12 July 2014

The Federal Register: The VA "Exposure" and "Medical Nexus" Scam

The Federal Register is pretty important. It is one of the final "wheels hit the road" elements of a law. When a federal agency such as Social Security or Veterans Affairs promulgates a rule or interpretation of a law, their publication in the Federal Register makes it so. When the VA does it, they either add, change or take away some rule, regulation, portion of laws affecting veterans, or sometimes simply make clear a point of confusion. When VA publishes in the Federal Register, it should mean something important but too often, it means only confusion at their end about how to skate the system.

A Federal Register publication is pretty important. It makes documents it cites admissible in court with evidentiary status. It describes the authority of the agency to do something and how that authority stems from Congress. Because the public can comment when proposed changes are first published in the Federal Register, it is an important part of American participatory democracy – a citizen gets his/her right to address anything being announced, challenge or support.

For the concerns of C-123 veterans, the Federal Register is foundational in our right to VA medical care. The VA has at least three times detailed to Congress and the American people how it will treat Agent Orange exposures to post-Vietnam veterans like us. Three times the VA went to the Federal Register to announce fundamental changes in veterans' exposure issues, such as adding diabetes, heart disease or other major changes, and in those very profound changes to the VA system they repeated the key fact:
VA will treat non-Vietnam veterans with proven Agent Orange (military herbicide) exposures the same as Vietnam veterans, with presumptive eligibility for Agent Orange-associated illnesses. There is no burden of providing medical nexus. Veterans claiming Agent Orange benefits for illnesses not recognized by the Secretary as associated with Agent Orange may submit claims but must establish proof positive of exposure and also of medical nexus.
These are very important parts of implementing laws and arranging how agencies and citizens come together on those laws. But these are also postings which VA ignores, by taking the simple step of redefining exposure within the VA to a unique "exposure = contamination + bioavailability."

There VA illegally reintroduces the prohibited test of medical nexus. It is just the same standard as before Congress took it away from them in 1991 when it created the group of presumptive eligibility "boots on the ground". Their standard of proof was boots on the ground, and exposure was assumed. VA when asked about non-Vietnam vets' exposure announced that that same presumptive eligibility applied so long as there was proof of exposure, which was assumed for the Vietnam vets.

So neither group must prove medical nexus:
• Vietnam vets were presumed exposed with their boots on the ground and their exposure was granted
• Non-Vietnam vets were presumed exposed so long as their exposure was proved

But VA games the system once again. Exposure is commonly defined as contact by the skin or eyes (or ingestion or inhalation) of a toxin (of any type). VA in their redefinition (found only in a few Advisory Opinions, Society of Toxicology posters, etc.) puts back into the word "medical nexus" which Congress had taken out in 1991.

They simply change exposure by pretending "bioavailability" is part of the word, because bioavailability is pretty much the same as "medical nexus." It is kind of like mother forbidding chocolate cookies because you eat too many at once, so you switch labels on the box and now you are eating the same cookes labeled Ritz crackers. Mom's gonna catch that deception...but nobody seems to have caught the VA's deception used to order our sick aircrews and maintenance guys out of their hospitals when we seek care for our Agent Orange illnesses.


Medical nexus is not part of any exposed veterans' claim for Agent Orange illness unless claiming an illness not associated by the Institute of Medicine or the Secretary. Bioavailability is not part of the law nor in medical nexus postings, but is part of VA's 2012 and later definition of exposure.

Why the redefinition of exposure? VA had to "draw the line somewhere" on exposure claims, so Post Deployment Health was charged by Veterans Health Administration with developing some scheme, legal or not (its not) to stop the hordes of sick veterans trying to get into VA hospitals.

Post Deployment Health, Dr. Michael Peterson and staff, did this by grasping the fundamental problem of medical nexus being taken away from VA as a key to let medical nexus back into play against veterans. Simply put – don't call it medical nexus. Call it – exposure. Clever!!!

Exposure is in the law. So VA Office of Public Health can reinsert the medical nexus barrier the law took from them by putting "exposure and "medical nexus" into a linguistic blender so that out comes one word...exposure...meaning both.

With the new exposure, VA returns with a French 75 in their tool belt instead of a mere #2 black pencil for denying claims. No veteran can prove medical nexus of an exposure event decades ago, but just in case, VA prohibits testing for that. VA also prevents C-123 veterans from even taking the Agent Orange Registry exam because they'd already ruled no exposures were possible.

We have seen and will continue to be seen VA challenges to our claims.They will continue to argue we've had no exposure to Agent Orange aboard our C-123s because there can't be any proof in 2013 about exposures in 1972. Actually, there is perfect proof: we were aboard Patches and the other former spray birds, so we were exposed per the definition Congress and the VA in the Federal Register set as a qualifier.

VA says we were not exposed because there can be no test for bioavailability (medical nexus) these decades later, therefore "we were not exposed."

VA's apologists bring in their old Ranch Hand data and compare our heath stats to those vets. Ranch Hand guys seem pretty average in health at their ages. The failure in that logic is that it has nothing to do with the law. The law says if exposed you'll be treated, and it does not say no treatment because the Ranch Hand cohort isn't ill. Ranch Hand info isn't in the law, but VA uses it cleverly to weave the theme that C-123 vets must be denied benefits because Ranch Hand vets seem to be in okay health.

The VA consultant on Agent Orange is beloved by the VA for being able to produce his papers against C-123 exposures under his $300,000 per year contract with the VA and include twists and turns in the history. He always skips the part where in 2009 he, as Consultant to the Office of Secretary of Defense recommended the immediate destruction of the C-123s with no further testing. He reminded base safety officials it would be a safe operation because the dioxin had degraded to insignificant levels after those decades in the desert. He also skips the part where he reminded the Air Force leaders the exposed C-123 veterans might apply for Agent Orange benefits if they learn of the contamination, so he helped craft a press release avoiding words too likely to get attention: Struck from the early draft were words like Agent Orange, dioxin, TCDD, poison, etc, and instead these became "aged Vietnam-era airplanes recycled in an environmentally responsible manner."

VA didn't walk away from this completely unscathed. Other federal agencies responded with their own, more acceptable definitions of exposure. VA was reminded that it does not have regulatory authority in such toxicological issues, yet they continue to use it. The NIH/National Toxicology Program published their definition of exposure to insure it challenged VA head-on, when the Director herself wrote,"In all my years as a toxicologist, I have never heard the term bioavailability as part of the exposure field. Exposure is contact with a chemical (of any type) and the outer boundary of an organism."

Bioavailability flows from exposure. There is no requirement for bioavailability as part of exposure, and in many exposure situations after time bioavailability may no longer be proven. There. Bioavailability, or medical nexus, cannot occur without initial exposure. These are separate toxicological events, and Congress has spoken:

Agent Orange exposed veterans will be treated as presumptively exposed for Agent Orange illnesses. That's the law. Now.

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