Push Back: Resisting the VA Redefinition of Exposure

Veterans exposed to military herbicides (and we're talking Agent Orange in particular) are, by law, to be treated by the VA and considered "presumptively service connected" for the range of Agent Orange-presumptive illnesses. Key word, as we've seen for two years, is EXPOSED.

Exposed. No other qualifier.

But that word was hijacked by the VA a couple years ago.

By redefining exposure to their own perspective, clever folks at Post Deployment Health were able to explain away the scientifically-proven "as likely to as not" exposures of C-123 veterans. Although universities, scientists and other federal agencies continues issuing opinions and formal findings, VA keeps going back to their unique definition of exposure to prevent any C-123 veterans from qualifying for Agent Orange benefits.

Around 2012, VA was faced with the law's requirement that veterans claiming exposure...and proving it...were to be treated and provided benefits. To avoid this, VA invented their unique definition of exposure as: "Exposure = contamination field + bioavailability." 

Here, they didn't put the cart before the horse, but instead virtually put the horse into the cart. They put bioavailability into exposure, saying no exposure happened unless the veterans proved bioavailability also.

This was a very crafty, but ethically questionable, way to skirt the law's clear intent, which VA had recommitted to in several Federal Register postings. Veterans exposed to Agent Orange are to be treated...unless Post Deployment Health could find a way around the law. The physicians and scientists at Post Deployment Health, blocked C-123 veterans' exposure claims by redefining away the fact of the veterans' exposures.

VA's goal was to prevent these veterans gaining access to VA medical care for treatment of cancers, heart disease, ALS and other Agent Orange ailments. Theirs is a blanket policy of denials, despite the Secretary's assurances to the Senate that no such blanket policy exists.

Veterans couldn't very well prove bioavailability of dioxin exposures 40 years after the fact, so VA insisted they'd never been exposed and thus denied the veterans' disability claims.

VA is wrong, and not by accident but rather design. Keep reading.

Exposure is a specific, initial toxicological event. Other than a contaminant being physically present in some manner, exposure is the initial event in what the National Academy of Sciences named the activation of the toxicity pathway. No longer discrete events, the NAS considered them as a whole, as a pathway from toxin to eventual morbidity and mortality.

Repeat: Exposure is the first toxicological event in that pathway. Subsequently, the toxin enters tissues and that is followed by biological interaction. The NAS graphic presents it well, and in our case, helps prove that we've been exposed. Exposure first, then bioavailability down the line.

Not by the VA definition. Fortunately, the NAS graphic and the experts behind its creation show that the VA definition is wrong. Unscientific, as many have said. Ludicrous, as one scientist put it.

Exposure is the initial event in the cycle. Exposure is as simple as skin contact, or inhalation or ingestion of coffee, dust, toxins or other substances. Later, further along in the toxicity pathway, there is biologic interaction...or, as VA phrased it, "bioavailability." Other scientists use the term bioaccumulation, but in all cases exposure is a separate toxicological event, and bioavailability is not a part of exposure but its own event.

Dr. Linda Birnbaum, Director, NIEHS

VA is not only wrong, but completely alone. Their redefinition of exposure, by decree from that small office and not by scientific or legislative process, is wrong and perhaps illegal in that it was done to the great harm of a group of veterans, depriving them of rights without due process.

"We all die" was the response from Post Deployment Health when the veterans asked if the process could be addressed before their illnesses overtook them. We all die, indeed, but C-123 crews drew little comfort from Dr. Peterson's dismissal of our hopes to delay that a bit longer...perhaps as long as others who didn't fly these airplanes.

VA enforces its own rules and regulations, but is subject to outside judicial review. Reinventing exposure to prevent C-123 veterans claims will be eventually resolved, but the VA gains by denying thousands of such veterans all benefits for years...there is no recovery of the costs a veteran handles on his or her own over the years of waiting for VA to unlock their hospital doors. Rehab, pharmacy, prosthetics, dental, vision, survivor benefits, travel, specialty clinics...all denied for years. Either paid for by the veteran or, more likely, done without.

VA Claim Prevention System

Normally (until recent and very effective steps by Veterans Benefits to improve) after getting hurt and then discharged, a veteran has had to provide his/her own medical care for two to three years waiting for a normal disability claim to work through the system. Many find this a complete financial disaster, unless some other medical coverage is available. Savings, homes, marriages suffer while VA dithers for years whether to allow a disabled veteran to be treated.

In the case of the C-123 veterans, events have truly overrun the veterans. First, the Air Force had us fly
these airplanes for a decade, insisting to us there was no contamination from their earlier Agent Orange missions. After the planes retired to storage, when the Air Force by 1994 had definite confirmation of the C-123 toxicity, they ordered all contamination information kept from us, when the Air Force Office of Environmental Health directed "all information be kept in official channels only." The USAF Surgeon General agreed C-123 veterans were not to be notified of our previous exposures "to prevent undue distress."

A low-level of quasi-secrecy ("official channels only")  was maintained up through destruction of the toxic C-123s at Davis-Monthan AFB, Arizona. The consultant from the Office of Secretary of Defense helped craft press releases minimizing the C-123 Agent Orange legacy and touting, instead, the USAF "environmentally responsible" recycling of the metal.

Not mentioned in the press release, which was never released (!) was the fact that the smelting of the contaminated airplanes was necessary to avoid a threatened EPA fine of $3.4 billion for illegal HAZMAT storage over the decades.

Not mentioned was the fact that the regular manager for surplus military sales, the Defense Material Remarketing Service, considered the C-123 fleet hazardous material and insisted on special handling or they wouldn't cooperate without public bidding for HAZMAT processing...which the Air Force wanted very much to avoid. Too much notice would mean that veterans might learn of the problem, another concern expressed by the Office of Secretary of Defense that was to be prevented.

The point should be clear: The C-123 airplanes were to be eliminated without informing already-

exposed C-123 veterans. The OSD consultant's recommendations went to three Hill AFB authorities, including Major Carol McCready, and concerns about preventing veteran awareness were repeated as approvals were sought from higher headquarters..."don't let the C-123 veterans know of this or they'll apply to the VA for exposure benefits" seemed the approach used by the USAF.

I've written about this before in various posts and articles. Why keep repeating the message?

Because VA keeps ordering their regional offices to deny C-123 veterans' exposure claims. VA keeps telling our veterans to seek help elsewhere for Agent Orange illnesses.

VA keeps telling Diane Olmsted, widow of LtCol Aaron Olmsted and mother of an adult, disabled and
institutionalized son, that his VA claim remains denied because Olmsted wasn't exposed during the thousands of hours he flew the C-123...at least, not by the special VA definition of exposure crafted by Post Deployment Health to prevent acknowledging exposure!