The Federal Register: The VA "Exposure" and "Medical Nexus" Scam

The Federal Register is pretty important. It is one of the final "wheels hit the road" elements of a law. When a federal agency such as Social Security or Veterans Affairs promulgates a rule or interpretation of a law, their publication in the Federal Register makes it so. When the VA does it, they either add, change or take away some rule, regulation, portion of laws affecting veterans, or sometimes simply make clear a point of confusion. When VA publishes in the Federal Register, it should mean something important but too often, it means only confusion at their end about how to skate the system.

A Federal Register publication is pretty important. It makes documents it cites admissible in court with evidentiary status. It describes the authority of the agency to do something and how that authority stems from Congress. Because the public can comment when proposed changes are first published in the Federal Register, it is an important part of American participatory democracy – a citizen gets his/her right to address anything being announced, challenge or support.

For the concerns of C-123 veterans, the Federal Register is foundational in our right to VA medical care. The VA has at least three times detailed to Congress and the American people how it will treat Agent Orange exposures to post-Vietnam veterans like us. Three times the VA went to the Federal Register to announce fundamental changes in veterans' exposure issues, such as adding diabetes, heart disease or other major changes, and in those very profound changes to the VA system they repeated the key fact:

VA will treat non-Vietnam veterans with proven Agent Orange (military herbicide) exposures the same as Vietnam veterans, with presumptive eligibility for Agent Orange-associated illnesses. There is no burden of providing medical nexus. Veterans claiming Agent Orange benefits for illnesses not recognized by the Secretary as associated with Agent Orange may submit claims but must establish proof positive of exposure and also of medical nexus.

These are very important parts of implementing laws and arranging how agencies and citizens come together on those laws. But these are also postings which VA ignores, by taking the simple step of redefining exposure within the VA to a unique "exposure = contamination + bioavailability."

There VA illegally reintroduces the prohibited test of medical nexus. It is just the same standard as before Congress took it away from them in 1991 when it created the group of presumptive eligibility "boots on the ground". Their standard of proof was boots on the ground, and exposure was assumed. VA when asked about non-Vietnam vets' exposure announced that that same presumptive eligibility applied so long as there was proof of exposure, which was assumed for the Vietnam vets.

So neither group must prove medical nexus:
• Vietnam vets were presumed exposed with their boots on the ground and their exposure was granted
• Non-Vietnam vets were presumed exposed so long as their exposure was proved

But VA games the system once again. Exposure is commonly defined as contact by the skin or eyes (or ingestion or inhalation) of a toxin (of any type). VA in their redefinition (found only in a few Advisory Opinions, Society of Toxicology posters, etc.) puts back into the word "medical nexus" which Congress had taken out in 1991.

They simply change exposure by pretending "bioavailability" is part of the word, because bioavailability is pretty much the same as "medical nexus." It is kind of like mother forbidding chocolate cookies because you eat too many at once, so you switch labels on the box and now you are eating the same cookes labeled Ritz crackers. Mom's gonna catch that deception...but nobody seems to have caught the VA's deception used to order our sick aircrews and maintenance guys out of their hospitals when we seek care for our Agent Orange illnesses.

                                     

Medical nexus is not part of any exposed veterans' claim for Agent Orange illness unless claiming an illness not associated by the Institute of Medicine or the Secretary. Bioavailability is not part of the law nor in medical nexus postings, but is part of VA's 2012 and later definition of exposure.

Why the redefinition of exposure? VA had to "draw the line somewhere" on exposure claims, so Post Deployment Health was charged by Veterans Health Administration with developing some scheme, legal or not (its not) to stop the hordes of sick veterans trying to get into VA hospitals.

Post Deployment Health, Dr. Michael Peterson and staff, did this by grasping the fundamental problem of medical nexus being taken away from VA as a key to let medical nexus back into play against veterans. Simply put – don't call it medical nexus. Call it – exposure. Clever!!!

Exposure is in the law. So VA Office of Public Health can reinsert the medical nexus barrier the law took from them by putting "exposure and "medical nexus" into a linguistic blender so that out comes one word...exposure...meaning both.

With the new exposure, VA returns with a French 75 in their tool belt instead of a mere #2 black pencil for denying claims. No veteran can prove medical nexus of an exposure event decades ago, but just in case, VA prohibits testing for that. VA also prevents C-123 veterans from even taking the Agent Orange Registry exam because they'd already ruled no exposures were possible.

We have seen and will continue to be seen VA challenges to our claims.They will continue to argue we've had no exposure to Agent Orange aboard our C-123s because there can't be any proof in 2013 about exposures in 1972. Actually, there is perfect proof: we were aboard Patches and the other former spray birds, so we were exposed per the definition Congress and the VA in the Federal Register set as a qualifier.

VA says we were not exposed because there can be no test for bioavailability (medical nexus) these decades later, therefore "we were not exposed."

VA's apologists bring in their old Ranch Hand data and compare our heath stats to those vets. Ranch Hand guys seem pretty average in health at their ages. The failure in that logic is that it has nothing to do with the law. The law says if exposed you'll be treated, and it does not say no treatment because the Ranch Hand cohort isn't ill. Ranch Hand info isn't in the law, but VA uses it cleverly to weave the theme that C-123 vets must be denied benefits because Ranch Hand vets seem to be in okay health.

The VA consultant on Agent Orange is beloved by the VA for being able to produce his papers against C-123 exposures under his $300,000 per year contract with the VA and include twists and turns in the history. He always skips the part where in 2009 he, as Consultant to the Office of Secretary of Defense recommended the immediate destruction of the C-123s with no further testing. He reminded base safety officials it would be a safe operation because the dioxin had degraded to insignificant levels after those decades in the desert. He also skips the part where he reminded the Air Force leaders the exposed C-123 veterans might apply for Agent Orange benefits if they learn of the contamination, so he helped craft a press release avoiding words too likely to get attention: Struck from the early draft were words like Agent Orange, dioxin, TCDD, poison, etc, and instead these became "aged Vietnam-era airplanes recycled in an environmentally responsible manner."

