[Senate Hearing 114-371]
[From the U.S. Government Publishing Office]
S. Hrg. 114-371
EXAMINING THE IMPACT OF EXPOSURE TO TOXIC CHEMICALS ON VETERANS AND THE
VA'S RESPONSE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 29, 2015
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
Johnny Isakson, Georgia, Chairman
Jerry Moran, Kansas Richard Blumenthal, Connecticut,
John Boozman, Arkansas Ranking Member
Dean Heller, Nevada Patty Murray, Washington
Bill Cassidy, Louisiana Bernard Sanders, (I) Vermont
Mike Rounds, South Dakota Sherrod Brown, Ohio
Thom Tillis, North Carolina Jon Tester, Montana
Dan Sullivan, Alaska Mazie K. Hirono, Hawaii
Joe Manchin III, West Virginia
Tom Bowman, Staff Director
John Kruse, Democratic Staff Director
C O N T E N T S
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September 29, 2015
SENATORS
Page
Isakson, Hon. Johnny, Chairman, U.S. Senator from Georgia........ 1
Blumenthal, Hon. Richard, Ranking Member, U.S. Senator from
Connecticut.................................................... 2
Rounds, Hon. Mike, U.S. Senator from South Dakota................ 15
Tillis, Hon. Thom, U.S. Senator from North Carolina.............. 18
Manchin, Hon. Joe, III, U.S. Senator from West Virginia.......... 20
Tester, Hon. Jon, U.S. Senator from Montana...................... 22
Heller, Hon. Dean, U.S. Senator from Nevada...................... 24
Hirono, Hon. Mazie K., U.S. Senator from Hawaii.................. 26
Cassidy, Hon. Bill, U.S. Senator from Louisiana.................. 33
Moran, Hon. Jerry, U.S. Senator from Kansas...................... 36
Boozman, Hon. John, U.S. Senator from Arkansas................... 38
WITNESSES
Burr, Hon. Richard, U.S. Senator from North Carolina............. 4
Gillibrand, Hon. Kirsten, U.S. Senator from New York............. 7
Daines, Hon. Steve, U.S. Senator from Montana.................... 8
McLenachen, David R., Acting Deputy Under Secretary for
Disability Assistance, Veterans Benefits Administration, U.S.
Department of Veterans Affairs; accompanied by Ralph L.
Erickson, M.D., M.P.H., Dr.P.H., Director, Post-Deployment
Health, Veterans Health Administration......................... 9
Prepared statement........................................... 11
Response to request arising during the hearing by:
Hon. Jon Tester............................................ 22
Hon. Mazie K. Hirono....................................... 28
Response to posthearing questions submitted by:
Hon. Richard Blumenthal.................................... 41
Hon. Jerry Moral........................................... 43
Hon. Thom Tillis........................................... 44
Ramos, Kenneth S., M.D., Ph.D., Associate Vice President for
Precision Health Sciences, Arizona Health Sciences Center,
University of Arizona and Chair, Institute of Medicine
Committee on Veterans and Agent Orange, Update 2014, the
National Academies of Sciences, Engineering, and Medicine;
accompanied by: Roberta Wedge, M.S., Senior Program Officer,
Institute of Medicine, the National Academies of Sciences,
Engineering, and Medicine...................................... 44
Prepared statement........................................... 47
Wells, John, Commander U.S. Navy (ret.), Executive Director,
Military-Veterans Advocacy, Inc................................ 50
Prepared statement........................................... 52
Rowan, John, National President, Vietnam Veterans of America..... 61
Prepared statement........................................... 63
Submission, Faces of Agent Orange............................ 74
Ensminger, Jerome, Master Sergeant, U.S. Marine Corps (Ret.)..... 65
Prepared statement........................................... 68
APPENDIX
Blinded Veterans Association; letter............................. 127
Blue Water Navy Vietnam Veterans Association; letter............. 128
Children of Vietnam Veterans Health Alliance, Inc.; letter....... 129
EXAMINING THE IMPACT OF EXPOSURE TO TOXIC CHEMICALS ON VETERANS AND THE
VA'S RESPONSE
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TUESDAY, SEPTEMBER 29, 2015
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
room 418, Russell Senate Office Building, Hon. Johnny Isakson,
Chairman of the Committee, presiding.
Present: Senators Isakson, Moran, Boozman, Heller, Cassidy,
Rounds, Tillis, Blumenthal, Brown, Tester, Hirono, and Manchin.
OPENING STATEMENT OF HON. JOHNNY ISAKSON,
CHAIRMAN, U.S. SENATOR FROM GEORGIA
Chairman Isakson. I am going to call this hearing of the
Veterans' Affairs Committee of the U.S. Senate to order. We
have three members who will testify first today. One of them is
here, punctual and on time, former Ranking Member Richard Burr.
We welcome him. And hopefully by the time the two opening
statements by myself and the Ranking Member have been made,
Senator Daines and Senator Gillibrand will be here. But we want
to start promptly so people will know we mean to start promptly
around here on the Committee. I think that is important.
This is an important hearing today for a lot of reasons,
most importantly because we want to determine the presumptive
nature of certain exposures to our veterans that could cause
debilitating and deadly diseases. We want to hear testimony
from the Veterans Administration. We are going to hear
testimony from toxic experts and we are going to hear testimony
from three members of the U.S. Senate.
For me, it is very important that we have a thorough
examination of what it takes to get to a presumptive conclusion
that a disease or a disability has been caused by an exposure,
that it be as scientific as it can be so it is absolutely,
unequivocally clear. I am not an expert at that type of thing.
I am a salesman. I am not an expert in science or technology or
anything else, but I am here to learn, as I know the Ranking
Member is, as well.
I want to particularly thank Senator Burr and Senator
Tillis for what they have done at Camp LeJeune to bring this
issue forward over the last several years. I look forward to
moving toward a successful conclusion in terms of presumption
on that particular issue.
With that said, today we will have three panels. First, the
three Senate members that are here to testify, then the VA,
then we will have a final panel to testify on the nature of
toxic exposure and causation.
With that said, I will turn to Senator Blumenthal, the
Ranking Member.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
RANKING MEMBER, U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thank you, Mr. Chairman. I want to
express my appreciation to you for holding this hearing to
examine the multi-faceted harmful impacts of toxic exposures
and the need for additional legislation, including the
extension of the Secretary's authority to grant that
presumptive coverage for service-connected disabilities based
on exposure to herbicides.
I very much regret that this authority, which Congress has
provided the Secretary for the last 15 years, was not included
in the extenders package that the Senate passed last week. I
understand that this omission was based in part over the
Chairman and other members' concerns regarding its possible
scoring implications for the larger package that has bipartisan
support to move before these vital authorities expired.
Given our very mutual concern for veterans exposed to toxic
chemicals in conflicts today and in prior years, I am hoping
that the Chairman will assure me, as he has done privately,
that he will give full and favorable consideration to
legislation that I have introduced to ensure that the Secretary
will regain this specific authority and, in the interim, work
with me to encourage the Secretary to use his general rule to
make authority as needed for all veterans who may have been
impacted by these exposures. I am hoping that those assurances
will be forthcoming at some point today or in the near future.
To this end, I have introduced S. 2081, which would extend
the Secretary's authority for an additional 15 years. It also
ensures that there are no impediments in extending compensation
to veterans exposed to herbicides, as medical evidence,
research, and studies support. I have a letter from the Blinded
Veterans Association expressing support for this measure and I
ask that it be included in the record for this hearing.
Chairman Isakson. Without objection.
[The information referred to is in the Appendix.]
Senator Blumenthal. Thank you. I look forward to hearing
from all of our witnesses about this measure, along with other
important issues including helping Blue Water veterans and all
those returning from Iraq and Afghanistan with toxic exposures.
Potential exposure to toxic chemicals during military
service raises serious and complicated questions. While the
impact is undeniable, establishing and qualifying a clear link
between the exposures and health effects has become an
intolerably long and complex process.
As a result, I am hopeful that the Committee will continue
to drill down and dig down and monitor the recommendations made
by the Institute of Medicine's biennial updates on the health
effects of Agent Orange exposure to ensure that the VA responds
appropriately.
In its report, Veterans and Agent Orange, 2012 Update, IOM
stated, ``The amount of research providing reliable information
on the consequences of paternal exposure is extremely sparse
not only for Agent Orange, but for the full array of
environmental agents that may pose threats to the health of
future generations.''
Here is what we know about the modern battlefield. There
are all sorts of toxic substances out there, many more than are
imaginable to the layperson, whether it is depleted uranium,
pollutants from burn pits, or nerve gas in unexploded
ordinances. We know that the modern battlefield includes perils
even for the veteran who has not been engaged in combat.
When a veteran signs up for duty, he or she has not signed
up their children or grandchildren. Risking their own lives
does not mean volunteering the next generation for neurological
conditions, cancer, or other life-threatening conditions.
So, earlier this year I introduced legislation with Senator
Moran that is one step only, one step in the right direction.
It says that we need to know a lot more because we know so
little about the effects of these toxic substances on veterans
and their families. We need to know more through a research
center that can do the kind of fact-finding and fact-gathering
and other kinds of medical and scientific research that will
show us the way to better diagnose and treat the effects of
toxic exposure.
We need an advisory board of experts that can tell the
secretaries of VA and HHS and other responsible government
agencies they can do better. The IOM's 2011 report entitled,
Blue Water Navy Veterans and Agent Orange Exposure, failed to
find sufficient evidence to connect Blue Water Navy service
with exposure to Agent Orange sufficient to merit a
presumption, and led the Secretary of VA to issue a
determination of no presumption in 2012. But this issue
warrants and demands further investigation.
In particular, the VA needs to follow up on an Australian
Government study that established the possibility that so-
called Blue Water Navy ships off the coast of Vietnam ingested
water contaminated by Agent Orange through their distillation
systems that produced drinking water for their crews.
Finally, I was deeply troubled and perplexed by Secretary
Mabus's recent remarks dismissing links between Camp Lejeune
water and the higher incidence of a number of illnesses of
veterans who served in that area. We cannot be cavalier about
the risks that our servicemen and women have taken.
I know that Navy Secretary Mabus is also deeply concerned
about this issue and I thank him for his concern. But many
others in positions of authority have failed to demonstrate
those kinds of concerns. My hope is that we will hear more from
our witnesses that will bolster and substantiate the ongoing
and increasing efforts to do more and do better in dealing with
toxic exposure to dangerous chemicals on our battlefield and
elsewhere in our military. I look forward to the opportunity
for this important conversation. Thank you to our witnesses for
being here today. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Ranking Member. In reference
to his opening statement, I commit to him, as I have privately,
then we are going to see to it that we explore thoroughly the
causation of various diseases that take place, and when we find
conclusive scientific evidence, we will move accordingly. I
look forward to working with him on that effort as we improve
the lives of our veterans.
Senator Blumenthal. Thank you, Mr. Chairman.
Chairman Isakson. I would like to welcome our three guest
Senators. As is the tradition on the Committee, we will not ask
questions of them, but we will ask for their testimony. I would
ask that each of them try to keep their remarks within 5
minutes, if possible. We welcome our first alumni, Richard
Burr, the former Ranking Member of the Committee. Senator Burr,
the floor is yours.
STATEMENT OF HON. RICHARD BURR,
U.S. SENATOR FROM NORTH CAROLINA
Senator Burr. Mr. Chairman, Ranking Member, thank you for
the opportunity to give the Committee my perspective on the
effects of toxic exposure on our Nation's veterans and the
Department of Veterans Affairs' often inadequate and
frustrating response.
Mr. Chairman, this has been a long road and I ask for the
Committee's indulgence because I am not sure that I can give
you this very long history in 5 minutes; it may take 6 minutes.
Chairman Isakson. We will be easy.
Senator Burr. To my colleague, Senator Blumenthal, I wish I
could hold Secretary Mabus in the same regard that you do, but
if there has been an epiphany that has happened lately as it
relates to his concern over whether the appropriate documents
were available, and many cases they have made it as difficult
as it possibly can be.
Before I begin, Mr. Chairman, I would like to recognize
Master Sergeant Jerry Ensminger, U.S. Marine Corps, retired,
from White Lake, NC, who is here today and who has been a
relentless advocate for Camp Lejeune, for its veterans for over
15 years. Let me just say, Jerry, we would not be here today if
it was not for your fidelity, your courage, and your
commitment.
Mr. Chairman, during my time on the Committee, one toxic
exposure issue continued to garner our attention because of its
scope, its severity, and the intense public interest. That is
the contamination of the water supply at Camp Lejeune, NC.
From 1953 to 1987, we know Camp Lejeune residents were
exposed to poisoned water from industrial dumping on the base
and contamination from a dry cleaner off base. This 34-year
event has been called the worst incident of environmental
exposure in our Nation's history. Hundreds of thousands of
servicemembers, their families, civilian workers, drank and
bathed in water that had been exposed to mixed cancer-causing
chemicals that, in one case, took the life of a 9-year-old
girl, Janey Ensminger, who was born on base.
Once metabolized, the chemical in the water could cause
birth defects and increased risk of multiple cancers. The
Government scientific investigation into Camp Lejeune began in
1989, but we have only seen significant progress in the last 5
years spurred by the uncovering of critical Navy and Marine
Corps records and the completion of a long overdue study on the
effects of the contamination.
Along the way, I went to great lengths to reveal the truth
about Camp Lejeune and hold the military and the VA
accountable. To this day, I remain appalled at how the U.S.
Government has treated these servicemembers and their families.
Our Government rewarded the sacrifices of these patriotic men
and women by negligently poisoning them and their families and
by engaging in a decades long cover-up.
It was not until 2011, after significant Congressional
pressure, that the VA began consolidating all disability claims
at one VA regional office in coding and tracking them. During
the time I introduced the Janey Ensminger Act, named in honor
of Master Sergeant Ensminger's late daughter. The law was
passed and signed into law in 2012. It has provided the much
needed and overdue medical relief to veterans and eligible
family members seeking health care for cancers and conditions
associated with toxic exposure at Camp Lejeune.
Janey's Law was based on scientific findings required by
Congressionally mandated review, because within the VA, there
was neither the expertise nor the resources to explore the
science of toxic exposure. The Government studies on Camp
Lejeune conducted by the CDC's Agency for Toxic Substances and
Disease Registry, or ATSDR, are based on test results from
water samples taken at Camp Lejeune over successive years.
The study shows some of the highest levels of recorded
toxins in any U.S. water system and it reached the taps in
houses, barracks and offices. ATSDR has found that Camp Lejeune
residents experienced higher rates of mortality at a younger
age than those from an unaffected Marine Corps base, higher
incidence of birth defects in children born on the base, and a
statistically high number of male breast cancer survivors.
In fact, several chemicals found in Camp Lejeune water are
now classified as known human carcinogens by the EPA and the
International Agency for Research on Cancer.
Mr. Chairman, the resistance inside the VA to the
scientific data and the fact that Camp Lejeune demonstrates how
VA has dealt with the scientific facts of toxic exposure
overall. In the case of LeJeune, their approach ranged from
scare tactics like issuing over-inflated estimates on long-term
cost of care to this Committee for benefits, and suggesting the
Department of Defense should take care of Camp Lejeune families
instead of VA.
They produced passive aggressive rebuttals of the
scientific findings, have sought additional scientific studies,
and created a bizarre procedural hurdle for Camp Lejeune
veterans to overcome in the disability claims process.
To this day, Lejeune veterans from across the country
contact my office and relate demoralizing accounts of ignorant
VA doctors in the claims process that is frequently deaf and
blind to scientific evidence and medical opinion. This summer,
Secretary McDonald indicated he wants his people to back away
from this adversarial approach, work with veterans with a
history of toxic exposure, and begin by engaging Congress and
Government scientists to develop sound policies for Camp
Lejeune veterans.
In July, Senator Tillis and I sat down with the Chairman
and Secretary McDonald to raise some questions that were very
serious about a VA team of clinicians reviewing Lejeune
veterans' disability claims before final decisions were made on
service connection.
These VA doctors were, in various cases, cherry picking the
science, misrepresenting or misinterpreting scientific studies,
using questionable sources, and overruling the opinions of
veteran oncologists.
In the glaring case of one Marine, Norman Mcilhenny,
suffering from kidney cancer, a VA clinician stated that there
was no evidence of the chemicals at Camp Lejeune water, the
carcinogen TCE, which was known to cause kidney cancer. VBA
later denied the claim. When VA was later shown evidence that
the exposure to TCE is widely accepted as a cause of kidney
cancer, VA removed the citation and the denial notice, then
reissued it, then denied the claim again.
Mr. Chairman, this is unbelievable, but sadly true. There
are many other Camp Lejeune veterans with similar stories. Mr.
Chairman, at our July meeting, Secretary McDonald, to his
credit, openly and fully recognized the fact that the science
on Camp Lejeune was undeniable and he agreed to work with ATSDR
to compile data for a presumptive disability policy soon
afterwards.
Soon afterwards, VA publicly announced support for three
cancers that would be covered. Last week, ATSDR submitted its
70-page report to VA detailing at least six cancers where
sufficient evidence of causation from toxic exposure at Lejeune
exists and several other conditions where moderate evidence of
causation exists.
Secretary McDonald has taken the first step to acknowledge
ATSDR, and other key agencies must play an integral role in
helping VA confirm and understand toxic exposure. But I am not
convinced the olive branch from the Secretary will result in
good policy beyond Lejeune if VA ultimately decides on
polishing its image more than the scientific merit.
When it comes to confirming toxic exposure like those at
Camp Lejeune, make certain that VA heeds the best science, will
be required strong and engaged leadership from Secretary
McDonald, and, Mr. Chairman, rigorous oversight from this
Committee. Congress must ensure VA health and benefits policy
is based on fact, not conjecture or emotion, so those veterans
who have been harmed by toxic exposures are properly cared for
and compensated for their suffering.
Mr. Chairman, I thank you for this opportunity. I thank you
for the indulgence of the Committee and I trust the Committee
will continue its very important responsibilities.
Chairman Isakson. Thank you, Senator Burr. Thank you for
your focus on Camp Lejeune, as we continue to work with you
until we get a solution on all those problems. Thank you for
your testimony.
Senator Gillibrand.
STATEMENT OF HON. KIRSTEN GILLIBRAND,
U.S. SENATOR FROM NEW YORK
Senator Gillibrand. Thank you, Mr. Chairman. Thank you,
Ranking Member Blumenthal. I am grateful for this hearing and
for the bill that you recently introduced. I want to thank
Senator Daines for joining me today. He has been a tremendous
partner in this push to give our Blue Water veterans the
coverage that they have earned and deserve.
During the Vietnam War, thousands of American
servicemembers were exposed to Agent Orange, servicemembers
like Keith Martel from upstate New York. Keith was a sailor in
Vietnam for 3 years, from 1967 to 1970. A few years after he
got out, he joined the New York Army National Guard and stayed
with them for decades. On September 11 he answered the call of
duty and went to Ground Zero. Then 2 years later in his 50s,
Keith was sent to Iraq.
Keith was exposed to Agent Orange when he was in Vietnam
and now he has prostate cancer, which has been linked to Agent
Orange. So, what do you think the Department of Veterans
Affairs did when Keith first went to them for coverage? They
said, sorry, your boat was here, not here, so we cannot help
you. Sorry, you did not have boots on the ground.
All those Blue Water Navy veterans like Keith, we are
letting them down. The U.S. Government has recognized the
dangers of Agent Orange since 1960. Congress passed the Agent
Orange Act in 1991, which allowed all Vietnam veterans to
receive presumptive coverage if they had Vietnam service medals
and could prove symptoms related to Agent Orange exposure.
But in 2002, the VA decided to change the intent of
Congress and halted its coverage to an estimated 174,000
veterans, including those who had served in the Blue Water just
off Vietnam's coast. Since then, instead of treating every
Vietnam veteran who suffers from a disease caused by Agent
Orange, the VA is only treating those veterans who stepped foot
on Vietnamese soil or his boots--or whose boats were patrolling
Vietnamese rivers.
This distinction, which excludes the veterans who served on
boats in Vietnam's bays and harbors, was recently ruled by the
Court of Appeals for Veterans Claims as arbitrary and
capricious. We are seeing veterans who did serve, who were
exposed to Agent Orange and are now sick being denied coverage
because of this arbitrary bureaucratic decision by the VA.
The science does not support the policy. The Australian
Department of Veterans Affairs recently commissioned a study
specifically about the Navy's water distillation process. In
the study, ships in near-shore marine waters collected water
that was contaminated with the runoff from areas sprayed with
Agent Orange, and they found that the distillation methods used
on their ships, the same methods used on the American Navy
ships, actually concentrated Agent Orange in the drinking
water.
Mr. Chairman, the evidence is clear. We have to pass the
Blue Water Navy Vietnam Veterans Act of 2015, and because of
the urgency of this issue, I request that your Committee mark
up our legislation and expeditiously report it favorably to the
floor for consideration by the full Senate. Thank you.
Chairman Isakson. Thank you, Senator Gillibrand.
Senator Daines.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Chairman Isakson, Ranking Member
Blumenthal, and my colleagues on the Veterans' Affairs
Committee for allowing me to testify in this very important
hearing on examining the impact of exposure to toxic chemicals
on veterans and the VA's response.
Montana veterans have strongly voiced concerns about the
VA, that they have not acted in the best interests of our
Vietnam veterans exposed to dangerous toxins, especially those
who served in the Navy. While I continue to call for the
Department of Veterans Affairs to clean up its poor record, the
VA has not made substantive changes to the care of the men and
women who defended this great nation when they were asked.
Instead, the VA has chosen to exclude specific groups of
veterans from receiving their medical benefits directly leading
to deaths caused by Agent Orange-related cancers. I hope that
today, in this Committee, we can convince the Department of
Veterans Affairs that avoiding the care of those who have
protected us is not how our Government should treat those who
have given so much to defend our Nation and our fellow
citizens. To address this unfair disparity, I have introduced
Senate Bill 681, the Blue Water Navy Vietnam Veterans Act of
2015 with Senator Gillibrand. I want to thank Senator
Gillibrand for her leadership and her excellent testimony here
today.
In 2001, the Veterans Administration abruptly cutoff
funding for benefits of these fully deserving Navy veterans. It
has been called arbitrary and capricious. I urge the Committee
to dig into why this decision was made and what was the basis
of the decision in 2001 when these benefits were so abruptly
cutoff.
During the Vietnam War, the U.S. had sprayed more than 19
million gallons of herbicides to defoliate the dense forests of
Vietnam, with Agent Orange being the most commonly used
herbicide. 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 will be so
callous as to remove their benefits. To this day, I have not
been persuaded that the VA had a legitimate reason to do so.
Within the last year, two Montanans living in the northwest
part of my State, and using the Kalispell Veterans Service
Office, applied for medical benefits. Both of these men are
Blue Water Navy veterans, one of them having served on a patrol
boat, the other on a destroyer. Both of these veterans have
been diagnosed with cancers and diseases that the VA has
readily admitted result from coming into contact with Agent
Orange.
Unless we pass legislation to include Blue Water Navy
veterans like these two Montanans, they will be denied
critically important VA care for diseases that our own military
exposed them to. As the son of a Marine, I understand the
importance of keeping the promises made to our veterans. Our
bill would simply reinstate medical benefits for Blue Water
veterans who served on ships within the territorial waters of
Vietnam.
These Blue Water Navy veterans should have access to the
best medical care and not be ignored by the VA. This sort of
indifference to our veterans is unacceptable, especially when
combined with the constant failure by the VA to do its job. Our
nation should not hesitate to invest in the care of these
veterans and correct this wrong.
So, I ask you to join us in cosponsoring this legislation
and quickly pass it out of the Committee and the Senate so we
can restore the medical benefits our veterans rightly deserve.
Thank you.
Chairman Isakson. Well, Senator Daines, thank you for your
testimony. Senator Gillibrand, thank you for your testimony.
Senator Burr, thank you for being here. As I said, we have a
tradition on the Committee of not questioning our Members. We
do not question their testimony, nor do we try and trip them up
with questions, but we appreciate your testimony.
We are committed as a Committee to see to it that causation
and presumption is an issue that we solve. We understand what
you have testified to, each of you, and we will work very hard
to do it expeditiously before the end of this year. Thank you
very much for your testimony.
Senator Blumenthal. I wanted to do cross-examination, but
the Chairman forbade me to.
Chairman Isakson. He is just a reformed lawyer.
Senator Blumenthal. Thank you all. It was excellent.
Chairman Isakson. Our next panel will be made up of Dr.
McLenachen--not Doctor, I am sorry--David R. McLenachen, Acting
Deputy Director for Disability Assistance, Veterans Benefits
Administration, accompanied by Ralph L. Erickson, who is a
doctor and Director of Pre-9/11 Era Post-Deployment Health,
Veterans Health Administration. So, if you will take your
seats. Mr. McLenachen, you are recognized for your testimony.
STATEMENT OF DAVID R. McLENACHEN, ACTING DEPUTY UNDER SECRETARY
FOR DISABILITY ASSISTANCE, VETERANS BENEFITS ADMINISTRATION,
U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY RALPH L.
ERICKSON, M.D., M.P.H., Dr.P.H., DIRECTOR, POST-DEPLOYMENT
HEALTH, VETERANS HEALTH ADMINISTRATION
Mr. McLenachen. Chairman Isakson, Ranking Member
Blumenthal, and Members of the Committee. Thank you for the
opportunity to discuss the Department of Veterans Affairs
process for establishing service connection presumptions. I am
accompanied by Dr. Ralph Erickson, Director of Post-Deployment
Health at the Veterans Health Administration. He is a doctor
and I am not.
