VA Office of General Counsel Moves to Nullify VA Federal Register Commitments

Last week VA's Office of General Counsel reviewed, and rejected, the Yale Law C-123 report which held that C-123 veterans had been exposed to Agent Orange and are due presumptive service connection for recognized Agent Orange illnesses. Rather than find in the Yale report a channel to include veterans, the VA knee-jerk was to, as usual, "draw the line somewhere" and insure their denial of care.

But the OGC went far, far further! They want to reserve the definition of "exposure" for their own purposes. Here's why that's critical to our C-123 exposure claims. VA: "Exposure = contamination field + bioavailability." To the rest of the scientific world, exposure = skin (or eye) contact, ingestion or inhalation of a chemical of any type.

The 1991 Agent Orange Act was the result of Congress' frustration with the Department of Veterans Affairs stalling Vietnam veterans' Agent Orange exposure claims. Congress simply told the VA that it had to presume that all vets with "boots on the ground" were presumptively exposed, and therefore, presumptively service connected for diseases recognized by the Institute of Medicine as associated with Agent Orange. The 1991 Agent Orange took away the power of the VA demand medical nexus, making it presumed by law. VA could no longer hide behind that requirement.

VA set about to obey this law and over the years, various illnesses were recognized by the IOM, and therefore by the VA, as Agent Orange illnesses. Over those years, illnesses like diabetes and heart disease were added, and the VA published in the Federal Register its regulations, and interpretations of regulations. Three times, the VA specified that veterans exposed to Agent Orange outside Vietnam would be treated with the same presumptive service connection as Vietnam veterans.

Not once, but three specific statements in the Federal Register. The only qualifier..."exposure." But there was no definition of exposure given. Nor is one needed, as the other federal agencies such as the CDC/Agency for Toxic Substances and Disease Registry, and the National Toxicology Program, publish glossaries for terms such as exposure.

But OGC is working on a runaround of both the Agent Orange Act and the Federal Register publications. They want now to redefine exposure as they see fit, which will be to require bioavailability...another word for the forbidden medical nexus. By reinserting a non-Vietnam veteran's requirement to prove bioavailability through the redefinition of exposure to include it, all such claims can be denied because so much time as past, medical nexus/bioavailability become impossible to prove.

Not only that. Ignoring the Supreme Court's Christopher v. SmithKline decision, VA OGC, caving to the agenda of Post Deployment Health, wants to make retroactive their definition of exposure via either a regulation or an announcement in the Federal Register.

Fortunately, the Supreme Court severely limits a regulatory agency's ability to make such retroactive changes, and this situation is a perfect example of the desired prohibition...but ignored by OGC.

How can they do this? They can't, at least, not forever. At some point, a legislative change, or a court decision, overcomes such shady activity and the agency is ordered to correct its act. Perhaps, although rarely successful, this is done by a writ of mandamus or a presidential order. In any case...the VA wins.

They win by denying sick C-123 veterans all VA medical care, unless otherwise qualified, until such time as some authority insists VA complies with the law. At some long-distant future point in time justice prevails – but all that happens is VA gets ordered to do the right thing, begin taking care of the veterans it has ignored, and send a catch-up check for whatever disability payments owed the veteran. Regardless of its size, any check is peanuts compared to the cost of medical care the VA saves by keeping C-123 vets out of their hospitals, especially given our ages and illnesses.

Incalculable is the cost of medical care not sought by the veteran due to cost, such as dental care...incalculable except as a deduction from the C-123 veteran's remaining life expectancy.

Every day a claim is delayed is money saved by VA.  No medical care, no rehab. No pharmacy. No prosthetics. No counseling, no travel expenses, no funeral costs, no Dependent's Indemnity Compensation, no dental or vision care. No hearing aids. Nothing...VA saves big bucks by keeping C-123 veterans out, using Medicare or Medicaid instead of the quality VA medical care we earned.

As VA's Veterans Health Administration sees it, the fewer vets on the VA roles the better for their budget and appointment lists.

They can't lose. Every claim denied is big VA"win." The longer VBA prevents an Agent Orange claim, the more money saved for VHA. It doesn't matter how outrageous their excuse, such as parsing the word "exposure" and making their regulations retroactive, might be...every day that a C-123 vet stays out of their hospitals is money saved, and they face no penalty or punishment or such outrageous, anti-veteran procedures. All the court can do is order the illegal or improper procedure corrected at some date years later.

But we're not going to see that day. VA has stalled C-123 claims for years, despite reams of proofs. They stalled on the IOM investigation for two years, then started it up again to stall for more time, with the charge to the committee not even addressing the specific question needed answering...were the C-123 veterans exposed or not? Exposed is the only question under the law. So VA intends to answer that question its own way, so that no exposures occur. Neat trick.

No wonder OGC wants to reinvent the word, so that VA can grab back the requirement that veterans establish medical nexus for whatever the exposure situation might be...dirty water, immunizations, radiation, Agent Orange, burn pits...unless some law specifically demands that VA treat a specific exposure, VA will hide behind the OGC opinion so it can redefine exposure to prevent exposure claims.

What a mess.