VA didn't walk away from this completely unscathed. Other federal agencies responded with their own, more acceptable definitions of exposure. VA was reminded that it does not have regulatory authority in such toxicological issues, yet they continue to use it. The NIH/National Toxicology Program published their definition of exposure to insure it challenged VA head-on, when the Director herself wrote,"In all my years as a toxicologist, I have never heard the term bioavailability as part of the exposure field. Exposure is contact with a chemical (of any type) and the outer boundary of an organism."

Bioavailability flows from exposure. There is no requirement for bioavailability as part of exposure, and in many exposure situations after time bioavailability may no longer be proven. There. Bioavailability, or medical nexus, cannot occur without initial exposure. These are separate toxicological events, and Congress has spoken:

Agent Orange exposed veterans will be treated as presumptively exposed for Agent Orange illnesses. That's the law. Now.

Found: Third Federal Register Statement from VA "Assuring" C-123 Exposure Rights

One of the pivotal changes in VA policy towards Vietnam Veterans was the 2008 Haas Decision. The proposed rule changes announced in the Federal Register for Hass also included another statement from VA addressing non-Vietnam exposures. Previously, VA had made the same statement on 8 May 2001 (page 23166) and VA was to make one also on 31 August 2010, each time along with fundamental changes in VA Agent Orange ruled. We say deceptive because VA then disregarded their obligations.

But each time there was no change in non-Vietnam exposures: any veteran with proof of Agent Orange exposure was to be treated with the same presumptive service connection as a Vietnam War "boot on the ground" veteran. So we should think the commitment, thrice-stated along with treatment of major changes in other VA Agent Orange issues, would be clear enough to all.

But no. Even after three repetitions, three assurances to Congress and the public that no further legislation was needed to insure VA would protect non-Vietnam War exposed veterans, VA has opted to reinvent the singular word "exposure," the core of each of these three Federal Register promises, to prevent any exposure claims.

The veterans were not exposed, according to the 2012 redefinition of exposure by the VA. "Exposure = contamination field + bioavailability." No bioavailability means no exposure claim approval, VA's basic goal regarding C-123 exposures.

And while we can establish our Agent Orange C-123 contamination, we cannot prove bioavailability these many decades later. We might have been able to do so back in 1982, but not decades later. Besides, VA forbids that test in the Agent Orange Registry exam, so the net result is they say we were not exposed and won't give us the test to determine exposure, so they conclude we weren't exposed. Weird, but their objective is to prevent claims so that's what they do.

Other parts of this Federal Register posting address Blue Water Sailors seeking Agent Orange exposure benefits. VA informs Congress that (from 16 Apr 2008, page 20569)

This action would not result in a finding or presumption that veterans who served on ships were not exposed to herbicides; it would merely clarify that such veterans are not automatically presumed to have been exposed and that the issue of exposure must be resolved on a case-by-case basis to the same extent as most other factual issues involved in claims for VA benefits.

This is the source for VA's insertion in C-123 claims that we are to be considered on a case by case basis, with examination of the factual issues. But in fact, that restriction to a case by case basis is mentioned only in context for claims of ship-board exposures, and does not relate to C-123 exposure situations. Thus, C-123 claims can be considered as a general situation, not requiring each claim's individual scrutiny past fundamental facts of veterans' honorable service, veteran's recognized Agent Orange disease, and veteran's proven exposure. 

In other words...presumptive service connection.

Here's the language protecting non-Vietnam herbicide exposures, so familiar to us after three years of quoting it to VA authorities and three years of frustration as VA ignores their own rules:

Veterans could establish service connection for herbicide-related
conditions by submission of evidence establishing exposure to
herbicides during service, just as they always could. If a veteran is
eligible for that presumption, then, as a result, VA will not further
scrutinize that veteran's claim on the issue of exposure.

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 forexposure to herbicide agents.

But VA cheats A lot. They deny exposure using their unique redefinition of exposure, they prevent tests for exposure, they wait forty years to address this issue in any way, they give IOM a charge which has nothing to do with the law's singular requirement of proof of exposure for presumptive service connection. And they, icing on the cake, they deny claims on the basis that no harm has been shown to be caused by exposure to TCDD, the toxin in Agent Orange.

In countless Federal Register postings, in hundreds of Board of Veterans Appeals citations, in CAVC citations, the standard language used is, "Agent Orange is carcinogenic, a fact that VA does not dispute."

But they do dispute it. They stop it into the ground and bury that acknowledgement by actually ordering claims for Agent Orange exposure denied because TCDD (the toxin in Agent Orange) "hasn't been shown to cause adverse effects."

Perhaps there's a misunderstanding here. Is VA stating that carcinogenic is not harmful? It seems bad to be exposed to something which causes cancer, as does Agent Orange. That's not harmful?
Oh, we forget: VA redefined exposure so that we were magically not exposed after all, and today we can pretend, with the VA, that the "heavily contaminated" and "a danger to public health" C-123s we flew for a decade were not harmful, and caused no adverse health effects."

Unfortunately, VA's redefinition doesn't carry much weight with my VA oncologist/urologist who already agreed my Agent Orange exposure was, more likely than not, the source of my prostate cancer.

Another unusual point: always before contamination equals exposure. No qualification necessary as to how much or any other measurement. Why now, this new and illogical standard, being fought to the death (ours, not theirs) by VA staff? Why don't they feel constrained, or even guided, by the law?