VA Lays Groundwork for Redefining Exposure – Any Way It Wants!

At our request this Wednesday Dean ​Michael ​Wishnie from Yale School of Law sent their C-123 report directly to Richard Hipolit, VA OGC. This was after Mr. Hipolit and several VBA and VBA senior leaders met on Tuesday with Senate staff to discuss the C-123 and other vital exposure concerns and indicated unfamiliarity with the Yale report...which laid out the legal qualification of C-123 veterans for Agent Orange presumptive service connection.

The OGC response cranked out almost immediately and in a very reactionary manner...holding high its royal mace VA trumpets "VA does whatever it wants" throughout. VA is trying desperately to redefine exposure ahead of our claims, and ahead of any action on congressional action on the Toxic Exposure & Research Act (which critically fails to include a definition of "exposure.")

I challenge OGC's perspective on exposure's redefinition as something VA simply lacks authority to do. Other federal agencies (NTP, ATSDR, EPA) have statutory and scientific sovereignty in this area and will not be pleased that one federal organization deviate from a unified perspective on such issues. Exposure should mean the same thing at EPA, CDC, NIH, Boy Scouts, Town Hall, WalMart, WHO...and VA!

I see it as the VA's reservation ​to define ​exposure ​for its purposes in the future, but nothing ​(except their attitude and preferences, certainly not the law) ​prevents their pro-veteran, non-adversarial, benefit-of-the-doubt actions now or in the future. ​ A redefinition would require regulatory action, announcement in the Federal Register, public comment and a final regulation...none of which has happened yet, so today's law is that these C-123 veterans are due today's interpretation of exposure.

VA can deny our claims, or delay them, only after such time as it changes the rules in full view of Congress, the veterans' service organizations, and other federal agencies.

Clearly, VA overreaches here to exclude, not to include. Clearly, over ten years of VA publications in the Federal Register about non-Vietnam Agent Orange exposures without parsing the word exposure was meant to leave that word in place, intact, whole and complete, not fractured or blended somehow to now reverse each of the Federal Register assurances...including the effort by VA on 31 August 2010 "to make clear."

Neither does anything in today's law, regulation or even the OGC opinion prohibit acknowledging C-123 exposures today.​..on a case by case basis, however every single claim is denied...on a case by case basis.

​Mr. Hipolit's parsing the word "exposure" to prevent exposure claims is profoundly anti-veteran. It reeks of personal preferences, personal VHA prejudices: "We have to draw the line somewhere." "We cannot permit C-123 claims." "We all die."

Dr. Young is the lynchpin who called the C-123 vets "trash-haulers, freeloaders" and who organized the destruction of evidence by destroying the C-123s in 2010. Al is the writer whose papers for years explained why none of the Vietnam ground troops was ever exposed to Agent Orange and who created the base idea that no exposure occurs without subsequent bioavailability (no proof of bioavailability = no exposure = denied Agent Orange claim, even decades past any point of TCDD remaining in the body of the veterans.)

It seems VA learned valuable PR lessons watching Big Tobacco stall legislation and the public with "the tobacco controversy"...when in fact, as with Agent Orange, there is no controversy. Calling it one, however, works wonders for denying VA claims. That's why Congress and the American people, in an act of distrust, in the 1991 Agent Orange Act stripped VA of its authority to determine medical nexus (AKA "bioavailability") and assigned it to the Institute of Medicine. Congress and the American people assigned VA with what VA acknowledged as its duty...recognize that veterans exposed to Agent Orange will be treated for the illnesses such exposure causes, as designated by the Institute of Medicine. OGC is profoundly in error in attempting to seize this power of determination back by reserving "exposure" as a term for it, and it alone, to define.

Dr. Young is the contractor who created DOD's list of Agent Orange exposure sites in 2006, deciding which sites went on...and which off, for both DOD and VA to hide behind. Dr. Young uses his doctorate in Agriculture who tells the sciences of Toxicology and Medicine about the medical implications of TCDD exposure. He is the recipient of a juicy $600,000 no-bid, sole-source VBA contract to create a catalogue system of post-Vietnam Agent Orange materials...but who proceeds to create those materials himself.

He immediately began creating one-sided articles for VBA to challenge C-123 veterans' claims, rather than a "catalogue system." He even specifically guided VA in how to create specific challenges to each of the many items of evidence submitted to support C-123 veterans' claims...calling it  "Assessment of New Information on the Former UC-123K Post-Vietnam Issue" and "Talking Points". Clearly, Young's contract should more honestly have been titled, "Project to Prevent C-123 Veterans Claims" as the work seems to have little to do with a catalogue system which was what the public purchased for $600,000.

Dr. Young played the role of VA spokesperson before the Institute of Medicine...without detailing his financial involvement with the VA. He injected passion into the IOM on June 16, not detached scientific objectivity...and answers to committee questioning seemed misleading in several areas.

But the real point: VA Office of General Counsel bowed to the wishes of its associates in VHA and thereby, abuses the law and disserves the veterans OGC is sworn to protect. Bad move, boys. We thought you were on our side, and that we were your true clients.