VA denies most compensation claims from toxic water wells. Marine veterans left to their own resources.
(UPDATED OCTOBER 8, 2010)
(LOUISVILLE, KY) – Outside of the military, no corporation could avoid the huge liability for deaths and injuries from poisoned water wells. Camp Lejeune Marines who were injured by the base’s contaminated water wells are getting the shaft. The latest statistics from the VA’s Louisville office on Camp Lejeune’s disability compensation claims show an 84% denial rate for medical conditions claimed by veterans for Camp Lejeune’s contaminated water wells. Lejeune veterans and their dependents are covered for 15 medical conditions under current law but there is no provision for presumptive compensation to those injured. The political decision to go with the VA for presumptive medical care but not compensation and not demand that DOD provide its TRICARE health insurance to Lejeune Marines and dependents and civilian workers was a mistake (my view).
The Marine Corps (the polluter) passes the problem to the VA and gets away with it. The base wells were contaminated by the government (Marine Corps) for 30 years; the VA didn’t want to provide health care and was forced to cover 15 medical conditions by PL 112-154 (August 6, 2012); the VA consolidated the compensation claims from Lejeune veterans in Louisville to reduce the backlog of claims; and the VA, often hostile to veterans, is reducing its compensation claim by issuing denials. Why would the Lejeune veterans be treated differently?
The statistics from the VA’s Louisville office on Camp Lejeune’s disability compensation claims show an 84% denial rate for medical conditions claimed by veterans for Camp Lejeune’s contaminated water wells.
According to a Congressional source, only 16% of Camp Lejeune’s claims for medical conditions linked to the contaminated water were approved by the VA’s Louisville office as of September 2012. The Louisville office approved 517 medical conditions out of 3,233.
On January 11, 2011, the VA established an office in Louisville to process all Camp Lejeune associated with the contaminated water wells. According to this directive, “As the ATSDR, which has been contracted by the Department of the Navy, continues to research the effects of exposure from this incident, VA must be prepared to evaluate claims based on such exposure in a consistent manner. By centralizing jurisdiction to the Louisville RO, VA enhances its ability to process these claims efficiently and consistently.”
We don’t know the reasons for the high rate of denials. By establishing an office dedicated to processing Camp Lejeune compensation claims, the VA’s Louisville personnel should be more knowledgeable about Lejeune’s contaminated well water than the Regional Offices
The unanswered question is the VA looking for reasons to deny these claims and simply processing denials faster to avoid complaints about backlogs?
For example, lung cancer is linked to cigarette smoking as well as exposure to organic solvents. At one time, cigarettes were included in rations and Marines were not discouraged to quit smoking. It follows that veterans who don’t deny smoking and have lung cancer would be at some high risk of denial. That may explain some of the denials; other claims without medical nexus opinions are candidates for denial. At some point, the VA will have to brief Congress on the efforts of the Louisville office, including the claims processed, approved and denied and the reasons for the denials.
The same Congressional source provided information for Lejeune dependents and civilian workers and their dependents that lived on the base during the 30 year period (1957-1987) when the base water was contaminated with volatile organic compounds, including benzene, vinyl chloride, tetrachloroethylene (PCE) and trichloroethylene (TCE).
CIVILIAN WORKERS ARE ‘OUT OF LUCK’
Civilian workers and dependents that lived with them at Camp Lejeune during the period 1957 to 1987 are not covered by any existing Federal law. Civilian workers injured by the contaminated water are ‘out of luck.’ Workers and dependents can file Federal tort claims but the Navy is sitting on all Camp Lejeune tort claims, possibly awaiting the results of ATSDR scientific studies. The Congressional source said that: “At this time, DOL [Department of Labor] cannot cover civilian [workers] dependents and children per the statute they operate under. I don’t know if any of that would change in the future if Congress decided to take it up.”
With regard to health insurance, this same source recommended that no dependents cancel health insurance since “VA hasn’t clarified the conditions or financial limitations for VA to be payer of last resort. Cancelling insurance is not something anyone should do as we don’t yet know if just having insurance, even if it was inadequate, would disqualify someone from getting VA to pay for care.”
In December 2010, Barbara Barrett, reporting for the McClatchy Newspapers, “VA takes steps to deal with mounting Lejeune water claims” wrote that, “VA would train a specialized workforce in Louisville to handle disability compensation claims related to the base’s contaminated water wells.
According to Barrett, the “move is more than bureaucratic; it could prove significant to Marine veterans across the country who are suffering from cancers and other diseases that they think are related to the poisonous chemicals that flowed through Lejeune’s water from the mid-1950s to the mid-1980s.”
The facts are the Louisville office has been a significant development for Lejeune veterans and the VA. But, not one in favor of Marine veterans.
The VA is reducing its backlog of claims, denying most of them.
Lejeune veterans can access the VA for health care for 15 medical conditions associated with the contaminated water wells but the P.L. 112-154, “The Janey Ensminger Act” does not provide for presumptive compensation.
The government has the tools to alert veterans and the Veterans Service Organizations to the information on the contaminants and their health effects from the EPA Superfund database. There’s no rational explanation of not to share with information with veterans.
Besides Camp Lejeune, there are 129 other military installations on the EPA Superfund database. With sole exception of Camp Lejeune, no veterans were notified by the DOD of their possible exposure to toxic chemicals and their health effects.
Just like mushrooms, most of us are kept in the dark and left to our own resources to pay for medical care.
PRESSURE TO CLEAN-UP THE BACKLOG
In her article, Barbara Barrett with McClatchy Newspapers suggests that the establishment of a Louisville office was significant to Marine veterans across the country suffering from cancers and other diseases believed to be connected to the poisonous chemicals in Camp Lejeune’s water from the mid-1950s to the mid-1980s.
