VA Invents (But Ignores) Rules About Agent Orange Exposure

Faced with disability claims from C-123 veterans exposed to Agent Orange aboard our former Agent Orange spray aircraft, officials in Veterans Health Administration and Veterans Benefits Administration have been energetic in barring veterans from essential health care. And also very selective about which rules VA follows, when they ignore those rules, and how to create new ones as the occasion warrants.

Not only does VA's Office of General Counsel and VHA Post Deployment Health create unscientific redefinitions of exposure to block exposure claims, but they simply ignore the law and their own rules and regulations. Of course, at some point, justice prevails and claims are appealed and corrected...but the veterans are forced wait years while somehow finding health care elsewhere. 

Here's how VA ignores the law and breaks the President's and the Secretary's promises to veterans, forcing vets into the black hole of appeals...three to four years waiting, with a 25% chance of the claim being approved (so far, all C-123 claim reaching BVA have won,) but a 45% chance of the claims having errors forcing the claim to be remanded for more work and still more delays by the regional office.

• "A veteran who was exposed to herbicides in service and who develops one of these diseases within the applicable presumption period, if any, is presumed to have incurred the disease in service, without the necessity of submitting proof of causation."    Testimony of Dr. Leo McCay, Deputy Secretary  IGNORED

• "Presumption of service connection. VA will presume service connection where a veteran who was exposed to an herbicide agent during active military service is diagnosed with a disease listed in paragraph (e) of this section that becomes manifest to a degree of 10 percent or more within the time period"      Federal Register July 27, 2004  IGNORED

• ‘‘Evaluation of studies relating to health effects of dioxin and radiation exposure."  38 C.F.R. 1.17 IGNORED!

• Finally, we wish to make clear that the presumptions of service connection provided by this rule will apply to any veteran who was exposed during service to the herbicides used in Vietnam, even if exposure occurred outside of Vietnam. A veteran who is not presumed to have been exposed to herbicides, but who is shown by evidence to have been exposed, is eligible for the presumption of service connection for the diseases listed in § 3.309(e), including the three diseases added by this rule.   VA announcement in Federal Register 31 August 2010.    IGNORED, and the reason VHA scrambled to create its redefinition of exposure to block exposure claims.

Does the VA even have the authority to order, and then evaluate, a IOM C-123 Agent Orange study addressing bioavailability, relative to veterans' benefits under the 1991 Agent Orange Act? 

No. C-123 veterans with proof of duty aboard "Patches" or any of the other former Agent Orange spray aircraft are fully eligible right now for presumptive service connection, and for treatment of those illnesses. Indeed, it will take a new law or regulation to disqualify them.

Instead, 38CFR spells out the procedures the VA should employ evaluating outside scientific studies about the association of herbicide exposure with different illnesses, but not of the fact of exposure or the paths by which exposure may occur.  (Chapter 1, Section 1.17 (c), p. 14) Nothing indicates any procedure by which exposure itself may be denied, defined or by which VA can require bioavailability. So VA decided to invent a basis denial and a redefinition to block claims. 

VA has a very aggressive defense, and very anti-veteran. VA seeks out, or simply creates, barriers to claims rather than permitting eligible veterans to receive care for hazardous service and injuries.

• Indeed, based on current statute, the VA is not required to consider evidence on exposure magnitude or duration and all exposures are to be given equal weight when determining health effects. There is no qualification for amount of exposure, bioavailability, color, flavor or even whether it makes one robust and improves the humors – the only qualifications are (1) proof of exposure and (2) a recognized AO illness. That foundation...exposure...is exactly why VHA and the VA Office of General Counsel simply redefined exposure to block claims. Other government agencies more correctly use the CDC definition, by which there is no question as to the C-123 veterans' eligibility. CDC says exposure is contact with a substance by swallowing, breathing, or touching the skin or eyes.     IGNORED

In meeting its pro-veteran, non-adversarial obligation, VA has failed. The Law:      IGNORED

(for background, read the Congressional Research Service "Presumptive Service Connection" report)