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.

Good News On Claims Backlog

(we congratulate the VA on this noteworthy achievement –but note that much of the "improvement" in backlog has been through the too-rapid, too-little-considered claims being denied to get them from one pile (backlog) into another (appeals.)

Stars and Stripes: For the first time since Barack Obama was elected president, the veterans claims backlog will end this year lower than it began.

Department of Veterans Affairs officials say they’re on track to end the backlog entirely sometime in 2015.

At the start of December, the claims backlog — the number of cases unfinished for more than 125 days — sat just under 393,000 cases. Critics call that an embarrassingly large number, especially considering that the White House pledged to fix the problem almost four years ago.

But VA officials say eliminating the backlog was always expected to be a multiyear process, with the bulk of the progress coming this year. In March, the backlog total peaked at more than 608,000 cases. More than one-third of that caseload was gone by the end of the fall.

VA Secretary Eric Shinseki has credited new computer processing systems, mandatory overtime for claims processors and new filing options for this year’s decrease.

The department also benefited from a slowdown in the number of new claims filed this year, allowing more resources to clear older ones. Fiscal 2013 was the first time in five years that the department processed more cases than it received.

In November, Shinseki told reporters that “this trend line is in the right direction” but “I’m not dusting my hands off and saying this is a done deal.”

More than half of the department’s claims inventory is still in backlog, underscoring the work still to be done.

Based on the nine-month trend, the department could clear out the backlog in early 2015. Last spring, many veterans groups and lawmakers were questioning whether the end of 2015 was a realistic goal.

The department’s current backlog efforts don’t include the growing number of claim decision appeals, which has topped 266,000 cases. Shinseki has promised that will be the next focus for department officials.

shane.leo@stripes.com