VA Accused of Denying Benefits to Servicemen Sickened by Toxins
WASHINGTON—Military service members can be exposed to many toxic substances in their occupations that most nonmilitary can’t fathom or appreciate.
Sen. Richard Blumenthal (D-Conn.), ranking member of the Senate Committee on Veterans Affairs (SVAC), said at a hearing on Sep. 29 that the modern battlefield has all sorts of toxic substances perilous even for the veteran not engaged in combat.
Service members, and sometimes their families, contract maladies, especially cancer, that manifests after leaving service. Then they must face the Department of Veterans’ Affairs, a bureaucracy that may be slow or unwilling to recognize the connection between the veteran’s illness and his or her exposure to a toxic substance during service.
“While the impact is undeniable, establishing and qualifying a clear link between the [toxic] exposures and health effects has become an intolerably long and complex process,” said Blumenthal.
The Senate Committee on Veterans’ Affairs heard from the Department of Veterans’ Affairs (VA), the Institute of Medicine (IOM), several veterans groups, and three angry U.S. senators.
Emotions ran high at the hearing as advocates for veterans strongly disagreed with representatives of VA on the way veterans’ claims are processed, and on the efficacy of two bills that the committee is considering—S.901 and S.681—which the veterans’ organizations strongly support.
VA was accused of obstructing and evading the granting of benefits to deserving individuals who may lack the resources or strength to fight the bureaucracy. The VA responded that it has a scientific process for assessing claims.
Camp Lejeune Water Contamination
Sen. Richard Burr (R-N.C.) gave testimony concerning the contamination of the water supply at Marine Corps Base at Camp Lejeune, North Carolina, during the period 1953–1987, which he said has been called the worst incident of environmental poisoning in the nation’s history.
“Hundreds of thousands of service members, their families, and civilian workers drank and bathed in water that had been exposed to a mix of cancer causing chemicals that in one case took the life of a 9-year-old girl, Janey Ensminger, who was born on the base. Once metabolized, the chemicals in the water could cause birth defects and increased risk of multiple cancers,” he said.
However, VA has been reluctant to accept the connection, and lacked “the expertise or resources to explore the science of toxic exposures,” said Burr. So, Burr introduced the Janey Ensminger Act, which was signed into law in 2012, to force the VA to accept that service members and their families who had fallen sick were entitled to medical care for cancers and other illnesses associated with toxic exposures at Camp Lejeune.
Sen. Burr wrote in The Hill on the same day as the hearing, “VA has continued to ignore and deny credible science and resisted helping Camp Lejeune veterans’ calls for help.” He accused the VA of “engaging in a decadelong cover-up.” He cited the case of Norman McIlhenny, a marine veteran, who suffers from kidney disease and had his claim denied based on a VA clinician who stated there was no evidence that one of the chemicals in the water, TCE, was known to cause cancer.
Burr wrote, “When VA was later shown evidence that exposure to TCE is widely accepted as a cause of kidney cancer, VA removed the citation in the denial notice, then reissued it, and denied Mr. McIlhenny again.”
Last week, the CDC’s Agency for Toxic Substances and Disease Registry (ATSDR) issued a 70-page report to the VA that causally linked at least six cancers to toxic exposures at Lejeune, according to Burr. Subsequently, the VA announced it will extend “presumptive” benefits for these cancers, freeing the patient of having to prove the connection.
The retired Master Sgt. Jerome Ensminger from the U.S. Marine Corps testified that his family lived at Camp Lejeune during the years of contaminated water. His daughter Janey, mentioned by Burr above, was diagnosed with leukemia when she was 6 and died at the age of 9 in 1985. Ensminger first became aware of the contaminated tap water in 1997. Initially, the Department of Navy and the U.S. Marine Corps played down the seriousness of the levels of contaminants as “minuscule” or a “trace,” according to Ensminger, but later it was revealed to be the “largest tap water contamination incident of a major water system in the history of our nation.”
Ensminger was frustrated with the claims process in which the VA creates “insurmountable obstacles” for which “most veterans don’t have the knowledge or finances to overcome.”
Presumptive Service Connection
VA’s authority to grant medical care and disability compensation largely depends on statues that establish “presumptions” of a service connection for diseases related to exposure to biological, chemical, or other toxic agents at a particular time and place, such as the Republic of Vietnam during Jan. 9, 1962, through May 7, 1975. The VA uses reports from the National Academy of Sciences (NAS) and other scientific information available to establish “presumption of service connection,” but that may be difficult to do when exposure data is lacking. Next, VA proposes a regulation regarding the basis of the presumption connection and defines the eligibility criteria. Absent a presumption connection, the individual veteran will have a hard time getting compensation.
