VA Invents Redefinition of "Exposure" to Block C-123 Agent Orange Exposure Claims – Our Cause Explained

The Seed, or Evolution for bioavailability? Apparently, the VA consulting's firm with its decades of guiding VA, DOD, White House and DOJ obstruction of veterans' disability claims can be given credit. Bioavailability is the fraction of a toxin reaching the body following exposure. Exposure is simply contact by dermal, inhalation or ingestion of a substance. They are different but related concepts in toxicology.

The law says veterans exposed to Agent Orange who didn't serve in Vietnam have to prove their exposure. The law says nothing about bioavailability, and three times VA has reassured Congress about this. Now, faced with claims for exposure, VA reneges.

Smallwood (April 2012 C-123 Post-Vietnam report) did not touch on bioavailability and did not actually conclude that C-123 vets were not exposed: The USAF conclusion was that our exposure was unlikely to have caused significant harm. The study's major flaw was concluding that because C-123 individual exposures are difficult to assess and because the exposures were likely less than Ranch Hand, no harm ensued. Too far a leap. Without a retrospective analysis of toxicity in the decades before initial tests and without considering long-term, low-dose exposures.

The Agent Orange expert representative for the VA  is much more direct in challenging exposure and ill effects. His papers usually integrate bioavailability with exposure, but with confusing scientific foundation for the marriage. He frequently describes an Agent Orange application, narrates how little reaches the ground, how much it degrades over a 24-hour period, and then how little of that remainder would be bioavailable. He then either states or infers that no exposure took place. The consultant also goes on to relate the health of Ranch Hand vets* and dismisses IOM studies as political solutions. 

But he is at odds with both medicine and science on exposure and bioavailability:

In all my years as a toxicologist, I have never heard the term bioavailability as part of the exposure field. (Director, National Toxicology Center)​

​

​I concur. (Prof. Arnold Schecter MD, University of Texas Medical School)​

Other scientists, glossaries, textbooks, professional societies, federal agencies, government experts (outside VA, and inside VA if asked directly) generally consider bioavailability a concept by itself, and employed to understand risk. But not part of exposure. 

Vital Point:   VA told Congress via two foundational Federal Register statements

(8 May 2001 announcing Agent Orange diabetes service connection and Blue Water Navy restrictions, and 31 August 2010 announcing IHD service connection), VA "made it clear" that no further legislation needed as all exposed veterans from non-Vietnam situations would be treated the same as Vietnam "boots on the ground." Just as directly, a third commitment was made when VA implemented on April 16 2008 the famous Hass decision, (page 20570):

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 for
exposure to herbicide agents.

Having committed three separate times to presumptive service connection for proven Agent Orange exposure, VA is clearly trying to backtrack and deny any exposures by redefining it to include bioavailability. (VA: exposure = contamination field + bioavailability.) Exposure is relatively easy to establish, but bioavailability always difficult except with skin burns or other such immediate harm. Tests for bioavailability are even forbidden by VA for the Agent Orange Registry exam – because all a veteran need prove is exposure.

Evolution of the VA Concept: VA from the first 2011 teleconference with C-123 veterans and concerned scientists insisted C-123 vets were not exposed. At the Hart building conference in 2012, the same with the word bioavailability mentioned. At the meeting between C-123 veterans and Compensation Service in February 2013, they clarified that no C-123 exposures ever took place...because Post Deployment Health said so and had said no C-123 claims would be approved 

We were given contact information for Post Deployment Health phone to inquire further. The Deputy Chief Consultant returned my call and for the first time she offered a clearer understanding: no exposure because no bioavailability proof. She confirmed that C-123 vets were not exposed (1972-1982) for want of bioavailability proof in 2011.

Tellingly, Post Deployment Health also said few or none of the Vietnam veterans were exposed, the same logic being used by the VA consultant. The consultant's $600,000 unsolicited contract ($300,000 for 2013 and 2014) dates from 25 September 2012, close enough to the first use found in April 2012 for the VA exposure redefinition...perhaps this concept was developed for VA, or they seized upon it from his writing,  as their "out" for exposure claims. 