VA's authority to establish presumptions derives from
statute. Many statutes relate to a particular event or location
or set of circumstances. The VA can also craft presumptions
under its broad regulatory authority also established by
statute.
These statutes and the regulations that implement them
allow VA to deliver disability compensation to veterans when
evidence of service connection might otherwise be incomplete.
When considering circumstances unique to the experiences of
Vietnam and Gulf War veterans, VA relies on reports from the
National Academy of Sciences (NAS) and other sound medical and
scientific information to establish presumptions.
At VA's request, NAS reviews existing scientific and
medical studies and summarizes the strength of evidence
supporting association and causation. VA does not solicit and
NAS does not make recommendations concerning the establishment
of presumptions. Dr. Erickson can provide more insight on how
this NAS review process works.
Upon receipt of the finished NAS reports, VA staff review
the findings and other available evidence, then make
recommendations to the Secretary regarding the determinations
of presumptions. The Secretary reviews staff recommendations
and decides to create or not create presumptions. If the
Secretary determines that a positive association between some
circumstance of service and subsequent disability, VA issues a
proposed regulation for public comment.
The proposed regulation outlines the eligibility criteria
to qualify for the presumption and the scientific evidence
supporting the presumption. Once VA has received and reviewed
the public comments, VA publishes a final regulation
establishing the presumption, if appropriate.
Through the Agent Orange Act of 1991 and subsequent
amendments, Congress created a presumption that veterans who
served in the Republic of Vietnam during the period January 9,
1962, to May 7, 1975, were exposed to Agent Orange and other
herbicides that are now associated with 14 diseases.
VA's current policy, established through notice and comment
rulemaking in 1994, extends this presumption of exposure to
veterans with duty or visitation in the Republic of Vietnam,
including its inland waterways, but not off Vietnam's coast
during that period. The U.S. Court of Appeals for the Federal
Circuit reviewed and upheld this policy in its 2008 Haas vs.
Peake decision.
However, in response to the Court of Appeals for Veterans
Claims' recent decision in Gray vs. McDonald, VA has begun the
process of thoroughly evaluating and clarifying its policies
regarding this distinction between inland waterways and
offshore service.
Similarly, VA recently announced that it will amend its
regulations to establish presumptions of service connection for
certain conditions resulting from exposure to contaminated
water at Camp Lejeune. We intend to establish a presumption for
three diseases that are known to be related to chemicals that
were in the water at Camp Lejeune from 1953 through 1987.
We are working with the Center for Disease Control's Agency
for Toxic Substances and Disease Registry, and possibly other
scientific experts, to identify additional diseases that may
have an association with exposure to chemicals in the water at
Camp Lejeune during this period.
This is in addition to the health care that VA already
provides qualified Camp Lejeune veterans and the health care
reimbursement it provides to their family members as a result
of the Honoring America's Veterans and Caring for Camp Lejeune
Families Act of 2012.
Regarding S. 901, the Toxic Exposure Research Act, VA
continues to oppose the bill for the reasons stated in our
written and oral testimony earlier this year. Mr. Chairman, VA
takes very seriously its obligation to care for disabled
veterans, their families, and their survivors. We look forward
to resolving these complicated legal and scientific matters
through coordination with Congress and other concerned
stakeholders.
In particular, whether they are created by statute or
regulation, new presumptions can significantly impact VA's
workload and delay the processing of claims for all veterans.
For this reason, the consideration of a presumption must
include a careful analysis of the additional resources that VA
will require to timely deliver benefits to exposed veterans.
This concludes my testimony, Mr. Chairman. We would be
pleased to address any questions that you or the other Members
of the Committee might have. Thank you.
[The prepared statement of Mr. McLenachen follows:]
Prepared Statement of David R. McLenachen, Acting Deputy Under
Secretary for Disability Assistance, Veterans Benefits Administration,
U.S. Department of Veterans Affairs
opening remarks
Chairman Isakson, Ranking Member Blumenthal, and Members of the
Committee, thank you for the opportunity to discuss the Department of
Veterans Affairs' (VA) process for establishing service connection
presumptions. My testimony will provide an overview of presumptive
service connection and explain the types of presumptions, the
legislative authority for establishing presumptive service connection,
regulatory implementation of presumptive service connection, and the
science and rationale behind presumptive service connection. I am
accompanied by Doctor Ralph Erickson, Director, Pre-9/11 Era, Post
Deployment Health.
overview of presumptive service connection
Service connection requires medical evidence of a current
disability; lay or medical evidence establishing the occurrence of an
injury, disease, or event during active military, naval, or air
service; and, medical or scientific evidence establishing a link or
nexus between the two. A presumption of service connection relieves the
Veteran of the burden of producing evidence that directly establishes
one or more of these elements. These presumptions fill an evidentiary
gap in cases where VA knows that necessary facts may not be documented
in the Veteran's individual records. They are generally only rebuttable
by clear and convincing evidence to the contrary. This is a high bar,
and they are rarely rebutted.
statutory authority for presumptions
VA's authority to establish presumptions derives from statute.
There are statutes specific to a particular event, or location, or set
of circumstances, such as those addressing status as a former prisoner
of war or participation in radiation risk activities (38 U.S.C.
Sec. 1112), exposure to herbicides in the Republic of Vietnam (38
U.S.C. Sec. 1116), and service in the Southwest Asia theater of
operations during the Persian Gulf War (38 U.S.C. Sec. 1118). These
statutes establish presumptions that allow VA to deliver disability
compensation where otherwise-necessary evidence of exposure or
incurrence of injury or disease might be incomplete.
Section 1112 establishes several presumptions, each applicable to a
different cohort of Veterans. Paragraph (a) establishes entitlement to
service connection for chronic or other listed disease if manifest to a
compensable degree within a specified number of years following
separation from service. This presumption is available to every Veteran
with 90 or more days continuous active service during a period of war
or after December 31, 1946. Paragraph (b) establishes former prisoner
of war entitlement to service connection for listed disabilities if
manifest to a compensable degree at any time following separation from
service. Paragraph (c) establishes entitlement to service connection
for listed radiation-related disabilities if manifest at any time
following participation in a radiation risk activity, which is also
defined in that section. Under this statute, once the Veteran
establishes qualifying service, the law provides a presumed nexus to
that service for any listed disability.
Section 1116 codifies the Agent Orange Act of 1991 and subsequent
amendments. This section establishes a presumption of herbicide
exposure for Veterans who served in the Republic of Vietnam from
January 9, 1962, through May 7, 1975, and charges the Secretary of
Veterans Affairs with prescribing regulations which provide a
presumption of service connection for diseases related to those
herbicides. It covers both the in-service incurrence and the nexus
elements necessary to substantiate a claim for service connection.
Section 1118 charged the Secretary with prescribing regulations
that provide a presumption of service connection for diseases related
to exposure to biological, chemical, or other toxic agents,
environmental or wartime hazards, or preventive medicine or vaccine
associated with service in the Southwest Asia theater of operations
during the Persian Gulf War.
Based on the mandates set forth in sections 1116 and 1118, VA
relies on reports from the National Academy of Sciences (NAS) and other
sound medical and scientific information, where available, to establish
presumptions of service connection. Upon review of such information, if
the Secretary determines that a positive association exists between
service in a given location and exposure to a particular agent, hazard,
or other foreign substance, VA issues, to the public for notice and
comment, a proposed regulation regarding the presumption. The proposed
regulation outlines the scientific and/or medical basis for the
presumption, as well as the eligibility criteria to qualify for the
presumption. Once VA has received and reviewed the public comments, VA
publishes a final regulation establishing the presumption.
scientific basis
In preparing its reports for both Agent Orange and Gulf War health
issues, NAS committees conduct comprehensive searches of all medical
and scientific studies on the health effects of the environmental
exposure being reviewed. In the course of this literature search and
review, it is not uncommon for these committees to cover thousands of
abstracts of scientific and medical articles, eventually narrowing
their review to the hundreds of peer-reviewed journal articles which
are the most relevant and informative to the question at hand. At this
stage, the NAS committee scores the strength of the total medical and
scientific evidence available by utilizing broad categories of
association such as ``inadequate or insufficient evidence of an
association'' or ``limited or suggestive evidence of an association''
or ``sufficient evidence of an association.'' Of note is that the NAS
committees do not make direct recommendations for new presumptions.
Upon receipt of the finished NAS reports, VA establishes task-
organized technical work groups comprised of experts in medicine,
disability compensation, health care, occupational and environmental
health, toxicology, epidemiology, and law. These technical work groups,
along with senior VA leaders who comprise a standing task force for
this purpose, review in detail the NAS reports and all available
scientific and medical information before making recommendations to the
Secretary regarding the determination of presumptions. These
recommendations to the Secretary are based on the strength and
preponderance of the medical and scientific evidence.
regulatory implementation
VA, like other Federal agencies, must draft regulations to
implement the authority granted by Congress. VA's regulations
describing the requirements for service connection are generally
located in sections 3.303 through 3.318 of title 38, Code of Federal
Regulations. Regulations implementing presumptions are generally found
here as well.
The Secretary also has at his disposal a general rulemaking
authority, prescribed in section 501, title 38, United States Code.
Section 501 authorizes the Secretary to prescribe any rules and
regulations necessary or appropriate to carry out the laws administered
by the Department. Under this broad authority, VA has used the
rulemaking process to craft numerous presumptions necessary to
streamline its delivery of benefits to certain Veterans, including:
former Reservists with regular and repeated contact with
contaminated C-123 aircraft used to spray Agent Orange in Vietnam who
are presumed to have been exposed to herbicides and are entitled to
benefits as Veterans (38 CFR Sec. 3.307(a)(6)(v) (published June 19,
2015));
Veterans serving on the Korean demilitarized zone who are
presumed to have been exposed to Agent Orange and other tactical
herbicides between April 1, 1968, and August 31, 1971 and are thus
entitled to service connection for Agent Orange disabilities on a
presumptive basis (38 CFR Sec. 3.307(a)(6)(iv)); and
Veterans with full body exposure to mustard gas who are
entitled to a presumption of service connection for certain respiratory
and other disorders (38 CFR Sec. 3.316).
VA also uses regulations to prescribe the rules that are necessary
to fully implement broad statutory authority, such as the determination
under section 1116 that Veterans who served in the Republic of Vietnam
are entitled to a presumption of exposure to Agent Orange.
agent orange
VA's current policy, established through notice and comment
rulemaking, extends the presumption of Agent Orange exposure to
Veterans with ``duty or visitation'' within the Republic of Vietnam, or
on its inland waterways, between January 9, 1962 and May 7, 1975. The
``duty or visitation'' requirement was incorporated in VA regulations
issued in 1994 to implement the Agent Orange Act of 1991. Prior to
2002, internal VA policies allowed receipt of the Vietnam Service Medal
(VSM) to be accepted as proof of Vietnam service. That medal, however,
was awarded for ``support'' of the Vietnam War in various geographic
locations rather than for service in Vietnam itself. In 2002, VA
revised its internal policy to clarify that ``duty or visitation'' in
Vietnam refers to presence within the Republic of Vietnam, on land or
inland waterways.
This rationale and interpretation of Vietnam service was upheld by
the United States Court of Appeals for the Federal Circuit in Haas v.
Peake, 525 F.3d 1168 (2008), cert. denied, 555 U.S. 1149 (2009). VA's
position on various legislative proposals that would extend the
presumption of exposure to Veterans whose only service was on Vietnam's
offshore waters, such as S. 681, 114th Cong., has been consistent with
VA's current policy.
Under the general policy described above, VA necessarily has
distinguished ``inland waterways'' from ``offshore waters.'' In
April 2015, the U.S. Court of Appeals for Veterans Claims issued its
decision in Gray v. McDonald, 27 Vet. App. 313 (2015), which required
VA to review and clarify its policies for determining whether coastal
bodies of water, such as Da Nang Harbor, constituted ``inland
waterways'' or ``offshore waters'' for purposes of applying the
presumption of herbicide exposure. Shortly after the court's decision,
VA began the very deliberate process of thoroughly evaluating and
clarifying its policies regarding such determinations.
camp lejeune
Similarly, VA recently announced that it will start the process of
amending its regulations to establish presumptions of service
connection for certain conditions resulting from exposure to
contaminated drinking water at the U.S. Marine Corps Base Camp Lejeune
in North Carolina. This process is in addition to the healthcare VA
already provides for 15 conditions to eligible Veterans who were
stationed at Camp Lejeune for at least 30 days between August 1, 1953,
and December 31, 1987, as a result of the Honoring America's Veterans
and Caring for Camp Lejeune Families Act of 2012. VA also provides
reimbursement of healthcare expenses for those 15 conditions to
eligible family members who resided at Camp Lejeune during that time
period.
The diseases that are currently being reviewed for potential
presumptive service connection include kidney cancer, angiosarcoma of
the liver, and acute myelogenous leukemia, which are known to be
related to long-term exposure to the chemicals that were in the water
at Lejeune from the 1950s through 1987. The chemicals are Benzene,
Vinyl Chloride, Trichloroethylene and Perchloroethylene, which are
known as volatile organic compounds, used in industrial solvents and
components of fuels.
VA is working with the Agency for Toxic Substances and Disease
Registry, and potentially will work with NAS, to evaluate the body of
scientific knowledge and research concerning exposure to these
chemicals and potentially related diseases.
VA will carefully consider all public comments received when
determining the final scope of any presumptions. Because there is no
specific statutory authority for this undertaking, VA will draft
necessary and appropriate rules under the general rulemaking authority
prescribed in section 501.
The Department has previously provided its views on S. 901 to this
Committee on June 24, 2015.
closing remarks
VA takes very seriously its obligation to care for disabled
Veterans, their families, and their survivors. Some of the tools we use
are the laws authorizing presumptive service connection. These laws
fill a critical evidentiary gap when suspected exposures to toxic
substances cannot be specifically documented in a Veteran's service
records or by other contemporaneous evidence. We look forward to
resolving these complicated legal and scientific matters through
continued partnership with Congress, NAS, and other concerned
stakeholders.
This concludes my testimony, Mr. Chairman. I would be pleased to
address any questions you or other Members of the Committee may have.
Chairman Isakson. Thank you for your testimony. Let me
begin the questioning by asking you, why are you acting in your
title?
Mr. McLenachen. Sir, the position was vacated by a senior
executive that retired. I have been acting in this position, as
well as the Director of VBA's Pension and Fiduciary Service. I
permanently fill the position as of next Monday.
Chairman Isakson. As of next Monday? You will be permanent
next Monday?
Mr. McLenachen. Yes, sir.
Chairman Isakson. How long have you been Acting Deputy?
Mr. McLenachen. Fourteen months.
Chairman Isakson. Why has it taken 14 months for you to go
from acting to permanent?
Mr. McLenachen. I do not have that information, sir.
Chairman Isakson. It is not a trick question, but for the
Members of the Committee, I have gotten on Secretary McDonald a
lot about this, there are far too many responsible positions in
the VA where the title is acting. That does not send the right
signal to our veterans nor the people they work for, so I am
glad that you are going to become permanent next week. I hope
we will have a more expeditious permanent determination by the
VA in their appointments in the future.
Mr. McLenachen. Yes, sir. Thank you.
Chairman Isakson. Now, in your objection to S. 901, the
Toxic Exposure Research Act, as I understand it from your
testimony, you call it duplicative. Is that correct?
Mr. McLenachen. Well, Mr. Chairman, because I am not the
medical professional here and do not have that expertise, I am
going to defer to Dr. Erickson to take the question.
Chairman Isakson. Fair enough. Dr. Erickson.
Dr. Erickson. Mr. Chairman, thank you for the question. Our
concern--the primary concern is not one of duplication of
effort, but rather that perhaps there are other Federal
agencies that are better postured, equipped, resourced, and
staffed to actually answer some of the more difficult questions
that are in the legislation. Being able to look at multi-
generational effects suggests looking at pediatric populations;
likewise, doing fairly complex genetic studies.
Now, it is certainly true that VA is involved in doing
genetic research, and at times asking questions concerning the
health of children of veterans. However, we recognize that
there are other parts of the Federal Government that actually
have greater capability than we have in this regard. To that
end, we would rather collaborate with them than be the primary
lead.
Chairman Isakson. Well, I understand the duplicative
statement that was made, but, you know, when we have the
National Institute of Health, we have the CDC, we have a lot of
other organizations, and it seems to me like--I am just an
observer, this is Senator Blumenthal's bill, not mine--but
there does not seem to be a catalyst to bring people together.
I mean, you can have all the great research institutions in
the world, but if they are not communicating, they are not
coordinating, if there is not a unified mission, then you never
get a result. You get a lot of separate research that are in
desperate need of coordination.
The reason I ask the question is, it seems to me like one
of the things I have heard, particularly for Camp Lejeune--I
think Senator Tillis would agree with me--we get competing
information. We get maybe this is a causation, maybe this is an
association, maybe it is not, and if we had a central
clearinghouse that was a catalyst, we would all be better off.
That is my only reason for asking that question.
On the Camp Lejeune question, I will ask, the CDC, as I
understand it, has said there are six health conditions that
should be presumptions now?
Mr. McLenachen. Actually, as of the last meeting on
September 22, they provided us information as, I believe,
Senator Burr mentioned, about a number of conditions. The
Secretary has already decided that he is going to create a
presumption regarding three of those. That was before we had
this additional information from ATSDR. Now that we have it, he
has directed us--we work very closely with the VHA, Dr.
Erickson's staff and others in VHA, to review this information.
But, just for your information, there were 17 conditions
that were listed in the information that ATSDR provided to us.
We are not talking about three conditions or six conditions. We
have got all of that information. We are going to look at it
and make the right decision about which conditions are covered.
Chairman Isakson. Collectively?
Mr. McLenachen. Yes, sir.
Chairman Isakson. Well, that would be my recommendation. I
would like the record to reflect that while the Ranking Member
was gone, I spoke favorably about his legislation.
Senator Blumenthal.
Senator Blumenthal. I am going to pass on questions right
now.
Chairman Isakson. Senator Rounds.
HON. MIKE ROUNDS, U.S. SENATOR FROM SOUTH DAKOTA
Senator Rounds. Thank you, Mr. Chairman. I am just curious.
I think you make a point, sir, when you suggest that perhaps
the VA is not the appropriate entity to be doing the research
and, in fact, I suspect that if I was one of the individuals
suffering with this, I would have a lot more confidence in
getting something done if we had a different agency doing the
research, but with a clear understanding that the response and
that the entity responsible for responding to and providing
services afterwards would be the VA.
Would you have an objection to Senator Moran's proposal? I
think that is S. 901, if I am not mistaken, that we are
speaking of. Would you have an objection to that bill if the
appropriate agencies who do that type of research were the
responsible entities for actually getting it done, completing
it, and then delivering the results to the VA?
Dr. Erickson. Yes, Senator Rounds, thank you for the
question. This is as a quick statement and background. I served
in the U.S. Army for 32 years on active duty, went to war a
number of times. The last assignment I had on active duty, I
was fortunate to be the commander of the DOD's largest
biomedical laboratory, that being the Walter Reed Army
Institute of Research, which is not too far from this location.
I certainly have experience in being able to run a very
large, what I would say, well-funded research laboratory that
deals with soldier/veteran issues. I understand that we need to
work across the interagency frequently. A recent experience
with ATSDR has underscored for me that, in fact, they have
significant experience and expertise that we simply do not
have.
I understand, certainly, your point that you need a single
bellybutton. You need someone who will be responsive, who will
manage this. The point I was trying to make is, there are
others who can do some of the cutting edge research that is
necessary in a more efficient way than we can.
The epigenetic research that is called for is very new. The
existing background and evidence for that is such that if there
is going to be a significant amount of laboratory and benchwork
that will be necessary, that this is not something that we
necessarily have the expertise within VA to be able to manage.
Senator Rounds. Thank you. I agree and, in fact, I think
the cleaner we get the processes within the VA the better off
we are going to be. We have got a bureaucracy which is as big
as anything in the Federal Government today.
With regard to the issues surrounding the Blue Water
soldiers and sailors that we are talking about in Vietnam and
thereabouts, do we have a disagreement with what has been found
with the scientific studies that were reported just a minute
ago on terms we discussed, in terms of what the country of
Australia was able to determine?
Can you share with us the thought processes with regard to
the analysis that was done there versus the analysis, or if
there has been an analysis done in terms of researchers within
our own country on the same issue?
Mr. McLenachen. Let me just address initially consideration
of the policy issue there. What the IOM study did do is
validate the lab study that was done regarding the Australian
Navy exposure. In other words----
Senator Rounds. You say it validated it?
Mr. McLenachen. Yes. They concluded that if there was water
taken in that was contaminated, they validated that was a way
that there could be exposure. Our policy was based on Navy
directives instructing that ships take on water far offshore.
So, there is a lot more that goes into the policy rather than
just the fact that yes, U.S. Navy used desalination processes
similar to Australia, but they did take on water far offshore,
and the IOM had no evidence to suggest that that water was
contaminated. As far as the specific science behind that
process, I will defer to Dr. Erickson.
Dr. Erickson. Senator, I think you will be hearing more
about this in great detail from the following panel, from our
IOM colleagues. We, of course, commissioned the study of Blue
Water Navy in asking the IOM to deal with the questions that
you and others have proposed concerning the exposure, potential
exposure of these individuals. As I think you are aware, the
IOM conclusion was that they had neither sufficient evidence in
favor or against being able to rule, being able to advise us.
To that end, and with additional information that has
become available to our Secretary, that is now being considered
at the VA. That is something that both Mr. McLenachen and
myself have participated in a small workgroup with the
Secretary to discuss and it is presently at a deliberative
point.
Senator Rounds. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Thank you very much, Senator. Senator
Blumenthal wants to reclaim his time after which I will go to
Senator Tester to restore our order, then we will go to Senator
Tillis, then we will go to Senator Manchin.
Senator Blumenthal. I have just two quick questions. First
of all, I take it from your testimony that Secretary McDonald
has sent to Congress a request for legislation to reauthorize
the extension of the Secretary's authority to determine
presumptions for service connection of diseases.
Would you, therefore, think it is important and necessary
to approve Senate Bill 2081, which, in effect, extends this
authority for an additional 15 years?
Mr. McLenachen. It is the Department's position that we
would support that bill.
Senator Blumenthal. Thank you.
Mr. McLenachen. We have seen the draft bill and would
support it. One point I want to make, though, Senator, if I
may, is the bill would reauthorize a specific process or
procedure for getting information from the National Academy of
Sciences and it has specific time limits for the rulemaking
process. In our view, those rulemaking time limits are
unreasonably short given the current Federal agency rulemaking
process, so I just ask that the Committee consider whether
those are appropriate.
Senator Blumenthal. I am sure we will take that point under
consideration.
Mr. McLenachen. Thank you.
Senator Blumenthal. Second question. In preparing for this
hearing, I heard from the Blinded Veterans Association, the
BVA, regarding an eye cancer called choroidal melanoma. I
understand from the BVA that this type of cancer is rare in the
civilian population, but it is ten times more common among
Vietnam era veterans and currently is not being considered for
an epidemiological study.
I would like you to commit that you will consider it and
tell the Committee the process by which the VHA decides to
subject a particular issue to such a study.
Mr. McLenachen. Senator, I am not familiar with that
particular cancer, but we will certainly take that for the
record and get back to the Committee, unless Dr. Erickson has
anything he would like to add.
Dr. Erickson. Senator, certainly we have epidemiologists
that work in my shop, so following this meeting I will take
that up with them right away, and we will get back to you.
Senator Blumenthal. What is the process by which you
consider whether to do an epidemiological study?
Mr. McLenachen. If it is a large study, certainly funding
is always an issue. If it is a study that we can accomplish in-
house using existing data from our health care system, in that
case the funding issue is less of a major consideration.
Initially, the consideration is going to basically be
feasibility. Can we get to the data? Will there be enough cases
for us then to be able to study to be able to answer some of
those questions?
Senator Blumenthal. Thank you.
Chairman Isakson. Is Senator Tester coming back? I messed
up the order a minute ago when I got a pass over here and I
should have gone to Senator Tester then, which I apologize for.
I think I will go to Senator Tillis and then Senator Manchin,
then when Senator Tester gets back, I will go to him. How about
that?
Senator Tillis. You need to put that in a spreadsheet, Mr.
Chair.
Chairman Isakson. I will tell him our decision.
HON. THOM TILLIS, U.S. SENATOR FROM NORTH CAROLINA
Senator Tillis. Mr. Chair, I appreciate you calling this
Committee. I want to start by something I am going to do in
every Committee meeting until we get closure on it. Your point
about too many acting positions in the VA is spot on. First
among them is the Inspector General. It is unacceptable and
irresponsible not to have that position filled by somebody and
I call on the Administration to do their job.
Now, I want to talk about you all doing your job. I think
you all know that, for the most part, I come into these
Committee meetings highly supportive of the VA. I have gone out
to the VA facilities and made sure that those folks know that I
am there to help them. But, we have got a big issue here. It
came from a conference call that I just had on Friday and I
think we are conflating issues at the expense of taking ground
where we can take ground.
When I hear a comment like, well, we have got the Agent
Orange and Blue Water issues solved before we can really move
forward on a holistic basis with the Camp Lejeune exposure,
that is unacceptable. There is not a single veteran that has
ever served in the armed services who will say, we will not
fight one battle until we can win them all. We have six of
these diseases confirmed by the CDC that say that there is
sufficient evidence of causation, period. We should look at the
others and figure out whether we should do more.
