13 April 2013

VA:"Bioavailability Equals Exposure" --- VA's Terribly Wrong Approach!


You'll have to follow me on this. We're going to expose together a twisted piece of bureaucratic double-think which the VA has developed against us. It all dawned on me as an epiphany an hour ago exactly what the nice folks back at VA's Health Benefits Administration are trying to pull (I was driving home from a week's "tune-up" at the Seattle Spinal Cord Injury Clinic run by the VA...fantastic people and fantastic facility and a perfectly focused health care delivery program. VA did it right!)

Veterans Health Benefits Administration has introduced a sly, wrong-headed new slant on our Agent Orange exposure, telling us that "bioavailability" is now a required element of proving exposure. No bioavailability...some proven impact on the body caused by whatever  it encounters...equals no exposure. Bioavailability is the fraction of a toxin (or other element) absorbed by the body.

Now, that makes some sense to a physician trying to figure out how to treat a patient exposed to a toxic element, but it makes no sense in the world of administering VA medical care and benefits due Agent Orange-exposed veterans. Long ago, Congress grew frustrated at the VA's stonewalling veterans worried about Agent Orange illnesses and took the VA's discretionary power away, telling them to work with the Institute of Medicine and identify illnesses which seemed to be associated with dioxin exposure. Illnesses such as soft tissue sarcoma and prostate cancer were identified and a list of "presumptive illnesses" was established. No longer did a veteran have to find  a wealth of evidence to put forward to a VA rating officer to convince the VA to recognize one of those illnesses as service connected. Further, Congress told the VA to recognize every veteran with "boots on the ground" in Vietnam as having "presumptive eligibility" to be able to put the string together: Vietnam service equals eligibility for service connection for any of the presumptive illnesses. 

Congress also left the door open for more diseases to be recognized by the VA and by the IOM and added to the list, and made clear that individual veterans could still make a case for diseases not on the presumptive list to be considered...individually...for service connection. Congress also recognized the VA's position as stated in the Federal Register of 8 May 2001 (page 21663), where the VA explained veterans exposed to herbicides other than on the ground during the Vietnam War would be treated the same as "boots on the ground" Vietnam War veterans. This means such veterans would not have to prove medical nexus for their illnesses if those illnesses were on the presumptive illness list.

And that's where The C-123 Veterans Association is impacted. In 2011 Paul Bailey and Wes Carter (that would be moi) joined by other Westover veterans, uncovered the toxic track record of C-123 Agent Orange contamination and on presenting it to the VA and USAF expected our exposure to be recognized and service connection awarded.WRONG! We immediately butted right up against the VA's kne-jerk position of "You were not exposed to (fill in the herbicide) when (fill in the situation and date) because (we'll figure out something later). Claim denied. Thank you for your service."

Lesson learned...VA automatically denies, denies and denies, doing to C-123 veterans as they did to Vietnam veterans decades ago. Faced with tests and opinions from other federal agencies such as the CDC making it impossible to say there was no contamination, VA shifted their position to one of no exposure. Ah...but then veterans showered the VA with outside experts' findings that they were exposed, In response, besides denying the expertise of the world-leading scientists and physicians who confirmed our exposure (grouped as unacceptable "lay evidence" by the Manchester NH VA) VA's clever folks then really focused on denying exposure via redefinition of that very word, publishing their conclusion that we'd suffered no bioavailability to dry dioxin transfer to the skin, dermal absorption being one of the three routes of toxin exposure. Well, even according to their own VA Post Deployment publications, dioxin transfer via dermal exposure is quite likely, plus we had inhalation via the dust particles to which dioxin readily binds itself. Sorry...I forgot that even VA publications are not admissible unless supportive of whatever the contemporary VA perspective might be...their choice, depends on what claims they need to deny at the moment.

Enter bioavailability. VA now insists that C-123 vets had no exposure because we have no proof of bioavailability. But what should be seen here is VA's twisted evasion of the requirements of the 1991 Agent Orange Act, Title 38, Sections 3.07, 3.08, 3.8.1, and the Federal Register of 8 May 2001. Congress told the VA to stop horsing around and recognize the list of Agent Orange presumptive illnesses if a veteran had been exposed and stop insisting on the vet developing a medical nexus.

We flew a contaminated airplane. We were exposed. And by the VA now insisting on no bioavailability and forcing us to prove there was, they have gone back to demanding that herbicide-exposed veterans establish medical nexus by their bureaucratic ruling that no such bioavailability existed for "our" dioxin on our C-123s.

That's all it is. Bioavailability equals medical nexus. VA introducing bioavailability into the equation is their attempt to seize back control over medical nexus requirements. Got it? If not, read these two paragraphs again, and Google both terms for extra convincing. VA has tried to back-pedal three decades and force veterans to prove medical nexus.

And that's not legal. And that has very recently captured the attention of several senators and congressional representatives, now aware of the sly maneuvering by Health Benefits Administration. Obviously our C-123 cases reaching the BVA have been successful for those veterans, but our appeal to all is that regional rating officers weigh fairly a C-123 veteran's claim for exposure and accept that proof of service aboard these toxic warplanes constitutes herbicide exposure and thus meets the legal requirement for awarding service connection.

Every C-123 veteran should be as blessed as I was this week, surrounded by talented clinicians and support staff, extra-wonderful folks dedicated to making sure this veteran, and all the wheel guys at Seattle SCI clinic, received world-class medical attention. And respect. And affection.

We should all be so lucky. And I believe, we are all so qualified. Get with it, VA!

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