The following is a portion of the testimony presented by American Legion National Commander Jimmie L Foster and addresses Veteran disabilities due to environmental exposures.
The full testimony can be found at the following weblink:
Please distribute to your members.
American Legion National Commander Fiscal Year 2012 Testimony For the Department of Veteran’s Affairs
By Jimmie L Foster, National Commander
Excerpt: Veterans Disabilities due to Environmental Exposures:
AGENT ORANGE AND TACTICAL HERBICIDES
The American Legion believes that major epidemiological studies of Vietnam veterans who were exposed to the herbicide Agent Orange are long overdue. In the early 1980s, Congress held hearings on the need for such epidemiological studies. When VA was unable to accomplish the task, the responsibility was passed to the Centers for Disease Control (CDC). In 1986, CDC also abandoned the project, asserting that a study could not be conducted based on available records.
The American Legion did not give up. Three separate panels of the National Academy of Sciences have agreed with The American Legion and concluded that CDC was wrong and that epidemiological studies based on DoD records are possible.
The Institute of Medicine (IOM) report, Characterizing Exposure of Veterans to Agent Orange and Other Herbicides Used in Vietnam, is based on the research conducted by a Columbia University team. The team has developed a powerful method for characterizing exposure to herbicides in Vietnam. The American Legion is proud to have collaborated in this research effort. In its final report on the study, the IOM urgently recommends that epidemiological studies be undertaken now that an accepted exposure methodology is available. The American Legion strongly endorses this IOM report.
PRESUMPTIVE SERVICE CONNECTION FOR EXPOSURE
The American Legion strongly supports the extension of presumption of exposure to Agent Orange for veterans who served on naval vessels located in the territorial waters of Vietnam (known as Blue Water Navy veterans) but did not set foot on land in Vietnam.
The IOM, in Update 2008, specifically stated that the evidence it reviewed makes the current definition of Vietnam service, for the purpose of presumption of exposure to Agent Orange, limited to those who actually set foot on land in Vietnam “seem inappropriate.” Citing an Australian study on the fate of the contaminant TCDD when sea water is distilled to produce drinking water, the IOM committee stated that it was convinced that such a process would produce a feasible route of exposure for Blue Water veterans, “which might have been supplemented by drift from herbicide spraying.” (See IOM, Veterans and Agent Orange, Update 2008, p. 564; July 24, 2009) The IOM also noted that a 1990 Centers for Disease Control and Prevention study found that non-Hodgkin’s lymphoma, a classic Agent Orange cancer, was more prevalent and significant among Blue Water Navy veterans. The IOM subsequently recommended that, given all of the available evidence, Blue Water Navy veterans should not be excluded from the group of Vietnam-era veterans presumed to have been exposed to Agent Orange/herbicides.
The American Legion submits that not only does this latest IOM report fully support the extension of presumption of Agent Orange exposure to Blue Water Navy veterans, it provides scientific justification to the legislation currently pending in Congress that seeks to correct this grave injustice faced by Blue Water Navy veterans. The American
Legion at its 2010 National Convention approved Resolution 88 identifying service in the Republic of Vietnam includes “those who served in the territorial waters offshore.”
EXPOSURE IN AREAS OTHER THAN THE REPUBLIC OF VIETNAM
The American Legion is also extremely concerned about the timely disclosure and release of all information by DoD on the use and testing of herbicides in locations other than Vietnam during the war. Over the years, The American Legion has represented veterans who claim to have been exposed to herbicides in places other than Vietnam. Without official acknowledgement by the Federal government of the use of herbicides, proving such exposure is virtually impossible. Information has come to light in the last few years leaving no doubt that Agent Orange, and other herbicides contaminated with dioxin, were released in locations other than Vietnam. This information is slowly being disclosed by DoD and provided to VA. In April 2001, officials from DoD briefed VA on the use of Agent Orange along the Korean demilitarized zone (DMZ) from April 1968 through July 1969. It was applied through hand spraying and by hand distribution of pelletized herbicides to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The size of the treated area was a strip 151 miles long and up to 350 yards from the fence to north of the civilian control line. According to available records, the effects of the spraying were sometimes observed as far as 200 meters downwind. DoD identified the units that were stationed along the DMZ during the period in which the spraying took place. This information was given to VA’s Compensation and Pension Service, which provided it to all of the regional offices. VA Central Office has instructed its Regional Offices to concede exposure for veterans who served in the identified units during the period the spraying took place.