We should figure out a methodology and when everything is
equal, the tie goes to the veteran. We need to get the Lejeune
issue solved quickly. I was told 2 months ago that any claims
for the diseases related, the three at least, would be delayed
and not denied until we came up with a policy.
The reason that we needed to do that is if you get a claim
denied, then the veteran has to go through the process again.
Whereas, if we just delay the decision until after we have the
policy, they can move through the process in the order that
they should. Conflating--look, my wife's uncle's name is
inscribed on the Vietnam Veterans Memorial. He died from Agent
Orange exposure.
I have great sympathy for what Senator Blumenthal and
everybody else is doing. I want this Lejeune problem solved. I
think Secretary Mabus should be ashamed of the statement he
made this week because he has taken the eye off the ball of
solving this problem.
So, I would like to get an assurance, first and foremost--I
have not cited you two personally. I thank you for your service
and I appreciate the work that you are doing. This is a process
that is broken. We have got to solve the problem, not only with
the three diseases, because I continue to hear about the three,
but the CDC says six. So, let me start there. What has the CDC
presented on the six conditions that they say there is
sufficient evidence of causation that the experts in the VA
think are wrong?
Mr. McLenachen. I will defer to Dr. Erickson about that.
Dr. Erickson. Senator Tillis, thank you for the question. I
was fortunate to be a member of the VA team that has met with
ATSDR professionals. We met on August 19 and September 22. We
think we will be at the final meeting sometime prior to October
13. Our ATSDR colleagues provided us with a 67-page document
that was very well received. It involved a tremendous amount of
work summarizing, aggregating the body of information that is
available--not just ATSDR studies, but all of the occupational
environmental studies within the scientific literature.
Again, not wanting to usurp the authority of my big boss,
Secretary McDonald, I can really tell you that we are moving
from that work, that smaller work group that has been meeting
with ATSDR, to a deliberative process that will, I think, move
relatively quickly in bringing recommendations to the
Secretary. I was able to listen in on that phone call that you
had with the Secretary, Senator, and I very much appreciate the
urgency to get this settled. As a veteran, I very much feel
that as well.
Senator Tillis. Let me--because my time is about to
expire--I would like to get an assurance from you all. I
thought that I had that assurance in July, according to my
staff, which I may be wrong and if I am I will come to the next
Committee and say that I am. But, I have been told that there
have been claims denied since I was given an assurance that
they would not be for at least the three types of diseases.
What I would like is an assurance for at least the six
conditions, where we have sufficient evidence of causation,
that there is not going to be another denial, and if there is,
you know--I know that I have ratcheted up my temperature in
this meeting which will not compare to the next one if that
happens because we owe it to these veterans.
I will just finish my statement, Chairman. I will try to go
quickly because I meet with you all on a regular basis, there
are a lot of things you are doing that is good work. This is
just not one that I am pleased with the progress.
I want to make sure, but there is another piece here that
we need to talk about. The disability benefits are mandatory
spending. We will spend whatever we have to when we find out we
have an obligation. I have heard on a couple of occasions about
the operational impact and I get that. If we have to serve more
veterans, we have to serve more veterans.
Somebody is saying, well, we need to be careful because we
do not want to hold up the backlog because that will create bad
optics. I do not care. If we need a backlog to be created
because we have people who may have legitimate claims, create
the backlog and then we will figure out how to fund the
operation to draw down the backlog. But let us not have policy
being driven by optics that politicians just need to deal with.
I will be honest with you all and I will stand up for you
all. If you start putting processes in place where we are
serving more veterans and it requires more people, I will be
one of the first ones to do whatever I have to do to provide
you all with the resources to do it. Thank you, Mr. Chair.
Chairman Isakson. Thank you, Senator Tillis.
Senator Manchin.
HON. JOE MANCHIN, U.S. SENATOR FROM WEST VIRGINIA
Senator Manchin. Thank you, Mr. Chairman. As you can tell,
it is very emotional for all of us because we have had people
that served that we have lost--people who were very dear and
near to us.
History has shown our actions in combat, and we are finding
even on our installations, no matter how necessary or well-
meaning, have often carried unintended consequences. I think we
just heard Senator Tillis talk about Lejeune, burn pits, all
the issues decades-old.
The thing that we seem to be fighting over is or the delay
is based on what we call presumption. I would like to know how
you all intend or what have you learned from past experiences
and what you are doing now because we know with all the
conflicts we have been involved with in the last ten or more
years, this is going to come to roost in 10, 20, 30 years from
now.
What have you done that we have learned from the past that
we did not do which we are calling presumptive and not taking
care of anybody to make sure this does not repeat itself?
Mr. McLenachen. First, let me just address the point of
developing policy. As science develops, so must our policy,
which I think is really the issue that you are raising. As the
science develops to the point where we can create a
presumption, we should be creating a presumption. What we have
learned is it is often a lengthy process to create the
presumption. We have to go through rulemaking. We need to find
ways to streamline that as much as possible.
Senator Manchin. No, I think what I am saying is, that we
have been engaged for almost two decades in the Middle East and
our soldiers have been exposed. We know that. We know there has
been chemical and a host of other exposures. You all have to be
aware of that or they have to be, I would say, communicating
with you all that you are preparing and building a case now.
When they come to you 10, 20, 30 years from now, we have
already set the stage. We do not have to go through this
process we are going through, this timely process now. I think
that is why you are seeing the compassion that Senator Tillis
has and all of us have. How can we keep from repeating this?
Mr. McLenachen. We get regular information from, for
example, the National Academy of Sciences. In addition to that,
I am sure that Dr. Erickson can give you more detailed
information about what his staff does as far as----
Senator Manchin. Are you all connected with Department of
Defense right now knowing what soldiers that are basically--I
mean, my goodness, we have had four and five deployments just
in West Virginia from our National Guard.
Dr. Erickson. Senator, we work very closely with the
Department of Defense. We share a lot of staff in directing
research that goes directly to those very issues you have
talked about. I sit and co-chair with the DOD partner, the
Deployment Health Work Group, that helps to guide much of this.
But even more so, I will tell you, we are trying to be
proactive so that we are not 10 and 20 years from now caught in
this situation. In particular, we are working with Department
of Defense to create what is called the Individual Longitudinal
Exposure Record, the ILER. This, in fact, will be a database
which will collect all of the exposures for every servicemember
through the course of their entire career, and basically then
be available to VA so that when an individual comes to us years
later after faithful service and they say, I have this disease,
I have this condition, we will be able to reach into the ILER
to be able to say, yes, you were exposed here, you were exposed
there, we have got great evidence, we have got background to
work with, we are going to take care of you.
Senator Manchin. If we were able to come to an agreement
with you all, all of us agree to give presumptiveness to some
or all of the claims being brought forward, how would that
affect your claims process; and does a presumptive finding
speed up your workload or does it increase in numbers so
greatly that it slows it down?
Mr. McLenachen. It generally increases the workload
significantly. It depends on the presumption. The best example
is the 2010 addition of three presumptive conditions for Agent
Orange exposure which was, to a large extent, part of the cause
of our backlog that we have been dealing with, which is, you
know, down to about 75,000 claims, whereas at one point it was
611,000 claims.
Those are the kind of problems that we have, and what the
Secretary is suggesting, he is not suggesting that policies
should be based on that. He is saying, if we know that that is
going to happen, he wants to work with the Congress to make
sure that we have the resources we need to timely process all
claims regardless of whether it is one of the presumptive
conditions or one of the more than one million claims we
receive every year. So, it does have a large impact on our
workload and it depends on the presumption.
Senator Manchin. OK. Thank you, Mr. Chairman. I would
concede my time to Senator Tester since he has been waiting so
long.
Chairman Isakson. We will take in order the following:
Senator Tester, followed by Senator Heller, followed by Senator
Hirono, followed by Senator Cassidy, followed by Senator Moran.
Senator Tester.
HON. JON TESTER, U.S. SENATOR FROM MONTANA
Senator Tester. Well, thank you, Mr. Chairman. You are way
kind and I would tell you it is always dangerous to agree with
the good Senator from West Virginia.
I have got some questions. How many Blue Water vets are out
there still living?
Mr. McLenachen. Our estimate, Senator Tester, is about
174,000. That is the population that we started with.
Senator Tester. How many do you think have symptoms?
Mr. McLenachen. We track this information. Of those
174,000, about 40,000, we believe, are already covered by our
current policy; that is the policy where if a ship sent
personnel ashore, we have a presumption.
Senator Tester. There were boots on the ground. How many
left?
Mr. McLenachen. About 80,000.
Senator Tester. 80,000 that maybe would have symptoms.
Mr. McLenachen. Well, those are 80,000 that are still
alive. Of those we tracked a little over 20,000 that were
denied benefits based on Blue Water service.
Senator Tester. OK. Have you guys developed a cost for
this?
Mr. McLenachen. We are working on that.
Senator Tester. Can you give me a ballpark?
Mr. McLenachen. I can get that to you, Senator. Let me take
that for the record.
Response to Request Arising During the Hearing by Hon. Jon Tester to
David R. McLenachen, U.S. Department of Veterans Affairs
Response:
General Operating Expenses Costs:
- 2016--729 FTE
- By 2025--Reduced to 200 FTE
- 2016--$77.7 million
- 5 years--$208.3 million
- 10 years--$357.7 million
Mandatory Costs:
- 2016--$1.3 billion
- 5 years--$3.0 billion
- 10 years--$5.3 billion
Senator Tester. It is important and I will tell you why it
is important. I would like to know what happened in 2001, too.
I would also like to know what happened to the Priority 8 vets.
It took them out. My guess is it was not a bureaucrat sitting
in a room with no windows in it. It was probably somebody,
maybe on this Committee or maybe in the Administration, that
said, you guys have got to figure out ways to save some money.
Mr. McLenachen. I could answer that question for you,
Senator.
Senator Tester. Yes, please.
Mr. McLenachen. This has been our policy since 1994. Prior
to 2002, the policy was based on receipt of the Vietnam service
medal.
Senator Tester. Yes.
Mr. McLenachen. The Vietnam service medal was awarded to
individuals who provided support in places other than Vietnam.
Senator Tester. OK.
Mr. McLenachen. For that reason, we changed the policy at
that time to ensure that the presumption actually relates to
the risk of exposure, and that is why the policy was changed.
It was changed by regulation, by VA.
Senator Tester. So, it was VA that directed that?
Mr. McLenachen. Yes.
Senator Tester. The Secretary?
Mr. McLenachen. It was. It was a regulation issued by VA.
Senator Tester. OK. All right. So, getting back to it, do
you believe these Blue Water vets had an exposure to Agent
Orange? Do you believe that a certain percentage of them
present suffered some health problems?
Mr. McLenachen. Yes. We already cover 40,000 of them,
according to our estimates.
Senator Tester. OK. So, you agree that this bill should go
forward?
Mr. McLenachen. If you are referring to S. 681, the
Department does not support that bill, did not support it.
Senator Tester. Why?
Mr. McLenachen. Because the Air Force did not spray
herbicides over offshore--off the shores of Vietnam. Now, that
is not the end of the policy issue.
Senator Tester. OK.
Mr. McLenachen. As the Secretary has instructed us, based
on the Gray decision that we received from the Court of Appeals
for Veterans Claims, he has directed us to take another look at
all of our policies.
Senator Tester. Well, I would just say, look, this is heavy
duty stuff.
Mr. McLenachen. Absolutely is.
Senator Tester. Let me tell you about stuff we spray on
``ag'' land. Agent Orange blows this out of the water. I can
tell you that when they spray, especially from an airplane, two
or three miles away from my house, I can smell it, and those
are ag chemicals. That is not Agent Orange.
So, I think direct application to a human being is not
necessarily what needs to be the standard. This is a farmer
talking, not an M.D., not a researcher. I will just tell you,
just because they did not get it--and look, I want people to
get benefits who deserve benefits. If you do not deserve the
benefit, you should not get it. OK?
Mr. McLenachen. That is our mission.
Senator Tester. Yes, that is exactly right. So, when we are
talking about this, it is really important that we talk about
reality. I am not being critical of the VA, by the way. I tend
to be more on your side than others. Tell me about the guys who
ran the airplanes. Are they covered, the C-123 folks?
Mr. McLenachen. Yes, they are. We issued a regulation
recently establishing a presumption of exposure and service
connection for that.
Senator Tester. That is good. Let me talk a little bit
about genetic research. Dr. Erickson, I think you said that you
did not have the capacity to deal with it. I am not speaking
for Senator Moran here, but I do think the Chairman is right.
There needs to be a lead dog. Do you have the capacity to
contract out?
Dr. Erickson. The short answer is yes, sir.
Senator Tester. OK. So, you could really be the overseeing
agency and contract the research out so you make sure you get
the information back if we were to do this?
Dr. Erickson. We could.
Senator Tester. OK. I think, you know, we are talking about
veterans and we are talking about generational things which is
pretty complex. I get it that you do not have the capacity. I
think we had this discussion on the building in Denver, as a
matter of fact, and I think that there are certain areas where
it is good for you guys to contract stuff out.
Do not be opposed to it because you do not have the
capacity when you can contract out and get that capacity. Are
you guys opposed to this bill, the presumptive care one--not
the presumptive care one, but what we talked about, the
generational impact.
Dr. Erickson. It is VA's position that we are opposed to
it.
Senator Tester. Is VA opposed to it because you do not have
the capacity? Is that why?
Dr. Erickson. That was the primary point. Again, we do not
have the capacity; we are not postured as well as other Federal
agencies. There is concern that it could be a distractor
because language within the legislation, as I read it, talks
about us assigning one of our medical centers as being the hub
for this.
Now, there is also language within the bill, if I read it
correctly, that talks about provision of care to descendants,
which is a little bit of a move away from our traditional role
at VA of taking care primarily of veterans.
Senator Tester. I got you. But if the research shows that
this is a problem, do you not think it is right? Not to put you
on the spot.
Dr. Erickson. It would always be right to do the correct
thing for veterans and their families.
Senator Tester. All right. You guys do what you want, but
if I were you guys, I would work with the bill's sponsors to
figure out how you can make this bill work from a VA
perspective. Then, if the sponsors agree and this Committee
agrees, we are probably off and running. Thank you, Mr.
Chairman.
Chairman Isakson. Senator Heller.
HON. DEAN HELLER, U.S. SENATOR FROM NEVADA
Senator Heller. Mr. Chairman, thanks for holding this
hearing. I know that there are a lot of veterans watching this
hearing closely, and I would like to share with the witnesses
some of the questions that they have. I am no different than
any other Senator in this Committee or any Senator regarding
the number of phone calls that we receive from our veterans and
their concerns for these issues. But I want to thank you both
for being here. And congratulations on your new status, by the
way.
Mr. McLenachen. Thank you.
Senator Heller. I guess what strikes me most about this
hearing is not only exposures to toxins and how they can be
linked to certain diseases for our veterans, but as important
is the birth defects and other problems that affect the
children and grandchildren of these veterans.
Mr. Chairman, I am a son of a disabled Navy veteran,
brother of a retired Navy veteran. Fortunately for our family,
neither of them are Blue Water Navy veterans and we are
grateful for that. But I share the concerns with veterans back
home and their concerns about having been exposed to some of
these toxins. They deserve more from us. And as a father and
grandfather, watching what they are dealing with, I can truly
sympathize with the issues that they have and their concerns.
I want to share with you an issue just last month of a
Vietnam veteran from Las Vegas. He wrote to me about his battle
with bladder cancer. He pointed out that many other veterans
who served in Vietnam also are suffering from bladder cancer
and that may be due to toxic exposure.
I just want to raise the same questions to you that he
raised to us and hopefully, he and they can get some answers
because I know they are watching intently on this hearing. Is
there a venue for veterans to tell the VA that certain diseases
are more common and see if theirs may be related to toxic
exposure?
Mr. McLenachen. Well, as far as a venue for them
specifically to do it? We get the same communications all the
time and raise issues and discuss them with VHA and the experts
over on Dr. Erickson's staff. In addition to that, you will
hear from the Institute of Medicine about the very detailed
work that they do in this area as far as what does the science
show about the association between exposure and specific
conditions, and as the science develops, we get information
about it.
Senator Heller. Doctor.
Dr. Erickson. Senator Heller, we have regular meetings with
VSOs and with veteran advocates. That is certainly a great
avenue to approach us. Over 30 percent of veterans have
expressed, in a recent survey, that they are very concerned
about environmental issues, so we want to hear from them.
We have had veterans groups assist us in updating our web
pages such that the information we are posting is the most
current, the most useful both to veterans and to providers. We
recently created an environmental exposure app for the iPhone
which veterans can use and which providers can use. It is free
on the Apple Web site, free for download.
We have a number of newsletters that we send out. We have
registries which help us to link-in veterans so we can, on a
regular basis, reach out to them. Likewise, at the local level,
we have environmental health clinicians and coordinators who
help to make sure that all the providers at those facilities
are kept abreast of the latest information made as policy
decisions. We look to have a multilayered approach to reach
veterans such as the one you have mentioned.
Senator Heller. And that is great and I appreciate the
answer to that. Doctor, let me ask you one other question. When
these veterans do raise these concerns, and all these
opportunities that you claim are available to them, how do you
ensure that the VA talks to the Institute of Medicine to look
into these specific claims?
How can they be guaranteed this? You go through this whole
process. How can you assure them that their concerns are going
directly to where they need to go; IOM, as an example?
Mr. McLenachen. If we understand the question correctly,
you are asking, once we get that information, essentially what
do we do with it?
Senator Heller. Right, sure. They go to VA hospitals. This
is not the same question. This is not a repeat of the same
question. What they are saying is they come and talk to you and
you hold all these clinics and you have all these hearings and
then they want to know where the information goes. That is what
they want. They want to be assured, they want to be assured
that you are taking this information, their concerns and their
problems, and making sure that there is a follow-up on it.
Dr. Erickson. Right. Senator, maybe I can give you two
examples, and this is by no means a promise that 100 percent
satisfaction will be reached. However, for instance, the
National Gulf War Resource Center President, Mr. Ron Brown, has
worked with us very closely for Gulf War veteran issues. He
collects those issues, brings them to us.
He worked very closely with us to make sure that the
newsletters we published this year addressed the very issues
that those Gulf War veterans he represents were, in fact,
included in the newsletter; that we, in fact, found SMEs to
write the articles to answer those questions. Likewise, he
worked with us to update our Web site.
Concerning Fort McClellan, which is an emerging issue, we
have had a lead advocate from Fort McClellan meet with us on a
regular basis so that we are regularly fed information. To the
degree that we can, we want to be responsive. We owe this to
the veterans.
Senator Heller. OK. Mr. Chairman, my time has run out.
Chairman Isakson. Thank you.
Senator Hirono.
HON. MAZIE K. HIRONO, U.S. SENATOR FROM HAWAII
Senator Hirono. Thank you, Mr. Chairman. I realize that it
is very challenging to determine the causal effect of exposure
to a substance and subsequent health of concerns. In the
meantime, though, veterans who argue that their medical
condition is service-related by exposure to some kind of a
chemical or a substance, what is the burden that they bear,
assuming that there is no presumption of connectedness? What is
their burden? Do they have to show by clear and convincing
evidence?
Mr. McLenachen. No, we do not apply that high of a
standard, but in situations where there is not a presumption,
we determine service-connected conditions based on the
information that we receive. So, on a case-by-case basis, the
veteran can establish, whether it is providing us information
or it is us obtaining information through our duty to assist,
that the veteran was actually exposed to a harmful herbicide,
for example, and actually developed a condition, we will
service-connect that condition.
The presumption makes it easier for us because then neither
the veteran nor VA has to go out and find evidence that there
was--this exposure actually occurred in service or that their
disability developed in service.
Senator Hirono. It seems as though if there is no
presumption, then it is a pretty high burden for the individual
veteran to make the connection claim. I have heard concerns
from the Hawaii VFW about veterans who were exposed to
radiation during the atomic debris cleanup of the Marshall
Islands in the 1970s and 1980s, and several thousand of our
troops were exposed as they were doing this cleanup.
I think we already have evidence as to what kinds of
medical conditions are connected to exposure to radiation, so
when a veteran or, let us say, a number of veterans present
with similar kinds of medical conditions, and we already know
through other research, particularly after Hiroshima and
Nagasaki, what would happen. Does that help to create a
presumption?
Mr. McLenachen. Yes. Actually, the Congress has a very long
history of creating presumptions. They date back to chronic
disabilities that develop after service. We can trace it all
the way back to the 1920s. Radiation exposure is one of the
presumptions that Congress has created for veterans and we do
grant benefits on that basis.
Senator Hirono. On the other hand, for these service people
who were engaged in the cleanup, they are not categorized as--I
think you have a presumption category called ``atomic
veterans'' and they are not included. Why is that?
Mr. McLenachen. I think that----
Senator Hirono. Because we know that exposure to the
environment, especially after 9/11 and what happened to the 9/
11 first responders, all kinds of health issues that arose. I
think we were convinced that that was as a result of their
efforts after 9/11. So, here is another group that were exposed
to radiation as a result of cleanup.
Mr. McLenachen. I believe Dr. Erickson can address it.
Dr. Erickson. Senator, some of the more recent radiation
exposure events, Tomadochi, Marshall Islands cleanup, et
cetera, there were actual measurements taken of what radiation
was present at the time.
Individuals that are actually filing claims are reviewed on
a case-by-case basis, and based on where they were, how many
days, et cetera, there is actually a risk profile that is
developed following established standards to then determine,
you know, whether or not now the disease that they are filing
the claim for is more likely than not to have been caused by
the radiation. So, there actually is a rigorous process that is
followed in the absence of there being a presumption.
Senator Hirono. Have some of these service people who have
made these claims who were involved in the cleanup of Marshall
Islands, have they been provided the health care services as
service-connected?
Dr. Erickson. I would--we would have to get back to you to
give you the exact numbers.
Senator Hirono. Well, is it some, is it zero?
Mr. McLenachen. It is not zero; it is some. As Dr. Erickson
said, we go out and we get actual information which we use to
rate the claim based on the dose exposure to adjudicate those
claims.
Senator Hirono. Considering that this is another group that
is seeking a certain kind of status as atomic veterans, then I
would be interested to know how many people you have already
assessed as having shown that connection. If there is a
significant number of them, then I would think that would raise
an issue for you all as to whether they ought to be categorized
as atomic veterans.
Mr. McLenachen. We will take that for the record and get
that information to you.
Senator Hirono. Thank you.
Response to Request Arising During the Hearing by Hon. Mazie K. Hirono
to U.S. Department of Veterans Affairs
Response. VA is unable to provide the requested data because we do
not have a method for identifying claims related to Marshall Islands
cleanup during the 1970s and 1980s. Statutory and regulatory provisions
do not include these Veterans as participants in a ``radiation risk
activity'' and thus presumptively ``radiation exposed.'' Veterans who
participated in the cleanup of Enewetak Atoll, part of the Marshall
Islands, are not considered radiation-exposed for the presumption of
service connection for disabilities because the cleanup project was a
tightly controlled radiological work environment. Personnel that
entered radiologically contaminated areas were monitored for both
external and internal exposure. Of over 12,000 individual dosimetry
records, only four exceeded 0.050 rem, and the highest of these was
0.070 rem. Throughout the cleanup project, over 760,000 cubic meters of
air were sampled on the controlled islands. Nearly 5,200 air samplers'
filters were analyzed by the lab. No significant airborne radioactivity
of any type (including beta) was detected. Extensive recording of all
radiation safety data was accomplished. In addition to recording
personal doses in each individual's military records, a permanent
computerized database of all radiation safety information has been
established at Defense Nuclear Agency's (DNA) Field Command in
Albuquerque. The exhaustive data accumulated over the 3 years of the
project do not indicate any area or instance of concern over
radiological safety. All doses, internal and external, were minimal.
(Taken from chapter 4 of DNA 1981--``The Radiological Cleanup of
Enewetak Atoll.'' http://www.dtra.mil/Home/NuclearTestPersonnelReview/
EnewetakAtoll CleanupDocuments.aspx)
However, VA takes seriously its obligation to care for Veterans
exposed to ionizing radiation and has special processes to both verify
exposure and establish service connection for Marshall Islands cleanup.
These processes are described in 38 CFR 3.311, which is attached. For
such claims, the Veterans Health Administration (VHA) Office of Public
Health provides the Veterans Benefits Administration with a medical
opinion concerning the likelihood of causation. VHA considers data from
several publicly available reports on the cleanup from DOD's Defense
Threat Reduction Agency (DTRA)/Nuclear Test Personnel Review (NTPR).
DOD DTRA/NTPR has requested funding from Congress to further
investigate radiation doses due to Veterans' participation in the
cleanup.
Attachment--38 CFR 3.311
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Isakson. Senator Cassidy, followed by Senator
Moran.
HON. BILL CASSIDY, U.S. SENATOR FROM LOUISIANA
Senator Cassidy. So, I have got a bunch of questions. I
think, Dr. Erickson, you mentioned that the Australian data was
perhaps not directly--somehow it did not relate necessarily to
the American data because they may have taken their water on
board to distill at different locations.
I have read that in Australia, the drinking water was taken
in relatively small estuaries closer to the shore and that for
the boilers was even further out. What were the policies for
the U.S. Navy in terms of where they would take on water to
distill?
Mr. McLenachen. I can answer the question, Senator. It is
our information that the Navy had a directive that that water
was to be taken on offshore and I believe it was 11 or 12 miles
offshore.