Faults with VA Concept: Numerous publications by VA's Agent Orange consultant have integrated bioavailability with  exposure which, unchallenged, became VA's tool to deny every exposure situation. Potentially, this includes Agent Orange, burn pits, dirty water, toxins, biohazards, etc. not having an immediate physical effect (such as a chemical burn) not having a statutory demand for VA to treat, as with the Agent Orange Act. On May 14 2014, VA Post Deployment Health was quoted by AP as saying, "You have to draw the line somewhere."

This iswhy VA inserted bioavailability into their redefinition of exposure. It is difficult to establish bioavailability even soon after an exposure, and virtually impossible decades later, confounding exposure and bioavailability insures claim denials. To further move away from the law, VA also insert via their web pages the extra-legal requirement that non-Vietnam situations must include spraying Agent Orange...yet not a word of that standard appears anywhere in law or regulations.

To insure VA's redefinition of exposure leads to denial of exposure claims, VA even conducts "environmental champions" training with PowerPoint slides virtually ordering claims officials to deny C-123 disabilities. Nowhere in VA training materials or other publications is the eligibility of C-123 veterans permitted.

For health risk assessment, bioavailability is important because we are interested in knowing the extent to which bioavailability of a chemical increases or decreases in different exposure settings. 

Bioavailability (aka risk assessment) requires exposure; exposure can occur without bioavailability but bioavailability cannot be assessed without exposure. 

VA has forced together these two separate concepts of toxicology but without any foundation. Also, it is contrary to common understanding and perspectives of textbooks, ATSDR, EPA, NIH and other authorities and professional societies such the American Toxicological Association. VA, although lacking statutory authority, peer review or common acceptance, simply redefined the word for its own use and only within Post Deployment Health – the purpose being to insure denial of claims from eligible veterans.

Bioavailability: r​efers to the fraction or percentage of absorbed 

​substance into the system. 

Can also refer to absorption of a toxin at a rate greater than the rate of loss.​ (ATSDR.) Also defined as the fraction of unchanged toxin reaching systemic circulation following exposure by any route.

​Exposure: ingestion, inhalation or physical contact with a chemical (NIESH). Also, intensity, frequency and length of time personnel are subjected to a hazard. (DODI 6055.5)​

The Law: Clearly spelled out in the Yale Law C-123 paper.

 ​(which is why VA ignores it)​

Conclusion: The only requirement for treatment of Agent Orange-related illnesses ("presumptive service connection") is proven exposure to Agent Orange, which for veterans with Vietnam War ground service is presumed by law. Upon this simple requirement VA invents the redefinition of exposure solely to obstruct claims.

​* A major epidemiological flaw in Ranch Hand studies is the failure to consider the initial excellent health of the individuals compared to the average American male.​ These were aircrews. College graduates (pilots) or high school or better (loadmasters,) with flight physicals every six months while on duty, severe recreational drug restrictions, weight control, free dental and medical care for their military careers, well-nourished, free VA care if injured or ill. Above-average income expectations with continued health benefits throughout their lives means better health and longer life expectancy. 

Their military careers had above-average occupational risk taking (but 19% less smoking and drinking) typical of flyers but Ranch Hand studies are of survivors after the war. The ratio of aircrews was 90% white versus general American white male ratio of 87% , also distinguishing Ranch Hand veterans' life expectancy from the typical American male as minorities have suffered a depressing seven-year shorter life expectancy for men of the Vietnam-era. 

Additionally, in 1970 whites had three times the percentage of college graduates, heavily influencing life expectancy. (Recent years have seen much improvement  in the percentage of minority and women officers but an unfortunate disparity still exists.)

The GAO long ago concluded that for many additional reasons the Ranch Hand study cannot be extrapolated to the Vietnam "boots on the ground" population or other exposure situations.

Nor, I suggest, do the C-123 veterans because of the differences in exposure situations. Exposure is exposure.