Although veterans advocates say the VA should
be guided by science as it makes benefit decisions, documents and
interviews show that other considerations also come into play.
By: Charles Ornstein, ProPublica, and Mike Hixenbaugh
An outside panel of experts had already
determined that the scientific evidence showed the vets were likely
exposed to the toxic herbicide.
The scientists within the U.S.
Department of Veterans Affairs agreed the airmen had a strong case. But
they had a more calculated concern: If the VA doled out cash to these
veterans, others might want it too, according to an internal document
obtained by ProPublica and The Virginian-Pilot.
The group put
their worries in writing. In a draft memo, they warned the secretary of
Veterans Affairs that giving benefits to the airmen might prompt
“additional pressure” from other veteran groups.
Such political
and financial concerns aren’t supposed to play into decisions about
Agent Orange benefits, veterans advocates and some legal experts say.
Federal law requires that, in most cases, these decisions be guided
strictly by science.
But an examination of two recent cases
illustrates how dueling considerations of liability, responsibility and
evolving scientific evidence weigh into VA deliberations.
“This
shows what we’ve already suspected: At the VA, they’re more interested
in politics, and protecting their turf and their bonuses than fulfilling
their mission to assist veterans,” said John Wells, a Louisiana lawyer
who has spent more than a decade advocating for 90,000 Navy vets
fighting for Agent Orange benefits.
VA officials say they are
committed to making sure qualified vets get benefits, and they believe
the law allows them to consider the ramifications of their decisions
when weighing the eligibility of new groups.
“Considering second
order effects of a decision does not in any way violate the Agent Orange
Act,” the VA’s general counsel’s office wrote in response to questions.
For
the past year, ProPublica and The Pilot have been examining the effects
Agent Orange has had on a growing group of veterans and their families.
Decades after the end of the Vietnam War, many are suffering an array
of health consequences and are struggling to prove they were exposed. In
interviews, they blame the VA for obstructing their claims through
denials or ever-escalating requests for information, a process some call
“delay, deny, wait till I die.”
Some 2.6 million Vietnam
veterans are thought to have been exposed to — and possibly harmed by —
Agent Orange, which the U.S. military used to defoliate dense forests,
making it easier to spot enemy troops. But only vets who set foot in
Vietnam or the Korean demilitarized zone — earning a status called
“boots on the ground” — or served on ships that entered Vietnam’s rivers
are automatically eligible for compensation for illnesses linked by the
VA to the herbicide. Coverage for other groups may be added at the VA’s
discretion, at a cost the VA has estimated could be billions of
dollars.
As the VA studies whether to expand its list of Agent
Orange-related conditions, the possibility that outside factors may be
influencing its decisions worries veterans’ advocates and lawyers.
“Their
charge is not to decide who they give stuff to,” said Rick Weidman,
legislative director for Vietnam Veterans of America. “It’s a question
of what (veterans) deserve because of scientific and medical evidence
that’s related to the exposure.”
Typically the VA’s internal
deliberations are conducted in secret, with only the final decisions
made public. ProPublica and The Virginian-Pilot were able to learn
details of two recent Agent Orange decisions by obtaining internal memos
and interviewing a participant.
One decision involved the Air
Force personnel and reservists who, in the years after the war, served
on C–123 aircraft that had sprayed Agent Orange in Vietnam. In January
2015, an expert panel of the Institute of Medicine, now part of the
National Academies of Sciences, Engineering and Medicine, found evidence
suggesting these vets “would have experienced some exposure to
chemicals from herbicide residue when working inside” the aircraft.
In
response, the VA formed an internal working group to help senior
officials brief VA Secretary Robert McDonald on options for compensating
these veterans.
The working group drafted a memo acknowledging
that the scientific evidence was “fairly straightforward.” In weighing
how to respond, however, it listed pros and cons of various options for
granting benefits to the reservists that had nothing to do with the
science. One con noted that such a decision “may result in additional
pressure by other veteran groups to further expand the presumption of
exposure.” In parentheses, the report named specific groups of
Vietnam-era veterans that might be encouraged by the change, including
those who served on a base in Thailand where Agent Orange was sprayed,
those who believed they were exposed on ships off the coast of Vietnam,
and those who served at U.S. bases where the chemicals were tested.
On
the pro side, a decision favorable to the vets “would demonstrate
commitment by the VA to this group of veterans” and was “supported by
science,” the memo said.
The working group recommended that the
VA review claims from C–123 aircrew on a case-by-case basis rather than
automatically approve them for the group. This, VA staffers calculated,
could lead to “possibly reduced pressure by other veteran groups” who
desired benefits while also satisfying members of Congress worried about
the growing tab for Agent Orange-related benefits, according to the
memo.
McDonald ultimately granted disability benefits to all Air
Force and Air Force Reserve personnel who regularly served aboard the
aircraft, a group estimated at between 1,500 and 2,100, saying in a
statement that it was “the right thing to do.”
The VA, in an
email, said the process was intended to ensure McDonald had all the
information necessary to make a decision. “When making important policy
decisions, the Secretary is presented with a broad array of potential
courses of action, each of which have their own implications and 2nd/3rd
order effects which need to be considered and discussed,” it said.
Bart
Stichman, co-executive director of the National Veterans Legal Services
Program, which has tangled with the VA in court on numerous Agent
Orange-related issues, said it’s reasonable to expect the VA to consider
a host of issues, including costs, when making decisions.