Senator Cassidy. Now, if you are 11 or 12 miles off of the
Mekong Delta, that would still be an estuary type situation, so
do we know that they had requirements to be--and I presume they
would often be off that estuary. In that situation, did they
need to be further out?
Mr. McLenachen. I do not have any information on that,
Senator.
Senator Cassidy. Do we know the amount of particulate
matter, organic matter which is normally suspended in the
waters off of the Mekong Delta? Do we know that? Relatively
easy to find out. That is why I am asking.
Mr. McLenachen. I will defer to Dr. Erickson, but I believe
the IOM study did address that to a certain extent.
Dr. Erickson. I would defer to the next panel because I
would have to look that up, Senator. I just do not have that
available.
Senator Cassidy. Now, I read from the Australian data that
if there is organic material, that they tend to retain--you
have a greater distillation effect, as much as 70 percent
distillation within the first process. Now, again, this seems
relatively easy to ascertain. Maybe we have to wait for the
IOM. Do you know if that has been ascertained again; what is
the organic material, et cetera?
Mr. McLenachen. No. I believe my non-scientific reading of
the IOM report indicated exactly what you are saying, which is
if that process was used, would it enhance essentially the
strength or the degree of the----
Senator Cassidy. But we are not sure about that? Do we have
any banked tissue samples or serum samples from veterans, men
and women who served at the time? Do we have any tissue banks
or serum banks from their service?
Dr. Erickson. Senator, we certainly have for the Air Force
members who were participating in the spraying of Agent Orange.
The Institute of Medicine, in fact, is working with us to make
those specimens available for study. But I am not aware of any
specimens that would have covered anyone who was serving in the
Navy.
Senator Cassidy. OK. I noticed in the eligibility for
current benefits, basically, somebody could have been in Saigon
at a desk job, but they would be eligible for Agent Orange
benefits even if they plausibly never had an exposure, correct?
Mr. McLenachen. That is correct.
Senator Cassidy. Now, the Blue Water folks are saying,
listen, there was transport, there were vessels going on and
off from the mainland to these vessels, and plausibly there
could have been cross-contamination. I do not know.
How was the chemical transported? Was it in boats or was it
flown over? I do not know that.
Mr. McLenachen. It was flown, is my understanding. I do not
have any additional information on that.
Senator Cassidy. I am seeing people in the back shake their
heads. It makes sense to me that if you are transporting tons,
you would be more likely to do it by boat than by air, because
it is not like you needed it acutely. You are going to use it,
you know, a planned use.
So, if the guy on the desk job in Saigon is eligible, but
there is transport in boats and there is loading in boats and
there is X, Y, Z in boats, plausibly it seems as if there
should be--I can see why the Blue Water guys are a little
upset.
Mr. McLenachen. Senator, if we have information on ships
that were hauling it and veterans had access based on serving
on those ships, they would be on the ship list and that we
would be recognizing as having the potential for exposure.
Senator Cassidy. Got you. Now, last, in the VA system,
clearly you all have large epidemiological databases
potentially, and have you been able to look back at the
incidence of dioxin-related conditions in the Blue Water vets
relative to the Air Force or relative to those who were boots
on the ground?
Dr. Erickson. Senator, the answer is that there has not
been a study of the Blue Water Navy by VA. The high-risk groups
that we studied and have been studied for decades now were the
Army Chemical Corps.
Senator Cassidy. I get that.
Dr. Erickson. And----
Senator Cassidy. Now, the Australians did that and they
actually found an increase incidence of certain tumors within
the Blue Water group. Granted, we do not know where they got
their water, vis-a-vis, us, but I guess it kind of begs the
issue of why have you not? If this is out there and we have got
all this data, it seems--if the Australians can do it--you see
where I am going with this?
Dr. Erickson. In the case of Blue Water Navy, Senator, we
would have to go get the data. We would have to launch a rather
large survey which would reach out to those individuals.
Senator Cassidy. You cannot just take your subset of Naval
veterans who have sought their care in the VA and compared them
to a cohort of Army and Marine and Air Force veterans?
Dr. Erickson. If we felt that particular group was
representative of the entire Navy experience, then that would
be a good study design, sir.
Senator Cassidy. I can tell you there is a statistician
that knows how to correct the variables, you know, some sort of
regression analysis. It just seems like if we have all these
unanswered questions, that study should have already been done.
Maybe the IOM has done it.
Dr. Erickson. Part of the challenge, Senator, if I may, is
there is a lot of mixing of these populations. There would have
been people who--
Senator Cassidy. I accept that it is dirty data, but the
Australians did it.
Dr. Erickson. What I mean by this, sir, is that individuals
who, during one tour, might have been way off shore. The next
tour they may have come into port. Once they came into port,
then they, under the presumption rules, you know, they are
covered, so now they are enrolled in VA. Some challenges--and
your point is well taken.
Senator Cassidy. I am way over time. Thank you for your
indulgence. I yield back.
Chairman Isakson. Senator Moran.
HON. JERRY MORAN, U.S. SENATOR FROM KANSAS
Senator Moran. Mr. Chairman, thank you for conducting this
hearing. Secretary, thank you very much for being here. Let me,
first of all, express my support for a bill I am a cosponsor of
and that is the Blue Water Navy Vietnam Veterans Act of 2015. I
will generally confine my remarks and questions to the bill
that Senator Blumenthal and I introduced related to toxic
exposure.
First of all, let me express my concern for family members
of those veterans and for the veteran who encountered that
toxic exposure. It seems to me that those who served our
country in the military, who were drafted, who volunteered,
they have an expectation of taking certain risks associated
with their military service.
But I cannot imagine that any one of those men or women
expected that their service would result in health care
concerns for their children or their grandchildren. What a
terrible burden that must be if you now believe that something
that you voluntarily did has a consequence for people who were
yet to be born, your children and grandchildren.
I think this is an issue that is so deserving of the VA's
attention and certainly of Congress's attention. My
understanding is that--I am not certain, Mr. Secretary. You on
behalf of the VA oppose that bill, is that true? That is your
testimony today?
Mr. McLenachen. Yes. VA opposed that bill, yes.
Senator Moran. And you do that by referring to testimony
that was given previously. Your testimony indicates the
Department has previously provided its views on S. 901 to this
Committee on June 24, 2015. When I read the testimony of that
date, everything that is said about the VA's opposition is
related to what it believes is a duplication of efforts
previously and currently underway at the VA or at other
agencies.
My impression, I think probably this comes from what Dr.
Erickson said this morning, is that is no longer your position.
So, I mean, you denied, discounted the duplication and now, as
I understand it, oppose the bill because the focus needs to be
headquartered someplace other than the VA. True?
Dr. Erickson. If I may, Senator Moran, for me the
overriding concern--and yes, the VA position--is that there are
other agencies that are better positioned to do this. But the
duplicative effort--let me speak to that. There are some things
at VA we do very well. We do large surveys, large epidemiologic
studies of veteran cohorts.
We have been in consultation with Vietnam Veterans of
America to put together a Vietnam morbidity study, which is
getting ready to be launched. As part of that study, we will be
looking at the health of their children, but not the epigenetic
piece. That is a little beyond the scope of the morbidity
study. Likewise, there is an upcoming OEF/OIF veterans health
study which will also be including questions of children, of
veterans' children.
I think the issue here is, again, perhaps this new
recognition that VA and veterans in particular benefit
considerably when we partner with the right Federal agency.
Again, I use the ATSDR collaboration to which we have alluded
as it relates to Camp Lejeune, as being a very strong example
of how that can benefit veterans.
Senator Moran. Well, I cannot imagine that is anything but
true. We ought to be encouraging collaboration. There are
agencies and departments who have expertise. There are outside
experts who we ought to rely on. So, I do not think you are
saying anything contrary to what common sense, perhaps, would
suggest to be true.
What Dr. Jain stated in that reference, the day of that
testimony, the current VA activities include collaboration, et
cetera, work being done by the National Institute of Health,
Environmental Health and Sciences. It talks about studies and
yet, I mean, the VA believes, as I understand, that there is
insufficient evidence for benefits to accrue.
Let me say it differently. There is insufficient evidence
to tie the conditions that we find in children or grandchildren
of veterans to the exposure of their mothers, fathers,
grandmothers, or grandfathers. So, if that is a true statement,
that the VA cannot find the connection, the scientific
evidence, then it seems to me that the VA ought to be terribly
interested in making that determination.
It ought to be insufficient for the VA to say there is
insufficient evidence. You ought to be determining whether
there is evidence or not, scientifically, medically, for that
condition. Is that true?
Mr. McLenachen. Senator, if I might, one of the issues here
is the extent of our current authority. Congress has given us
authority, in limited situations, for example, spina bifida, to
pay benefits to, say, a descendent of somebody who was been
exposed. Other than that, our authority is very limited. We pay
benefits to survivors based on the veterans' exposure. We allow
survivors to substitute in a veterans' claim and we pay accrued
benefits.
Senator Moran. So, would you support--would the VA support
the authority to do exactly that? I mean, what this bill does
is to set the parameters by which that conclusion can be
reached. Then I assume that you would endorse the idea that
those benefits should be paid if that scientific evidence,
medical evidence is prevalent?
Mr. McLenachen. If Congress determines that that is what
the Government should be doing and asks VA for its views on
that, Senator, I feel very confident we would provide our
views, let you know what they are.
Senator Moran. Even though you provide the legislation
designed to accomplish that?
Mr. McLenachen. Well, if it is a bill that is introduced
into the Congress and not one of our own legislative proposals,
we would provide our views on it on that basis. If it is
something that we would propose, yes, we would definitely
propose something that we support, which this may happen to be
what it is.
Senator Moran. My point is, you oppose the bill that is
designed to give us the standing in which we have the
credibility to give you the authority; yet, you oppose the bill
that creates that opportunity for us?
Mr. McLenachen. I understand what you are saying. It would
be helpful to have the research before you decide whether that
is a benefit that should be provided.
Senator Moran. My time has expired. I have just a couple of
summations. Certainly everything that I have read by other
agencies indicate that there is a need for additional evidence,
scientific/medical research and that any suggestion that the VA
or anybody else has reached the necessary conclusions,
necessary evidence to draw a conclusion, is inadequate, is
inaccurate.
So, when the VA talks about duplication, there is plenty of
room for scientific and medical evidence to be determined that
has not been researched or studied previously.
At then second, I would appreciate an answer to Senator
Rounds' question which, I believe the question was, if the
focus was elsewhere--somebody else is in charge of this
program--would the VA then support the legislation, the concept
contained in this legislation? I do not think that Senator
Rounds' question was answered.
Dr. Erickson. The answer is yes, Senator.
Senator Moran. Thank you. I would highlight what Senator
Tester had to say which was--and I cannot speak for Senator
Blumenthal, but I have no doubt that what I, and I would guess
Senator Blumenthal would be very interested in is finding the
right place to house this effort. I would think we would start
with the premises that we want to be housed by somebody who
wants to do it so that the right attitude and approach is
taken.
Again, if we find the right place to do this, I then assume
that the VA would be supportive of this effort. Is that
accurate?
Dr. Erickson. Yes, sir.
Senator Moran. Thank you both.
Chairman Isakson. Senator Boozman.
HON. JOHN BOOZMAN, U.S. SENATOR FROM ARKANSAS
Senator Boozman. Thank you, Senator Isakson, and again,
thank you so much for having this so important hearing. I
apologize for being late. I am going to have to run out and
then come back in the middle of the next panel in working with
the budget issues that we are facing now, trying to help get
some of those things sorted out. Mr. McLenachen?
Mr. McLenachen. Yes, sir.
Senator Boozman. Did I get that right?
Mr. McLenachen. Yes, you did.
Senator Boozman. Good, very good. I am proud of myself. On
a separate issue of alleged toxic exposure, in Arkansas, we
have a significant number of Gulf War 1 veterans who allege
chronic illness due to toxic exposures. The Arkansas National
Guard's 39th Infantry Brigade deployed in the Gulf in 1990,
1991.
Some of these folks have some real health issues now. Many
of these veterans claim that they were exposed to toxic
substances like benzene due to the oil fires that the Iraqi
military set, and have issues like Agent Orange exposure and
the Camp Lejeune water contamination situation. It takes a
significant amount of time and research to fully grasp the
effects and causal connection of such exposure.
Can you give me an update? Can you give all of us an update
on what efforts the VA is continuing to pursue to help these
Gulf War veterans?
Mr. McLenachen. Since that is a medical science research
issue, I will defer to Dr. Erickson on that.
Dr. Erickson. Certainly. Thank you for the question,
Senator. We continue to partner with Gulf War veterans,
veterans service organizations in particular, the National Gulf
War Resource Center which is headed up by Mr. Ron Brown. He has
worked very closely with us to make sure that our Web sites are
accurate and our newsletters are actually useful by topic.
He and his partner, Jim Bunker, have actually recommended
to us research that they think is necessary for us to be able
to answer some of these questions. And literally, while we sit
in this room, the Gulf War Research Advisory Committee, which
is, in fact, a Federal advisory committee, is meeting at VA
headquarters. As you probably know, that committee, in fact,
provides advice concerning the research to fill the gaps in a
Gulf War illness.
Senator Boozman. Very good. Thank you. Mr. McLenachen, with
the Camp Lejeune water situation, it is my understanding that
the VA representatives went down to North Carolina and
explained how the disability claims process worked and the
steps that people needed to take in order to file a claim and
receive compensation. However, VA added another layer of
bureaucracy to the process by adding subject matter experts
into the adjudication process.
I guess, you know, I would like to know if that was correct
and if it is correct. Adding these SMEs into the adjudication
process is unique to the Camp Lejeune situation. Is that
correct? Then, the other question I have is, why was this done?
Mr. McLenachen. Senator, I would not say it is unique
because in every compensation claim that we adjudicate, we are
required to obtain current, through our duty to assist, an
examination or a medical opinion as required to properly
adjudicate the claim. Sometimes we will get private evidence
that does not require us to do that through VHA, but if we need
an opinion, we often go to VHA and ask for an opinion.
Our adjudicators are not the medical experts. They are the
adjudicators who weigh the evidence that they are given. So, I
would not say that it is unique that we have individuals
providing us those kinds of opinions. However, in this case,
recognizing that this is a special issue, we consolidated all
those claims down to our Louisville Regional Office and we did
collaborate very closely with the Veterans Health
Administration to make sure that we were achieving a level of
consistency that these veterans deserve.
The way we did that was consolidate in Louisville and then
working with VHA to set up a system with the special SMEs,
subject matter experts, to help us with getting those opinions.
I think Dr. Erickson could probably talk a little bit more
about the SMEs themselves and what their qualifications are.
Dr. Erickson. Senator, I am going to divide this into two
pieces. One is the health care law that Senator Burr gave
testimony to, the other would be the SMEs as it relates to
presumptions. As Senator Burr appropriately said, he pushed
legislation that was passed in 2012, and when that was enacted
on the 6th of August, 2012, VA immediately started providing
health care for 15 different conditions to Camp Lejeune
veterans.
I am proud to say that to date, we have provided health
care to 21,154 veterans who had served at Camp Lejeune. Of
these, 7,506 veterans have been treated specifically for a Camp
Lejeune condition that is included in that law. Likewise, on
the family member side of that, we have had 997 family members
who have applied for the program.
Again, this program is a little newer. 176 family members
are both administratively and clinically eligible. To date,
there have been 906 family members whose medical claims have
been paid for, 65 unique family members for a total payout of
$176,000.
On the health care side, we have moved out smartly on the
bill through the legislation that Senator Burr gave testimony
to.
On the presumption side, yes, there was a need for us to
move beyond the cadre of compensation and pension examiners
such that we would have a group that was more specially
trained. We selected about 20 of these individuals, also in the
fall of 2012, made sure that they were residency trained in
occupational medicine, environmental, toxicology.
They received, as Mr. McLenachen said, additional training
at the VBA facility in Louisville to make sure they understood
the complexity of the issues. Currently they have regular
telephone conferences to discuss cases, especially the more
difficult cases, so as to provide a certain level of peer
review for those cases. They also continue to build and work
with a comprehensive bibliography, the goal being to reduce
variability in the decisions that are made.
Senator Boozman. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Boozman.
Senator Hirono has a follow-up question.
Senator Hirono. Yes. I realized that the VA, in seeking to
conclude that there is a service connection, relies on
information from the Department of Defense. I do have a concern
that with regard to Vietnam, that maybe not all of the
information that you have is accurate in terms of things such
as where Agent Orange was sprayed, where the water may have
been contaminated. So, there is that issue.
Dr. Ramos, who is on the second panel, notes in his
testimony that veterans of the Blue Water Navy received a
presumptive service connection as recently as 2002 before VA
implemented a policy change. I assume that policy change meant
that they no longer enjoy this presumption. Can you tell me if
that is accurate, where you actually did--
Mr. McLenachen. Yes. I believe that relates to my
conversation with Senator Tester earlier. Our policy, dating
back to 1994, was essentially consistent with what it is now,
except to the extent that we used the Vietnam service medal for
purposes of determining eligible Vietnam service. What we
discovered was that medal was not a good way to do that because
it is provided more broadly.
It is provided to individuals who provided support during
the Vietnam era, rather than actual duty in the Republic of
Vietnam. The statute requires being in the Republic of Vietnam
and that was the issue. So, that point is when we changed our
regulation to clarify that issue.
Senator Hirono. So, basically, it was a pretty fundamental
thing, whether they were even in Vietnam serving at that time?
Mr. McLenachen. Yes. You might have had, for example,
veterans in the Philippines who were providing support.
Senator Hirono. Thank you. Thank you, Mr. Chairman, for
that clarification.
Chairman Isakson. Thank you, Senator Hirono. I want to
thank our two panelists for their extensive testimony and thank
the Committee for their participation.
Response to Posthearing Questions Submitted by Hon. Richard Blumenthal
to U.S. Department of Veterans Affairs
Question 1. Blue Water Navy Veterans Disability Claims--While VA
does not allow the presumption of service connection to veterans who
served in the territorial seas (12-miles) of the Republic of Vietnam,
the Committee received a response to a pre-hearing question that
indicated claims can be considered on a case-by-case basis. VA
considers claims from Blue Water Navy veterans on a case-by-case basis.
Has the Department granted any of these claims, and if so how many?
Response. While the statute creating the presumption of Agent
Orange exposure for Veterans who served ``in'' the Republic of Vietnam
(38 United States Code (U.S.C.)Sec. 1116(f)) and the Department of
Veterans Affairs (VA) regulation addressing the same (38 Code of
Federal Regulations (CFR) Sec. 3.307(a)(6)(iii)) do not extend a
presumption of Agent Orange exposure to ``Blue Water Navy'' Veterans,
as these Veterans are not considered to have served ``in'' Vietnam, VA
does recognize a presumption of exposure for Navy Veterans whose ships
served on inland waterways while they were aboard, and for Navy
Veterans who went ashore in Vietnam even for a brief stay. Those
circumstances are among the ``case-by-case'' bases previously
described. VA does not track, and has no method for tracking, grant
rates for these claims. Additionally, a claimant who does not qualify
for a presumption of exposure must seek to show that they were actually
exposed to Agent Orange in service to establish service connection for
a current disability. VA also is unable to track grant rates for cases
of that nature.
Question 2. Camp Lejeune Water--In his written testimony Mr.
McLenachen stated that VA is in the process of amending its regulations
to allow presumptions for conditions related to water contamination at
Camp Lejeune to include kidney cancer, angiosarcoma of the liver, and
acute myelogenous leukemia. Provide a status report, to include a
timeline, on VA's progress to date in amending its regulations.
Response. A draft recommendation for the Secretary, which is based
on additional information provided by the Agency for Toxic Substances
and Disease Registry, is currently under review within VA. The Veterans
Benefits Administration (VBA) will begin the process of amending
regulations as appropriate after the Secretary considers the
recommendation and makes his final policy decision. Although this
policy analysis is a high priority for VA, there is no timeline for
final VA action on the matter.
Question 3. Camp Lejeune Claims Processing--The Committee received
testimony that in 2013 the Department consolidated Camp Lejeune claims
processing at the Louisville, Kentucky Regional Office. What was the
denial rate for Camp Lejeune claims before the consolidation and what
has it been since? What qualifications are required and what special
training do these ``subject matter expert'' claims processors receive
who adjudicate Camp Lejeune water decisions?
Response. VA consolidated the processing of claims based on
exposure to contaminated water at Camp Lejeune to VBA's Louisville
Regional Office in December 2010. At that time, VBA attempted to
identify any claims previously decided with service at Camp Lejeune
being implicated as the cause of disability. We were able to identify
195 claims that VA decided between 1997 and 2010, with an 83 percent
denial rate.
Following a 2012 review of completed decisions, VA determined
medical professionals with expertise in occupational and environmental
health are required to obtain the best possible medical opinion
evidence for adjudication of claims by Veterans exposed to the
contaminated water at Camp Lejeune. VA identified these experts and
provided them with three days of training on Veterans' exposure to the
water at Camp Lejeune. To date, the grant rate for primary disease
categories associated with exposure to water at Camp Lejeune (renal
cancer, leukemia, breast cancer, etc.) is 11 percent.
Question 4. Agent Orange Presumptive Authority--The Secretary's
specific authority to grant presumption of service-connected
disabilities based on exposure to herbicides in the Republic of Vietnam
(38 U.S.C. Sec. 1116) lapsed as of September 30, 2015 after having been
in effect for 15 years. Provide a summary of the presumptions the
Secretary granted under this specific authority during that 15-year
span.
Response. Although VA's authority under section 1116 expired on
September 30, 2015, the Secretary has general rulemaking authority
under 38 U.S.C. Sec. 501, which will allow him to establish appropriate
presumptions of service connection should it become necessary in the
future.
The Agent Orange Act itself established an association between
Agent Orange exposure and:
(1) Non-Hodgkin's lymphoma;
(2) Soft tissue sarcoma (other than osteosarcoma, chondrosarcoma,
Kaposi's sarcoma, or mesothelioma); and
(3) Chloracne or another acneform disease consistent with
chloracne.
Subsequent associations and dates established by VA regulations
include:
(4) Porphyria cutanea tarda [February 3, 1994];
(5) Hodgkin's disease [February 3, 1994];
(6) Respiratory cancers of the lung, bronchus, larynx, or trachea
[June 9, 1994];
(7) Multiple myeloma [June 9, 1994];
(8) Prostate cancer [November 7, 1996];
(9) Acute and subacute peripheral neuropathy (later replaced by
(16)) [November 7, 1996];
(10) Type 2 diabetes mellitus [May 8, 2001];
(11) Chronic lymphocytic leukemia [October 16, 2003];
(12) AL amyloidosis [May 7, 2009];
(13) Ischemic heart disease [August 31, 2010];
(14) Chronic B-cell leukemia [August 31, 2010];
(15) Parkinson's disease [August 31, 2010]; and
(16) Early-onset peripheral neuropathy [replaced (9)] [September 6,
2013].
Question 5. Exposure Research--Throughout the testimony at the
hearing, VA witnesses frequently stated other Federal agencies would be
better suited to conduct research about indirect exposure. Please
elaborate on that point and also provide details about the specific
agencies that would be better positioned to conduct this research.
Response. The National Institute of Environmental Health Sciences
(NIEHS), one of the National Institutes of Health (NIH) in the U.S.
Department of Health and Human Services (HHS), has capacity, expertise,
and a strong record of accomplishment in understanding environmental
effects on epigenetics and epigenetic regulation of biological and
developmental processes. Understanding both low-dose effects and the
developmental windows of susceptibility will be critically important
for determining the level of risk posed by indirect and
transgenerational exposure. In addition, the National Toxicology
Program, headquartered at NIEHS, is well placed to coordinate
toxicological research from across agencies.
The Eunice Kennedy Shriver National Institute of Child Health and
Human Development (NICHD) is another NIH entity that has a specific and
focused interest in the development of molecular level tools and multi-
institutional collaborations to support analyses of gene expression and
genetic pathways to explain multigenerational effects that may result
from myriad environmental factors. (NICHD--http://www.nichd.nih.gov/
health/topics/epigenetics/researchinfo/pages/goals.aspx)
VA does not have the capacity and expertise in place to perform
multigenerational studies, including research such as highly
specialized epigenetic analyses.
Question 6. Epidemilogical Studies--Does VA have plans to conduct
an epidemiological study on Chorodial Melanoma? If yes, please provide
details regarding a timeline for such research and if no, please
provide detail regarding why this issue is not being considered.
Response. There are 200 cases of choroidal melanoma in the VA
Central Cancer Registry from 1995 to 2013, about 11 cases per year.
There are an additional 113 melanoma cases located in the eye for a
total of 313 ocular melanoma cases over this same time interval. This
represents less than 0.05 percent of all cancers in the registry. The
rarity of the cancer makes an epidemiological study infeasible without
a very large risk.
VA's National Program Director for Oncology found nothing in the
literature or reference materials to support a claim of association
between Veterans, military service, or Agent Orange and choroidal
melanoma. Known risk factors for uveal melanomas (which are mostly
choroidal) are host pigmentation factors, cutaneous and iris nevi, and
ultraviolet light exposure.
