Found: Third Federal Register Statement from VA "Assuring" C-123 Exposure Rights

One of the pivotal changes in VA policy towards Vietnam Veterans was the 2008 Haas Decision. The proposed rule changes announced in the Federal Register for Hass also included another statement from VA addressing non-Vietnam exposures. Previously, VA had made the same statement on 8 May 2001 (page 23166) and VA was to make one also on 31 August 2010, each time along with fundamental changes in VA Agent Orange ruled. We say deceptive because VA then disregarded their obligations.

But each time there was no change in non-Vietnam exposures: any veteran with proof of Agent Orange exposure was to be treated with the same presumptive service connection as a Vietnam War "boot on the ground" veteran. So we should think the commitment, thrice-stated along with treatment of major changes in other VA Agent Orange issues, would be clear enough to all.

But no. Even after three repetitions, three assurances to Congress and the public that no further legislation was needed to insure VA would protect non-Vietnam War exposed veterans, VA has opted to reinvent the singular word "exposure," the core of each of these three Federal Register promises, to prevent any exposure claims.

The veterans were not exposed, according to the 2012 redefinition of exposure by the VA. "Exposure = contamination field + bioavailability." No bioavailability means no exposure claim approval, VA's basic goal regarding C-123 exposures.

And while we can establish our Agent Orange C-123 contamination, we cannot prove bioavailability these many decades later. We might have been able to do so back in 1982, but not decades later. Besides, VA forbids that test in the Agent Orange Registry exam, so the net result is they say we were not exposed and won't give us the test to determine exposure, so they conclude we weren't exposed. Weird, but their objective is to prevent claims so that's what they do.

Other parts of this Federal Register posting address Blue Water Sailors seeking Agent Orange exposure benefits. VA informs Congress that (from 16 Apr 2008, page 20569)

This action would not result in a finding or presumption that veterans who served on ships were not exposed to herbicides; it would merely clarify that such veterans are not automatically presumed to have been exposed and that the issue of exposure must be resolved on a case-by-case basis to the same extent as most other factual issues involved in claims for VA benefits.

This is the source for VA's insertion in C-123 claims that we are to be considered on a case by case basis, with examination of the factual issues. But in fact, that restriction to a case by case basis is mentioned only in context for claims of ship-board exposures, and does not relate to C-123 exposure situations. Thus, C-123 claims can be considered as a general situation, not requiring each claim's individual scrutiny past fundamental facts of veterans' honorable service, veteran's recognized Agent Orange disease, and veteran's proven exposure. 

In other words...presumptive service connection.

Here's the language protecting non-Vietnam herbicide exposures, so familiar to us after three years of quoting it to VA authorities and three years of frustration as VA ignores their own rules:

Veterans could establish service connection for herbicide-related
conditions by submission of evidence establishing exposure to
herbicides during service, just as they always could. If a veteran is
eligible for that presumption, then, as a result, VA will not further
scrutinize that veteran's claim on the issue of exposure.

We also note that a veteran who does not meet the requirements of
Sec. 3.307(a)(6)(iii) for application of the presumption of service
connection based on service in Vietnam may establish direct service
connection under Sec. 3.307(a)(6) and Sec. 3.309(e) based on
herbicide exposure if the veteran can establish that he or she was
actually exposed to herbicides in service. Section 3.307(a)(6)(iii)
only defines when the presumption of exposure to herbicide agents will apply. Additionally, as part of its duty to assist, VA will assist a claimant in obtaining any relevant evidence related to a claim forexposure to herbicide agents.

But VA cheats A lot. They deny exposure using their unique redefinition of exposure, they prevent tests for exposure, they wait forty years to address this issue in any way, they give IOM a charge which has nothing to do with the law's singular requirement of proof of exposure for presumptive service connection. And they, icing on the cake, they deny claims on the basis that no harm has been shown to be caused by exposure to TCDD, the toxin in Agent Orange.

In countless Federal Register postings, in hundreds of Board of Veterans Appeals citations, in CAVC citations, the standard language used is, "Agent Orange is carcinogenic, a fact that VA does not dispute."

But they do dispute it. They stop it into the ground and bury that acknowledgement by actually ordering claims for Agent Orange exposure denied because TCDD (the toxin in Agent Orange) "hasn't been shown to cause adverse effects."

Perhaps there's a misunderstanding here. Is VA stating that carcinogenic is not harmful? It seems bad to be exposed to something which causes cancer, as does Agent Orange. That's not harmful?
Oh, we forget: VA redefined exposure so that we were magically not exposed after all, and today we can pretend, with the VA, that the "heavily contaminated" and "a danger to public health" C-123s we flew for a decade were not harmful, and caused no adverse health effects."

Unfortunately, VA's redefinition doesn't carry much weight with my VA oncologist/urologist who already agreed my Agent Orange exposure was, more likely than not, the source of my prostate cancer.

Another unusual point: always before contamination equals exposure. No qualification necessary as to how much or any other measurement. Why now, this new and illogical standard, being fought to the death (ours, not theirs) by VA staff? Why don't they feel constrained, or even guided, by the law?