“There
should be a full flow of advice,” he said. “I wouldn’t want to chill
people from giving advice to the secretary and say you can’t talk to the
secretary about political things.”
But Michael Wishnie, a Yale
Law School professor who worked with the C–123 veterans seeking
benefits, said it was against the law for the the VA staff to point out
how the decision to give aircrews benefits could embolden or dampen the
enthusiasm of other veterans groups.
The VA estimated the
decision to compensate that relatively small group of Air Force vets
would cost the government $47.5 million over 10 years.
Several
years earlier, in 2009, in another internal deliberation reviewed by
ProPublica and The Pilot, the VA was considering a far more expensive
proposition: To grant Agent Orange benefits to veterans with Parkinson’s
disease, ischemic heart disease and hypertension, more commonly known
as high blood pressure.
The Institute of Medicine had found
evidence suggesting a connection between Agent Orange exposure and those
three conditions, and the VA’s internal working group of scientific
experts wanted to recommend the department grant benefits to veterans
with those conditions, according to Dr. Victoria Cassano, a member of
the group who at the time was acting chief consultant for the VA’s
Environmental Health Strategic Healthcare Group. But the group’s
superiors at the VA told the panel to change its position and instead
recommend against providing benefits for heart disease and hypertension,
Cassano said. It recommended in favor of Parkinson’s disease.
In
an interview, Cassano said the evidence to link those conditions with
Agent Orange was at least as strong as for other diseases officially
tied to the herbicide. The group was given no reason for the directive
to change the recommendation, she said.
“I remember having
trouble rewriting the recommendations and recommending against what I
originally recommended,” Cassano said. “I understood that there were
other things going on beyond the science and that my perspective at that
time was that these people had more experience with the system and how
this stuff falls out than I certainly did.”
In late 2009, under
pressure from veterans groups, former VA Secretary Eric Shinseki said he
would add ischemic heart disease and Parkinson’s disease to the VA’s
list, but not hypertension, a condition that affects a third of adults
in the U.S., including potentially hundreds of thousands of Vietnam
veterans. According to Shinseki’s testimony to Congress in 2010, “the
evidence regarding hypertension was less compelling” than for the other
conditions.
But Cassano said that’s not what she, and other panel members, had found.
In
an email relayed by a VA spokesman, Dr. Ralph Erickson, the VA’s chief
consultant of post-deployment health services, said he and Dr. Peter
Rumm, director of pre–9/11 era environmental health, were not at the VA
in 2009, when Cassano was there.
“Honestly, even if we had been
VA employees then, it would be inappropriate for us to discuss these
internal deliberations,” Erickson wrote.
Since that time,
Erickson noted, the VA has twice reconsidered whether to add
hypertension to its list but declined to do so. “Each time the Secretary
(who is the ultimate decision-maker) decided that the totality of the
scientific evidence did not support creation of a new presumption,” he
wrote.
Dr. Kenneth Ramos, who chaired a different Institute of
Medicine panel that issued a report on Agent Orange earlier this year,
said the evidence linking high blood pressure to Agent Orange is at
least as strong as the evidence for other conditions already on the VA
list. But given the prevalence of the condition in the U.S. – “a disease
of aging and of lifestyle” – he said he understands the VA’s reticence.
“There’s
evidence that says as (veterans exposed to Agent Orange) aged,
hypertension rates have been higher,” Ramos said. “So now are you able
to say the condition is service connected? It’s a really hard question
to answer.”
Advocates for veterans still fighting for benefits
say they are worried about the way in which the VA deliberates such
issues. This is especially true among those pushing for benefits for
90,000 so-called Blue Water Navy vets, who served off the coast of
Vietnam.
Although the herbicide wasn’t sprayed over the ocean,
Navy veterans believe the chemicals contaminated the coastal waters
sucked into their ships for drinking water. A study for the Australian
Department of Veterans’ Affairs lends support to that theory.
(ProPublica and The Pilot have previously written about their push for
benefits.)
Rep. Chris Gibson, R-N.Y., who is co-sponsoring
legislation that would force the VA to compensate the Blue Water vets,
said the VA should not be basing decisions on whether they’ll spur
others to demand compensation.
“The fact that they were looking
at the impacts on other groups such as Blue Water Navy … this is
outrageous,” Gibson said. “The focus of the veterans administration is
to help our veterans, to ensure they get the health care that they have
earned, the other benefits.”
Rory Riley-Topping, a former staff
director for the House VA Subcommittee on Disability Assistance and
Memorial Affairs, said her sense is that the VA is “very adamantly
opposed” to providing benefits to the Blue Water veterans, in part
because of the cost.
When she worked for the House, Riley-Topping
said, VA officials were nervous that 2012 legislation that now provides
health care for vets exposed to contaminated water at Camp Lejeune in
North Carolina would leave an opening for the Blue Water vets. “That was
one of the concerns the VA had raised at that time,” she said, echoing
some of the arguments later raised about the airmen.
The VA has
estimated that providing benefits to Blue Water vets would cost
taxpayers $4.4 billion over 10 years, and the first year would cost the
most – $1.3 billion — because of pent-up demand. A recent Congressional
Budget Office estimate is substantially lower, pegging the cost at about
$1.1 billion over a decade.
“On the one hand, yes, I get that’s a
concern of theirs,” Riley-Topping said of the VA. “But on the other
hand, those are not the types of things they should be looking at when
they’re making that determination. Whether groups are empowered one way
or the other has nothing to do with scientific evidence. It just
doesn’t.”
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