VA research does not currently have a study focused on the
epidemiology of Chorodial Melanoma; primarily because we support
investigator initiated research, and we have not reviewed an
application on the topic that would be currently funded. However
researchers from the Tampa VA recently published a paper as a case
report, http://www.ncbi.nlm.nih.gov/pubmed/26066556
Further, VA maintains a comprehensive database of cancer incidence
in the VA Healthcare System in the VA Central Cancer Registry: http://
catalog.data.gov/dataset/veterans-administration-central-cancer-
registry-vaccr
There is a non-VA citation, in the U.S. National Library of
Medicine to a 2012 update from the Committee to Review the Health
Effects in Vietnam Veterans of Exposure to Herbicides (see chapter 8,
subchapter Skin Cancer) that includes this:
This is the first update in which any information on ocular
melanoma has been identified. The case-control study of Behrens
et al. (2012) found some increases in the incidence of uveal
melanoma in association with unspecified herbicides; this is
not the degree of herbicide specificity required for results to
be considered fully relevant. A Vietnam veteran submitted
information (Data from Rutz [2012] available in the National
Academies Public Access Records Office [http://
www8.nationalacademies.org/cp/Manage
Request.aspx?key=49448]) received in response to a Freedom of
Information Act request to VA about the frequency with which
choroidal melanoma (a specific type of uveal melanoma) was
diagnosed in VA facilities; the document indicated that a large
number of such cases had been seen, but the lack of
documentation explaining how the VA had gathered the data and
exactly what they represented prevented the Committee from
being able to assess their import. Because literature searches
did not identify any epidemiology studies of ocular melanoma in
association with the COIs, the Committee submitted an inquiry
to Carol and Mark Shields, who responded (Data from Shields
[2012] available in the National Academies Public Access
Records Office [http://www8.nationalacademies.org/cp/Manage
Request.aspx? key=49448]) that their analyses of more than
2,000 cases of uveal melanoma had not revealed any association
with the COIs.
Question 7. Gray v. McDonald--During the hearing, the Committee
received testimony that cited a recent Court of Appeals for Veterans
Claims decision in Gray v. McDonald that found VA's demarcation between
inland waterways and offshore waters to be ``arbitrary and
capricious.'' Provide a status report, to include a timeline, on VA's
progress to date in complying with the instruction of the Court to the
Department to review and clarify its definition of inland waterways and
offshore waters.
Response. In April 2015, the U.S. Court of Appeals for Veterans
Claims issued its decision in Gray v. McDonald, 27 Vet. App. 313
(2015), which required VA to review and clarify its policies for
determining whether coastal bodies of water, such as Da Nang Harbor,
constituted ``inland waterways'' or ``offshore waters'' for purposes of
applying the presumption of herbicide exposure. Shortly after that
April 2015 decision, VA began the process of reviewing and clarifying
its policies regarding such determinations. Secretary McDonald has
directed that this important issue merits very deliberate and thorough
evaluation by VA, which is ongoing. Although this policy analysis is a
high priority for VA, there is no timeline for final VA action on the
matter.
______
Response to Posthearing Questions Submitted by Hon. Jerry Moran on
S. 901, the Toxic Exposure Research Act of 2015
Question 8. Please provide the VA's rationale for opposing further
research into the effects of toxic exposure on a servicemember's
progeny, when the VA has acknowledged that the science behind this
topic is insufficient.
Response. VA fully agrees that the science behind the effects of
toxic exposures on a servicemember's progeny is presently insufficient
to guide evidence-based policy. VA does not oppose further research
into this important issue, but rather suggests that other Federal
agencies are better equipped and postured to conduct this complex work.
Question 9. The VA has stated they should not be the institution to
oversee and carryout this research. Please provide specific changes and
recommendations for S. 901 that would place the research and
responsibilities in the appropriate agencies.
Response. This important research mission should be fully-funded by
Congress and assigned to the National Institute of Environmental Health
Sciences (NIEHS) VA and the Department of Defense (DOD) should be
directed to provide full cooperation and collaboration in the conduct
of NIEHS multigenerational/epigenetic studies of the toxic
environmental exposures experienced by Veterans (and in some cases
their families) and their progeny. VA and DOD would be able to provide
historical documents, medical records, and personnel lists (when
available) as the needed foundation for these studies.
______
Response to Posthearing Questions Submitted by Hon. Thom Tillis to
U.S. Department of Veterans Affairs
Question 10. By what date will the VA announce presumptive
disability coverage for veterans with conditions for which ATSDR has
determined that there is ``sufficient evidence for causation'' by
exposure to contaminated water at Camp Lejeune? By what date will the
VA announce which of the diseases designated by the ATSDR as showing
``modest evidence for causation'' will be included in the presumptive
disability program?
Response. Although the complex policy analysis associated with
creating presumptions of service connection for diseases associated
with exposure to Camp Lejeune drinking water is a high priority for VA,
there is no timeline for a VA announcement regarding this complex
matter.
Chairman Isakson. I now invite our second panel to come
forward. We are fortunate to have--I see five people, but I
have only got four names. What am I missing? Ms. Wedge is
accompanying Dr. Ramos. Now I understand.
Welcome to our second panel. Doctor Kenneth Ramos, Chair of
the Institute of Medicine Committee on Veterans and Agent
Orange; Commander John Wells, Executive Director of the
Military Veterans Advocacy, Inc.; John Rowan, National
President of the Vietnam Veterans of America; and Jerry
Ensminger, Master Sergeant, U.S. Marine Corps, Retired. I want
to thank all of you for being here today and we will start with
Dr. Ramos.
STATEMENT OF KENNETH S. RAMOS, M.D., PH.D., ASSOCIATE VICE
PRESIDENT FOR PRECISION HEALTH SCIENCES, ARIZONA HEALTH
SCIENCES CENTER, UNIVERSITY OF ARIZONA, AND CHAIR, INSTITUTE OF
MEDICINE COMMITTEE ON VETERANS AND AGENT ORANGE, UPDATE 2014,
THE NATIONAL ACADEMIES OF SCIENCES, ENGINEERING, AND MEDICINE;
ACCOMPANIED BY ROBERTO WAGE, M.S., SENIOR PROGRAM OFFICER,
INSTITUTE OF MEDICINE
Dr. Ramos. Thank you, Mr. Chairman, Members of the
Committee. I am Ken Ramos, as was stated. I am a professor of
medicine at the University of Arizona Health Sciences Center,
and I also serve as Associate Vice President for Precision
Health Sciences at that institution. The reason that I am here
is because I also serve as Chair of the last Update for the
Veterans and Agent Orange Committee, which is currently
finalizing its report. It is the last report following
completion of a 20-plus year series, as most of you know.
I am here to speak, to represent the voices, I think, on
the recommendations of multiple IOM committees and, of course,
in some instances, I will also provide some comments which
reflect my own thoughts and impressions regarding the issues at
hand. My initial remarks will focus on IOM efforts to assess
exposures to Agent Orange among Blue Water Navy veterans and
the degree to which its exposures and long-term health outcomes
are comparable to those of Brown Water Navy veterans and troops
on the ground, which I think is one of the issues that has been
debated this morning.
As indicated in the 2011 report that the IOM committee
provided from the IOM, the conclusion was made that given the
lack of environmental monitoring that took place during and
shortly after the war, and the variability and uncertainty in
the fate and transport information for dioxin, and it is not
possible to estimate the likely concentrations of dioxin in
marine waters and air and at the time of the deployment for
these veterans; therefore, quantitative measures of comparisons
across three military populations of interest could not be
made.
I think this is an issue that certainly has posed a lot of
problems with regards to decisionmaking because the science
itself does not really actually support any specific
conclusions in that sense. This said, the committee did
identify possible pathways of exposure, which of course,
included the distillation efforts on board ships which has been
discussed, I think, a number of times in the course of
testimony provided.
I think that particular route of exposure is certainly
important given efforts by the Australian Royal Navy looking at
reconstruction experiments in which distillation experiments
were completed establishing that, in fact, if dioxin was
present in those waters, it would be concentrated through the
process, and in so doing, making it available for exposure.
On the basis of those findings, which were actually
ratified by the 2008 Veterans Agent Orange committee, the
conclusion has been made that we do not have any evidence
either for inclusion or exclusion of Blue Water Navy veterans
from coverage under the Agent Orange Act; therefore, this
conclusion needs to be considered in further policy
decisionmaking.
Over the 20-plus years which have taken place since the
veterans and Agent Orange series has been initiated, only a
single epidemiological study has been completed that actually
reported specific findings for Blue Water Navy veterans,
showing, in fact, a higher incidence of non-Hodgkin's lymphoma
in Blue Water Navy veterans and the highest and most
significant risk across all branches of service for this
adverse health outcome. This, I think, directly addresses one
of the points that was raised in the previous discussion
regarding findings for Blue Water Navy veterans in particular.
Although this particular finding for epidemiological
correlation does not directly address questions related to
exposure, especially in light of the quantitative deficits
which I described before, this is, in fact, considered a
hallmark of disease for dioxin exposure, one of the signature
cancers for dioxin, and therefore, health outcomes alone
presumed by the VA to be service-related to the Blue Water Navy
veterans.
In reference to Senate Bill 681, which has been discussed
here, it should be noted that in the judgment of all IOM
committees which have taken on studies related to this, it is
highly unlikely that any future scientific research will
provide any additional information that would resolve questions
related to exposures given the limitations which I described
before, including those which were connected to service in the
territorial waters of Vietnam.
Whether or not the claims of Blue Water Navy veterans are
to be processed like those of other Vietnam veterans, that is
ultimately a policy decision and not one that can be answered
on the basis of science.
Given the lack of exposure information collected during or
immediately after deployment for many of the conflicts that we
have to deal with, I do not expect that new data will become
available, you know, from past conflicts given that the
collection of exposure information was not completed during
that particular episode, and oftentimes what we find ourselves
doing is trying to reconstruct exposures on the basis of
statistical models that, as good as they might be, certainly
will never provide complete answers, either at the population
or the individual level.
In my opinion, plans to extend the Agent Orange Act under
House Resolution 3423, cited as the Agent Orange Extension Act
of 2015, to complete an additional cycle is an excellent
proposition that would not only ensure continuity in the
monitoring of the health status of Vietnam veterans, but
perhaps more importantly, provide all of us an opportunity to
set a path forward on how to establish that area of evaluation
processes that would be coherent across multiple military
situations.
I think we should learn from the experiences of the--you
know, the mistakes that have been made in the past, certainly
put in place, I think, resolutions that will enable us to move
forward in a way that is going to be informed by actual data.
I think it is also important to note that renewing the
biennial updates as has been completed up until now probably is
not going to be advisable given the fact that the needs that we
have right now are needs for data rather than continued updates
that probably sort of slow the process.
Last, in reference to Senate Bill 901, Toxic Exposure
Research of 2015, I think it is important to know that plans to
establish a National Center for Research on the diagnosis and
treatment of health conditions of the descendants of veterans
exposed to toxic chemicals during service in the Armed Forces,
although very important and highly significant and laudable, I
believe it is actually premature at this point in time in light
of the scarcity of scientific and medical data to support the
contention that toxic exposures to veterans, particularly male
veterans, can be transmitted to descendants across one or
multiple generations.
I think the danger in moving forward perhaps prematurely
could certainly add confusion to an already very crowded
environment. That said, I think efforts to create an advisory
committee charged with overseeing the assessment and handling
of possible health effects from all military exposures would be
highly desirable in order to increase continuity and coherence
of efforts across various situations.
I thank you for inviting me to be here and I look forward
to a dialog with you on this and issues that you may want to
discuss. Thank you.
[The prepared statement of Dr. Ramos follows:]
Prepared Statement of Kenneth S. Ramos, M.D., Ph.D., Associate Vice
President for Precision Health Sciences, Arizona Health Sciences
Center, University of Arizona and Chair, Institute of Medicine
Committee on Veterans and Agent Orange, National Academies of Sciences,
Engineering, and Medicine
Good morning, Mr. Chairman, Senator Blumenthal, and Members of the
Committee. My name is Dr. Kenneth Ramos. I am Associate Vice President
for Precision Health Sciences at the University of Arizona and a
Professor of Medicine in the Division of Pulmonary, Allergy, Critical
Care and Sleep Medicine at the Arizona Health Sciences Center. I also
act as Director of the Center for Applied Genetics and Genomic Medicine
and am Director of the College of Medicine M.D.-Ph.D. Program.
Previously, I held faculty positions at the University of the Sciences
in Philadelphia, at Texas Tech University Health Sciences Center, Texas
A&M University, and at the University of Louisville School of Medicine.
I am currently serving as chair of the Committee that is preparing the
last update in the Veterans and Agent Orange (VAO) series of Institute
of Medicine (IOM) reports mandated by the Agent Orange Act of 1991 (PL
102-4) and renewed in the Veterans Education and Benefits Expansion Act
of 2001 (PL 107-103). Today I will be talking about the VAO series of
reports, but I will begin by discussing another IOM report that
attempted to assess the exposure of Blue Water Navy (BWN) Vietnam
veterans to Agent Orange.
In 2010, an IOM committee completely separate from the VAO
committees was tasked to study whether the Vietnam veterans in the BWN
experienced exposures to herbicides and their contaminants that were
comparable with those of the Brown Water Navy Vietnam veterans and
troops on the ground in Vietnam, with a focus on Agent Orange and
dioxin exposures. The Committee was asked to compare the possible
routes of exposure of BWN veterans on ships and of ground troops in
Vietnam, and the potential mechanisms of herbicide exposures (such as
water exposure from contamination of potable water, air exposure from
spray drift, and food and soil contamination). It was also asked to
compare the risks of long-term adverse health effects in ground troop
veterans, BWN veterans, and other ``era'' veterans, and to review any
studies that addressed adverse health effects specifically in BWN
veterans. I will focus on the exposure aspects of the resulting 2011
report Blue Water Navy Vietnam Veterans and Agent Orange Exposure, but
first I should note that, just prior to the initiation of this
Committee's work, the VAO committee for Update 2008 had made a
statement about the BWN controversy (based on a less extensive review
of details of exposure estimation and its understanding that the BWN
Vietnam veterans had previously been included) to the effect that
available scientific information did not support making a decision to
exclude them from coverage under the Agent Orange Act.
The BWN committee gathered information on how Agent Orange had been
used in Vietnam and the quantity and geographic range of its
application. The Committee also considered data on the magnitude of
dioxin contamination of Agent Orange. After reviewing information on
releases of Agent Orange to the environment, the Committee explored its
fate and transport in air, fresh and marine water, sediment, soil, and
food to assess the plausibility of Agent Orange and dioxin exposure of
military personnel who did not actually handle the herbicide
themselves. The Committee attempted to identify any monitoring data on
dioxin had been gathered during or shortly after the Vietnam War. The
Committee also considered fate and transport models that could be used
in conjunction with the limited available data to examine the
plausibility of exposure of ground troops and BWN veterans to the
chemicals. The Committee attempted to determine where BWN ships were
during the war, their missions, how close they came to the Vietnamese
coast, and the activities conducted aboard the ships by the sailors.
Many data sources and methods were identified and pursued by the
Committee, including published peer-reviewed literature, models for
assessing the environmental concentrations of Agent Orange and dioxin,
anecdotal information from veterans and other interested parties on
veteran experiences during the war and afterwards, and such other
information sources as written and published accounts of the war
(including memoirs), government documents, and ships' deck logs.
To determine whether BWN personnel had exposures to dioxin
comparable with those of ground troops and Brown Water Navy personnel,
the Committee sought to determine whether there were plausible exposure
pathways between releases of Agent Orange (specifically, the spraying
of Agent Orange during the Operation Ranch Hand missions) and the three
populations.
The Committee considered using a mathematical model to estimate
likely dioxin concentrations based on Agent Orange inputs to the
environment, but it found that input data and, importantly, data with
which to evaluate model performance, were not available. The Committee
did make the assumption that Agent and dioxin would have entered
waterways from riverbank spraying or as runoff from soil, particularly
in the Mekong delta area that was heavily sprayed and that experienced
frequent flooding. The amount entering the rivers would be highly
diluted by river flows.
The concentration of dioxin in marine waters would be reduced to a
great extent by dilution in river water and by dispersion in air, as
well as by further dilution in the coastal waters. Given the total lack
of monitoring information conducted during or shortly after the war and
the variability and uncertainty in the fate and transport information
on dioxin as it pertains to Vietnam, the Committee concluded that it is
not possible to estimate the likely concentrations of dioxin in marine
waters and air at the time of BWN deployment.
The Committee was also tasked with comparing exposures among three
military populations that served in Vietnam: troops on the ground,
Brown Water Navy personnel, and BWN personnel. Since the 1970s, IOM
committees and other groups have attempted to reconstruct Vietnam
veterans' potential exposure to Agent Orange and dioxin. Given the lack
of exposure data on ground troops, the uncertainty of exposure models,
and the limited knowledge about exposure among BWN veterans, the
Committee concluded that it was not possible to make quantitative
exposure comparisons among the three military populations of interest
to the VA. Therefore, the Committee evaluated the plausibility of
exposure of the three populations to Agent Orange and dioxin via
various mechanisms and routes. Several plausible exposure pathways and
routes of exposure to Agent Orange--associated dioxin in the three
populations were identified. Plausible pathways and routes of exposure
of BWN personnel include inhalation and dermal contact with aerosols
from spraying operations that occurred at or near the coast when BWN
ships were nearby, contact with marine water, and uses of potable water
prepared from distilled marine water.
Large US Navy ships--such as aircraft carriers, cruisers, and
destroyers--had their own distillation systems to produce potable-water
and distribution systems that included water-treatment processes. The
issue of distillation of marine water is important because the VAO
committee for Update 2008 found that BWN veterans could have been
exposed to dioxin via contaminated potable water. This conclusion was
based on an Australian Department of Veterans Affairs report that
determined that Royal Australian Navy personnel who served offshore in
Vietnam were exposed to Agent Orange--associated dioxin because the
distillation systems aboard the ships were thought to be able to
concentrate the dioxin in marine water into the potable water during
the evaporative process. If Agent Orange--associated dioxin was present
in the marine water, distilled potable water would be a plausible
pathway of exposure for BWN veterans.
The 2011 committee concluded that, qualitatively, ground troops and
Brown Water Navy veterans had more plausible pathways of exposure to
Agent Orange--associated dioxin than did BWN veterans. But one exposure
mechanism was specific to BWN ships: possible dioxin contamination of
potable water from onboard distillation plants. However, without
information on the dioxin concentrations in the marine feed water, it
is impossible to determine whether BWN personnel were exposed to Agent
Orange--associated dioxin via ingestion, dermal contact, or inhalation
of potable water.
In the course of their work over 20 years, VAO committees have only
found a single epidemiological finding specific to BWN veterans. Non-
Hodgkin lymphoma was among the selected cancers addressed in CDC's 1990
case-control study assessing the role of Vietnam service as a risk
factor. As shown in the table below from VAO Update 2012, BWN veterans
have been found to have a higher incidence of non-Hodgkin lymphoma than
other naval Vietnam veterans and had the highest, most significant risk
across all branches of service for this adverse health outcome.
------------------------------------------------------------------------
Odds Ratio (95%
Deployed Confidence
Veterans Interval)
------------------------------------------------------------------------
US CDC Selected Cancers Study--case-control 99 1.5 (1.1-2.0)
study of incidence of non-Hodgkin lymphoma
(Dec 1, 1984-Nov 30, 1989) among US males
born 1929-1953............................
Army Vietnam veterans.................... 45 1.2 (0.8-1.8)
Marine Vietnam veterans.................. 10 1.8 (0.8-4.3)
Air Force Vietnam veterans............... 12 1.0 (0.5-2.2)
Navy Vietnam veterans.................... 32 1.9 (1.1-3.2)
Blue Water Navy Vietnam veterans......... 28 2.2 (1.2-3.9)
------------------------------------------------------------------------
Although this does not address the question of dioxin exposure
directly, this disease is considered a signature cancer of dioxin
exposure, and so this health outcome alone is presumed by VA to be
service-related for BWN veterans.
Ultimately, the BWN committee, like the VAO committee for Update
2008, was unable to state with certainty that BWN personnel were or
were not exposed to Agent Orange and its associated dioxin. Owing to a
lack of data on environmental concentrations of Agent Orange and Agent
Orange--associated dioxin and an inability to reconstruct likely
concentrations, as well as the dearth of information about relative
exposures among the ground troops and Brown Water Navy personnel and
BWN personnel, it is impossible to compare actual exposures across
these three populations. Thus, the judgment of both these IOM
committees was that exposure of BWN Vietnam veterans to Agent Orange--
associated dioxin cannot reasonably be determined and no future
scientific research is likely to provide additional information that
would 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.
In fact, the paucity of reliable information on toxic exposures
that military personnel may experience has been a problem not just with
respect to the BWN situation. One of the three tasks assigned by the
Agent Orange Act for each health effect evaluated by a VAO committee
was to determine ``the increased risk of disease among those exposed to
the herbicides during service in the Republic of Vietnam during the
Vietnam era.'' After several updates that remarked individually for
each of the dozens of health outcomes reviewed that such risks could
not be calculated due to the lack of exposure information, VAO
committees eliminated the individual sections in favor of a generic
statement at the beginning of their reports. (This is an example of a
legislative requirement that remained inconsistent with reality, even
after two more decades of scientific progress.) IOM committees
assessing the possibility of health consequences in other veteran
cohorts (e.g., Gulf War, Operation Iraqi Freedom, etc.) have lamented
the lack of information collected during or immediately after a
deployment that might shed light on the frequency, duration, and
intensity of the exposures that veterans experienced. In the case of
Agent Orange, great efforts have been made to gather exposure estimates
retrospectively, such as gathering blood sample from Air Force veterans
who served in Operation Ranch Hand and modeling an exposure opportunity
index for individual veterans based on melding information abstracted
from records of spray missions and troop movements. The results of
these exposure estimation efforts have largely proven to be
frustrating; at best they have provided a very rough estimate of
potential exposure for a particular group of services members. In
response to repeated recommendations from VAO and other IOM committees,
DOD has been attempting to develop ways to avoid repetition of this
situation going forward, but anticipating what should be collected in
various circumstances is exceedingly challenging. For example,
collection of biologic samples from each servicemember before and after
deployment might be ideal for some exposures such as depleted uranium,
but useless for those that leave no detectable marker in a person.
Unfortunately, I do not expect data will become available from past
conflicts that will permit more accurate reconstructions of those
exposures nor that the actual exposure of individual servicemembers is
ever likely to be known.
In addition to highlighting the difficulty of obtaining useful
exposure data on veterans, the production of the series of VAO reports
has been a constructive learning experience in other respects.
Theoretically, the procedure set out in the Agent Orange Act and
adopted in other instances when troops have possibly experienced toxic
exposures might be expected to anticipate health problems that might
ultimately prove to be more prevalent in a particular set of veterans.
In practice, however, the approach of culling results from existing
epidemiologic studies for adverse effects characteristic of the
``suspect'' toxic agent in a given situation and then periodically
iterating the procedure for more recent findings has been fraught with
challenges and conveyed a sense of delayed response to the veterans.
The process is contentious and time-consuming, and the underlying
rationale is somewhat circular. Although answers prior to the
manifestation of harm in veterans would be desirable, a shift in
emphasis toward monitoring the veterans themselves more closely might
ultimately be more definitive. Unfortunately, an improved approach is
not readily apparent, especially not one that would smoothly transition
from established procedures.
Renewing the biennial AO updates may not be the optimal way to move
forward, but extending it temporarily would at least ensure continuity
to the monitoring of the health status of Vietnam veterans as they
continue to age and a guaranty of periodic consideration of their
situation. Production of one more VAO update after the one currently
nearing release would provide time to re-evaluate the current process
of identifying and assessing possible service-associated health
problems in veterans and their families for compensation. Before
legislating changes for which the scientific basis may be premature,
this could be an opportunity to define a process that would be more
coherent across various military situations.
Thank you for asking me to join you today. If you would like
additional clarification of any of the points I raised, I would be
happy to answer your questions.
References
CDC (Centers for Disease Control and Prevention). 1990. The association
of selected cancers with service in the US military in
Vietnam. I. Non-Hodgkin's lymphoma. Archives of Internal
Medicine 150:2473-2483.
IOM (Institute of Medicine). 2009. Veterans and Agent Orange: Update
2008. Washington, DC: The National Academies Press.
IOM. 2011. Blue Water Navy Vietnam Veterans and Agent Orange Exposure.
Washington DC: The National Academies Press.
IOM. 2014. Veterans and Agent Orange: Update 2012. Washington, DC: The
National Academies Press.
Chairman Isakson. Thank you for your testimony.
Commander Wells.
STATEMENT OF JOHN WELLS, COMMANDER, U.S. NAVY, RETIRED,
EXECUTIVE DIRECTOR, MILITARY VETERANS ADVOCACY, INC.
Commander Wells. Thank you, Mr. Chairman, Ranking Member
Blumenthal. Thank you for the opportunity to come talk to you
today on the theme of examining the impact of exposure to toxic
chemicals on veterans and the VA's response. That gives rise to
two questions; both deserve a straightforward answer.
First off is the impact of toxic research. Toxic exposure
has been horrendous and the VA response has been disappointing,
to say the least. Why do we need Senator Moran's bill and
Senator Blumenthal's bill?
Because--and this whole Blue Water Navy situation is a good
reason why, because this started not with the United States,
not with the Navy, but with the Government of Australia who has
toxic exposure research, does toxic exposure research,
outreached, and found there was a 22 to 26 percent increase
above the norm in cancer research among Navy veterans compared
to the 11 to 13 percent above the norm for Army veterans, and I
think it was 7 to 9 percent for Air Force veterans.
They discovered that. They are the ones who initiated the
University of Queensland study that you have heard so much
about on water distillation that actually showed that the
distillation process did not remove the Agent Orange dioxin; it
enriched it.
