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.

VA Designs Institute of Medicine C-123 Study to Prevent Exposure Claims

Skillful folks, the staff at VA Post Deployment Health. And they're not there to let any more veterans onto the Agent Orange disability lists! As they told the Associated Press, "We have to draw the line somewhere."

But three years of their policy of simply telling us "no" began to face some opposition in early 2014 with publication in Environmental Research of the article, "Post Vietnam Military Herbicide Exposures in C-123 Spray Aircraft." While VA could, and would prefer to, ignore that and all other evidence of veterans' exposures, at about the same time Yale Law School released a detailed white paper confirming the C-123 veterans' rights to presumptive service connection for Agent Orange exposures.

Together, these developments added to political suggestions that VA pretend, at least, to follow the law. After all, VA had repeated three times via the Federal Register their commitment to treat non-Vietnam Agent Orange exposures the same as vets exposed in Vietnam. Those repeated commitments needed to be skirted somehow, which VA has successfully done by having reinvented the basic word, "exposure." Simply put, VA decided to redefine the word to include bioavailability, or the proven impact of Agent Orange on the body. Perfect solution...just change the words around so that nobody exposed to anything qualifies for any exposure claims. With Agent Orange, many decades after exposure, the bioavailability of dioxin is impossible for us to prove...and VA even prohibits the test anyway.

But VA had continuing pressure to comply with the 1991 Agent Orange Act, which is to refer fundamental disputes or inquiries about Agent Orange to the Institute of Medicine. Here VA excelled! They complied, yet insured that the IOM process will defeat veteran's exposure claims.

VA gets to make up the ground rules in this game. One is that VA issues a "charge," or assignment, to the IOM to investigate. Since the only question under the law regarding non-Vietnam exposures is exposure, the VA skillfully avoided tasking the IOM with deciding whether we'd been exposed. Instead, VA asked IOM to address fairly irrelevant issues, of interest of course, but irrelevant in terms of whether VA should be treating our Agent Orange illnesses.

Here's their "charge" to the IOM which is currently investigating C-123 issues:

This committee will determine whether there is an excess risk of adverse health among crew members who, after the Vietnam War ended in 1975, flew and/or maintained C-123 aircraft that had been used to spray Agent Orange in Vietnam. The committee will: 

• Evaluate the reliability (including representativeness, consistency, methods used) of the available information for establishing exposure; and, 

• Address (qualitatively as a degree of certainty, rather than in a quantitative fashion) whether any documented residues represent potentially harmful exposure (i.e., consider biological availability of dioxin), by characterizing the amounts available and the degree to which absorption might be expected.

You see it, don't you? The second bullet item specifically asks for an IOM conclusion about bioavailability, which isn't a requirement for any veteran, Vietnam or non-Vietnam, to prove in order to seek care for exposure to Agent Orange. But VA sneaks in the term, knowing in advance that forty years after the last spray missions and thirty years after our last flights in 1982, no such proof is possible.

The IOM committee can't but help to repeat conclusions about bioavailability from earlier IOM reports...that it can't be established for this population.

When the C-123 veterans spoke before the IOM C-123 committee on June 16, we asked them to act independently of their charge from the VA. They have that authority and responsibility. We have, however, repeatedly been told that the committee is interested only in the scientific data required to form a response to the VA charge.

If they do this, they play the VA's game. The IOM avoids meeting its responsibility to us, and avoids answering the only real question on the table: 

Were C-123 vets exposed and, if so, are they to be treated as per law?

Why C-123 Veterans Are Affected by Institute of Medicine C-123 Agent Orange Study

In what turned out to be a critical change in VA Agent Orange policy, Public Law 102-4, the Agent Orange Act of 1991, transferred the advisory function regarding dioxin and herbicides from the VACEH to the National Academy of Sciences (NAS). The NAS, an independent and highly regarded scientific body, then took the responsibility of reviewing the scientific literature concerning the association between herbicide exposure during Vietnam service and each health outcome suspected to be associated with herbicide exposure. Since responsibility for a scientific review was formally passed to the NAS, VA terminated publication of the scientific literature review mentioned in the previous paragraph.

Following receipt of the NAS reviews, the Secretary has 60 days to determine which, if any conditions evaluated will be recognized as service-connected. The legal standard that the Secretary of Veterans Affairs must use to evaluate what conditions should be presumptively recognized for service connection is described in Chapter 6 – Disability Compensation. The standard differs from the cause-and effect.