In January 2003, DoD provided VA with an inventory of documents containing brief descriptions of records of herbicides used at specific times and locations outside of Vietnam. The information, unlike the information on the Korean DMZ, does not contain units’ involved or individual identifying information. Also, according to VA, this information is incomplete, reflecting only 70 to 85 percent of herbicide use, testing and disposal locations outside of Vietnam. VA requested that DoD provide it with information regarding the units involved with herbicide operations or other information that may be useful to place veterans at sites where herbicide operations or testing was conducted. Unfortunately, as of this date, additional information has not been provided by DoD.
Obtaining the most accurate information available concerning possible exposure is extremely important for the adjudication of herbicide-related disability claims of veterans claiming exposure outside of Vietnam. For herbicide-related disability claims, veterans who served in Vietnam during the period of January 9, 1962 to May 7, 1975 are presumed by law to have been exposed to Agent Orange. Veterans claiming exposure to herbicides outside of Vietnam are required to submit proof of exposure. This is why it is crucial that all information pertaining to herbicide use, testing, and disposal in locations other than Vietnam be released to VA in a timely manner.
The IOM subsequently recommended that, given all of the available evidence, Blue Water Navy veterans should not be excluded from the group of Vietnam-era veterans presumed to have been exposed to Agent Orange/herbicides.
Congressional oversight is needed to ensure that additional information identifying involved personnel or units for the locations already known by VA is released by DoD, as well as all relevant information pertaining to other locations that have yet to be identified. Locating this information and providing it to VA must be a national priority. The American Legion endorses both the 2006 and 2008 IOM reports and strongly urges VA to make a timely decision on its recommendations and provide timely notification of the decision to add or not add to the presumptive list. The ongoing and lengthy process witnessed during the addition of the three new presumptive conditions associated with Agent Orange, ischemic heart disease, Parkinson’s
disease, and b-cell leukemias such as “hairy cell leukemia” has illustrated the need for better coordination between VA, the veterans’ community and Congress. There is an excellent system already in place by law to provide for the addition of new presumptive conditions. The science evaluation performed by the IOM has been proven to be
sound and thorough. Where VA evaluates this information and chooses to add new presumptive conditions, the process should not reflect endless months of delays and debate, but should move forward swiftly.
In order to facilitate a better understanding of this process, more clarity and transparency may be required. Why, for example, does VA determine one portion of an IOM report to be valid for finding of a presumption of service connection, yet disregard other portions of the IOM findings, such as the analysis of the Australian Naval Study which
recognized the link between Blue Water Naval Service and the exposure to Agent Orange? When questions are raised as to why VA has determined that the IOM findings suggest a connection, there should be clear guidance as to what standard is being objectively used, so that no questions as to the integrity of the process can arise. The process, when supported by sound science, should not consist of a yearlong cycle of bickering. The law clearly states a period of deadlines for the publication of new regulations. These regulations must be adhered to, and the criteria by which the Department of Veterans’ Affairs determines the necessity to add a new presumptive condition must be clear, so that future delays to veterans can be avoided.
The American Legion has long fought for the veterans of Vietnam to be justly treated for the after effects of their exposure to Agent Orange. Congress and VA must discover a way to more efficiently execute the process of the addition of new presumptive conditions, so that years of long delays no longer plague veterans in their quest for benefits.
GULF WAR ILLNESS
In the Research Advisory Committee on Gulf War Veterans’ Illness (RACGWI) initial report released in November 2004, it was found that, for a large majority of affected Gulf War veterans, their illnesses could not be explained by stress or psychiatric illness and concluded that current scientific evidence supports a probable link between neurotoxin exposure and subsequent development of Gulf War veterans’ illnesses. Earlier government panels concluded that deployment-related stress, not the numerous environmental and other exposures troops were exposed to during the war, was likely responsible for the numerous unexplained symptoms reported by thousands of Gulf War veterans. The Research Advisory Committee on Gulf War Veterans’ Illnesses released their most recent report November 2008. In the report, the committee concluded that Gulf War Illness is a physical condition. The report indicates that Gulf War Illness is a serious condition that affects at least one fourth of the 697,000 U.S. veterans who served in the 1990-1991 Gulf War. The panel also determined that Gulf War Illness fundamentally differs from trauma and stress-related syndromes described after other wars.
Studies have indicated that Gulf War veterans have a lower rate of Post-Traumatic Stress (PTS) than veterans of other wars. Upon review of extensive scientific evidence, the committee determined that two neurotoxin exposures are causally associated with Gulf War Illness: a drug given to service members to protect them from nerve gas known as pyridostigmine bromide (PB) pills and pesticides used during deployment.