Mr. Chairman, Senators, I was a Navy engineer. I was chief
engineer on three different ships. I spent 22 years in the
Navy. Water was my business. We made it, we distilled it, we
used it for the boilers, we used it for drinking, and the first
thing I would like to mention is, the VA is sending you out on
a wild goose chase with this policy that says you cannot make
water close to shore.
What the policy actually said was that you should not make
potable water close to shore unless it was necessary. That is
the exact wording out of the water bill. It became necessary
quite often in dealing with the tropics because people drank a
lot of water, showered a lot, and used the water.
But more importantly, it does not matter because there was
no restriction on making water for the boilers. They called it
feed water, which was the same distillation system all the way
down to the final distribution manifold.
So, if they sat in Da Nong Harbor and made water for the
boilers, that entire system was contaminated; and if they went
12 miles, 20 miles, 100 miles out to sea, that system was still
contaminated. The VA knows that, and yet, they continue to
bring that excuse to you and it is--I cannot think of a nice
polite word to say it, so I will not. OK?
Like the same thing, oh, we never sprayed over the harbors.
Guys, we did spray over the harbors. There were defective spray
nozzles. Senators, when I say guys I am talking generically. It
is just a habit of mine. There were defective spray nozzles and
sometimes they were dumping it making a landing. But again, it
does not matter.
Now, it is a tough concept for the VA to understand. It was
mixed with petroleum. Petroleum floats. It would wash into the
rivers, plus we sprayed the river banks and would go out to
sea. Again, another tough concept for the VA. Rivers run out to
sea and it would get out into the harbors, out into the South
China Sea.
How do we know this? The IOM, bless their hearts, did a
good--some good work for us. They missed one thing. There was a
report done by the Russians on Nha Trang Harbor, where they
actually took bottom sediment samples in the Cau River
downstream from where it was sprayed--your Committee staff has
this report. They actually found that there was Agent Orange in
the bottom sediment. All right?
Then they went out and they took transepts coming out from
the river and found more Agent Orange throughout the coral,
which killed the coral, by the way. That is why they went in,
to figure out what was going on, and they found it still in the
bottom sediment. So, it kind of proves the point that rivers
run out to sea.
I have this, by the way, 5-minute temporally prepared
statement which I have kind of thrown aside, so let us talk
about one other thing, the original decision. They said, Well,
it was not in the Republic of Vietnam, so therefore, we could
not include the sea. Well, guess what? In 1954 in the Geneva
Accords, the United States recognized Vietnamese sovereignty
over the territorial seas.
They did the same thing in the 1973 peace agreement. The
Joint Chiefs of Staff recognize the 12-mile limit. And that, by
the way, is not off the mainland; that is off the outermost
islands. You will see it on the chart on the written testimony.
So that whole opinion was in violation and we are flaunting
international law. What is the problem with the VA? Well, you
know, I met with Deputy Secretary Gibson twice. Good guy, you
know, I like him a lot. But I basically said to him, Mr.
Secretary, the people that you have studying this issue do not
have any surface ship experience, do they? He admitted that was
the case.
That is the problem. That is why we need the Toxic Research
bill, to get people, along with their subject matter experts,
and yes, it should be the VA. You do not take jobs away from
them for bad behavior, and quite frankly, DOT and HHS is not
much better. They just have not hit the headlines yet.
We need this bill. We need S. 901. We need S. 681. We need
to restore the benefits to these people who earned them.
I am sorry, Mr. Chairman, I ran over time. Thank you again
for allowing me to come here.
[The prepared statement of Commander Wells follows:]
Prepared Statement of Commander John B. Wells, USN (Retired), Executive
Director, Military-Veterans Advocacy Inc.
introduction
Distinguished Committee Chairman Johnny Isakson, Ranking Member
Richard Blumenthal and other Members of the Committee; thank you for
the opportunity to respond to the Department of Veterans' Affairs on
the Blue Water Navy Vietnam Veterans Act (S. 681).
agent orange and the blue water navy
In the 1960's and the first part of the 1970's the United States
sprayed over 12,000,000 gallons of a chemical laced with 2,3,7,8-
Tetrachlorodibenzodioxin (TCDD) and nicknamed Agent Orange over
southern Vietnam. This program, code named Operation Ranch Hand, was
designed to defoliate areas providing cover to enemy forces. Spraying
included coastal areas and the areas around rivers and streams that
emptied into the South China Sea. By 1967, studies initiated by the
United States government proved that Agent Orange caused cancer and
birth defects. Similar incidence of cancer development and birth
defects have been documented in members of the United States and Allied
Armed Forces who served in and near Vietnam.
Throughout the war, the United States Navy provided support for
combat operations ashore. This included air strikes and close air
support, naval gunfire support, electronic intelligence, interdiction
of enemy vessels and the insertion of supplies and troops ashore.
Almost every such operation was conducted within the territorial seas.
The South China Sea is a fairly shallow body of water and the
thirty fathom curve (a fathom is six feet) extends through much of the
territorial seas. The gun ships would operate as close to shore as
possible. The maximum effective range of the guns required most
operations to occur within the territorial seas as documented in the
attachment.\1\ Often ships would operate in harbors or within the ten
fathom curve to maximize their field of fire. The maximum range on
shipboard guns (except the Battleship 16 inch turrets) required the
ship to operate within the territorial seas in order to support forces
ashore.
---------------------------------------------------------------------------
\1\ The red line on the chart is known as the base line. Vietnam
uses the straight baseline method which intersects the outermost
coastal islands. The dashed line is twelve nautical miles from the
baseline and represents the territorial seas. The bold line marks the
demarcation line for eligibility for the Vietnam Service Medal. Prior
to 2002, the VA granted the presumption of exposure to any ship that
crossed the bold line. S. 681 will restore the presumption only to a
ship that crosses the dashed line.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It was common practice for the ships to anchor while providing
gunfire support. Digital computers were not yet in use and the fire
control systems used analog computers. By anchoring, the ship's crew
was able to achieve a more stable fire control solution, since there
was no need to factor in their own ship's course and speed. It was also
common for ships to steam up and down the coast at high speeds to
respond to call for fire missions, interdict enemy sampans and other
operational requirements.
Small boat transfers were conducted quite close to land. Many
replenishments via helicopter took place within the territorial seas.
Small boat or assault craft landings of Marine forces always took place
within the territorial seas. Many of these Marines re-embarked,
bringing Agent Orange back aboard on themselves and their equipment.
Additionally mail, equipment, and supplies staged in harbor areas were
often sprayed before being transferred to the outlying ships. Embarking
personnel would take boats or helicopters to ships operating in the
outlying ships. Embarking personnel would take boats or helicopters to
ships operating in the territorial seas. The Agent Orange would adhere
to their shoes and clothing as well as to mail bags and other
containers. It would then be tracked throughout the ship on the shoes
of embarking personnel and the clothing of those handling mail and
other supplies brought aboard. Their clothing was washed in a common
laundry, contaminating the laundry equipment and the clothing of other
sailors.
Flight operations from aircraft carriers often occurred outside of
the territorial seas. As an example, Yankee station was outside of the
territorial seas of the Republic of Vietnam. Dixie Station, however,
was on the border of the territorial seas. Some carriers, especially in
the South, entered the territorial seas while launching or recovering
aircraft, conducting search and rescue operations and racing to meet
disabled planes returning from combat. Aircraft carriers also entered
the territorial seas for other operational reasons. Many times these
planes flew through clouds of Agent Orange while conducting close air
support missions. These planes were then washed down on the flight
deck, exposing the flight deck crew to Agent Orange.
Mail for the ships positioned throughout the combat area was staged
at air fields and docking facilities throughout South Vietnam. Mailbags
were often in sprayed area and the Agent Orange not only contaminated
the bag, but leeched through to some of the mail. This mail was
transported to the ships by carrier onboard delivery (COD) aircraft or
helicopters. The boat or helicopter crews were exposed to the Agent
Orange and carried it throughout the ship. Additionally, the mail
itself was distributed to divisional mail petty officers and passed on
to individual sailors.
agent orange act of 1991
In 1991, the Congress passed and President George H.W. Bush signed,
the Agent Orange Act of 1991, Pub.L. 102-4, Feb. 6, 1991, 105 Stat. 11.
This Federal law required VA to award benefits to a veteran who
manifests a specified disease and who ``during active military, naval,
or air service, served in the Republic of Vietnam during the period
beginning on January 9, 1962, and ending on May 7, 1975.''
In 1997 the VA General Counsel issued a precedential opinion
excluding servicemembers who served offshore but not within the land
borders of Vietnam. The opinion construed the phrase ``served in the
Republic of Vietnam'' as defined in 38 U.S.C. Sec. 101(29)(A) not to
apply to servicemembers whose service was on ships and who did not
serve within the borders of the Republic of Vietnam during a portion of
the ``Vietnam era.'' The opinion stated that the definition of the
phrase ``service in the Republic of Vietnam'' in the Agent Orange
regulation, 38 CFR Sec. 3.307(a)(6)(iii), ``requires that an individual
actually have been present within the boundaries of the Republic to be
considered to have served there,'' and that for purposes of both the
Agent Orange regulation and section 101(29)(A), service ``in the
Republic of Vietnam'' does not include service on ships that traversed
the waters offshore of Vietnam absent the servicemember's presence at
some point on the landmass of Vietnam.'' \2\
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\2\ VA Op. Gen. Counsel Prec. 27-97 (1997).
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After lying dormant for a few years, this General Counsel opinion
was incorporated into a policy change that was published in the Federal
Register during the last days of the Clinton Administration.\3\ The
final rule was adopted in Federal Register in May of that year.\4\
Comments by the VA concerning the exposure presumption recognized it
for the ``inland'' waterways but not for offshore waters or other
locations only if the conditions of service involved duty or visitation
within the Republic of Vietnam.
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\3\ 66 Fed.Reg. 2376 (January 11, 2001).
\4\ 66 Fed. Reg. 23166.
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Historically the VA's Adjudication Manual, the M21-1 Manual,
allowed the presumption to be extended to all veterans who had received
the Vietnam service medal, in the absence of ``contradictory
evidence.'' In a February 2002 revision to the M21-1 Manual, the VA
incorporated the VA General Counsel Opinion and the May 2001 final rule
and required a showing that the veteran has set foot on the land or
entered an internal river or stream. This ``boots on the ground''
requirement is in effect today.
hydrological effect
The Agent Orange that was sprayed over South Vietnam was mixed with
petroleum. The mixture washed into the rivers and streams and
discharged into the South China Sea. In addition, the riverbanks were
sprayed continuously resulting in direct contamination of the rivers.
The dirt and silt that washed into the river can be clearly seen
exiting the rivers and entering the sea. This is called a discharge
``plume'' and in the Mekong River it is considerable. Although the
Mekong has a smaller drainage area than other large rivers, it has
approximately 85% of the sediment load of the Mississippi. In two
weeks, the fresh water of the Mekong will travel several hundred
kilometers.\5\ Notably, the Agent Orange dioxin dumped off the east
coast of the United States was found in fish over one hundred nautical
miles from shore.\6\
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\5\ Chen, Liu et. al, Signature of the Mekong River plume in the
western South China, Sea revealed by radium isotopes, Journal of
Geophysical Research, Vol. 115, (Dec. 2010).
\6\ Belton, et. al, 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and
2,3,7,8-Tetrachlorodibenzo-p-Furan (TCDF), In Blue Crabs and American
Lobsters from the New York Bight, New Jersey Department of
Environmental Protection (November 12, 1988).
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By coincidence, the baseline and territorial seas extend further
from the mainland off the Mekong River. At its widest point off of the
Mekong, the territorial seas extend to 90 nautical miles from the
mainland. This was due to the location of the barrier islands owned by
Vietnam. Given the more pronounced effect of the Mekong plume, however,
the broader area off the Mekong Delta is appropriate. The force of the
water in this area is greater than the river discharge in other parts
of the country.
Eventually, the Agent Orange/petroleum mixture would emulsify and
fall to the seabed. Evidence of Agent Orange impingement was found in
the sea bed and coral of Nha Trang Harbor.\7\ During the Vietnam War,
the coastline, especially in the harbors and within the thirty fathom
curve was a busy place with military and civilian shipping constantly
entering and leaving the area in support of the war effort. Whenever
ships anchored, the anchoring evolution would disturb the shallow
seabed and churn up the bottom. Weighing anchor actually pulled up a
small portion of the bottom. The propeller cavitation from military
ships traveling at high speeds, especially within the ten fathom curve,
impinged on the sea bottom. This caused the Agent Orange to constantly
rise to the surface. The contaminated water was ingested into the
ship's evaporation distillation system which was used to produce water
for the boilers and potable drinking water. Navy ships within the South
China Sea were constantly steaming through a sea of Agent Orange
molecules.
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\7\ Pavlov, et, al, Present-Day State of Coral Reefs of Nha Trang
Bay (Southern Vietnam) and Possible Reasons for the Disturbance of
Habitats of Scleractinian Corals, Russian Journal of Marine Biology,
Vol. 30, No. 1 (2004).
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the australian factor and the distillation process
In August 1998 Dr. Keith Horsley of the Australian Department of
Veterans Affairs met Dr. Jochen Mueller of the University of
Queensland's National Research Centre for Environmental Toxicology
(hereinafter NRCET) in Stockholm at the ``Dioxin 1998'' conference.
Horsley shared a disturbing trend with Mueller. Australian VA studies
showed a significant increase in Agent Orange related cancer incidence
for sailors serving offshore over those who fought ashore. Based on
that meeting, the Australian Department of Veterans Affairs
commissioned NRCET to determine the cause of the elevated cancer
incidence in Navy veterans.
In 2002, as the American Department of Veterans Affairs (VA) was
beginning to deny the presumption of exposure to the United States Navy
veterans, NRCET published the result of their study.\8\ Their report
noted that ships in the near shore marine waters collected water that
was contaminated with the runoff from areas sprayed with Agent Orange.
The evaporation distillation plants aboard the ships co-distilled the
dioxin and actually enriched its effects. As a result of this study,
the Australian government began granting benefits to those who had
served in an area within 185.2 kilometers (roughly 100 nautical miles)
from the mainland of Vietnam.
---------------------------------------------------------------------------
\8\ Mueller, J; Gaus, C, et. al. Examination of The Potential
Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated
Dibenzodioxins and Polychlorinated Dibenzofurans Via Drinking Water
(2002).
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institute of medicine (iom) reports
In June 2008, Blue Water Navy representatives presented to the
IOM's Committee to Review the Health Effects in Vietnam Veterans of
Exposure to Herbicides (Seventh Biennial Update) in San Antonio, Texas.
That Committee report \9\ accepted the proposition that veterans who
served on ships off the coast of the Republic of Vietnam were exposed
to Agent Orange and recommended that they not be excluded from the
presumption of exposure. The Committee reviewed the Australian
distillation report and confirmed its findings based on Henry's Law.
The VA did not accept these recommendations. Instead then Secretary
Shinseki ordered another IOM study. On May 3, 2010, Blue Water Navy
representatives testified before the Institute of Medicine's Board on
the Health of Special Populations in relation to the project ``Blue
Water Navy Vietnam Veterans and Agent Orange Exposure.'' \10\ They
concluded:
\9\ IOM (Institute of Medicine). 2009. Veterans and Agent Orange:
Update 2008. Washington, DC: The National Academies Press.
\10\ IOM (Institute of Medicine). 2011. Blue Water Navy Vietnam
Veterans and Agent Orange Exposure. Washington, DC: The National
Academies Press.
---------------------------------------------------------------------------
(1) There was a plausible pathway for some amount of Agent Orange
to have reached the South China Sea through drainage from the rivers
and streams of South Vietnam as well as wind drift,
(2) The distillation plants aboard ships at the time which
converted salt water to potable water did not remove the Agent Orange
dioxin in the distillation process and enriched it by a factor of ten,
(3) Based on the lack of firm scientific data and the four decade
passage of time, they could not specifically state that Agent Orange
was present in the South China sea in the 1960's and 1970's,
(4) There was no more or less evidence to support its presence off
the coast than there was to support its presence on land or in the
internal waterways, and
(5) Regarding the decision to extend the presumption of exposure
``given the lack of measurements taken during the war and the almost 40
years since the war, this will never be a matter of science but instead
a matter of policy.''
Notably this report did not contradict the findings of the Seventh
Biennial report that the Blue Water Navy personnel should not be
excluded from the presumption of exposure.
The IOM's Eighth Biennial Update recognized that ``it is generally
acknowledged that estuarine waters became contaminated with herbicides
and dioxin as a result of shoreline spraying and runoff from spraying
on land.''\11\ The Ninth Biennial Update stated that ``it is generally
acknowledged that estuarine waters became contaminated with herbicides
and dioxin as a result of shoreline spraying and runoff from spraying
on land, particularly in heavily sprayed areas that experienced
frequent flooding.'' \12\
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\11\ IOM (Institute of Medicine). 2012. Veterans and Agent Orange:
Update 2010. Washington, DC: The National Academies Press.
\12\ IOM (Institute of Medicine). 2014. Veterans and Agent Orange:
Update 2012. Washington, DC: The National Academies Press.
---------------------------------------------------------------------------
law of the sea
The Agent Orange Act of 1991 provides that:
* * * [A] veteran who, during active military, naval, or air
service in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, and has * * *
[Diabetes Mellitus (Type 2)] shall be presumed to have been
exposed during such service to an herbicide agent containing
dioxin * * * unless there is affirmative evidence to establish
that the veteran was not exposed to any such agent during
service.
38 U.S.C. Sec. 1116(a)(3). (Emphasis added).
Vietnam claims a 12 mile territorial sea. The United States has
consistently recognized Vietnamese sovereignty over the territorial
seas of Vietnam. This recognition was expressly incorporated into the
1954 Geneva Accords Art. 4 which established the Republic of Vietnam.
https://www.mtholyoke.edu/acad/intrel/genevacc.htm (last visited
June 6, 2014). It was confirmed again in Art. 1 of the 1973 Paris Peace
Treaty which ended the Vietnam War. http://www.upa.pdx.edu/IMS/
currentprojects/TAHv3/Content/PDFs/Paris_Peace_Accord_1973.pdf (last
visited June 6, 2014). During the war, the United States recognized a
12 rather than a 3 mile limit. See, The Joint Chiefs of Staff and the
War in Vietnam 1960-1968, Part II which can be found at dtic.mil/
doctrine/ * * * /jcsvietnam_pt2.pdf at 358.
Vietnam claims as internal or inland waters the landward side of
the baseline.\13\ Additionally, bays such as Da Nang Harbor are
considered part of inland waters and under international law are the
sovereign territory of the Nation.\14\
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\13\ United States Department of State Bureau of Intelligence and
Research, Limits in the Seas No. 99 Straight Baselines: Vietnam,
(1983).
\14\ Convention on the Territorial Sea and Contiguous Zone, [1958]
15 U.S.T. 1607, T.I.A.S. No. 5639.
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The Secretary has recognized the presumption of exposure for those
who served onboard ships who were in ``inland'' waters. The VA
definition only includes inland rivers and does not cover the bays and
harbors. Recently the Court of Appeals for Veterans Claims has rejected
the VA's exclusion of Da Nang Harbor from the definition of inland
waters as irrational and not entitled to deference.\15\ In this case,
the Court reviewed the case of a veteran whose ship was anchored in Da
Nang Harbor but who did not set foot on land. Da Nang Harbor is
surrounded on three sides by land and is considered inland waters under
international law. The VA is now required to rationally specify what
they consider to be inland waters.
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\15\ Gray v. McDonald, No. 13-3339, 2015 WL 1843053 (Vet. App. Apr.
23, 2015).
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cost of s. 681
In October 2012, the Congressional Budget Office provided a
preliminary estimate that the Blue Water Navy Vietnam Veterans Act
would cost $2.74 billion over ten years. The estimate is currently
being recomputed based on information provided in a meeting between CBO
and MVA. CBO originally used a gross exposure population of 229,000
people. This estimate was based on the number of veterans serving
within the Vietnam Service Medal area. The Navy Historical and Heritage
Command and the Congressional Research Service estimated that the
number of sea service veterans serving inside the territorial seas was
174,000. Of the 713 ships deployed to Vietnam, however, there is
documentation that 330 have entered the inland rivers. An MVA analysis
provided to CBO estimates 83,000 sea service veterans are already
covered under the existing inland waters provision. Of the remaining
91,000 veterans, 1100 are covered under a different provision of the
law for Non-Hodgkins Lymphoma. MVA estimates another 10% of the crews
actually set foot in Vietnam. This includes crew members who went
ashore for conferences, to pick up supplies, equipment or mail and
those who piloted and crewed the boats and/or the helicopters that
operated between the ships and shore. Additionally, some personnel went
ashore to see the doctor, the dentist, the chaplain or the lawyer. They
called home. Shopped at the PX and departed on emergency leave or
permanent change of station orders. Additionally, men reporting to the
ship would often transit though Vietnam. Finally, a number of ships
that were at anchorage would send a portion of the crew ashore for
beach parties or liberty.
Although the official CBO report has not yet been issued, informal
liaison indicates that the cost will be $1 billion or less. The VA has
estimated a ten year cost of $4.4 billion but has not provided any data
to support the conclusion. In a meeting between MVA officials and
Deputy Secretary Sloan Gibson held on September 1, 2015, the VA
estimate was discussed. MVA provided the Deputy Secretary several
considerations which might affect the score. CBO remains confident that
their $1 billion or less estimate is correct.
Irrespective of what the cost is, MVA understands the need for a
``pay for.'' There will be some automatic offsets in both discretionary
and mandatory spending. There will be a dollar for dollar offset for
Navy veterans currently receiving a non-service-connected pension as
well as those receiving non-service-connected medical treatment at
Veterans Health Administration (VHA) facilities. Additionally, under
concurrent receipt laws, some veterans who are also military retirees
will have a dollar for dollar offset due to waiver of their Title 10
pension (less Federal tax liability).
As most Blue Water Navy veterans are in their 60's they are
Medicare eligible or will become Medicare eligible during the ten year
cost cycle. In a previous report, the CBO has compared the cost of
Medicare treatment with treatment at a VHA facility.\16\ One of the key
findings of this report was that private sector Medicare services would
have cost about 21 percent more than services at a VHA facility. When
dealing with retirees, the cost would be greater since Medicare only
provides coverage for 80% of the cost. TRICARE for Life provides an
additional 20% coverage for military retirees.
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\16\ Congressional Budget Office, Comparing the Costs of the
Veterans' Health Care System With Private-Sector Costs (December 2014).
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Should the cost of the bill approach $1 billion, enactment of round
downs would generate the required $1 billion. Round downs were in use
for two decades through 2013 until they were discontinued by then
Chairman Bernie Sanders. Round downs require disability payments to be
``rounded down'' to the nearest dollar. This would result in a maximum
loss of $11.88 per veteran per year. The average loss per veteran would
be $.49 per month or $5.88 per year. In a poll of almost 500 veterans,
authorized by Military-Veterans Advocacy via the Blue Water Navy
Awareness Facebook site, 90% of respondents supported the use of round
downs. In a separate poll conducted by the Fleet Reserve Association of
1148 veterans revealed that 73.52% supported the use of round downs.
Informal liaison with several veterans organizations found that these
organizations will not oppose round downs if that is the only means
available of funding S. 681.
While Military-Veterans Advocacy understands and appreciates the
reluctance of some Senators to enact round downs, it is a small price
to pay to restore earned benefits to tens of thousands of veterans. If
the VA will not extend coverage to the bays and harbors and the
territorial seas, Military-Veterans Advocacy urges the Committee to
incorporate ``round downs'' as an offset.
impact of the gray v. mcdonald decision.
In April of this year the Court of Appeals for Veterans Claims
decided Gray v. McDonald, 27 Vet. App. 313 (2015). In Gray, the Court
found that the VA's exclusion of bays and harbors was irrational and
that their stated reasoning was arbitrary and capricious.
The time period for appealing the Gray decision has passed and the
VA must now re-write their regulation. A draft regulation continued to
exclude the bays and harbors and was used to deny at least two claims
at the Board of Veterans Appeals. That regulation should not have been
released and when called to the attention of the Deputy Secretary was
quickly rescinded. The Board of Veterans Appeals has since been
cautioned to not rely on that draft. Military-Veterans Advocacy
estimates that if the bays and harbors, as defined by the 1958
Convention on the Territorial Seas and the Contiguous Zone, are
included under current law, the actual cost of S. 681 will be reduced
to $100 million over ten years. If the VA extends the presumption to
the territorial sea and beyond, the cost of the bill will be reduced to
zero.
MVA officials met with VA Deputy Secretary Sloan Gibson on July 6,
2015 and September 18, 2015. Both meetings were productive and the
Deputy Secretary seemed to be responsive to the presentations. Although
no decision has been reached, MVA is heartened by the willingness of
the Deputy Secretary to meet and listen to our position and we look
forward to further consultations.
litigation post gray
The Blue Water Navy Vietnam Veterans Association had previously
brought suit against the Secretary under the Administrative Procedures
Act in the United States District Court for the District of Columba.
The court dismissed that case for lack of jurisdiction, after
recognizing that the plight of the Blue Water Navy veterans was of
concern. An appeal of that jurisdictional ruling is pending before the
United State Court of Appeals for the District of Columbia.
The case of Trumbauer v. MacDonald, concerning Da Nang Harbor is
now pending before the United States Court of Veterans Appeals. The
Secretary's brief is due October 5, 2015. Military-Veterans Advocacy
has file an amicus brief in this case.
Another appeal, Johnson v. MacDonald, concerning Nha Trang Harbor
is pending before the United States Court of Veterans Appeals. The
initial brief is due October 19, 2015. Military-Veterans Advocacy is
representing the veteran.
