Hearing exposes flaws in Agent Orange law
By Tom Philpott | Special to Stars and Stripes | Published: September 30, 2010
Anthony Principi, former secretary of Veterans Affairs, warned last week that disabled veterans and their families will suffer if Americans “lose faith in the integrity” of the VA disability compensation system.
“And the surest way for that to happen,” he told the Senate Veterans Affairs Committee, “is for the American people to believe that large numbers of veterans are being compensated for illnesses that may not be the result of their military service. That’s the crux of the issue we’re all grappling with.”
Fortunately for the hundreds of thousands of Vietnam veterans in line to be compensated for three additional diseases linked to Agent Orange exposure, few senators seemed ready to grapple with that issue any time soon.
The hearing that many veterans feared actually boosted confidence that, in the months ahead, they will qualify for disability payments. But it also revealed that up to $4 billion a year more in compensation will be paid in part because VA and Congress have mishandled this volatile issue.
As witnesses explained, the government cut short or never sponsored a host of potential Agent Orange studies that might have better informed on levels of exposure, or the relative incidence of herbicide-linked conditions among Vietnam veterans versus other populations.
Congress in turn left the 1991 Agent Orange law on automatic pilot and with such ambiguous guidance that VA secretaries are strapped to make presumptive disease decisions with confidence. The result is uncertainty now about the fairness of some Agent Orange claims for veterans and taxpayers.
The hearing was held to allow VA Secretary Eric Shinseki to explain his decision to add three diseases — ischemic heart disease, Parkinson’s disease and B-Cell leukemia — to the list of ailments presumed caused by herbicide exposure in the Vietnam War. He did so, noting how the law directs him to establish presumption of service connection “without regard to the projected costs or the existence of independent risk factors.”
Days after the hearing, a spokesman for Sen. Daniel Akaka, D-Hawaii, said he will not “introduce a resolution of disapproval on the three new presumptive conditions.” But he is “studying possible improvements to the presumptive disability decision-making process” and that will continue into next year.
Leading the criticism of current law was Sen. Jim Webb, D-Va., and Principi. Medical experts testified to positive associations between these ailments and Agent Orange but also noted gaps in knowledge and research.
Webb said the issue isn’t cost but credibility, whether it’s responsible to compensate for illnesses generally associated with aging or lifestyle, like heart disease, when no records exist for many veterans to confirm herbicide exposure and using “limited suggestive evidence” of a positive association.
Webb noted that before the Agent Orange law was written, only three relatively rare diseases were linked by medical research to Agent Orange.
Principi acknowledged that “diseases of ordinary life” are now being compensated. He said he doesn’t regret his own decision in 2001 to connect Type II diabetes to service in Vietnam. But he made three recommendations to improve current law, which both Akaka and Webb said will be helpful.
Principi called for new studies to “improve our ability to base future presumptive service-connection decisions on stronger scientific evidence.”
Second, the Institute of Medicine (IOM) should be directed to study whether the potential harm from herbicide exposure diminishes over time to a point where exposure decades ago isn’t likely to be the cause of certain illnesses appearing in old age.
Third, IOM should begin to estimate the added number of veterans affected by illnesses associated with herbicide exposure. For example, if 100,000 could be expected in the normal course of life to develop a particular disease, IOM should look at how many more veterans would develop that disease from being exposed to Agent Orange. If the last number is very small, Principi said, disability compensation might not be warranted.
Shinseki’s only recommendation: removing the 60-day deadline for a VA secretary to accept or reject finding from IOM on adding new presumptive diseases. It creates “a time-constrained process,” he said.
In an exchange that captured the rising skepticism that surrounds the Agent Orange law, Sen. Jon Tester, D-Mont., asked whether VA now must presume that ischemic heart disease in a Vietnam veteran, including someone who had smoked two packs of cigarettes a day for years, was caused by Agent Orange exposure. “Correct,” Shinseki answered.
Tester then asked if there were any factors that would cause VA to deny a claim from a Vietnam veteran with heart disease.
“I’m told that there is one individual who recently made a comment that he’s receiving Agent Orange benefits and he only paused in the airport in Saigon for eight hours,” Shinseki said. When a veteran “self-identifies like this, we’re going to go take a look.”
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