Part II: Environmental Exposure Claims and Senate Bill S.3378

Based on scientific advisory board’s recommendations, S.3378 would  provide health care for those injured by environmental hazards in the military. . 

Photo from Jim Fontella Courtesy: CNN

(WASHINGTON D.C.) – Most Americans would agree that those injured in the military are entitled to health care to heal their bodies.

For those injured by exposure to radiation or toxic chemicals, the latency in the onset of disease can take years after separation from the military.

Even if a veteran can “connect the dots,” it may be virtually impossible to prove service connection or, at the very least, a costly effort to meet the “at least as likely as not” threshold required by the VA.

Senator Daniel Akaka, (D, HI), Chairman of the Senate Veterans’ Affairs Committee, sponsored S.3378, requiring scientific evaluation of environmental exposure claims. However, like most bills, ‘the devil’ is in the details.

On January 28th, the Senate Veterans’ Affairs Committee voted 9 to 5 along party lines in favor of the bill. The bill was posted to the Senate Legislative Calendar last week.

If environmental exposures are substantiated by scientists, veterans and their dependents would be eligible for government health care. Hold up on cashing your checks. The final decision would be made by DOD and the VA.

The actual award of benefits would be made by DOD and VA, provided they agree with the proposed Advisory Board’s recommendation. For a copy of the bill, see frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3378pcs.txt.pdf

The bill does not provide for a monthly compensation award, only government health care. Veterans with current disabilities linked to environmental exposures would still be required to file VA disability and compensation claims under Title 38.

Even so, for many veterans and their families injured from contaminants and out of work, access to health care may be literally a life saver.

The Committee Report for the bill states that the intent is to review a ‘specific cohort’ of people at a military installation, and not to ‘adjudicate’ individual claims.

Even if the bill becomes law, hold up on putting together an individual claim; the bill’s focus is looking at potential environmental exposures at a military installation or an area within an installation.

Based on the 130 military bases on the National Priority List (EPA Superfund), there’s more than enough work for a group of independent scientists authorized by this bill.

The idea is that a group of independent scientists would provide a fairer approach to determining health care benefits or compensation then the current piecemeal system. At least that’s the theory and the stated hope of the Senator Akaka and the Senate Veterans’ Affairs Committee.

Unfortunately, the bill limits the scientists to an information gathering role, leaving the DOD and VA to make the health benefit award decision. If you believe that DOD and the VA will make these decisions on the scientific merits only, you are more naïve than me.

Military Exposure Claims

The bill defines a ‘military exposure’ as exposure of an individual to an environmental hazard on a military installation, except for an installation where imminent danger pay is authorized. For example, exposures to chemicals, radiation and environmental hazards in a war or conflict zone (e.g., Iraqi and Afghanistan) are not covered by this bill.

Advisory Board and Science Advisory Panel

The Advisory Board’s mission is “to consider and study cases of exposure” of current and former military and their dependents to potential environmental hazards at military installations.

The bill provides authority to the Secretary of Defense and the Secretary of Veterans Affairs to jointly establish the ‘Advisory Board on Military Exposures.’

The requirements are: 2 members are from Veteran Service Organizations, 2 from federal agencies other than DOD and the VA and the remaining 3 must be scientists with backgrounds in environmental exposure or environmental exposure assessments, health monitoring, or other relevant fields. Board members serve for 3 year terms, but not longer than 6 total years.

The ‘grunt work’ of the Advisory Board will likely be done by its Science Advisory Panel, a group of 7 scientists with backgrounds in environmental exposure or environmental exposure assessment, health monitoring, other relevant fields.

The Advisory Board and the Science Advisory Panel have subpoena authority to require testimony of witnesses. They will need it. A great deal if not most of the information on environmental hazards on military installations is resident in DOD databases or in dusty file cabinets.

In commenting on DOD’s response to the Committee’s hearing on Camp Lejeune’s water wells, Senator Akaka noted that, “elements in the Department of Defense have been less than forthcoming.”

There’s no reason to expect DOD to ‘roll over’ and fully cooperate with a group of independent scientists. You can get better odds in playing blackjack. The subpoena authority will be an especially useful too.

Independence Required

For this process to work equitably, the Advisory Board and the Science Advisory Panel must be independent of influence from DOD, the VA, and industry.

DOD and the VA have input into the 3 scientists on the Advisory Board. You can be assured that these scientists will have a friendly track record with these agencies, especially DOD. The Advisory Board, in turn, selects the 7 scientists on the Science Advisory Panel. Unless some special efforts are taken to ensure independence, all or the majority of the scientists could easily have a bias towards DOD.

The bill requires that the Advisory Board be appointed by the President in consultation with DOD and the VA. DOD and VA officials are specifically excluded from membership. However, the major drawback is that DOD and the VA jointly establish the Advisory Board and are actively involved in the selection of the Advisory Board’s membership. It’s obvious that the personnel recommended to the President by DOD and the VA will be supportive of their interests.

Executive Director

The bill requires that the Executive Director of the Advisory Board be a civilian employee of DOD. This provision is highly questionable. DOD’s hostility to accepting responsibility for the health effects of environmental exposures was demonstrated in the recent Senate Veterans Affairs Committee’s hearings. There’s no critical need for this person to be a DOD employee and specifically excluding employees of DOD and VA from this position helps to reinforce the independence of the Advisory Board and just makes good common sense. Why ask for trouble?

Findings Should be Mandatory

The Advisory Board can only make recommendations to the VA and DOD to provide health care benefits. The bill gives authority to approve federal health benefits to the VA and DOD.