The case of Crisp v. McDonald, involving Da Nang Harbor, will be
filed by Military-Veterans Advocacy on behalf of the veteran. This is
one of the two cases where benefits were denied using the prematurely
released draft regulation. That appeal must be filed before
Thanksgiving. As a sign of good faith, MVA has not yet filed the appeal
to give the VA an opportunity to resolve this issue amicably.
additional toxic exposure concerns
Unfortunately, exposure to toxic substances is part of life in the
military. Some of these exposures are not preventable, while some could
be prevented. Irrespective of whether there is any fault or negligence,
the important issue is how we take care of our veterans who are victims
of this exposure.
The Agent Orange problem will not end with the Blue Water Navy and
S. 681. Other ships that remained outside of the territorial seas were
exposed through aircraft embarkation, contaminated personnel,
equipment, mail etc. Veterans were exposed in Guam, Johnston Island,
Thailand, Laos, Cambodia, Korea, Okinawa and even sites in the United
States such as Gulfport Mississippi and Fort McClellan, Alabama.
Additionally, Agent Orange is not the only toxic exposure that
requires the attention of the Congress. Asbestos contamination,
radiation, the Camp Lejeune water tragedy, depleted uranium, petroleum
fumes and open air burn pits have exposed hundreds of thousands of
veterans to toxic materials just as dangerous as chemical weapons.
The Toxic Exposure Research Act, S. 901, is an important step to
become proactive in the worked of toxic exposure. S. 901 will establish
a center at an existing VA facility to research the diagnosis and
treatment of health conditions of the biological children,
grandchildren, or great-grandchildren of individuals exposed to toxic
substances while serving as members of the Armed Forces that are
related to such exposure. It further directs the VA to conduct a
national outreach and education campaign directed toward members of the
Armed Forces, veterans, and their family members to communicate
information on incidents of exposure of members of the Armed Forces to
toxic substances, health conditions resulting from such exposure, and
the potential long-term effects. It also requires DOD and the
Department of Health and Human Services to assist the VA in
implementing such campaign.
Congressman Tim Walz has also introduced H.R. 3423 to extend the
Institute of Medicine's Biennial Agent Orange Committee for two years.
It is expected to pass the House. Military-Veterans Advocacy recommends
making this Committee a permanent entity and expanding its charter to
include all toxic exposures. Working closely with the research facility
envisioned by S. 901, the United States can take a proactive approach
to quickly identify and treat veterans who have been exposed to toxic
substances.
conclusion
MVA continues to urge the adoption of S. 681. It will restore the
earned benefits to tens of thousands of Navy veterans that were taken
from them over a decade ago. This bill is supported by virtually all
veterans organizations including the American Legion, Veterans of
Foreign Wars, Vietnam Veterans of America, Reserve Officers
Association, Fleet Reserve Association, Military Officers Association
of America, Association of the U.S. Navy and other groups. We have
always enjoyed the support of the Military Coalition. Enactment of this
legislation is overdue and Military-Veterans Advocacy most strongly
supports its passage.
MVA further supports the enactment of S. 901 and H.R. 3423 to
require research into toxic exposure treatment for veterans and their
descendants.
______
Supplemental Written Testimony of John B. Wells, Commander, USN
(Retired), Executive Director, Military-Veterans Advocacy
Distinguished Committee Chairman Johnny Isakson, Ranking Member
Richard Blumenthal and other Members of the Committee, thank you for
the opportunity to supplement out testimony on the question of:
``Examining the impact of exposure to toxic chemicals on veterans and
the VA's response.''
A response to the two questions is fairly straightforward. The
impact of toxic exposure has been horrendous and the VA response has
been disappointing to say the least.
Military-Veterans Advocacy has taken the lead in petitioning
Congress for relief for the Blue Water Navy veterans who were exposed
to Agent Orange through their potable water supply. Our Australian
allies discovered that the evaporation distillation systems did not
remove the Agent Orange dioxin during the distillation process--it
actually enriched it. Instead of embracing the findings of our Allies,
the VA attacked the study until its science was confirmed by two
separate committees of the Institute of Medicine.
The Blue Water Navy situation was especially tragic since they were
granted the presumption of exposure to Agent Orange prior to 2002. The
VA General Counsel, in an opinion that flaunted international law and
domestic policy interpreted the provisions of the Agent Orange Act
requiring service ``in the Republic of Vietnam'' as meaning the land
mass. Although the General Counsel used the terminology ``inside the
borders of Vietnam,'' the VA rejected the inclusion of bays harbors and
the territorial seas. This is despite the fact that the United States
recognized Vietnamese sovereignty over these waters in the 1954 Geneva
Accords and the 1973 Paris Peace Treaty. It was an irrational decision
and was partially invalidated by the Court of Appeals for Veterans
Claims in the landmark case Gray v. McDonald. Military-Veterans
Advocacy proudly filed an amicus brief in that case. The court
listened. That appeal period has expired and the VA is re-writing their
regulation. Due to other pending court decisions we expect and hope for
a positive decision this Fall.
I do want to take a moment to thank the VA for finally agreeing to
cover our brothers in arms who flew the C-123 aircraft after the war.
Although not entirely satisfied with the effective date of the new
regulation, I do believe it is a step I the right direction. I also
want to mention to the Committee that I have met twice with VA Deputy
Secretary Sloan Gibson and General Counsel Leigh Bradley on the Blue
Water Navy issue. We have shown them how the Agent Orange, mixed with
peritoneum, floated out to the bays barbers and territorial seas. They
reviewed the report showing the presence of Agent Orange in Nha Trang
Harbor. Hopefully, we have finally put to the rest the old VA
misrepresentation that the Agent Orange never left the landmass.
Petroleum floats and rivers run out to sea. A tough concept maybe, but
a truism none the less. Both Secretary Gibson and General Counsel
Bradley were interested in this matter and I thank hem for their
courtesy.
Currently pending before this body is S. 681 which will restore the
presumption of exposure to the territorial seas. Military Veterans
Advocacy urges its enactment. In doing so, we are not unaware of the
offset requirements of the Pay as You Go Act. We have identified
sufficient funds to pay for the bill through round downs. This would
require the disability checks for all veterans to be rounded down to
the nearest dollar. The most it would cost a veteran is $11.88 per
year. The average cost is $5.88 per veteran per year.
We understand and appreciate the resistance to round downs but the
bottom line is that we need to ensure that these sick and disabled
veterans are covered. Many are dying. Many had to leave the work force
early. Some will leave their families destitute when the die. These
veterans earned their benefits and we ask that you provide to provide
them. While it is possible that the VA will grant the Blue Water Navy
veterans partial or complete relief, we must be prepared to act if they
do not. Accordingly, Military-Veteran Advocacy asks that you markup
S. 681 and if the VA does not grant relief, send it to the floor using
round downs as a pay for.
This will not resolve the toxic exposure problem. The Blue Water
Navy is a large part of the problem but not the entire problem. Agent
Orange was also used on Guam, Johnston Island and in Thailand Laos and
Cambodia. In the United States Agent Orange was used in the Canal Zone,
Fort McClellan and Gulfport MS. Other veterans have been exposed to
PCBs, depleted uranium, petroleum and other toxic fumes, asbestos and
the latest killer, open air bum pits.
Toxic exposure is a personal battle to me. My step-daughter Joanne
has suffered birth defects due to Agent Orange. Her natural father was
an Australian soldier fighting beside the United States in South
Vietnam. She lives in Australia where she receives better services than
she could get in the United States.
Personally, I have been exposed to asbestos after working for years
in shipboard engineering spaces. Through the grace of God I have not
developed symptoms. Many others have.
Open air burn pits have been called the Agent Orange of the 21st
Century. Troops berthed downwind of these hellish pits were exposed to
all types of toxic fumes. Worse, the Special Inspector General for
Afghanistan Reconstruction found, even when incinerators were available
at places like Camp Leatherneck in Afghanistan, open air burn pits were
used. Military-Veterans Advocacy is currently representing a Lieutenant
Commander who was sexually assaulted and then forced out of the Navy
just shy of her retirement availability for raising the issue of open
air bum pits at Camp Leatherneck. LCDR Celeste Santana is fighting with
MVA to gain the retirement she lost for trying to do the right thing.
And of course, Sen Burr's comments on Camp LeJeune hit home. Like
the Blue Water Navy the Marines and their dependents were poisoned via
their drinking water.
The problem is that no one knows the extent of the damage caused by
toxic exposure and whether or not it is generational. A central toxic
exposure research facility, located at a state-of-the-art VA medical
facility will allow the United States to assess the harm caused by
these exposures and to reach out to those harmed. This will allow the
VA to become proactive rather than reactive and stop this senseless
adjudication on a case by case basis. As this program gains traction it
will eliminate much of the backlog and ensure that those who truly need
the benefits receive them. Military-Veterans Advocacy also recommends
that the IOM Agent Orange Biennial Committee to be expanded to include
all toxic exposures and to be made permanent.
As you know we are currently standing up a state-of-the-art
facility in New Orleans. This new facility would be a fantastic site
for the new facility S. 901 will authorized. Southeastern Louisiana has
significant toxic exposure experience most recently with the BP Oil
spill but also through our familiarity with ``cancer alley.''
Universities such as Tulane and LSU will stand ready to work with the
Federal Government to pursue the needed scientific research and
evaluation. Our local industries would step forward to engage in
private-public partnerships.
Perhaps the location of the site is a bit premature, but the
identification of the problem is needed. This bill is needed to address
he many toxic exposures that have placed our veterans in jeopardy. It
is a form of chemical warfare that is even more egregious than Saddam
Hussein, because most of the chemicals come from out own side.
Military-Veterans Advocacy appreciate the issues surrounding costs
and are the first to admit that the Pay as You Go Act has been of
tremendous assistance in arresting th trillion dollar deficits that
were common place not that long ago. But today the Congress is funding
several trillion dollars worth of expenditures. Taking care of veterans
is part of the responsibility of raising a military force, That is
Constitutionally mandated. Many of the things we spend Federal dollars
on are not Constitutionally mandated. I do not want to get into
specifics because, again, I do not want to give rise to partisan
disputes. But, we believe, as citizens, that Congress should fund their
constitutional mandates first.
Military-Veterans Advocacy is a grass roots organization. We are
all volunteers. No one gets paid. We come to you not to address a
political agenda but to ask you to keep faith with the veterans. I have
met many of you and I respect all of you. We recognize that you are
good people trying to do the best job that you can. In the long run,
S. 901 will help us to take care of our veterans and streamline the
bloated and inefficient adjudication system. Accordingly, we urge you
to adopt S. 681 and S. 901. If this requires a modification of the Pay
As You Go Act, or an exception thereto, we ask you to take that action.
One final thought--the exposure to toxic substances does not just
affect veterans. Agent Orange dumped off the coast of New Jersey was
found in seafood several years later 150 miles off the New York bight.
Agent Orange that is being rededicated today near Da Nang airport, with
U.S. Taxpayers dollars I might add, is finding its way back into the
areas where fish farms are located. And by the way, FDA does not test
Vietnamese seafood for the dioxin. Next time you go out to eat, you
might want to check where the seafood comes from. Just a thought.
Again thank you for allowing us to present our written and oral
testimony and may God bless you, God bless the United Sates of America
and God bless the military and veterans who have kept us safe.
Chairman Isakson. You did just fine.
Mr. Rowan.
STATEMENT OF JOHN ROWAN, NATIONAL PRESIDENT, VIETNAM VETERANS
OF AMERICA
Mr. Rowan. Good morning still, Mr. Chairman.
Chairman Isakson. Barely.
Mr. Rowan. Senator Blumenthal, Senator Moran, Senator
Hirono, nice to meet you all. We have prepared testimony which
we have submitted for the record. It is long and I am not going
to get into all that. Let me just get to the heart of this.
First of all, I wish we had an Individual Longitudinal
Exposure Record when I was going through Vietnam. It would have
been very interesting. I was interested about the Senator
talking about the folks sitting in Saigon.
Amazingly, how many of those people who sat in Saigon got
exposed in all kinds of strange ways, not the least of which
was the food they were eating every day or the water they were
drinking every day. That stuff was pretty pervasive all over
the place. Actually, I would guarantee you there were probably
more Agent Orange exposure in the base camps and in the air
bases than there was out in the bush.
We did not go out in the bush and try to defoliate the
entire jungle, but we certainly defoliated everything that grew
around the air bases and around the base camps. And I would
contend that my exposure to Agent Orange came from the three
showers I took a day in the 130 degree heat in June and July
1967.
I cannot believe it has been 48 years since I tromped
through Vietnam. In the 48 years since I came home, they have
done nothing in the VA to study anything related to Agent
Orange exposure. Everything we do is we are always relying on
somebody else's testing and somebody else's, you know,
research, which is ridiculous.
The key to the 901 bill is the national center. That is the
key. I contend that before they set the National Center for
Post Traumatic Stress Disorder up, they did not know a whole
hell of a lot about that either.
Yet, somehow that is now the quintessential place to go to
get information on PTSD. I would like to see this new national
center be the place to go for research on toxic exposure for
everyone going down to the children and grandchildren, maybe
even great-grandchildren.
Unfortunately, Vietnam veterans are now old enough to have
great-grandchildren and we see the causes. We have held town
hall meetings in 42 States all over the country, about 200 or
more. Over 2000-plus families have come to us telling us about
all kinds of horrific situations with their progeny.
This research must be done, it just has to be done. Doctor,
it is far from premature when it has been 50 years since we had
been exposed and we do not have a clue about what is going on
relating to anything that ever happened to us 50-plus years ago
or 48 years ago.
VVA obviously supports the Blue Water issue. By the way,
the Air Force did spray the ships. I had--one of the people who
is very involved in our organization was an Air Force crew
member on the Ranch Hand cruise. He said, if they had a lot of
excess stuff in the plane when they were coming in for a
landing and they had to dump it out to sea, they dumped it out
to sea. If there was a Navy ship there, they believed it would
be more fun to dump it on them. You know, a little inter-
service rivalry there. So, God knows how many times that was
done.
S. 2081, the new bill that Senator Blumenthal has brought
up, is also important. Again, because of this lack of research
over all of these years--I am now 70--it has taken so many
years now to get information about what has happened to me and
my colleagues who were Vietnam veterans 50 years ago. We are
still finding out every day more and more and more as more and
more research gets done.
So, it is very important that the process of the ILER, the
1991 bill continue and that this extender go on. You are
optimistic going to 2030. I have no idea how many of my
colleagues will still be around in 2030, but hopefully some of
us will be. It is important. It is also important that 901 does
not talk just about us, but it talks about the vets who came
after us, the Persian Gulf War and the new wars.
Unfortunately, the more we learn about the new wars and
with the exposures we have over there, I think the horrors are
starting to show up already. And God knows what is going to
happen 20 or 30 years from now. So, it is important that these
bills get done.
We are also looking to do a new bill which will take the
Agent Orange Act of 1991 and expand it to include the other
wars, frankly, so that they will be coming along like us and
get the same research done. Research is the key. It needs to be
done, it has never been done, we need it done, and that is the
bottom line.
You know, the other thing that concerns me is the CBO. I
know Congress is having fun yelling at the VA bureaucracy, but
the Congress has so little bureaucracy with the Congressional
Budget Office which is giving us such a hard time about scoring
which should be a simple bill. It is a research bill.
It is not determining what comes out of that research; it
is a research bill. We need them to tell us how much it is
going to cost to do the research, which we do not think is
astronomical and is within the VA's existing budget. Thank you.
[The prepared statement of Mr. Rowan follows:]
Prepared Statement of John Rowan, National President/CEO,
Vietnam Veterans of America
Good morning, Chairman Isakson, Ranking Member Blumenthal, and
other Senators on this distinguished and important committee. Vietnam
Veterans of America (VVA) very much appreciates the opportunity to
offer our comments concerning several bills affecting veterans that are
up for your consideration. Please know that VVA appreciates the efforts
of this Committee for the fine work you are doing on behalf of our
Nation's veterans and our families.
I ask that you enter our full statement in the record, and I will
briefly summarize the many of the important points of our statement.
S. 901, Toxic Exposure Research Act of 2015, introduced by Senator
Jerry Moran (KS), and cosponsored by Richard Blumenthal (CT), would
establish in the Department of Veterans Affairs a national center for
research on the diagnosis and treatment of health conditions of the
descendants of veterans exposed to toxic substances during service in
the Armed Forces that are related to that exposure, to establish an
advisory board on such health conditions, and for other purposes.
Among the invisible wounds of war are those brought home by troops,
some of which may not manifest for years or even decades after the
toxic exposure(s) while in military service to America. Most
tragically, they may also pass on the effects of these toxic wounds to
their progeny. No one can argue that our children and grandchildren
should have these burdens visited on them. S. 901is a multi-
generational, multi-exposure bill. It provides a common vehicle for
evaluating potential transgenerational effects of toxic exposures, from
Camp Lejeune and Fort McClellan to Agent Orange in multiple locations,
to the toxic plumes that sickened thousands of Gulf War veterans.
Toxins, such as TCDD and 2,4D dioxin, are believed to cause birth
defects in children of military personnel who came into contact with
these toxins--in-country troops during the Vietnam War, as well as the
several thousand Reservists who rode in and maintained aircraft that
had been used to transport the toxins. Because the various herbicides
used in Vietnam were generally mixed with kerosene or JP-4 or an
admixture of these two petroleum products so that they would cling to
leaves better, the toxins became suspended at or near the surface as
run-off in streams then into rivers and ultimately the South China Sea.
For this reason, these chemicals were taken in by the desalination
units on Navy ships to make potable water for the ship's boilers and
other purposes. The desalinization units had the perverse effect of
concentrating the dioxin up to 30 times over. Navy personnel who served
off the coast of Vietnam were exposed in this manner to even greater
concentrations of these toxins than some of the ground personnel.
For Gulf War veterans, the exposure was to chemical weapons in
Iraqi ammo dumps containing chemical and biological agents that were
blown up by U.S. Forces at the end of the Gulf War; pesticides and burn
pit smoke and possibly tainted vaccines and medicines ingested by
troops in Afghanistan and Iraq may also have proved toxic.
This is a simple and straightforward proposal that will begin to
address the needs of the progeny of every generation of veterans,
because the health conditions seen in some are so heartbreaking to so
many families who wonder, ``Did my service cause my children
(grandchildren) to suffer?'' (Please see ``Faces of Agent Orange'' at
https://www.facebook.com/pages/Faces-of-Agent-Orange/187669911280144)
VVA unequivocally supports S. 901.
Vietnam Veterans of America applauds the leadership of Senator
Jerry Moran (KS), working with his colleague Senator Dick Blumenthal
(CT), to construct and introduce this bipartisan bill to begin to
properly address the situations outlined above.
Let me address a few important issues within this legislation:
First, the National Center envisioned in this bill belongs in the
Department of Veterans Affairs. Doctrine, law, and precedent all
dictate that, since the time of Abraham Lincoln, the concerns of
veterans and their progeny are vested in this department. This Center
for Excellence is a small entity that will functionally manage the
activities to assist the Advisory Board in overseeing research.
Second, we agree with VA testimony earlier this year that the VA
lacks the internal capability, capacity, and experience in the
intergenerational research that will be required. The Advisory Board
provides the VA Secretary with knowledge and scientific expertise to
obtain research required by the legislation.
Third, we believe that the VA does have the capability, capacity,
and experience to contract with any number of governmental, quasi-
governmental, academic, scientific, or non-profit research
organizations skilled in the research and administration outlined in
the legislation; and further, such organizations would be able to
achieve the intent of the legislation in a timely and cost-efficient
way.
Fourth, the legislation gives the VA Secretary a strong,
independent Advisory Board--of unpaid professionals--to provide diverse
perspectives and technical expertise, assuring that the VA is provided
with research-based outcomes that are respected and acknowledged by the
military, our veterans and their descendants, and the scientific
communities.
While VVA's exploration into the health complications of veterans
exposed to toxic substances during their service has centered on the
families of Vietnam veterans, the veterans of more recent wars also
report health issues in their children. For this reason, VVA is calling
for more research on the generational legacy of toxic exposures for all
veterans who have been exposed while serving in the Armed Forces.
The Toxic Exposure Research Act of 2015, embodied in S. 901 and
H.R. 1769, does just that. This Act directs the Secretary of the VA to
select one VA Medical Center to serve as the National Center for the
research and diagnosis into health conditions of descendants of
individuals exposed to toxic substances while serving in the Armed
Forces.
The Toxic Exposure Research Act now has 18 bi-partisan co-sponsors
in the Senate and 97 bi-partisan cosponsors in the House. The Act also
has significant support in the community. The support from the military
and veterans community has been overwhelming. Both the Military
Coalition (representing 31 military and veterans groups) and the
National Military and Veterans Alliance (representing 32 military and
veterans groups) have publicly endorsed the Act. The National
Association of Counties passed a Resolution supporting the Act, as did
the National Association of County Executives. The National Federation
of Republican Women also recently passed a Resolution supporting this
Act. (Please see the appendices to this statement.)
VVA agrees with VA testimony before the House Veterans' Affairs
Subcommittee on Health on April 23, 2015, that this bill will be funded
from the Research & Development line item of funding already accorded
to VA. Frankly, the VA and the Department of Defense should have been
funding good research in this area for the last forty years, so it is
only fitting that part of this appropriation go to the Center of
Excellence and to promising research proposals from within or without
of the VA that will move us toward better understanding of the effects
of these toxins or combinations of same.
It is time that the Congress takes this meaningful step toward
justice for every generation's progeny. It is our hope that this
legislation will be passed in 2015 so that the research can begin, and
science can provide the answers so desperately needed by our veterans
and their families.
S. 681--Blue Water Navy Vietnam Veterans Act of 2015, introduced by
Senator Kirsten Gillibrand (NY)--This legislation would restore
presumptive coverage for service-connected ills that afflict thousands
of naval personnel who served in the Vietnam theatre of operations--
coverage that the Department of Veterans Affairs abruptly ended in
March 2002.
As noted on page 2 of this statement there is now no longer doubt
of how the Navy personnel were exposed. Those who claim the toxin in
the waters could not get out as far as the aircraft carriers should
take a look at all of the highly radioactive debris from the Nuclear
plant disaster in Japan that is now washing up on the western shores of
the United States, having been carried more than 3,000 miles by the
ocean currents.
During the Vietnam War, some 20 million gallons of ``Agent Orange''
and other toxic substances was sprayed to remove jungle foliage around
fire bases and to deny the enemy the ability to grow or harvest crops.
Toxic chemicals in these herbicides have been linked to several
afflictions, including non-Hodgkin's Lymphoma, various cancers, Type II
diabetes, and Parkinson's disease. The Agent Orange Act of 1991
empowered the VA Secretary to declare certain illnesses presumptive to
exposure to Agent Orange, enabling veterans who served in Southeast
Asia to receive health care and disability compensation for such health
conditions.
In March 2002, however, the VA ceased awarding benefits to any of
the 534,300 so-called blue water veterans, limiting those eligible
under provisions of the Agent Orange Act only to ``boots on the
ground'' Vietnam veterans.
Blue water veterans afflicted with any of the presumptive service-
connected maladies that the VA acknowledges to be associated with
exposure to Agent Orange ought not be excluded from receiving
healthcare services and disability compensation for which their boots-
on-the-ground brother and sister veterans are eligible. They, too,
served honorably and well, and S. 681 introduced by Senator Gillibrand,
will accord them benefits that they have earned.
VVA fully supports S. 681.
camp lejeune
When President Obama signed into law in early August a bill 2012
enabling the Department of Veterans Affairs to provide health benefits
to veterans and families diagnosed with diseases related to water
contamination at Camp Lejeune, North Carolina, thanks in no small part
to the energy and passion of Senator Richard Burr (NC), it culminated a
more than fifteen-year struggle by families who believed something
toxic at Lejeune had been behind the maladies that had taken the
health--and the lives--of their loved ones.
``I think all Americans feel we have a moral, sacred duty toward
our men and women in uniform,'' President Obama said before signing the
Honoring America's Veterans and Caring for Camp Lejeune Families Act of
2012 in the Oval Office. The law covers those with conditions linked to
water contamination that occurred at Camp Lejeune between 1957 and
1987.
The military is a collection of very dangerous occupations beyond
the obvious of hostile fire from our Nation's enemies. Therefore VA
should operate as an occupational health care system that researches
and diagnoses and treats maladies, illnesses, and conditions that may
result from events or exposures that may have occurred during the
veteran's military service.
VVA thanks you for the opportunity to share our views on the
vitally needed legislation that you are considering today. I will be
pleased to answer any questions you might have.
Chairman Isakson. Thank you, Mr. Rowan.
Master Sergeant Ensminger.
STATEMENT OF JEROME ENSMINGER, MASTER SERGEANT, U.S. MARINE
CORPS, RETIRED
MSgt. Ensminger. Yes. Thank you and good afternoon, Mr.
Chairman. My name is Jerry Ensminger. I served faithfully in
the U.S. Marine Corps for nearly a quarter of a century. Of my
four children who all were born during my military career, my
daughter, Janey, was the only one to have been conceived,
carried, or born while we lived aboard Marine Corps Base Camp
Lejeune, NC, during the years of the water contamination.
When Janey was 6 years old, she was diagnosed with
leukemia. She fought a valiant battle against her disease, but
she eventually lost the war. She passed away on 24 September
1985 at the age of nine. That is correct. The 30th anniversary
of her death was just five short painful days ago.
