PART I - CHALLENGING THE DVA AND THE IOM


This Part I - The Summary is provided in advance of a more detailed report challenging the Department of Veterans Affairs and the Institute of Medicine. The premise is there is no coincidence that the legal arguments of the DVA in Haas vs. Nicholson (which are extremely weak) and the release of the Veterans and Agent Orange: Update 2006 (which excludes important data available to them) mutually support one another entirely. But that is the total means of their support. They are otherwise resting on air. The DVA legal argument is semantic manipulation that is meaningless without the backing of the IOM. The IOM report can only be supportive of the DVA legal arguments if it totally ignores obvious and existing scientific and medical data. Without one, the other fails utterly. If approached as mutually groundless, they may both fall together.


The Summary

On August 16, 2006, the Department of Veterans Affairs (DVA) faced a situation they had been carefully avoiding for at least the last 10 years. The Veteran's Court of Appeals ruled against them in Haas v. Nicholson regarding compensation owed to Vietnam veterans who served off the mainland of Vietnam between 1963 and 1974. These veterans comprise a new class of individuals collectively named "Blue Water Sailors" although it includes some Coast Guard, Marine and Air Force personnel. (more details at Brief Summary )

The DVA knows it can not afford to have medical evidence which supports this type of compensation claim and the required medical assistance for this class of veteran. But it is not because of VA compensation money. It knows that it can not leave itself or the U.S. Chemical Industry open to lawsuits concerning claims by a new class of litigants. The DVA's maneuverings to eliminate this class of potential litigants started in the early 1990s with actions that ultimately led to changes to the M21 Manual. (See "The Case Against Mary Lou Keener" )

The Institute of Medicine (IOM) is a private, non-governmental entity and an associated agency of the National Academy of Sciences mandated by Congress in 1991 to provide the DVA with biennial updates of any and all scientific and medical research regarding veterans and the use of herbicides and other toxic agents during the war in Vietnam. Their mission is officially stated as:

Because of continuing uncertainty about the long-term health effects of the sprayed herbicides on Vietnam veterans, Congress passed the Agent Orange Act of 1991. The legislation directed the Secretary of Veterans Affairs to request the Institute of Medicine of the National Academy of Sciences (NAS) to perform a comprehensive evaluation of scientific and medical information regarding the health effects of exposure to Agent Orange and other herbicides used in Vietnam. Mandated updates to the original study were to be conducted every 2 years for 10 years. Veterans and Agent Orange, Update 2006 is the seventh report in this series.

Early in 2006, the IOM began staffing the committee to draft the Veterans and Agent Orange Update: 2006. This was an auspicious time, in that it coincided with the Haas v. Nicholson lawsuit. Through some unknown causes, these two events became intricately entwined in an unusual manner. (A list of Committee Members for 2006 is available at IOM News Release )

There is strong scientific and medical evidence showing positive relationships between war time service of naval personnel offshore of Vietnam and contamination by Agent Orange and other toxic chemicals used in Vietnam during this time period.

The most recognized reports showing this were completed by the Australians and include Examination Of The Potential Exposure Of Royal Australian Navy (RAN) Personnel To Polychlorinated Dibenzodioxins And Polychlorinated Dibenzofurans Via Drinking Water, written by the Australian University of Queensland for the Australian Department of Veterans Affairs and released in 2002. There is also a report presented at an international Agent Orange conference in 2003 titled Co-Distillation Of Agent Orange And Other Persistent Organic Pollutants In Evaporative Water Distillation. These reports were also published in a Chemistry Journal "Organohalogen Compounds." More reports included in this mix are the first three reports on Australian Vietnam Veterans Mortality and Cancer Incidence which were released in 2005. These documents can be reviewed at Australian and New Zealand Information .

In fact, the strength of these reports is so strong that both Australia and New Zealand have relied upon them to begin paying compensation to their sailors and other water borne personnel who were involved in the Vietnam conflict as American allies.

