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A Fresh Look at Veterans, Toxic Exposures, and Access to VA Care and Benefits

On October 1, VA Secretary Denis McDonough was interviewed by Jon Stewart, who had just launched his Apple TV show, “The Problem with Jon Stewart.” The topic? The failure of the Departments of Veterans Affairs (VA) and Defense (DoD) to adequately deal with the burn pit exposure millions of service members have experienced since 1990.

Sadly, neither Stewart nor McDonough got the facts straight and the Secretary committed a major media gaffe. Several weeks later, in an NPR interview, both McDonough and reporters Quil Lawrence and Steve Inskeep once again failed to target the right culprits and provide the correct facts and historical context necessary to help the public understand an extremely critical and complex issue.

Let’s first consider the facts: A cumulative total of nearly four million veterans have deployed to locations overseas since August 1990 where there were widespread and significant toxic exposures. For more than 31 years of this ongoing Gulf War period, DoD has withheld information about the exposures.

Even though Congress passed several laws expanding research, treatment, and benefits, VA’s response remains unacceptable. As recently as 2017, VA denied 80 percent of the disability claims filed by veterans for medical conditions related to Gulf War and Burn Pits toxic exposures.

The first law assisting veterans, The Persian Gulf Veterans Act of 1998, opened the door to two years of free VA medical care for deployed veterans (free care was expanded to five years in 2008). The hard-fought 1998 law – based on the Agent Orange Act of 1991 for Vietnam War Veterans – also created a process where the National Academy of Science Engineering and Medicine (NASEM) reviews peer-reviewed and published research on humans and animals to determine if deployment or toxic exposures are associated with any medical conditions.

The 1998 law also allowed VA to consider NASEM reviews as well as other scientific evidence. There are five tiers of association, and VA should provide access to care and benefits for the top three, based on studies on both humans and animals:

1. Sufficient Evidence of a Causal Relationship

2. Sufficient Evidence of an Association

3. Limited/Suggestive Evidence of an Association

4. Inadequate/Insufficient Evidence to Determine Whether an Association Exists

5. Limited/Suggestive Evidence of No Association

When VA reviews NASEM reports and other scientific evidence, departmental leaders must issue regulations that would answer the question, should the condition be “presumptively” related to service during the Gulf War? If yes, then a VA presumption makes it easier for veterans to obtain VA care as a group or class of veterans based on the dates and locations of military service.

Without a VA presumption, each veteran must, on an individual basis, prove to VA that the toxic exposure is, “as likely as not or greater” related to the veteran’s military service, a far more difficult standard. When VA performs most of the claim exams, the result is a shocking number of VA errors that lead to denial of VA benefits and care.

Here’s the key point most of the public doesn’t know. Free VA medical care is provided only after each veteran wins a VA disability claim. The exception is five years of free VA care for veterans who deployed to a war zone since 1998.

McDonough deserves a “C” grade for his laudable effort to engage with the media on the issue of toxic exposures. His marks fall to a “D” because of his poor performance, omissions, and errors.

On the bright side, McDonough accurately described the population dates for the veterans widely exposed to toxins as starting with the Gulf War ~ that’s August 1990, or more than 31 years of veterans fighting for VA care and benefits.

What did McDonough omit? The locations and the count of U.S. service members deployed, for one. The locations include Southwest Asia since 1990, plus neighboring nations such as Afghanistan, Syria, Djibouti, and Uzbekistan since 2001. The count of veterans exposed to toxins, meanwhile, is quickly approaching four million.

McDonough used the wrong legal standard for VA to establish a new “presumption.” He mistakenly said the medical conditions needed to be "caused" with a “level of certainty” required by law. Wrong. The correct standard also covers an “association,” as described above.

McDonough also stated that only NASEM could name a condition as presumptive. Wrong again. According to the 1998 law, the Secretary has broad authority to create a presumption via new regulations based on scientific evidence outside NASEM.