Janey is but one example of the multitude of tragedies
suffered by former Camp Lejeune families who were exposed by
this negligence. It was not until August 1997 that I became
aware of the contaminated tap water within Camp Lejeune. The
Department of the Navy and the U.S. Marine Corps did their very
best to conceal the truth, but eventually that genie escaped
its bottle.
At first, the Department of the Navy and Marine Corps
reported that the contamination had reached only a few of the
base's water supply wells and they had immediately taken those
wells off-line. There was absolutely no mention that the
contaminants had reached our taps. When that fact was finally
revealed, authorities with the Department of the Navy and
Marine Corps publicly described the levels of contaminants that
we were exposed to as minute, trace, small, or minuscule.
Many years later when the truth was finally revealed, Camp
Lejeune's contaminated tap water is now known as the worst and
largest tap water contamination incident of a major water
system in the history of our Nation. I would say that is a far
cry from our leaders' description of the contaminant levels as
minute, trace, small, or minuscule. Would you not agree?
Mr. Chairman, I will now address my years of experiences
with the Veterans Administration concerning the Camp Lejeune
contamination issue. I would like to preface my detailed
comments with this one statement which I feel encapsulates the
VA/Camp Lejeune saga. Agents within the VA system have expended
more effort, time, and money devising methods to deny Camp
Lejeune victims their rightful benefits rather than providing
them.
During our April 2010 Camp Lejeune community assistance
panel meeting, Mr. Brad Flohr of the VBA, described in great
detail the VA claims process which Camp Lejeune veterans needed
to follow when submitting a claim for service-connected
benefits. A court-recorded transcript is available on ATSDR's
Web site of that meeting.
In 2013, the VA changed the rules and the requirements for
Camp Lejeune claims. They had created an entire new step in the
adjudication process for Camp Lejeune claims only. This step
was called subject matter experts, or SMEs, who were selected
from existing VA medical staff.
These so-called SMEs were neither scientifically or
medically qualified to make the judgments or evaluations that
their VA handlers were tasking them to make. The fact that the
VA has veered out of their lane of providing health care and
benefits and into areas of expertise for which they have no
business venturing, raises some very troubling questions for
me.
First and foremost, what is the motivation for VA staff in
their incessant pursuit in denying veterans their benefits?
Most of the VA staff involved in this VA/Lejeune debacle are or
were retired military medical officers and their actions
exhibit an almost maniacal desire to deny their fellow veterans
their benefits.
Second, we need to determine if a Congressionally-approved
standardized VA claims process exists which veterans can
confidently follow when making a claim. Apparently, the current
policy allows the VA to modify the claims process at their whim
without Congressional oversight. This allows the VA to create
insurmountable obstacles in the claims process for which most
veterans do not have the knowledge or the finances to overcome.
In layman's terms, this amounts to authorizing a sports
team to change the rules at any time they desire even during a
game. How could anyone be successful in such a scenario? They
cannot. For example, I have witnessed many Camp Lejeune
veterans claims where these so-called VA SMEs completely
ignored and even challenged the veterans' attending oncologists
and other medical specialists.
Third, Mr. Chairman, in light of the VA's Camp Lejeune/SME
fiasco, with their demonstrated desire to rely on outdated
science and their refusal to recognize and utilize the most up-
to-date scientific studies available, I must personally oppose
Bill S. 901 in its current form.
S. 901 would not only be dangerous to the welfare of our
veterans and their families, it would create a conflict of
interest and a duplication of efforts which other existing
Governmental agencies are tasked, staffed, and equipped to
perform. I would be in favor of a modified S. 901 which would
mandate one or a combination of these existing agencies to
perform the tasks outlined in this bill.
In closing, Mr. Chairman, no other military toxic exposure
incident in our history has been documented or studied as
thoroughly as Camp Lejeune. Much of the science is already in
and more is coming in future study reports. Many Camp Lejeune
veterans and their families have waited, suffered, and yes,
some even died waiting for this scientific evidence.
They should not need to wait any longer for the help that
they deserve. We were all at Camp Lejeune to serve and protect
our Nation. None of us ever expected nor deserved to be
poisoned, especially here on our own shores.
Now, the VA representative you heard earlier brought up
this VA app, exposure app that they have got. One of my
colleagues just went to that app. The information on the Camp
Lejeune page is incorrect. It is outdated science. It says TCE
may cause kidney cancer. That app is like a computer; it is
only good as what you put in it. Thank you.
[The prepared statement of Master Sergeant Ensminger
follows:]
Prepared Statement of Jerome M. Ensiminger,
Msgt U.S. Marine Corps (Ret.)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Isakson. Without objection, we will include your
comments about the VA app so they are part of the hearing
record. I appreciate you bringing it forward and appreciate all
of your testimony.
Mr. Ensminger, our hearts go out to you in the loss of your
daughter. Our admiration goes to you for taking the time to
come here and testify today in a very forthright and powerful
way. I am pleased to tell you that Senator Burr, Senator
Tillis, and this Committee are working hard on the Camp Lejeune
situation.
I think progress is being made with what CDC has now come
back with and hopefully we are finally going to bring a
resolution, far too late, but a resolution nonetheless, on that
case. I thank you very much for your testimony.
MSgt. Ensminger. Yes, sir.
Chairman Isakson. Dr. Ramos, I am going to say something
and this is one of those yes or no things. You have got to tell
me I have got it right or I have got it wrong.
Dr. Ramos. Sure.
Chairman Isakson. I was taking notes fast, though I do not
write well. You said the lack of monitoring--talking about the
Blue Water Navy off of Vietnam, there is no quantitative
science to support and it would be unlikely in the future that
enough data could be gathered to determine whether or not
exposure to Blue Water Navy would or would not have been a
cause of cancer. Is that correct?
Dr. Ramos. That is correct, quantitatively.
Chairman Isakson. Quantitatively. Dr. Ramos, you said it is
strictly a question not of science, but of policy. Is that
correct?
Dr. Ramos. I did say that, correct.
Chairman Isakson. In other words, the Congress of the
United States has to make the decision, are we going to award
those benefits or not. Is that correct?
Dr. Ramos. That is correct.
Chairman Isakson. There is not a scientific accumulation
that could be anticipated because of the lack of collection
that could certify it otherwise?
Dr. Ramos. That is correct, sir.
Chairman Isakson. OK. Make a note of that back there. (I am
talking to my staff.)
Senator Blumenthal. I will make a note of it, too.
Chairman Isakson. Commander Wells, you were actually in the
business of purifying water on a ship, is that right?
Commander Wells. Yes, Senator. As an engineer on the ship,
we had responsibility for the water distillation storage and
distribution systems.
Chairman Isakson. This is a wild question but just out of
curiosity, because I know this was 40 or 50 years ago, but just
out of curiosity, when you were in the process of doing that,
did it ever occur to you that you might be processing water
that could be a problem for soldiers to ingest?
Commander Wells. Not at all, sir. I mean, we had several
criteria tests for purity, but that was based on what could
possibly damage the boilers. As far as potable water, there was
actually a lot less testing. The only thing we had to do was
add chlorination to it and do cultures sometimes to make sure
there was no bacteriological contamination. As far as anything
dealing with Agent Orange, nobody ever even thought of it, to
be honest with you.
Chairman Isakson. I think, Dr. Ramos, a fair statement to
say is at the time that he was processing that water, he said
the science would not have been there to have told us that
would have been a problem anyway. Is that correct?
Dr. Ramos. No. Actually if the question had been asked,
that experiment could have been done back then, but it just was
not asked.
Chairman Isakson. So, that is your testimony, it was not
asked and the experiments were not done?
Dr. Ramos. That is correct. The experiments were actually
completed post in reconstruction studies.
Chairman Isakson. Ms. Wedge, you have been sitting there
patiently for a long time. Did you have anything you wanted to
contribute to this conversation?
Ms. Wedge. Only that I concur with everything Dr. Ramos
said. I was a study director for the Blue Water Navy study and
we looked very, very hard for any kind of sampling data that
had been collected during or shortly after the war. We found
none of it.
Chairman Isakson. It was nonexistent?
Ms. Wedge. Nonexistent.
Chairman Isakson. So, you corroborate your boss's
testimony?
Ms. Wedge. I do.
Chairman Isakson. That is a smart employee. Thank you.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman, and I want to
thank all of you for being here today. I recognize that each of
you has invested a substantial part of your personal and
professional lives in this cause, and I particularly appreciate
the passion and urgency that you bring to this debate. This
nation needs to understand, with passion and urgency, the
importance of this issue. It affects veterans of every era.
There may be new toxic substances and chemicals on the
battlefield, but the principle is the same, that anybody in the
vicinity of combat and many who may only be near it can be
exposed to this type of insidious and pernicious chemical harm.
And future generations bear the burden.
The passion and urgency of this issue has to be understood
by our Nation. The research that would be authorized by the
bill I have introduced is long overdue, and I say that almost
as a completely inadequate characterization that is so often
used around here in these halls, long overdue.
In this instance, it is almost criminally overdue because
Congress and the country have simply chosen to look the other
way. Whether it is Agent Orange or the chemicals in the water
that you processed or the depleted uranium, pollutants from
burn pits or nerve gas in unexploded ordnance found on the
battlefields in Iraq and Afghanistan, our men and women in
uniform have suffered, they continue to suffer, and their
children and grandchildren will suffer.
So, I am grateful for your advocacy and for the personal
pain that you have brought to this forum. As a parent and a
citizen, I want to thank each and every one of you; as a parent
of two sons who have served and one now serving. I believe this
Nation has an obligation that it has shirked unwisely and
unforgivably, and I am determined that we will move more
quickly with the measures that have been proposed to remedy
this issue and with others that I intend to introduce.
I think the stories you have brought here are the most
powerful part of your testimony. So, I would like to ask Mr.
Rowan and the Vietnam Veterans of America, first thanking you
for your support for this measure and your advocacy.
I understand that you have stories from families available
that could be submitted for the record and that they would help
to bolster support for S. 901 and some of the other measures we
are considering. I would like to ask that those stories be
submitted for the record.
Chairman Isakson. Without objection.
Mr. Rowan. We will be happy to do so. It is called ``Faces
of Agent Orange.'' We have a whole compilation of all the--
distillations of the hearings we have been holding over the
years.
[VVA's Faces of Agent Orange stories follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
(Please also see ``Faces of Agent Orange'' at https://
www.facebook .com/pages/Faces-of-Agent-Orange/187669911280144)
Senator Blumenthal. Commander Wells, I understand that you
have been involved in litigation or you know of litigation,
Gray v. McDonald. Perhaps you could summarize for us the result
of that litigation, because I think it shows how the VA
bureaucracy--and I mean no disrespect to anybody who works at
the VA. There are some hardworking, dedicated people there.
Unfortunately, you made the point, I agree, that very often
bureaucracies devote more time and effort and ingenuity to
denying claims than enabling them.
Commander Wells. Yes, sir.
Senator Blumenthal. When you know in our gut they should be
granted.
Commander Wells. Thank you, Senator. We filed an amicus
brief and worked very closely with the folks on Gray vs.
McDonald. What the Court of Appeals for Veterans Claims said
was that the exclusion of bays and harbors from inland waters--
and actually that would include from the sovereign territory of
Vietnam--was completely irrational and that they felt that the
regulation was arbitrary and capricious.
They then ordered the VA to rewrite that regulation. The
time for appeal has expired, and in an effort to provide
assistance, I have met twice with Deputy Secretary Gibson and
the general counsel, Lee Bradley, on this issue and have
provided them some suggestions.
In the pipeline, we have a couple of other cases dealing
with Da Nang Harbor, including one with Nha Trang Harbor as
well where there is documented proof of Agent Orange exposure.
I think the VA is sensitive to this. While I cannot speak
for the Deputy Secretary, I do believe that in sitting down and
going through the briefings, the lightbulb came on and he was
aware of what the situation is. So, we are at least cautiously
optimistic that a new regulation will come out before these
other court decisions come out and that we will not be
dissatisfied, let me put it that way, with what they come up
with. We are certainly hoping to get partial or complete
relief, you know, as a result of their study.
Senator Blumenthal. Thank you for that answer. Thank you
for your work on this issue. The lightbulb needs to come on for
the Nation on this issue.
Commander Wells. Yes, sir. That is why we really think that
your bill, S. 901, is great because it will help turn the light
bulbs on. If the Australians had not turned the lightbulb on,
there would be no Blue Water Navy movement.
Senator Blumenthal. Let me just close by saying that term
``arbitrary and capricious'' is not likely used by a court to
describe administrative action. People should understand it is
a term of art that is used to describe the most unacceptable
and unjustifiable action by an administrative bureaucracy. It
is the equivalent, in layman's terms, of dumb and unjustified.
So, I say that as a lawyer--forgive me, Mr. Chairman, I am
a recovering lawyer--that the conclusion of the Court is a
pretty dramatic one here. So, I think it gives us an example of
how we need to push the VA and our entire Federal executive
branch to do more and do better. Thank you.
Chairman Isakson. Senator Boozman.
Senator Boozman. Thank you, Chairman Isakson. Again, thank
you and Senator Blumenthal for having this very important
hearing. Mr. Rowan, we certainly know that Agent Orange
exposure has impacted the children of Vietnam veterans and
caused serious health problems. As the Vietnam veterans
population ages, what affects are we seeing in the
grandchildren of these veterans?
Mr. Rowan. Yeah, that is the really sad point that has been
coming out at the hearings we have been holding. You know, it
is one thing to talk to the 45-year-old daughter or son of a
Vietnam veteran, but to look at the 12-year-old grandson or
granddaughter or great-grandchild, believe it or not, who is
suffering from learning disabilities or possible other cancer
issues and/or other kinds of strange things, to be honest.
Look, we have held these hearings all around the country
the last several years. We have held over a couple hundred of
them. There are thousands of people who have testified, so we
are all over the map about what people are telling us. Yet,
there are certain things that have kind of popped up to the
fore that we think will probably be the highlight focus when
they get this research moving to either say yea or nay. But it
has really run the gamut.
Senator Boozman. Who is conducting the research?
Mr. Rowan. Nobody. That is it. We need this bill. We need
this work done. That is the whole issue.
Senator Boozman. Is VA showing any interest at all?
Mr. Rowan. No. Very clearly they said no. They said, well,
there are other agencies that could do this kind of work, which
is true, but I will go back to my earlier analogy. I still
remember when they called it post-Vietnam syndrome. OK? When we
came home and we had our issues with the Vietnam vets. People
would say, oh, it is post-Vietnam syndrome, like it was
something bizarre just to us.
Until they finally understood what Post Traumatic Stress
Disorder was, and that was facilitated by the VA itself when
they created their Center of Excellence, to focus on mental
health and Post Traumatic Stress Disorder issues. They need to
do the same for this issue.
I understand the sergeant's reticence to give it to the VA,
believe me--and you would not because the reality is they are
right, the VA is right. They do not have the wherewithal inside
their own organization today. But, by creating a Center for
Excellence assigned to a university somewhere in this country,
one of the many wonderful universities that work with the VA
hospital systems, I guarantee you there would be several that
would vie for the right to do this.
I guarantee you that would give them the wonderful
brainpower that we get this work done and it would all be
outside contractors. Who are we kidding here? It is all going
to be people we can bring up in the field of expertise.
Frankly, one of our Vietnam veteran colleagues is the guy
who invented the genome stuff, so what the hell. They are out
there. We can find them.
Senator Boozman. So, you have had your hearings and things,
and yet, the reality is without S. 901----
Mr. Rowan. We are going nowhere.
Senator Boozman. We are not going any place.
Mr. Rowan. No, no.
Senator Boozman. Very good.
Mr. Rowan. No. And as I say, it is not just for us. It was
Persian Gulf veterans who were mentioned earlier. It was 25
years ago. I hate to say it, stuff is bubbling to the top
already for them and their kids. Even with some of the new vets
coming home, I am getting some really sad stories coming to my
attention from dealing with--many of whom are the sons and
daughters of the Vietnam veterans that are in my organization.
Senator Boozman. Dr. Ramos, in your written testimony, you
mention the distillation process on board ships and how this
process may concentrate Agent Orange in the distilled water.
Can you expand on that? Is there evidence that suggests the
distillation process did concentrate Agent Orange at levels
significantly higher than that found in seawater?
Dr. Ramos. The mechanics of that particular distillation
process is really no different from any other purification
process that takes place when you try to purify water. So,
essentially, all that you are trying to do is heat up the
water, vaporize it, condense it at the end, which leaves
impurities behind.
When that type of experiment is carried out, sort of in the
laboratory setting, not really in the field, the demonstration
that was made by both the Australians and then replicated here
in the U.S. following that report is that, in fact, if dioxin
is present in that water it would be concentrated because
dioxin, of course, is not going to be water-soluble, it is not
going to vaporize at the same rate that the water does, it is
retained concentrated, and then leaches into the water that
sort of comes on the next cycle.
The challenge in interpreting that finding relative to the
actual exposure scenario in Vietnam is, of course, that no
evidence of that water being contaminated was available because
it was carried out after the fact. That said, if, in fact,
dioxin was there, and there are some individuals like Mr. Wells
indicated before, then the possibility does exist for
concentration to have taken place.
Senator Boozman. Thank you, Mr. Chairman.
Chairman Isakson. Senator Moran.
Senator Moran. Mr. Chairman, again, thank you very much for
holding this hearing. Let me ask first unanimous consent to
have included in the record a number of Institute of Medicine
reviews and I want to quote a couple of times from those
reports.
Chairman Isakson. Without objection.
[The information referred to follows:]
The entire 837-page 2010 Update PDF is available from The
National Academies Press at http://www.nap.edu/catalog.php?
record_id=13166
The entire 1007-page 2012 Update PDF is available from The
National Academies Press at http://www.nap.edu/catalog.php?
record_id=18395
Senator Moran. Thank you, Mr. Chairman. The 2010 Institute
of Medicine review on the impact of future generations
regarding Vietnam veterans' exposure says this, possible health
effects in offspring following paternal exposure merit further
investigation because, ``Most of the available epidemiology
studies are not relevant to the primary exposure group of
concern, male Vietnam veterans.''
Then, in 2013, the same institute reached the conclusion,
``A connection between toxin exposure and effects on offspring,
including developmental disruption, and disease onset in later
life is biologically plausible.'' Then, in 2012, ``The
hypothesis that paternal preconception exposure to toxic agents
may result in harm to their children remains unresolved, in
part, because of the sparseness of research on the subject.''
Mr. Chairman, I thank you for allowing that to be admitted
to the record, in part, to make certain that the suggestion
that anything is redundant and unnecessary is at least,
according to this Institute, overcome. Let me just ask the
witnesses, in particular, if they have anything that would like
to respond that they have not been asked related to the
testimony of the representatives from the Department of
Veterans Affairs.
My impression as I watched the audience, there was some
disagreement in statements that were made and I wanted to give
you the opportunity to explain why heads might have been
shaking during their testimony.
Mr. Wells.
Commander Wells. Senator, one of the issues that I did not
have an opportunity to respond to was the estimate of 40-some
thousand people that would be covered under existing law, which
I think this is important because the VA has used that, in
part, to justify a $4.4 billion cost for S. 681 when our
liaison, as confirmed by the Committee, with CBO indicates that
it will be $1 billion or less. Part of that--and again, I think
it is because they do not have people who know what they are
doing as far as Navy ships go doing this process.
We ran a manpower analysis ourselves using the Navy manning
plan and we checked our analysis, double-checked it, we
provided it to CBO, they agreed with our approach and showed
that actually 83,000 people now are covered under existing law
with another 1,100 people covered under non-Hodgkin's lymphoma.
This, I think, is one of the reasons why the VA cost or
projected cost of the bill is just way over the top. Now, I
gave our figures--and we have also looked at other potential
offsets that the VA has not and we gave all that information to
the Deputy Secretary and I think he is working that with the VA
bean counters now to see if we can respond to that.
Other than that, I would say that the VA has come up with a
number of reasons why this bill should not be adopted or why
the Navy vets were not exposed and some of them we have
addressed here today. If you all have any questions about any
of those things, I would be happy to answer them. In our
prepared testimony at the legislative hearing on S. 681, we did
go through a number of those. Thank you, sir.
Senator Moran. Master Sergeant Ensminger.
MSgt. Ensminger. Yes, Senator. The VA's description of
their process for Camp Lejeune claims that Dr. Erickson gave
while the VA was testifying and how detailed they were, nothing
could be further from the truth. I am serious. We have cases
where their so-called subject matter experts have used
citations from Wikipedia in their decisions.
Some of them had conflicts of interest. While they are
working for the VA as full-time staff, were also working for
law firms in opposing Family Leave Act claims and workmen comp
claims and toxic tort cases.
We had one subject matter expert in the case that Senator
Burr brought up during his testimony, the subject matter expert
said that this veteran who had kidney cancer, they had done a
comprehensive review of two decades worth of studies, and in a
meta-analysis, and could find no documented evidence where TCE
causes any kind of cancer.
That was dated January of this year when no less than the
EPA in 2011, IARC in 2013, and our national toxicological
program this the summer have classified TCE as a known human
carcinogen, mainly based on the evidence that it causes kidney
cancer. So, you know, I do not know what they have been
reading, or what they have been looking at, but their process
is far from successful.
Senator Moran. Thank you very much.
Mr. Rowan.
Mr. Rowan. Yeah, I would just like to add that one of the
studies that was done was the Ranch Hand study where they
followed these folks every 5 years for 20-plus years. The
things that came out of there were horrifying, quite frankly;
but it never seemed to penetrate into the VA structure. For
example, I can give you something very simple. One of the
things that came out very early in the Ranch Hand study was the
fact of how many of them were diabetic.
They were not even looking for that. It was an accident
that one of the researchers finally said, whoa, wait a minute,
half of these guys are diabetic. I knew that when I was
diagnosed as a diabetic in 1994, but the VA did not get around
to granting me any benefit until 2003 when the Secretary
finally added diabetes to the list. There are all kinds of
information in that data.
By the way, those samples, those serum samples and all the
rest of it, the biological stuff, was almost going to get
thrown out. We had to fight like hell to get it saved, which
had nothing to do with any Government agencies saving it, by
the way. This stuff is still around. The researchers can still
go back and access it.
I would highly encourage anybody who wants to do that kind
of research to do so. But those people are still here. And one
of the things that came around--I remember talking to one of my
colleagues who is going through that study, and he said that
after they got finished and he had talked to one of the
researchers he found out that his sterility was such an off-
the-chart rare issue. Later, he sat around with 12 guys at a
bar when the study was done and six of them had the same issue.
I mean, it is just crazy.
Senator Moran. Mr. Rowan, thank you. Thank you for
conducting the town hall meetings that the VBA has, especially
the seven in Kansas. We are grateful for that.
Mr. Chairman, thank you.
Chairman Isakson. I want to thank all our panelists, and in
light of the last comments, remind everybody that we will leave
the record open for 7 days for any additional information you
would like to submit. We appreciate your service to the country
and appreciate your being here today.
Senator Blumenthal.
Senator Blumenthal. I would like to thank each of our
witnesses as well. It has been very illuminating and profoundly
important.
MSgt. Ensminger, I was struck by your comments about the
conflicts of interest and I would ask respectfully that you
perhaps speak with our staff confidentially so that we can
follow up on some of the information that you may have.
I want to encourage each of you also to supplement the
record, as I indicated earlier, with stories, personal stories,
because many of these conditions do not manifest for years
after exposure. This is not like the normal battlefield wound
where it is visible, it is dramatic. It may be invisible at the
time it occurs and manifests only years afterward and sometimes
maybe a generation later. Yes, sir.
MSgt. Ensminger. You just said something that brought an
issue up for me and many other veterans that I have talked to.
Why does the VA always say in their denials that the veteran
did not demonstrate any signs of kidney cancer while he was on
active duty? I mean, it is the most stupid phrase I have ever
seen. I mean, of course they did not. It took 20 years for them
to develop kidney cancer.
Senator Blumenthal. It sounds arbitrary and capricious.
MSgt. Ensminger. Yes, sir.
Mr. Rowan. If I could add one thing?
Senator Blumenthal. But I want to--I am not the Chairman so
I cannot call on you, but I want to make one last point and
that is the bill that Senator Moran and I have--and again, I
want to thank him while he is here for his work on this bill--
provides for research. One of the points of today's testimony
is the best research in the world has to be used to be
effective.
If the VA or any other agency looks away or turns a blind
eye to it or ignores it or disregards it, it will have no
effect. So, we need to work on the mindset and the attitude as
well as the investigative authority. So, thank you very much to
each of you.
Chairman Isakson. Mr. Rowan.
Mr. Rowan. Thank you, Mr. Chairman. Just one quick thing.
Senator Hirono--I am mispronouncing her name probably--but she
came on something earlier and one of the other people mentioned
Fort McClellan. The DOD does not have clean hands here. They
also fight like hell every time we try to ask for information.
I mean, at the VVA, we like to sue people if we do not get
what we want and we have had more suits than I care to think
about against the Department of Defense to get them to cough up
information. And exposure stuff, we have gone into this, the
Camp Lejeune thing was water, Fort McClellan was experiments. I
mean, it is just one thing after another. So, Congress must
take a look at what the DOD is not providing but should.
Senator Blumenthal. That is why I have been referring to
the Federal executive branch, not just the VA. You are
absolutely right, Mr. Rowan.
Chairman Isakson. Thank you all for your testimony. We
stand adjourned.
[Whereupon, at 12:38 p.m., the hearing was adjourned.]
A P P E N D I X
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