During the Vietnam War, approximately 20 million gallons of Agent Orange and other toxic chemicals were sprayed to remove jungle foliage. These herbicides have been linked to non-Hodgkin’s lymphoma, various cancers, Type II diabetes, and Parkinson’s disease, stated John Rowan, national president of the Vietnam Veterans of America (VVA), in written testimony. Congress passed, and the President George H. W. Bush signed, the Agent Orange Act of 1991, which requires that VA provide presumptive coverage to Vietnam veterans with illnesses linked to Agent Orange.
But in March 2002, VA “changed the intent of Congress, halted coverage to an estimated 174,000 veterans, including those who served in the blue waters just off the Vietnam coast,” said Sen. Kirsten Gillibrand.
The VA is only recognizing the exposure to Agent Orange presumption for those that stepped foot on enemy soil or entered “inland” waterways, but not offshore waters, according to written testimony of retired Cmdr. John Wells, who is executive director of Military-Veterans Advocacy (MVA).
Sens. Gillibrand and Steve Daines (R-Mont.) were angered by the ineligibility of benefits for blue water navy (BWN) Vietnam veterans. They are co-sponsoring S.681, the Blue Water Navy Vietnam Act of 2015, to restore eligibility to blue water veterans to the same status as “boots on the ground” Vietnam veterans. Virtually all veterans organizations support S.681, including the American Legion, Veterans of Foreign Wars, Vietnam Veterans of America, and the MVA, writes Wells.
“Dioxin is the most harmful chemical found in Agent Orange and has been proven to cause a variety of cancers, Parkinson’s disease, coronary issues, and many more deadly diseases for those that come into contact with it. I am disturbed that those tasked with the ultimate responsibility of taking care of our veterans would be so callous as to remove their benefits,” testified Daines.
Gillibrand noted that an April decision by the Court of Appeals for Veteran Claims, Gray v. McDonald, found the denial of coverage to those who served on boats in Vietnam’s bays and harbors as “arbitrary and capricious.”
VA must now rewrite the regulation following the Gray decision, according to Wells, who is “cautiously optimistic” after meeting with Deputy Secretary Sloan Gibson.
David R. McLenachen, deputy undersecretary for disability assistance, veterans benefits administration, said at the hearing that the Gray decision prompted VA to begin the process of a thorough evaluation and clarification regarding the distinction between “inland waterways” and “offshore waters.”
Several speakers made mention of studies by the Australian Department of Veteran Affairs concerning Australia’s navy ships deployed in Vietnam that found that the distillation plants aboard the ships that converted salt water to potable water introduced dioxin and actually made the water “enriched” with dioxin effects. A subsequent study by the Institute of Medicine (IOM) of U.S. ships, which use a similar distillation process as Australian navy, found that the distillation plants at the time that converted salt water to potable water did not remove the Agent Orange dioxin but actually enriched it by a factor of ten, according to Wells, who knows the process well as he was the chief engineer on three navy ships during the Vietnam War, and was directly responsible for their water distillation, storage, and distribution system.
Institute of Medicine (IOM) Neutral
A study by IOM was neutral on the Blue Water Navy Vietnam Act. Kenneth S. Ramos, M.D., who is chair of the IOM Committee on Veterans and Agent Orange (VAO), Update 2014, summarized an IOM report. He testified that owing to the lack of data, exposure of BWN Vietnam veterans to Agent Orange-associated dioxin cannot reasonably be determined, and further research is “highly unlikely” to resolve the issue. “Whether or not the claims of BWN veterans are to be processed like those of other Vietnam veterans is ultimately a policy decision and not one that can be answered on the basis of science,” he said.
However, Ramos said that the VOA committee for “Update 2008” believed that “available scientific information did not support making a decision to exclude [BWN Vietnam veterans] from coverage under the Agent Orange Act.”
Toxic Exposure Research Center
Sens. Blumenthal and Jerry Moran (R-Kan.) have introduced the Toxic Exposure Research Act of 2015, S.901, which would establish in the Department of Veterans Affairs a national center for research on the diagnosis and treatment of health conditions of veterans’ children, grandchildren, or great grandchildren affected by the veterans’ exposure to toxic substances during service in the armed forces.
VA continues to oppose S. 901, said McLenachen, who said, “The epigenetic research that is called for is very new,” and the VA does not have the expertise. Other federal departments and agencies are better able to support research on the multigenerational health effects of toxic exposures, testified Dr. Rajiv Jain, assistant deputy undersecretary for health for patient care services, veterans health administration, at VA hearing on June 24, 2015. “VA would be better designated as a collaborator with these organizations,” Jain said. McLenachen said that VA would support having the proposed research center housed in another agency.