimates of Agent Orange Exposure in Vietnam Veterans (Aug. 1987) (hereinafter “CDC Study”). The CDC Study compared the blood dioxin levels of veterans identified as having served in sprayed areas with the blood dioxin levels of veterans who did not serve in Vietnam. The veterans deemed to have served in sprayed areas were selected based on an analysis of military records. The CDC found that Vietnam veterans whose records indicated service in sprayed areas had no higher dioxin blood levels than do veterans who did not serve in Vietnam. The CDC also tested other individuals known to have been exposed directly to Agent Orange and did find high levels of dioxin. In reviewing the CDC study, the Office of Technology Assessment (“OTA”) (an independent Congressional research agency) concluded that “all the existing data support the fact that most ground troops in Vietnam did not have heavy Agent Orange exposure, and that those who might have would be exceptions.” See Office of Technology Assessment Staff Paper, Reviews of CDC’s “Comparison of Serum Levels of 2, 3, 7, 8, TCDD ...” and of “Proposed Protocol for the Women Vietnam Veterans Health Study,” Special Projects Office of the Health Program, OTA (Sept. 1987), at 9 (emphasis removed). In contrast, other researchers have concluded that blood tests for dioxin can be used to identify with accuracy those exposed to Agent Orange. See P. Kahn, Dioxins in Dibenzofurans in Blood and Adipose Tissue of Agent Orange-Exposed Vietnam Veterans and Matched Controls, 259 J.Am. Medical Ass’n 1661 (1988). Still others believe that anyone who served in Vietnam could have been exposed, either by direct contact or ingestion of contaminated food or water. These exposure studies have shortcomings. They demonstrate the great difficulty of identifying exposed individuals some twenty years after the fact. They furnish one more reason for concluding that in almost no instance can causation of any disease be traced to Agent Orange exposure, at least based on present data. Since, however, distribution under the settlement agreement must proceed under the hypothesis that there is such a connection, some form of exposure requirement for eligibility is mandated. The court must act as if possible exposure to Agent Orange were equivalent to the absorption of a significant amount of dioxin and as if this absorption caused the veteran’s death or disability. The use of a questionnaire matched against the HERBS spray area data remains the most comprehensive mechanism for judging probable exposure to Agent Orange at moderate cost. This exposure evaluation system is most accurately described as a probability analysis. The test is not intended to prove, by a preponderance of the evidence, that certain individuals were or were not exposed. Rather, the test is intended to distinguish those most likely to have been exposed from those less likely to have been exposed. At the least, it will help distinguish those who might have been exposed from those who could not have been exposed, even if those exposed received no, or only insignificant, doses. This mechanism will be employed by the Claims Administrator in screening claims, using the method described in this court’s earlier opinion, see 611 F.Supp. at 1415-17. Claimants' questionnaires will be compared to the HERBS tapes to determine location, date and duration of presence in a sprayed area. Both the tapes for aircraft spraying and the tapes for helicopter and backpack spraying will be used in this matching procedure. Additional written evidence, as by affidavit of eyewitness observers, will also be accepted, unless military records clearly contradict this evidence. As initially ordered, exposure will be extrapolated from location and timing without further consideration of the actual intensity of contact with Agent Orange. Some evidence does suggest that the intensity of contact may be related to the severity of injury. See New Doubts Raised on Agent Orange, N.Y. Times, Mar. 23, 1988, at A19, col. 1 (reporting that revisions of 1984 Air Force “Ranch Hand” study, taking account of “greater exposure” among “sloppier” handlers, show reduced confidence in original conclusion that Agent Orange could be “exonerated” as cause of various health problems). But this evidence is weak and imprecise, affording little basis for any realistic calibration of exposure level to compensation level. Moreover, linking compensation to intensity of exposure would require substantially greater expense in administering the Payment Program, and substantial costs to claimants in attempting to prove intense contact. These costs would be borne at little benefit to most claimants because only showings of intense exposure could support larger awards. Beyond the