VA Bars C-123 Veterans Agent Orange Claims - By Redefining Science

PART TWO: The Grand Deception

You see the VA's trick, don't you? They took the standard interpretation of "exposure" and redefined it. They added the requirement that exposure to the toxin dioxin in Agent Orange be linked to specific reactions in the bodies of the C-123 veterans. "Exposure = contamination field + biological availability." But it turns out  this is a completely false, illogical, and unscientific definition challenged by other agencies such as the CDC...agencies with the statutory authority and scientific expertise to make such determinations. 

That is a blatant rebuilding of the medical nexus barrier used by VA against Vietnam veterans to prevent their decades of exposure claims. Congress, reacting to the amazing bad faith exhibited by VA towards veterans (actually, in not responding!) passed the 1991 Agent Orange Act. This obliged the Secretary of Veterans Affairs to utilize the National Academy of Sciences and its prestigious Institute of Medicine to evaluate Agent Orange exposures and resultant illnesses.

Medical nexus was completely eliminated as a requirement for a veteran's claim. The law obliged the VA to treat all veterans with "boots on the ground" during Vietnam as a "presumptive eligibility" cohort. If you were in-country, you were covered. Covered, eventually for nearly 20 illnesses and diseases which the IOM and VA agreed to associate with Agent Orange exposure. Diabetes, prostate cancer and other illnesses could be treated for any veteran with proof of boots on the ground.

But the laws went further. Congress made it clear that exposure to Agent Orange and other "military herbicides" was hazardous in and of itself, and Title 38 explicitly requires VA to treat all veterans with proof of military herbicide exposure if those veterans are diagnosed with one of the Agent Orange presumptive illnesses. Of course, should a veteran claim a disease not on the IOM list, proof of medical nexus could be required in such situations...and only in those situations.

Just to be quite clear about it, VA was formally asked by Congress and the public just how such veterans would be treated. On 8 May 2001 the Federal Register, on page 23166, repeated the VA's answer that all veterans with Agent Orange exposure would be treated the same as boots on the ground Vietnam War veterans, as far as Agent Orange illnesses were concerned.

Fast forward to the C-123 veterans discovering their aircraft contamination after the FOIA-forced released Air Force documents showing the warplanes "heavily contaminated on all test surfaces" and "a danger to public health," as read the Air Force toxicologists' reports. The veterans sought VA care–and this is what the Department of Veterans Affairs Post Deployment Health section was ordered to prevent!

C-123 veterans had little difficulty establishing their exposure to Agent Orange, given the decades of military testing documents and correspondence about "the Agent Orange airplanes" and the fact that the remaining warplanes were destroyed as toxic waste. C-123 veterans had little difficulty establishing their Agent Orange illnesses with physicians' diagnosis in-hand as they turned to the VA. Relying on law and the Federal Register verbiage, veterans knew that proof of exposure plus proof of Agent Orange illnesses should result in a VA recognition of service-connection and thus access to VA medical care.

C-123 veterans, however, were unaware at the time of the resolution inside VA offices that Agent Orange claims be prevented from any veterans other than the Vietnam War vets already covered. Prevented by any means possible, And the bright idea of redefining "exposure" in a way to prevent claims was born. We can just imagine the meeting where VA staff congratulated themselves on the strategy – to pretend that exposure doesn't mean exposure.

But what does it mean? According to the CDC/Agency for Toxic Substances and Disease Registry, the EPA, the National Institutes of Health and other federal agencies as well as civilian authorities, "exposure" means the contact between the skin and a contaminant. Or, ingesting or inhaling the contaminant. Thus, one is exposed by simple skin contact in the case of C-123 veterans having a decade of such service aboard toxic Agent Orange spray aircraft. But VA set out to redefine the word to mean only what VA wanted it to mean so that the law's requirements could be ignored.

Clever VA staffers utilized the Society of Toxicology conference to introduce their sly scheme to prevent C-123 veterans' claims. Because poster displays are invited and not subjected to the same rigorous scientific challenges as medical and scientific articles in professional journals,  it was decided to simply submit a poster display at the SOT gathering and then flood the Internet with references to it as through it was some sort of scientifically established proof. And without challenge from the SOT or other scientists and physicians, it pretty much was allowed to condemn C-123 veterans' claims.

No veteran exposed to an herbicide can specifically prove the illness suffered is tied to the herbicide. There can only be the "likelihood" or "demonstrated possibility" of such an association. The VA hid behind this for decades in their mission of denying benefits, but medical nexus was lifted from the veterans' burden of proof through the Agent Orange Law and Title 38.

Enter the bright folks from Post-Deployment Health. Dedicated, professional, mission-oriented scientists and physicians, charged with preventing veterans' Agent Orange claims and both eater and tireless in meeting meeting their responsibilities. Their approach? Redefine, at least within the VA, the word exposure. Pretend that VA has the scientific authority to change the meaning of a word in order to then use it to prevent successful claims.

With the vehicle being their SOT poster display, which wasn't juried or subjected to critical review by other physicians and scientists, the folks from Post-Deployment Health inserted medical nexus into the VA requirement for recognition of exposure. They said no exposure existed except in cases where the veteran proved subsequent bioavailability, or the impact somehow of the toxin on the veteran's health.

Clever! And it took a great while for the veterans so catch on. Our visit with Veterans Benefits Administration's Compensation and Pension Services had one result being the recommendation to speak with the Deputy Director of the Post-Deployment Health section of the Veterans Health Administration. VHA kindly explained the requirement now in place at the VA that exposure isn't recognized unless also supported with proven bioavailability...thus the reintroduction of medical nexus as a claims barrier despite the law. VHA further explained that by that definition no veterans of the Vietnam War were exposed, except perhaps some of the Operation Ranch Hand flyers. And certainly not, any of the C-123 veterans!

The C-123 Veterans Association sought out opinions from experts in other federal agencies and in civilian institutions. All disagreed with the VA's redefinition of exposure, and all reaffirmed that exposure is the simple contact between skin and toxin. Authorities from CDC/ATSDR, NIH and others all agreed that the VA had improperly redefined the word to its own policy objectives.

Requests for review of the VA's poster display by the Society of Toxicology were ignored, even when routed through previous SOT leadership.