Why do McDonough’s errors of omission and facts matter? McDonough offered three new conditions where VA would grant “presumptive” benefits, sinusitis, rhinitis, and asthma. These are a helpful start, yet woefully incomplete. In reality, there are actually dozens of conditions identified by scientists and awaiting a VA decision.

McDonough also neglected to mention that a veteran can still seek out a medical professional to write an opinion stating a specific veteran’s exposures as being “as likely as not or greater” to a specific condition. That VA claim process is called "direct" service connection, also described above.

Direct service connection is how many veterans obtain VA service connection for glioblastoma, a rare form of brain cancer associated with toxic exposure. The late U.S. Senator John McCain died from a glioblastoma after his exposure to agent orange, a defoliant that contains highly toxic dioxin. Veterans seeking direct service connection often face tough VA opposition, including many years of appeals.

An important note here: If DoD had maintained accurate and complete records of toxic exposures, diagnoses, symptoms, and prescriptions for our service members, then direct service connection would be far easier for veterans seeking VA benefits. However, in many instances, DoD destroyed or lost the very records veterans need to win VA claims and thus obtain VA care and benefits.

McDonough should also get credit for mentioning that the military should stop knowingly exposing our service members to so many harmful toxins, nearly all of which are already banned or heavily regulated. However, that responsibility falls to the Defense Secretary Lloyd Austin.

Let’s shift to one of the main reasons why VA and the White House are so reluctant to follow the science: Money. When the House of Representatives debated a bill to through legislation, mandate a list of presumptive conditions, the cost was estimated as high as $1.5 trillion dollars. While Democrats support the bill, Republicans are against expanding VA care and benefits to ill veterans.

In fact, based on existing science and law, both Secretary McDonough and President Biden have the authority, with the "stroke of pen," as Stewart recognized,, to resolve this logjam by issuing new regulations with more presumptive conditions as shown above, starting with Gulf War illness as recommended by NASEM in 2016.

However, the main obstacle for new benefits remains OMB approval, again, due to money. McDonough could also call for automatic enrollment of all veterans in VA medical care as well as provide an automatic notification that VA care is available. Those would be laudable improvements that would provide VA care to veterans when it is less expensive for the taxpayers and of greater benefit to the veteran.

In another omission during the interview, McDonough neglected to mention that VA provides five years of free VA medical care for those deployed to war zones.

And then there’s McDonough’s major gaffe. When Stewart complimented him, saying “ I don’t doubt your empathy and I don’t doubt your care,” he retorted petulantly that “The beauty is I don’t really give a shit. I don’treally care if you think I’m doing a good job. I care what the vets think.”

This is, to say the least, not good media practice – something any competent media trainer should have helped the Secretary avoid.

During the NPR interview, many of the same problems emerged, minus, that is, the “I don’t give shit” retort. In this case, the Secretary made similar factual mistakes. He also didn’t say anything about DoD practice or Congresses’ failure to adequately fund the cost of war. That’s hardly surprising, since the Secretary has to work with his counterparts at the Pentagon and has to toe the administration line that the VA is being adequately funded.

What was deeply disturbing was the fact that neither Inskeep nor Lawrence spotlighted the failure of our military and Congress to halt the use of burn pits and to pass legislation that would provide the vast sums of money necessary to really pay the true costs of war, as recently outlined by Brown University.

McDonough should quickly repair his error by meeting with veterans, apologizing, and then taking prompt action with new regulations for all of the medical conditions’ science confirmed are associated with the toxic exposures and the deployment areas listed above.

He should also meet with Gulf War and Burn Pit subject matter experts outside of the federal government and move forward with plans to expand access to VA care and disability benefits for hundreds of thousands of Veterans ill due toxic exposures.

Improved VA regulations leads to better VA access so that no Veteran is left behind on a jungle trail, on a desert trail, or on a paper trail of VA delay and denials.

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