Further, the Agent Orange Act removed the requirement that veterans of the Vietnam War must prove both exposure and medical nexus...these are now presumed to have been proven. For veterans who've been exposed to Agent Orange in situations other than Vietnam's "boots on the ground," they must prove exposure. Once exposure to Agent Orange is established, they need not prove medical nexus for any of the Agent Orange-recognized illnesses.

Thus, the IOM study is only tangentially of interest to C-123 veterans because VA carefully chose the assignment wording to avoid asking whether nor not C-123 vets were exposed.

Instead, careful wordsmithing by VA's Post Deployment Health Section gave the IOM an assignment which asks whether or not "excess" risk can be proven. So they IOM can return a finding that the risk is excessive, yet VA continue their present refusal to acknowledge our exposure and thus exclude us from coverage. If IOM returns a finding that our risk cannot be established, VA will seize upon that as definitive "proof" that we are not eligible at all.

The deck is stacked – against us! No wonder Professor Peter Kahn called the whole process unethical, despite the sincere efforts by dedicated scientists on the IOM C-123 committee. At the June 16 2014 IOM meeting, the C-123 Veterans asked the committee to exercise its independence and report back an additional answer to an unasked question...were the C-123 veterans exposed or not?

That is the only question under the law. Besides, we have already established that exposure through juried scientific articles, opinions from dozens of scientists and physicians, as well as opinions from federal government agencies such as the CDC.

We were exposed. We are barred from VA care today because of the personal preferences of VA staff in Post Deployment Health...nothing more.

C-123 Veterans Presentation to Institute of Medicine 16 January 2013

Fellow C-123 Veterans:

Opportunity: Friday I was informed by the Institute of Medicine, Agent Orange Committee (part of the National Academy of Sciences) that C-123 veterans have been scheduled for a brief afternoon presentation to the Committee to discuss C-123 Agent Orange contamination.

Background: Congress set up a process in which the VA must consider findings of the Institute of Medicine regarding Agent Orange issues. While their meeting on 16 January does not directly deal with our airplanes, it is our chance to bring the lingering contamination and the VA's stonewalling of our claims to their very public forum.

Under Secretary Allison Hickey

Many of the scientists who have weighed on to support us are well-known to the Committee. These scientists' letter of 29 November to the VA's Under Secretary for Benefits General Hickey firmly reenforced the basis for our VA claims, in particular the input from Dr. Jeanne Stellman, Professor Emerita at Columbia University's Mailman School of Public Health.

Dr. Stellman has been a firm supporter of C-123 veterans for this past year, ever since her first independent expert review of the many Air Force tests on Patches and other aircraft. Although the young scientists assigned by the VA to refuse our claims have tried to dismiss Dr. Stellman's findings, the Institute of Medicine knows her very, very well. Her work is cited throughout many of their reports, she has appeared as an exert witness many times, and has also been contracted to do many research projects on Agent Orange as used during the Vietnam War. Conclusion: she knows her stuff and blows away the VA's wonks...they just don't know it! Interesting that none of the VA scientists are cited in these reports. On the other hand, Dr. Stellman and the other experts (from other federal agencies as well as numerous universities) are perfectly objective as scientists and physicians, they have studied the C-123 exposure issue, formed their opinions, which are in favor of the veterans, and they defend that position (and us!) mightily. The only possible response from the VA is to ignore the letter, of course. No surprise. One gets the impression the VA respects only those experts employed by them, whose job it is to construct barriers to veterans' claims. 

Request: We need a volunteer speaker!

We continue to seek venues such as this with the IOM to set right our unfortunate situation - we've been exposed and nothing will change that, yet our duty remains getting our veterans essential care for the typical Agent Orange ailments confronting us. Our Association is looking for one of our vets in the Irvine area to represent us at the University of California meeting on January 16, 2013. If we don't find a "volunteer", I'll do it, flying there from Denver where we're vacationing with our kids. If one of you airline-types can still fit onto a jump seat, want to take this on and save me the airfare? I'll do an outline if you wish, and even text the entire presentation - the IOM has offered to print and distribute to the Committee for us, and place it into their conference records.

Let me know...I have to get my flight and hotel reservation if nobody signs up to volunteer.

Christmas suddenly and horribly changed for so many Connecticut families in Newtown. God bless and keep them all. 

Peace.