Limiting the authority of the Advisory Board to an information gathering role puts DOD and VA in the driver’s seat. This may not be comparable to the fox in the hen house, but it’s a close second.

The decision to provide health care benefits to injured veterans and their dependents should be a fair and impartial one—one that is solely based on scientific evidence. Not political clout or budgetary constraints.

The Congressional Budget Office estimated that 20,000 former Lejeune and Atsugi personnel would be approved for health benefits (out of a population of 675,000). CBO estimated an additional 100,000 claims approved by the year 2020 for the remaining military installations.

The Committee report questioned CBO’s estimates and made special mention that the role of the Advisory Board is to gather information only, not to make awards. The Advisory Board “has no power to provide benefits—health care or monetary—to any individual.”

In my opinion, the CBO had it right, even though they misread the bill.

Military Bases on EPA Superfund

There are 130 military bases on the EPA National Priority List (EPA Superfund). These bases are among the most toxic and hazardous sites in the country. Most if not all of these bases should be candidates for evaluation by the Advisory Board.

The widespread use of chemicals needed to support the military mission (e.g., jet fuels and degreasers like TCE), unsafe disposal practices, and failure to use personal protective clothing and equipment have lead to environmental contamination and unnecessary human suffering.

EPA’s Superfund database lists the Contaminants of Concern (COC) for all of the 130 military bases on the NPL and the potential health effects of exposure to them. EPA defines COCs as chemical substances which pose an unacceptable risk to human health or the environment.

Under the bill, individuals would be eligible for government health care or compensation whenever the Advisory Board finds that they “were exposed to sufficient amounts of environmental hazards to warrant health care or compensation.”

The fact that EPA identified substances which pose an unacceptable risk to human health on a military installation does not give a veteran or dependent a free pass to health care or compensation.

If this were the case, every veteran and dependent with service on an EPA Superfund site would automatically be eligible for health care or compensation. The key factor is evidence of exposure.

Dermal contact, ingestion, and inhalation are the three routes of exposure to contamination. Evaluation by scientists with backgrounds in environmental exposure or environmental exposure assessment, health monitoring or other relevant field would be required to determine whether health effects experienced by individuals are linked to military service. It makes sense that the work of these scientists be the basis for rejection or approval of health benefits. The bill gets an “A” for relying on scientists to evaluate the potential exposures but a “F” for passing the decision to DOD (the polluter) and the VA.

Millions were spent and continue to be spent by DOD in remediation work at EPA Superfund bases. There is no requirement to notify veterans and their dependents of the environmental hazards they may have been exposed to and the health effects. Most veterans are frankly in the dark, unable “to connect the dots” of their illnesses to military service.

There is no provision in the bill to notify veterans of any of the EPA Superfund bases of the contaminants (read “environmental hazards”) they may have been potentially exposed to and their health effects.

Based on my limited review, I found this information available from the EPA Superfund database, which links contaminants to health effects on the ATSDR database.

It’s not a secret, but our government has not gone out of its way to inform individuals of the harmful contaminants they may have been exposed to. For one, this information would be useful to a medical care provider and may be a critical life saving piece of data. Why not pass the information on to the veterans’ service organizations, asking them to alert their memberships?

For the very few veterans who have managed to “connect the dots of military service to illnesses,” it is an expensive and uphill fight to obtain government health benefits and compensation. For their dependents, the outcome is even bleaker. The only option for a dependent is to file a Federal Tort Claim. There’s no data on the number of tort claims filed by dependents, but you can bet, it’s unlikely to be many. If you’re in doubt, search the internet for a copy of SF-95. If you like doing income taxes, you’ll love this form.

For a list of the EPA Superfund bases and links to the health effects of contaminants identified by the Agency for Toxic Substances Disease Registry (ATSDR), see veteranstoday.com/2009/05/16/epa-superfunds-veterans-at-risk/

The bill’s focus on scientific evaluation of environmental hazards on military installations is an excellent start. However, using scientists to gather the information and make the evaluations but not made the award decisions is a mistake.

By limiting the Advisory Board’s role to information gathering, the bill, in my opinion, misses the target. The real decision makers are DOD and VA and they have shown little willingness to support health care for those affected by environmental exposures.

As a veteran, I’d like to see changes in the bill to ensure the independence of the Advisory Board and its scientists and to require that DOD and VA accept it’s findings.

If you agree with me, why not write your Senators?

Robert O'Dowd

Robert O’Dowd served in the 1st, 3rd and 4th Marine Aircraft Wings during 52 months of active duty in the 1960s. While at MCAS El Toro for two years, O’Dowd worked and slept in a Radium 226 contaminated work space in Hangar 296 in MWSG-37, the most industrialized and contaminated acreage on the base.

Robert is a two time cancer survivor and disabled veteran. Robert graduated from Temple University in 1973 with a bachelor’s of business administration, majoring in accounting, and worked with a number of federal agencies, including the EPA Office of Inspector General and the Defense Logistics Agency.

After retiring from the Department of Defense, he teamed up with Tim King of Salem-News.com to write about the environmental contamination at two Marine Corps bases (MCAS El Toro and MCB Camp Lejeune), the use of El Toro to ship weapons to the Contras and cocaine into the US on CIA proprietary aircraft, and the murder of Marine Colonel James E. Sabow and others who were a threat to blow the whistle on the illegal narcotrafficking activity. O’Dowd and King co-authored BETRAYAL: Toxic Exposure of U.S. Marines, Murder and Government Cover-Up. The book is available as a soft cover copy and eBook from Amazon.com. See: http://www.amazon.com/Betrayal-Exposure-Marines-Government-Cover-Up/dp/1502340003.