SOME BRIEF BACKGROUND

In 2009, the Department of Veterans Affairs (DVA) tasked the Institute of Medicine (IOM) to perform a study to determine if they could show that personnel who served offshore Vietnam (Blue Water Navy) between 1962 and 1975 were exposed to the dioxin in Agent Orange to the same extent and degree as those who served on land or on the Inland Waterways of Vietnam (Brown Water Navy). DVA stipulated a time frame of 18 months for delivery. The conclusions of that study were foregone and well-predicted. Similar studies on Agent Orange exposure had been conducted, all with the same result: without data from that time period, all that could result was speculation. Additionally, for the first time, they were asking for comparative information between an imaginary division of the veterans who served in the Vietnam War.

When the Department of Veterans Affairs (DVA) was initially told to write the rules for adjudicating a disability claim for presumption of exposure to herbicide in Vietnam, as ruled by the Agent Orange Act of 1991, they assumed that everyone within the Theater of Combat was eligible for presumptive exposure, making the receipt of the Vietnam Service Medal (VSM) the qualifying factor for identifying the exposed population. The VSM was awarded to all military personnel who served within the Theater of Combat designated for the Vietnam War, which extended out to into the Gulf of Tonkin and the South China Sea. This specific detail of including the VSM was not mandated by Congress; it was what the Veteran Benefits Administration concluded was a valid parameter when writing the rules in the M-21 guidance manual for rating disability claims. Presumption then included ground troops, inland water (Brown Water) personnel, and offshore (Blue Water) personnel as having equal possibility of exposure. And that rule held firm for 11 years, until the DVA, in 2002, made an internal change to their guidance manual to restrict disability benefits related to diseases acknowledged to stem from exposure to Agent Orange dioxin only to those who had their boots-on-the-ground. When they made that change, they did not follow the established law that required them to first notify Congress and the American public of their intention to make that change. It was done illegally. During the court trials between 2006 and 2008, the VA was allowed to cover their tracks and make that decision retroactively legal. But that will never change the fact that removal of Blue Water Navy veterans from the eligibility for Health Care and Disability Compensation benefits related to dioxin poisoning was an illegal act of the DVA.

Few veterans that I know were totally surprised by the 2011 IOM Study conclusions. The attempts to clearly define a standard of exposure for any veteran, whether on land or at sea, had failed in every study from 1980 through 1990. The aftermath could be measured. The symptoms of the dioxin-caused diseases could be enumerated and categorized. But nothing could be definitively stated about actual dosages of exposure to dioxin. That is why, in 1991, The Agent Orange Act used the concept of presumptive exposure. It basically meant, “We assume that every veteran of the Vietnam War had an equal probability of being exposed to Agent Orange as every other veteran.” This was not a certainty, but a probability. The problem arose in the definition of where “there” was.

Early into this recent Study, the IOM Committee found itself faced with the serious limiting factor: no useful measurements on the amounts of Agent Orange throughout the entire Vietnam environment were ever made. No measure of atmospheric saturation, or presence in the water, or concentration levels for any particular area of the country existed. They were simiply not documented. This lack of facts and measurements that would allow a quantitative, scientific approach to assessing levels of exposure to Agent Orange dioxins in Vietnam meant that the IOM Study could never reflect any quantitative values. Only measurable, provable, numeric data can underlie a valid scientific study. So an extremely important shift was made in the work that could be accomplished by the IOM Committee, as they clearly stated in their Preface to the Report titled Blue Water Navy Vietnam Veterans and Agent Orange Exposure: "...the committee could not find enough data to determine whether or not Blue Water Navy personnel were exposed to Agent Orange-associated TCDD." This does not say they were not exposed. It says the Committee could not state a measured amount to which they were exposed. And that applied to every veteran of the Vietnam War, regardless of where they were or what they did.

Rather than a quantitative analysis, the Committee was forced to make a qualitative analysis. Without numbers and measurable data, they could only comment on descriptions and observations based on assessments (without scientific measurement) made by others in the past, or what could be observed in the present, some 48 years after the Ranch Hand spray missions started. Everything they could reference in their Study was the result of personal or group assessment of possibilities. Nothing they could reference in their study was the result of comparative measurements of anything.

One step further away from possible contamination was taken. The Committee was forced to fall back to speaking of PLAUSIBILITY. As opposed to having a statistical chance of happening, something is plausible even if it only seems to be reasonable or probable at the time a conclusion is drawn. If something is possible, it might be true. If something is plausible, it sounds like it might be true, given unbounded parameters. Plausible refers to an argument or explanation, whereas possible is based on a statistical chance. Ordering this study by the IOM, the DVA did nothing more than buy themselves 18 months to avoid dealing with this issue, and time to form future plans to continue their avoidance. The conclusions of the IOM are not being called to task; there is no fault of the Committee when the evidence to make an assessment was simply and absolutely not available.

And so no reader should ever be under the illusion that the IOM Committee made a conclusion based on scientific fact. They stated that they could not and did not do that. They acknowledged the limitations of their knowledge and ability, clearly saying they did not have the resources that allowed them to make a definitive conclusion. They clearly tell us that the best they can do is provide an opinion based on probability and plausibility, not on fact. And they clearly state that this lack of certainty of exposure to herbicide applies just as strongly to the individuals that served on land and on the Inland Waterways; there is no data to provide certainty of any Vietnam veteran’s exposure to herbicide, and there is definitely no way to make a comparative statement about the level or measurement of exposure between those who served on land and those who served at sea.

Additionally, the Committee presents their conclusion only in terms of the Blue Water Navy personnel taken as a group, and never takes up the question of any specific individual or subgroup having the possibility of a higher contamination by herbicides where the probability of herbicide exposure was much greater and more probable, such as being on a ship anchored in Da Nang Harbor.

To read the conclusions of the DVA in their analysis of the IOM Study speaks volumes about the DVA’s ability to comprehend the deep and detailed elements related to dioxin poisoning, and of the limitation of their expertise in comprehending the very topic they are charged with addressing. Alternatively, their conclusion calls into question their intention to honestly explain to the American public and to Congress the actual message presented to them by their own panel of experts. I believe only one of two conclusions can be drawn. If this was not an intentionally dishonest release meant to deceive the readers, then we have an agency incapable of assessing the material they were originally established to comprehend and act on. We are either dealing with ignorance or deceit. I fail to see any third alternative. And since they were operating under the tight thumb of the White House through the past several Administrations, then we are probably dealing with both.

The Congress needs to make their own conclusion and deal with every individual involved with the preparation of DVA Notice Citation 77 FR 76170 in an appropriate manner.


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