VA Designs Institute of Medicine C-123 Study to Prevent Exposure Claims

Skillful folks, the staff at VA Post Deployment Health. And they're not there to let any more veterans onto the Agent Orange disability lists! As they told the Associated Press, "We have to draw the line somewhere."

But three years of their policy of simply telling us "no" began to face some opposition in early 2014 with publication in Environmental Research of the article, "Post Vietnam Military Herbicide Exposures in C-123 Spray Aircraft." While VA could, and would prefer to, ignore that and all other evidence of veterans' exposures, at about the same time Yale Law School released a detailed white paper confirming the C-123 veterans' rights to presumptive service connection for Agent Orange exposures.

Together, these developments added to political suggestions that VA pretend, at least, to follow the law. After all, VA had repeated three times via the Federal Register their commitment to treat non-Vietnam Agent Orange exposures the same as vets exposed in Vietnam. Those repeated commitments needed to be skirted somehow, which VA has successfully done by having reinvented the basic word, "exposure." Simply put, VA decided to redefine the word to include bioavailability, or the proven impact of Agent Orange on the body. Perfect solution...just change the words around so that nobody exposed to anything qualifies for any exposure claims. With Agent Orange, many decades after exposure, the bioavailability of dioxin is impossible for us to prove...and VA even prohibits the test anyway.

But VA had continuing pressure to comply with the 1991 Agent Orange Act, which is to refer fundamental disputes or inquiries about Agent Orange to the Institute of Medicine. Here VA excelled! They complied, yet insured that the IOM process will defeat veteran's exposure claims.

VA gets to make up the ground rules in this game. One is that VA issues a "charge," or assignment, to the IOM to investigate. Since the only question under the law regarding non-Vietnam exposures is exposure, the VA skillfully avoided tasking the IOM with deciding whether we'd been exposed. Instead, VA asked IOM to address fairly irrelevant issues, of interest of course, but irrelevant in terms of whether VA should be treating our Agent Orange illnesses.

Here's their "charge" to the IOM which is currently investigating C-123 issues:

This committee will determine whether there is an excess risk of adverse health among crew members who, after the Vietnam War ended in 1975, flew and/or maintained C-123 aircraft that had been used to spray Agent Orange in Vietnam. The committee will: 

• Evaluate the reliability (including representativeness, consistency, methods used) of the available information for establishing exposure; and, 

• Address (qualitatively as a degree of certainty, rather than in a quantitative fashion) whether any documented residues represent potentially harmful exposure (i.e., consider biological availability of dioxin), by characterizing the amounts available and the degree to which absorption might be expected.

You see it, don't you? The second bullet item specifically asks for an IOM conclusion about bioavailability, which isn't a requirement for any veteran, Vietnam or non-Vietnam, to prove in order to seek care for exposure to Agent Orange. But VA sneaks in the term, knowing in advance that forty years after the last spray missions and thirty years after our last flights in 1982, no such proof is possible.

The IOM committee can't but help to repeat conclusions about bioavailability from earlier IOM reports...that it can't be established for this population.

When the C-123 veterans spoke before the IOM C-123 committee on June 16, we asked them to act independently of their charge from the VA. They have that authority and responsibility. We have, however, repeatedly been told that the committee is interested only in the scientific data required to form a response to the VA charge.

If they do this, they play the VA's game. The IOM avoids meeting its responsibility to us, and avoids answering the only real question on the table: 

Were C-123 vets exposed and, if so, are they to be treated as per law?