The science evaluation performed by the IOM has been proven to be sound and thorough. Where VA evaluates this information and chooses to add new presumptive conditions, the process should not reflect endless months of delays and debate, but should move forward swiftly.
The American Legion strongly supports this report and urges the VA Secretary to act quickly on the committee’s recommendations. In addition, VA must continue to fund research projects consistent with the recommendations of the RACGWI. VA must continue to fund research projects consistent with the recommendations of the RACGWI. It is important that VA continues to focus its research on finding medical treatments that will alleviate veterans’ suffering as well as on figuring out the causes of that suffering. Although veterans can file claims for these ailments and possibly gain access to the health care system once a disability percentage rate is granted, those whose claims are denied cannot enroll. Unfortunately, the denial rate for Gulf War undiagnosed illness claims is approximately 75 percent. Due to their nature, these illnesses are difficult to understand and information about individual exposures may not be available, many ill veterans are not able to present strong claims. They are then forced to seek care from private physicians who may not have enough information about Gulf War Veterans’ illnesses to provide appropriate care. VA published its comments on the IOM’s Gulf War and Health, Volume 2: Insecticides and Solvents report, released in February 2003 in the Federal Register.
The Department decided not to establish a presumption of service connection for any diseases, illnesses or health effects considered in the report, based on exposure to insecticides or solvents during service in the Persian Gulf during the Persian Gulf War. Many of VA’s justifications for not establishing presumption mirror the reasons why ill Gulf War veterans have problems justifying their claims. The IOM report notes that little information is known about the use of solvents in the theater. VA notes that veterans may still be granted service connection, if evidence indicates an association between their diseases and their exposures. This places the burden of proof on Gulf War veterans to prove their exposures and that the level of exposure is sufficient enough to warrant service connection. IOM and VA have acknowledged that there is insufficient information on the use of the identified solvents and pesticides during the Gulf War.
VA’s interpretation is that Congress did not intend VA to establish presumptions for known health effects of all substances common to military and civilian life, but that it should focus on the unique exposure environment in the Persian Gulf during the war. The IOM was commissioned to ascertain long-term health effects of service in the Persian Gulf during the war, based on exposures associated with service in theater during the war as identified by Congress, not exposures unique to the Southwest Asia Theater. The determination to not grant presumption for the ailments identified should be based solely on the research findings, not on the legitimacy of the exposures identified by Congress. The IOM has a similar charge to address veterans who served in Vietnam during the war. Herbicides were not unique to the operations in the Southeast Asia theater of conflict and there had not been, until recently, a definitive idea of the amounts of herbicides to which service members had been exposed. Peer-reviewed, occupational studies are evaluated to make recommendations on which illnesses are associated with exposure the herbicides—and their components known to be used in theater. For ailments that demonstrate sufficient evidence of a causal relationship, sufficient evidence of an association, and limited evidence of an association, the Secretary may consider presumption. Gulf War and Health Volume 2 identifies several illnesses in these categories. However, the VA Secretary determined that presumption is not warranted. VA needs to clearly define what type of information is required to determine possible health effects, for example, any clarification of guidance or mandate for the research.
VA also needs to ensure that its charge to the IOM is specific enough to help it make determinations about presumptive illnesses. VA noted that neither the report, nor the studies considered for the report identified increased risk of disease based on episodic exposures o insecticides or solvents and that the report states no conclusion whether any of the diseases are associated with “less than chronic exposure,” possibly indicating a lack of data to make a determination. If this was necessary, it should have been clearly identified.
Finally, Section 1118, title 38, United States Code mandates how the VA Secretary should respond to the recommendations made in the IOM reports. The VA Secretary is required to make a determination of whether or not a presumption for service connection is warranted for each illness covered in the report no later than 60 days after the date the report is received. Persian Gulf War and Health, Volume 2 was released in 2003, four years ago. VA has yet to publish its determination on those reports as well. The American Legion urges VA to provide clarity in the charge for the IOM reports. The VA must identify what type of information is needed to make determinations of presumption of service connection for illnesses that may be associated with service in the Gulf during the war.
The American Legion urges VA to request clarification from Congress on the intent of the phrase “known or presumed to be associated with service in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War.” Additionally to obtain clarification from the IOM committee concerning missing information as possible, and re-evaluate the findings of the IOM report with the clarification provided. The American Legion also urges Congress to provide oversight to ensure VA provides timely responses to the recommendations made in the IOM reports.
Jose M. Garcia
Past National Commander
Catholic War Veterans,USA
Better to understand a little than to misunderstand a lot.
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