However, for this latest Update: 2006, the IOM has refused to consider these reports and the research data these reports present as valid because they have not been "peer reviewed". This has been their official and repeated response as to why this data was not presented to the VA as required by Congress in creating the Updates. This statement is nothing but a smoke screen and needs to be laid aside as such as soon as possible. Over the years, there have been several reports and data included in the Veterans and Agent Orange Updates that have not held "peer review" status, so using this as an excuse is extremely flawed. Further, The Royal Australian Navy (RAN) Report was closely scrutinized by the following Australian agencies:

The argument regarding lack of peer review just doesn't hold water. I'm not certain who the IOM considers as their peers, but if these agencies and the credentials of the report authors don't fit that definition, then they are definitely over-rating themselves.

But surprisingly, the IOM Committee charged with completing the Update: 2006 attempted to include some data from these studies in the Update: 2006. A ranking member of the committee has reported that a "ruling from on high" forced them to remove this information from the report prior to its publication.

The contentions of the DVA, who act as if their silence represent that this data does not exist, are not valid because existing data proves the contamination of the blue water navy class of veterans. But with the help of the IOM, possibly through some agreement to "support the lega l arguments of the DVA," the full body of existing data addressing offshore contamination has been suppressed. It certainly didn't appear in the Veterans and Agent Orange: Update 2006. But veterans need to know that data clearly supporting their claims of Agent Orange exposure does exist. The lack of this information appearing in the Update: 2006 (or even Update: 2004) is like a gaping hole in the existing body of evidence, and its omission substantiates the VA legal stance that they have been presented with no medical evidence to support the claims of exposure and subsequent debilitation of Agent Orange diseases within the class of blue water sailors. In fact, the final Brief filed by VA lawyers on July 20, 2007 in Haas v. Nicholson rests heavily upon this argument. It appears that there is no coincidence that the most recent IOM report supports the arguments of the VA legal team by their silence on the issue. Or do I have that backwards? The omission of this information from the Agent Orange Update: 2006 appears to indicate that the Department of Veterans Affairs may have put pressure on the IOM to remove references to the existing scientific and medical data which supports the veterans. If it did occur, any such pressure is in violation of the Congressional mandate of the Agent Orange Act and violates all legal and ethical standards.

The Update: 2006 release was apparently tailored to support the DVA's existing court case, Haas v. Nicholson. The data exists to support the claims of the veterans, but the report of the IOM does not reflect this. Even if this exclusion of information merely acts as a delay tactic so that the DVA does not have to acknowledging its responsibility to care for these sick and dying veterans, the VA's case will have been "won" regardless of the final court decree, which may be years away. Its well-planned denial and withholding of financial and ethical obligations to US veterans and its commitment to minimizing liability of the U. S. Chemical Industry will have been met.

The longer the DVA delays in paying any service-connected compensation and related medical costs for exposure of the Blue Water Sailors to Agent Orange, the less money it will need to disburse and the less liability Corporate America will face.

Without full disclosure of scientific and medical evidence by the IOM, the Department of Veterans Affairs believes it can legitimately deny the existence of the damning evidence. Unfortunately for them, and fortunately for the Blue Water veteran, this is far from true.

The DVA has much to lose once this existing knowledge becomes more widespread. The DVA has developed strategies to avoid potential lawsuits from a new class of litigants (the class of Blue Water Navy veterans); and strategies that bolster their denial in the legal battle of Haas v. Nicholson. The suppression of the existing data is being used by the DVA to provide more time to think up new strategies to continue the delay - and also to allow specific individuals and corporate entities to retire or expire with the passage of time. By doing to, they intend on ensuring they will never face the overwhelming liabilities that come with a pronouncement by the IOM that real, solid scientific and medical data exists which shows a direct relationship between Agent Orange and contamination of Blue Water Navy personnel.

From the perspective of the DVA, suppression of this data is a Win/Win situation. For the American Vietnam naval veteran, it is at best a ''carry on as usual" situation, which is more of the same long wait. As this wait continues, greater numbers of Vietnam veterans die off due to the Agent Orange poisonings that took place while they honorably served in the combat zone of Vietnam at the call from America between 1963 and 1974.

And the American public sits by, watching this and other absolutely unacceptable abuses of our veterans by the Department of Veterans Affairs. This is occurring on a daily basis at a level of severity never before seen in the history of this great nation.

www.bluewaternavy.org


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