VA Redefines "Exposure" to Block Agent Orange Exposure Claims

OSHA, CDC, NIH and all the others...not quite good enough for VA. At least, not when VA is casting about for something to use to prevent veterans' exposure claims.

To other federal agencies, exposure is defined as contact between a chemical (of any type) and the outer boundary of an organism. CDC, in about the same manner, defines exposure as:

Exposure: Contact with a substance by swallowing, breathing, or touching the skin or eyes.

OHSA defines occupational exposure...the kind experienced by C-123 aircrews, as:

Occupational Exposure means reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee's duties. 

But the VA needed to create its own definition. Not that there was anything incorrect or unscientific in standard medical or scientific definitions of exposure...its just that VA needed to create a definition to prevent exposure claims. All the other, scientifically correct definitions were, in fact, accurate but that was exactly why VA needed to create its own. Accuracy, and scientific correctness, were what VA saw as the problem in standard definitions of exposure.

VA needed to change the meaning of the word to prevent exposed veterans from qualifying for treatment of Agent Orange exposures.  Here's what the VA invented in their Post Deployment Health Section of Veterans Health Administration, in response to staff members insisting that no C-123 veterans would be permitted to have their Agent Orange exposure claims approved:

Exposure = contamination field + bioavailability.

As VA's Office of General Counsel explained, VA hasn't needed to define the word "exposure" before. There hadn't been any need, because  for one thing, VA never pretended to have the regulatory or scientific authority, or the need, to create its own unscientific and policy-oriented definition of the word. For nearly every situation, the standard reference of Dorlands Medical Illustrated Dictionary was ideal for every occasion.

But that need to come up with VA's own definition, however unscientific, arose just as soon as C-123 veterans pointed out the 1991 Agent Orange Act, and the multiple postings in the Federal Register all very clearly specify "exposure' as the single qualification for veterans to be able to seek VA medical care for Agent Orange-related illnesses.

So VA couldn't easily escape the obligation, oft-repeated, of honoring exposure claims and thus it simply changed the definition of the word...at least, within the VA. That's how the DOD, USPHS, CDC,NIEHS, EPA, NIH, OSHA, WHO, and all other government agencies consider C-123 veterans to have been exposed to Agent Orange, but the VA uses its private, and very unique, redefinition just so that the vets' claims can be denied.

Dermal Exposure – Denied by VA But Confirmed by Science

VA rejects all C-123 clams based on their selective literature review which was designed to avoid reference to publications not fitting their predetermined objective of preventing any acknowledgement of exposure aboard the C-123s. It is not a "blanket policy" for denials, but instead a 100% rejection with what they call a "claim-by-claim" process. We fail to see the distinction...the fact of the matter is the same, total rejection of all C-123 exposure claims. The Senate was misled with Secretary Shinseki's letter.

The fact that the VA's position was formed against us is based on their obvious decision to ignore publications not fitting VA's objective of pretending no exposure occured. Publications such as Leung and Paustenbach and the many government publications addressing hazards of TCDD exposure were dismissed as through they didn't exist.

As mentioned before, exposure is the only qualification we must meet under the law, but VA overlooks that and denies claims not on exposure facts but their redefinition of exposure to include bioavailability. Not very nice of them, indeed, but VA's objective was met...a barrier was constructed to prevent C-123 exposure claims by redefining away our exposure facts.

No C-123 claims are permitted on their watch because they decided in 2011 to prevent claims. That was Job #1. Job #2 was automatic to these folks...just say "no." Then VA Compensation and Pension simply provided boilerplate denial language for the VAROs to use, and twisted VA21-1MR's requirement for the VAROs to consult C&P into similar orders from DC to deny. 

Deny, deny until they die. It doesn't take long to get that impression, true or not.

Further, VA uses their reinvented concept of exposure which requires proof of bioavailability, yet then forbids testing for TCDD bioavailability. Their experts know it is unlikely that any TCDD would be still found, as one study showed known intensive exposures to twelve people only had two showing TCDD still in the body two decades later.

Our exposures, between 1972-1982 were so far back, and TCDD has a half-life in body tissue of about seven years, so testing wouldn't be an effective way to make any conclusion about our own bioavailability.

But studies do support our having had TCDD enter our bodies via dermal contact and inhalation of TCDD-laden dust. 

Check it out. Go to the OSHA Technical Center at Salt Lake City website which states how OSHA wants a surface contamination exposure assessment done.  On pg 2 of the website, in the section titled: Exposure Evaluation:  The fourth reference by Leung and Paustenbach includes a bioavailability dermal factor specific to dioxin and they even included a surface wipe example of dioxin in the paper on pg 194 and use a 1 percent bioavailability factor for dioxin.  

https://www.osha.gov/SLTC/surfacecontamination/

Leung and Paustenbach (1994) Techniques for Estimating the Percutaneous Absoprtion of Chemicals Due to Occupational and Environmental Exposure, Appl. Occup. Environ. Hyg. 9(3) 187-19 cite Shu, et al (1988) Bioavailability of Soil Bound TCDD: Draml Bioavailability in the Rat.  Fund. Appl. Toxicol. 10:648-654 for this bioavailability factor.  In other papers, Paustenbach noted the bioavailability was as high as 1.75% for dioxin.  

So basically, we claim that there is bioavailability of TCDD or dioxin and it was established as early as 1988 and again cited in a peer-review article in 1994 and presented in the OSHA website for how to conduct an exposure assessment of surface contamination of chemical.

And always remember: the law requires only exposure, which we've proven. The VA

pretense that bioavailability is necessary is wrong, but literature supports our having had TCDD bioavailability as well. The most recent scientific article from Environmental Research was "Air Force Aircraft Returned from Vietnam Identified as Source of Post-War Agent Orange Contamination." (Stellman, Berman, Lurker, Clapp)

If you have exposure claims before the VA, consider submitting additional material to counter the VA stacking the deck against us with only half the science. 

Check over the hundred or more source documents on our blog. Submit the rest of the science by including copies of:

1.  Federal Register 31 August 2010, page 53205
2. Air Force Aircraft Returned from Vietnam Identified as Source of Post-War Agent Orange Contamination
3. CDC/ATSDR determination that C-123 crews were exposed and had greater risks of cancer
4. OSHA Chemical Sampling Card
5. NIH/National Institute of Environmental Health Sciences C-123 Finding
6. Columbia University Mailman School of Public Health C-123 Finding
7. Concerned Scientists and Physicians Letter to Secretary of Veterans Affairs re: C-123 Exposures
8. US Public Health Service C-123 Exposure Findings
9. University of Texas Medical School C-123 Exposure Finding
10. Oregon Health Sciences University Toxicology Department C-123 Exposure Finding
11. C-123 Aircrew VA Claim Approval (Paul Bailey)
12. C-123 Maintenance Personnel VA Claim Approval (Rickenbacker–Name Withheld for Privacy)
13. Washington Post Article, Agent Orange's Reach Beyond the Vietnam War
14. ATSDR Terminology, including official definition of EXPOSURE

Most likely, your claim will still be denied on order of Compensation and Pension, but you will have ample evidence to show the Board of Veterans Appeals clear error on the VA's part in denying exposure claims.  The BVA and other officials know that C-123 veterans are being required to submit more documents, reach a much higher threshold of "as likely to as not" proof, than any other veterans ever have been.

Further, as with Paul Bailey, your medical evidence and the documents listed above can motivate a claims official to actually do the right thing and concede service connection.