VA Redefines "Exposure" All By Itself

Definitions. VA regularly uses standard definitions of medical and scientific terms. After all, the more inclusive the definition of any scientific term, the more scientific it is. But if VA simply doesn't like definitions universally accepted in medicine and science, VA has no problem creating its own definitions. And VA's Office of General Counsel suggests it can do just that, even if the redefinition is specifically to disqualify veterans claiming disability benefits.

"Exposure" per Dorlands Medical Illustrated Dictionary

The CDC definition wasn't good enough for VA. Neither was the National Toxicology Program. Not even Dorlands Medical Illustrated Dictionary, otherwise perfect for the VA throughout the medical and legal systems. But no reference, no glossary of terminology, was good enough to help VA ignore exposure claims, so it decided to redefine "exposure" all by itself, for its own purposes of preventing veterans' exposure disability claims. All other medical and scientific definitions in Dorlands were fine for VA's use all the way up to the Supreme Court, but VA needed a special definition for that single word of exposure.

Why? VA finds itself stuck with the word exposure already used in the 1991 Agent Orange Act, and used by the VA itself in at least three separate Federal Register announcements it published regarding how they would treat non-Vietnam Agent Orange exposures. No other qualifiers were used...only the word exposure.

But once veterans began pointing out to the VA that VA's own regulation, VA M21-1MR, and the Federal Register and the 1991 Agent Orange Act simply and clearly specified exposure as the principal qualification for veterans to be eligible for exposure care and other benefits, VA needed to find a way to escape constraints it had created for itself so that it could better deny exposure claims from exposed veterans.

What to do? What might work to help VA avoid providing exposure care and benefits to exposed veterans, having found itself stuck with the word?

VA found their perfect solution in Lewis Carroll's  Through the Looking Glass. Specifically, the wise, and slippery, words of Humpty Dumpty who tells Alice:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

 VA's approach: redefine the word exposure within the VA to prevent the exposure claims. VA's Post Deployment Health Section simply created its own definition: "Exposure = contamination field + bioavailability." Adding the separate term of bioavailability was the master stroke, because most exposure situations leave the exposed vet without such proof, especially when medical problems are manifested only decades later, as in the case of Agent Orange exposures.

Confounding exposure with bioavailability, which is actually an element in risk assessment, let VA redefine away any threat that it might have to honor its commitments to veterans suffering from Agent Orange illnesses. VA simply disqualified the veterans by changing the meaning of the word.

VA's determination to have exposure mean only what VA chooses to make it mean was first noted in Post Deployment Health's 2011 VHA Issue Brief, and soon thereafter in the Agent Orange poster presentation several staffers made at the 2012 Society of Toxicology conference. It was years before veterans even noticed the slight-of-hand, years before anyone noted how VA had played the vets.

In 2010 President Obama termed the overall Agent Orange problem "the 40-year wait." Decades of misery which, as described in the White House press release, the President offered his "unwavering support" for "justice long overdue." Promising words indeed, eagerly accepted five years ago by veterans whose cancers, heart disease and other maladies were among the presumptive illnesses associated with Agent Orange exposures. A 40-year wait seems still too short, from the VA's perspective.

"The question is," said Humpty Dumpty, "which is to be master – that's all."

By its unique redefinition of exposure, VA indeed resolved the question of who is the master (hint; its not the veteran!) and resolve its concerns about how to prevent treatment for exposures suffered by veterans. VA had the clear obligation to honor exposure claims from post-Vietnam veterans who had proof of their exposures, but VA created an escape clause for itself. And thereby, dishonored the Department.

The Department of Veterans Affairs has reasonable discretion in addressing veterans' claims. Congress and the public expected VA to use that discretion in a more inclusive manner, to evaluate various situations and honor legitimate claims under the law in a responsible manner.

Neither Congress nor the public expected VA to instead be resolved to prevent veterans claims.

Rather than keep Lincoln's promise, VA is more determined to show veterans "which is to be master!" After all, as Post Deployment Health told the Associated Press, "We have to draw the line somewhere." And Post Deployment Health is firmly dedicated to drawing its lines however necessary, just so long as claims can be denied. Somehow, policy trumps law in Veterans Health Administration.

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!