data culled from the HERBS tapes, therefore, intensity of exposure will not be considered in any payment decisions. Pursuant to order of the court, Special Master Feinberg has entered into an Exposure Consultation Agreement with Dr. Jeanne Stellman of Columbia University and Dr. Steven Stellman, two acknowledged experts in the field. They will assist the Claims Administrator and the Special Master for Appeals. In particular, they will help prepare the claim questionnaire and the computerized index for matching locations and dates of service to the locations and dates of Agent Orange spraying. They will also prepare an index of locations of military units to assist claimants in providing information regarding the veterans’ geographic zones of service. Since the HERBS tapes are not perfect, and because equity requires a fair and compassionate claims procedure, other methods of proof must be available to claimants. Tests have been developed which measure the the presence of dioxin in the body. These tests show dioxin levels in fat tissues or in blood cells. Because dioxin is found in Agent Orange, presence of high levels of dioxin in the body — “substantially” higher than the background level of dioxin in those not exposed to Agent Orange — may indicate past exposure to Agent Orange. See, e.g., CDC Study, supra (exposed Ranch Hand subjects show higher dioxin levels); In re “Agent Orange” Product Liability Litigation, Public Hearing held May 26, 1987, Transcript of Proceedings at 7-38 (Testimony of Allen Falk, Dr. Peter Kahn, Charles Pace, et al. regarding New Jersey testing programs); 79-88 (Testimony of Joseph Bangert regarding Massachusetts testing programs); 144-54 (Testimony of Victor Yannacone, Jr. regarding value of non-HERBS test methods). The court declines to adopt either the fat test or the blood test as the basic indicator of exposure because both are uncertain and expensive. Mandating these tests for all claimants would consume a large portion of the settlement fund. In addition, the tests are physically intrusive, and would burden many claimants with unpleasant medical examinations were the court to order such tests for all claims. Moreover, the fat and blood tests are useless for most deceased veterans’ claims. Nevertheless, claimants who wish to do so may submit results of either test to the Claims Administrator, who will weigh the evidence carefully and objectively, in accordance with the court’s guidance. A certificate from a recognized laboratory or doctor stating the measured level of dioxin in the claimant and the method by which that level was estimated may be submitted to the Claims Administrator. Dr. Jeanne Stellman and Dr. Steven Stellman will assist in identifying a benchmark “normal background level” to which the claimant’s measured level will be compared. Credible measured levels significantly higher than the benchmark level will be presumptive evidence of exposure. A claimant relying on these tests must also submit evidence that the veteran was in Vietnam and could have come in contact with Agent Orange. Such evidence could include military records, letters sent home during the war which indicate the veteran’s location or mention herbicide spraying, corroborative testimony of fellow veterans, and the like. In addition, any claimant, regardless of what information was initially presented to the Claims Administrator, may submit such test results to the Special Master for Appeals on appeal of a denial of payments by the Claims Administrator. The costs of any such testing must be borne by the claimant. Finally, persuasive proof of direct exposures by persons who sprayed Agent Orange or loaded it or were otherwise in direct contact with it will be accepted. Proof by affidavit, or other persuasive forms of proof will suffice. 2. Length The length of the payment program will remain as originally proposed, unless the court terminates it earlier because of lack of funds or extends it because of an excess of funds. It is now estimated to proceed as follows: The payment program will run for ten years, beginning January 1, 1985 and ending December 31, 1994. No payment will be made for death or disability occurring after December 31, 1994. Payment will be made for compensable deaths occurring both before and after January 1, 1985. Payments will be made for compensable disability to the extent that the period of disability falls within the ten years of the program’s operation. In addition, initial claimants will receive a premium to account for each year the veteran was disabled in the past, up to a total of 15 years. In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1396, 1417 (E.D.N.Y.1985). Because of the delay during appeals, payments will actually commence around the