VA "Cherry Picks" Scientific Definitions Against Veterans' Claims, Invents Others

It is right there for all to read, in three separate statements in the Federal Register, including rule making. VA assures Congress, the public and all veterans it will consider all non-Vietnam exposures to Agent Orange with the same presumptive service connection as it does with "boots on the ground" veterans. "No new legislation needed," says VA.

After all, the Federal Register is an agency's implementation of its own rules and procedures.

But faced with C-123 veterans' claims which VBA insists be denied, the VA Office of General Counsel threw an end run to nullify the Federal Register. VA OGC expects to redefine exposure to prevent exposure claims! VA will develop a unique redefinition of exposure, different than the one used by all other federal agencies such as ATSDR.

In concert with the Veterans Health Administration's Post Deployment Health Section, OGC has opted to challenge VA's own Federal Register postings...not by modification, but by redefinition of the word "exposure."

Presently, Post Deployment Health has invented its special redefinition to block C-123 veterans' Agent Orange exposure claims, stating: "Exposure = contamination field + bioavailability." No other definition of exposure used in science or medicine includes bioavailability as a component. Actually, these are separate toxicological terms.

Here is where creative and anti-veteran "cherry picking" takes place. Throughout its administrative documents, in the Federal Register, the Board of Veterans Appeals and even the United States Court of Appeals for Veterans Claims, VA cites Dorland's Medical Illustrated Dictionary (32nd Edition) in the Federal Register as well as in many other administrative documents. And Dorland's defines exposure as:                                                                        Nowhere is bioavailability mentioned or implied.

Get it? VA uses Dorland as the authority – but VA is just as happy to invent other creative, unscientific definitions as the need arises to better block veterans' claims. VBA even cites Dorland definitions against veterans in appeals, yet drops Dorland when Dorland's definitions enforce the veteran's claim.

Who is the client of VA's Office of General Counsel? Not the veterans!