September 25, 2019
Chairman Isakson, Ranking Member Tester, and distinguished members of the committee; On behalf of National Commander James W. "Bill" Oxford, and the nearly 2million members of The American Legion, thank you for inviting The American Legion to submit the followingtestimony on“ToxicExposureandExaminingthePresumptiveDisability Decision-MakingProcess.”
The American Legion has long been at the forefront of advocacy for veterans who have beenexposed to environmental hazards such as Agent Orange, Gulf War-related hazards, ionizingradiation, the various chemicals and agents used during Project Shipboard Hazard and Defense(SHAD), and contaminated groundwater at Camp Lejeune. The American Legion continues tourgethestudyofallenvironmentalhazardsandtheirlong-termeffectstheyhaveonourservicemembers,veterans, and theirfamilies.
The effects of the often dangerous environments in which servicemembers operate is a topconcern of The American Legion, as thousands of veterans who are or have been exposed tovarious toxins are often left behind when it comes to vital treatments and benefits. The AmericanLegion remains committed to ensuring that all veterans who served in areas of exposure receiverecognitionand treatment forconditions linked to environmentalexposures.
To this end, The American Legion has been meeting with the newly formed veteran and militarytoxic exposure working group called the Toxic Exposure in the American Military (TEAM)coalition,whichincludes15+VeteranServiceOrganizations(VSO)andMilitaryServiceOrganizations (MSO) all addressing toxic exposure issues. Currently, the members of TEAMinclude, Wounded Warrior Project, BurnPit360, Cease Fire Campaign, Hunter Seven, Iraq andAfghanistan Veterans of America, Military Officers Association of America, Tragedy AssistanceProgram for Survivors, Veteran Warriors, Vietnam Veterans of America, Enlisted Association oftheNationalGuardoftheUnitedStates,CaliforniaCommunitiesAgainstToxics,NationalVeteransLegal ServicesProgram, Vets First,andtheDixon Center.
Our advocacy alsoincludesthe filing of anOctober 15,2018amicusbrief inthe case ofProcopio v. Wilkie. On January 29, 2019, the U.S. Court of Appeals for the Federal CircuithandedamajorvictoryforBlueWaterNavyveteransintheirlongfightforDepartmentof
Veterans Affairs (VA) benefits to treat illnesses linked to exposure to Agent Orange during theVietnam War.1
---Shouldblue-waterNavy veteransbepresumedtohavebeenexposedtoAgentOrangeandawarded benefits for conditions presumptivelyrelated toexposure?)
2. What is the interaction between the Chevroncanon thatcourts defer to agencies ininterpreting statutes andthe Gardnercanon thatveterans benefits statutes areto beliberally construed in favor of veterans? (i.e. --- When a veterans benefits statute isunclear,dothecourtsgenerallyhavetoaccept VA’sinterpretationofwhatit says?)
The Procopio decision rested on the plain meaning of Congress’s words in the 1991 AgentOrangeAct,specifically“theRepublicofVietnam.”Accordingtointernationallaw,“theRepublic of Vietnam” includes the territorial waters within twelve nautical miles of the coast.This reasoning convinced most of the judges; however, our brief alternatively argued that thepro-claimantcanon wouldresult in grantingthepresumption ofserviceconnection.
Because the court resolved the case without addressing our alternative argument, this testimonywill rehearse some of the argument and considerations in our amicus brief on the second issue,which has bearing on the topic being considered by the committee in this hearing. The AmericanLegionencouragesCongresstoreviewtheamicusbriefrecognizingthatcourtdecisionscommonlyinterpret congressional language.2
Inourbrief,TheAmericanLegionjoinedNavyveteranAlfredProcopioJr.inurgingtheCourtto reverse the judgment of the lower court. It supported his argument that the intent of Congressis clear in this matter. However, it believes that the simple application of the principle of veteran-friendly interpretation of step one of the traditional analysis from Chevron U.S.A., Inc. v. NRDC,467 U.S. 837, 842 (1984), misstates the long-established relationship between Congress and theVAonveteransissuesanddownplaystheinterpretiveprinciplethattheSupremeCourtreaffirmed after Chevron in cases such as King v. St. Vincent’s Hospital, 502 U.S. 215 (1991),andBrown v. Gardner, 513 U.S. 115(1994).
