13 July 2014

C-123 Agent Orange Exposures = "No scientific or public health basis for excluding from presumptive service connection.." (VA Official)

The question about non-Vietnam Agent Orange exposures did not come as a new one to the Fourth Program on Science for Judges, hosted by the Brooklyn Law School in November 2004. This came after contamination of the C-123 fleet was known to USAF officials and after concerns had been surfaced about the necessary elimination of the toxic airplanes. The program was presented, however, without specific concerns for C-123 exposure issues as these were topics yet to raise concerns among the affected veterans.

Dr. Mark Brown served at that time as VA's Director of Environmental Agents Service, and presented this paper at the Law for Judges forum. Dr. Brown's treatment of non-Vietnam exposures in his Part II "VA Approach to Disability Compensation for Vietnam Veterans" is extremely important – there, too, VA restates its duty to care for exposures other than the "boots on the ground" cohort, and to recognize their exposures are granted service connection. See page 64:
"There is no obvious scientific or public health basis for
excluding these non-Vietnam War veterans from the presumptive
service connection offered to Vietnam veterans. Nevertheless, the
Agent Orange Act does not reference these veterans. To partially
address this apparent inequity, the VA has established the general
policy that when a non-Vietnam veteran is diagnosed with one of
the presumptively service-connected Agent Orange illnesses and
the veteran can provide evidence of exposure to Agent Orange,
then he can be granted service connection through a sort of
modified direct service connection route."
Reading Dr. Brown's explanation delivered to the Brooklyn judges conference in 2004, it is clear that although no new laws have evolved, and although VA restated for a second time (April 16 2008) and a third time (August 1, 2010) in even stronger language that exposed non-Vietnam veterans would be treated with presumptive service connection, VA has more recently forced a sea change in such duties to veterans.

No efforts were described by VA regarding exposure other than measuring degrees of association with illnesses, in particular positive, negative or limited ("suggested") associations, frequency of exposures, exposures to different hazards, and similar peripheral references.

At no point in VA materials can we find a redefinition of "exposure" prior to the 2012 Society of Toxicology (SOT) poster from Post Deployment Staff titled "Agent Orange 50 Year History" in which exposure was redefined to be "exposure = contamination field + bioavailability." The poster was not subjected to peer review and no mention was made of the VA redefinition of exposure in the Abstract when the poster was accepted by the SOT.  The VA poster was subsequently challenged on scientific and ethical grounds by C-123 veterans.

An exhaustive review of publications from the Institute of Medicine Agent Orange committees fails to reveal any redefinition by VA or the IOM itself of the concept of exposure. One must agree, therefore, both agencies were proceeding during these studies utilizing the commonly understood and universally accepted definition, "tissue contact with a chemical (of an kind) or its ingestion or inhalation," At no point is bioavailability treated except as an element of risk assessment, not exposure.

Until SOT 2012. And at that point, unique with VA and by VHA Post Deployment Health (previously termed, "Environmental Agencies Service." Asking VA scientists today will still evoke a definition inline with ATSDR or other authorities, and an answer not to include "bioavailability" or "medical nexus" as a requirement for the event of exposure.

Our literature review of IOM materials, VA directives and other publications, and witness testimony by VA executives, of the Secretary's March 2001 directive to offer the Agent Orange Registry exam to any veteran expressing belief he/she had been exposed...a directive reversed in 2012 by Post Deployment Health staff which excluded C-123 veterans in particular.

The "Vietnam Veterans and Agent Orange Independent Study Course, (June 2008 Update,) to which Dr. Brown contributed, is very comprehensive. And without the words "bioavailability," or any other redefinition of exposure appearing.

Conclusion: As soon as C-123 exposure claims surfaced, the VHA's Post Deployment Health section immediately fielded their negative response, which which soon developed to include their departmental redefinition of "exposure" to incorporate bioavailability. This way, VBA determined, all C-123 claims for a decade of exposure were best denied. By blending the legal requirement that veterans prove exposure with the scientifically impossible requirement that they also prove bioavailability, VHA assured itself of a workable barrier to all C-123 Agent Orange exposure claims.

Job well done, Post Deployment Health! Although it certainly abused the veterans of any hopes that VA would find a way to treat veterans, rather than construct barriers against even entering VA hospitals. Job well done, it seems, except in meeting your responsibility for patient care.

VA broke the faith...and was not veteran-friendly, pro-veteran, or non-adversarial.

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