The American Legion agreed that the application of proper deference resolves any lingeringdoubt as to the interpretive issue here. However, this particular application of the Gardnerprincipletoaquestionofthescopeofsubstantiveentitlementservesanimportantroleincounterbalancing the null hypothesis of science that typically works against veterans whosedisabilities are related to service in hidden and complex ways. These are often difficult tounderstandonthetimescalesthatflesh-and-bloodveteransexperiencetheemploymentimpairmentand mortalitythatthesystem wasintendedto compensate.
Belatedly awarding benefits to Americans who served in Vietnam is small consolation to thosewho have lived a lifetime without proper compensation. The practical application of resolvinginterpretive doubt in favor of veterans often means erring on the side of supporting disabledveteransinneedwhiletheirlivescanstillbechanged,insteadofwaitingforascientificconsensus that might arrive—if ever—only after those who have borne the battle are no longeraroundto becaredfor.
One of the hallmarks of modern veteran disabilities is that invisible injuries can occur unnoticed,and often take years or decades to manifest as observable conditions. The general problem ofcaring for those harmed by exposures is a perpetual issue that will require constant attention dueto the lack of knowledge about the conditions at the time of exposure.Despite advances inmedicine and the ability to leverage big data, answers to complex issues of causation are stilldifficultto generate.
The null hypothesis in science often creates a gap in which veterans go uncompensated fordecadeswhileevidenceisdevelopedtoproveanassociationbetweentheirconditionsandharmful exposures in service. The most difficult foe for veterans is not uncaring governmentbureaucrats but the remorseless law of science known as the null hypothesis. This is the baselineassumptionthattwoobservedfactshavenorelationshiptoeachotheruntilaproperapplicationofthescientificmethod provides reliableevidence ofarelationship.
The development of this baseline was critical to overcoming ancient superstitions and developingthe scientific method as a reliable way to generate knowledge. Nonetheless, when applied to theproblem of providing benefits to veterans who were exposed to harmful agents in service, theresult is that the award of benefits often lags decades behind the experiences of veterans andsurvivorswho areaffected byservicebut cannot successfullyprovecausation.
Inevitably, whenever a new type of exposure affects veterans, some are at the front edge anddevelop problemsfirst.Basedupon theirexperiencein service, they mighthavean intuitionabout why they became sick. Typically, the first complaints are rejected based upon a “lack ofevidence” to support their suspicions. For example, it was 1977 when VA received the first claimasserting a condition was caused by Agent Orange. However, that was only the beginning of adecades-long struggle to obtain recognition of the harms caused by the use of herbicides. As of1988, VA recognized only the skin condition chloracne as related to Agent Orange and—eventhough it had received 150,000 claims for conditions related to Agent Orange exposure—it hadnot granted a single one.3Many of those most severely poisoned never lived to see their claimsvindicated.Manyothershavenowsuffered foryearswithout compensation.
(2001); see also Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed.Reg. 4,173 (Jan. 13, 2017) (recognizing service connection for conditions caused by exposure to contaminated waterfor themorethanthree decadesbetweenAugust1,1953,toDecember31, 1987).
Typically,benefitsarenotretroactivepriortothefilingofaclaim,butevenwhenlargeretroactive awards occur they still do not allow veterans to relive the years when they struggledwithout compensation.For example, veteranscannot retroactively choose to send their childrento college without compensation. Veterans make endless choices about employment, retirement,health care treatment, and living circumstances that cannot be reversed decades later. Even whenlostincomeis fullyreplaced, alost lifetimeofopportunitycannot be.
The application ofGardnerto issuessuchasthisone serves—atleastin a smallway—tomitigate the effects of the null hypothesis. Initially, it always operates to cause the system to erron the side of denying benefits. However,once evidence becomes sufficient togenerate actionbyCongress,liberallyinterpretingbenefitsisanappropriatewayoferringonthesideofcompensationwhen thesystem hasalonghistoryofgoingin theopposite direction.
In fact, there is no guarantee that science will ever be able to fully resolve the uncertaintiesinvolved in any issue.4Therefore, some approach is required to deal with scientific uncertainty,recognizing that any approach carries a risk that it might be someday be judged as wanting inretrospect. Consistent with Gardner and the history of interpreting veterans benefits statutes, theproper approach is to resolve lingering uncertainty in favor of veterans, within the bounds of thebenefits authorized by Congress, rather than wait for certainty that might never come whileveteranscontinueto sufferand die.
Additionally, rare conditions present additional difficulties. As Judge Newman lamented in herdissentinBastienv.Shinseki,599F.3d1301(Fed.Cir.2010),thesystemisill-equippedtohandle rare conditions for which it is unlikely that there will ever be enough data to determinecausation with scientific certainty, id. at 1307-08 (Newman, J., dissenting). Combining all theseuncertainties into a single, binary determination under the benefit of the doubt is a problem hasnever been squarely addressed. The correlation between the rare lung disease obliterative orconstrictive bronchiolitis and exposure to open air burn pits used in Iraq and Afghanistan is justone example of where causation may not have been determined asyet, but the volume ofcorrelative evidence is fairly clear and mounting as veterans of the last 18 years of war arebeginning to seek help.5If VA would empirically study the sample of veterans who have self-identified as having exposure symptoms in its own Airborne Hazards and Burn Pit Registry (with165,000 registered thus far), perhaps causation and trends could be identified from the collecteddata.
Fortunately, the veterans benefits system is not based upon the scientific gold standard of ninety-five-percent confidence that an observed effect is real and not simply a random variation within asmall sample. The paternalistic system is willing to act in the face of more uncertainty than thatwithwhichscientistsarecomfortable.CourtscannotchangethestandardsestablishedbyCongress,they canapplyinterpretivedoubtliberallyinfavorofveterans,asapartialbridgeover
TREATMENT FOR CHRONIC MULTISYMPTOM ILLNESS 1 (2010).(“Despite considerable efforts byresearchersintheUnitedStatesandelsewhere,thereisnoconsensusamongphysicians,researchers,andothersastothe cause of C[hronic] M[ultisymptom] I[llness]. There is a growing belief that no specific causal factor or agentwillbe identified.” (emphasisadded)).
the gap between differences in how the legal and the scientific worlds handle uncertainty. Thisdynamic, specifically the way in which the laws it writes are interpreted, is something Congressmustconsideras thepresumptivedisabilitydecision-makingprocess is reviewed.
In 2017, Secretary Shulkin was considering recommending “bladder cancer, hypothyroidism andParkinson-like symptoms” to the list of presumptive conditions linked to Agent Orange exposureas a result of a recently released Institute of Medicine study.6The consideration of adding theseconditions, some of which have not yet been implemented, comes nearly 50 years after the initialexposure and has resulted in some veterans suffering with these conditions for decades withoutthepropercompensation.
The American Legion has been the leading advocate for veterans exposed to Agent Orange sincethe first file was claimed in 1977. When VA failed to conduct congressionally-mandated studies,The American Legion commissioned its own study, not once, but twice.7 For over 40 years,Legionnaires have tirelessly advocated on behalf of those that were exposed to these herbicides,to include filing lawsuits in Federal District Court.8 We are proud to have contributed to theefforts to pass the long overdue Blue Water Navy Act this past summer, but it is imperative thatwe do not put the current generation of servicemembers and veterans through an equally painfulprocess.
We call on VA to empirically study the sample of 165,000 registrants of the Airborne Hazardsand Burn Pit Registry, all of whom served on or after 9/11, during operations Desert Shield andDesert Storm, or in the Southwest Asia theater of operations after August 2, 1990, and weredeployed to a base or station where open burnpits were used or wherepossible exposures totoxic substances occurred. It also makes sense to separate these eras of war in order to accuratelyassesscausation and trends in hazardous exposures.
As Congress considers implementing new procedures to deal with contemporary toxic exposureissueslikeburnpits,itiscrucialthatthelessonsofpreviousgenerationsaretakenintoconsideration. Due to the retrospective and ambiguous nature of this process, it is imperative thatthe presumptive disability decision-making processes, no matter what form they take, err on thesideoftheveteran.
The American Legion is thankful for the invitation to submit this statement for the record andstand ready to assist when needed on these issues and any others that may arise. For additionalinformation regarding this testimony, please contact Senior Legislative Associate Mr. JeffreySteeleat (202)firstname.lastname@example.org.
7 This study was known as The American Legion-Columbia University Vietnam Veteran Health Study.Approximately 12,000members were surveyed to better understand, among other things, the impacts of herbicidesexposure.