“Great. Great!” Marine veteran Peter Devereaux of North Andover, Mass., said when he heard about the VA’s decision. “It seems they’re stepping up and trying to take control.
Devereaux, 48, suffers from a terminal form of male breast cancer. It took him two years to finally earn service-connected disability benefits in August, and all along the way, he said, he had to explain the Lejeune water problems to VA officials.
“It felt like I had to beg,” he said. “You try to be a man. You know, I served my country. The last thing you want to say 20 years later is, ‘I need benefits.’ ”
McClatchy reported in June 2010 that the VA’s decisions on Lejeune-related claims appeared uneven, and they varied for Marines across the country. That led to questions from Congress about whether the VA was doing enough to track cases related to the contamination. Devereaux was among those who testified on the issue.”
The numbers exposed to Lejeune’s contaminated water over 30 years range from 500,000 to as many as 1,000,000 people — civilian workers, Marines and their family members — are thought to have been exposed to the contaminated water at Camp Lejeune. These are at best rough estimates of the population exposed to the contaminants. More than 160,000 have registered with the Marine Corps to learn more about the case.
From the mid-1950s to the mid-1980s, water wells at Lejeune were poisoned with trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, vinyl chloride and other volatile organic chemicals. The wells were shuttered in the mid-’80s, but many Marine veterans and their families had no idea of the contamination until Congress required the military to notify them beginning in 2008.
In recent years, the growing amount of public awareness over the dangers of the North Carolina base’s water and the fact that Marine Corps’ officials were caught in the falsification of reports of benzene levels connected to the Hadnot Point fuel storage area, led to more questions from public officials.
Under pressure from media and politicians in the state of North Carolina, the Defense Department had to come clean and step up to the plate of responsibility that they have tried very hard to avoid.
The Marine Corps and the Navy had previously acknowledged that the water was causing problems, and they blamed it on PCE (perchloroethylene) from an off-base dry cleaner.
Then, the Department of Defense assembled a panel of scientists and they shocked Marine families by announcing that all previous research connecting Camp Lejeune’s water to the various illnesses was null and void, no good, kaput.
Tim King’s article in Salem-News.com at the time, “National Research Council on TCE Kicks U.S. Marines to the Curb,” essentially screamed over the ridiculous turn of events.
As time passed, the revelation of the benzene lies surfaced; the NRC (National Research Council) findings were demonstrated to be without merit, and any hope the Corps had of being able to maintain the lie vanished like think air; transparency induction.
SUCCESS WITH REDUCING THE BACKLOG
There’s no question that the Louisville’s office is reducing the backlog of Camp Lejeune claims. But backlogs of pending claims can be reduced by quick denials, too. If the veteran does not appeal, then the claim dies.
Does the Louisville office have orders to take a ‘hard look’ at Camp Lejeune claims or has the VA Louisville staff making better decision (mostly denials) then the VA Regional offices?
Camp Lejeune veterans need to know that disability compensation claims filed without medical nexus opinion linking current medical conditions to the contaminated water and without supporting medical documentation are going to be denied. .
No Lejeune veteran should file a VA disability claim without help from an experienced Veteran Service Office (VSO).
For about $12, veterans can purchase a paperback copy of John Roche’s The Veteran’s Survival Guide. Roche, former Marine and retired U.S. Air Force Major, worked for the VA as a claims specialist in Florida. His advice is excellent; the man knows what he is talking about.
Lung cancer—one of the medical conditions associated with Lejeune’s contaminated water—can be caused by cigarette smoking as well as exposure to organic solvents. At one time, cigarettes were included in rations to Marines. It follows that veterans who don’t deny smoking and have lung cancer would be at high risk of denial. That may explain some of the denials. Inadequate medical documentation supporting a current medical condition will cause a VA claim to denied, too.
At some point, the VA will have to brief Congress on the efforts of the Louisville office, including data on the claims processed, approved and denied. The reasons for the denials then should be make known to all.
Unlike Vietnam veterans exposed to Agent Orange, there is no presumptive compensation disability for Camp Lejeune veterans. Veterans’ compensation claims must still be supported by medical documentation and a medical nexus opinion that states the veteran’s medical condition(s) is “at least as likely as not” due to military service.
ARGUMENT FOR PRESUMPTIVE DISABILITY COMPENSATION
There are solid legal arguments for awarding presumptive disability to Camp Lejeune veterans. Earlier this year, Tim King and I co-authored BETRAYAL: Toxic Exposure of U.S. Marines, Murder, & Government Cover-up. The book is based on 100+ news stories published on Salem-News.com from 2008 to date and includes the legal argument for full presumptive disability for Camp Lejeune veterans written by Lin Allison, an attorney from California and spouse of a Marine veteran. Allison Lin is a 2012 graduate of Chapman University’s School of Law. Her legal argument for presumptive disability was published in the January 2012 Veterans Law Review while she was completing her third year of law school.
Congress is not going to wake-up tomorrow morning and realize the necessity of approving presumptive disability compensation for veterans and their dependents exposed to toxic chemicals at Camp Lejeune.
The long fight for health care by Camp Lejeune veterans, dependents and civilian workers resulted in President Obama signing into law in August 2012 “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012.”
Public Law 112-154 provides health care to Camp Lejeune veterans and their dependents for fifteen medical conditions for those at Lejeune for at least 30 days during the period 1957 to 1987. Civilian workers are not covered. Lejeune dependents that drank, cooked, bath, and swam in the contaminated water have access to VA health care but only as a payer of last resort.
Unlike Vietnam veterans exposed to Agent Orange, Camp Lejeune veterans have no entitlement to disability compensation under the law. The law specifically states that there is no scientific evidence that the approved medical conditions were caused by the contaminated well water. Despite this, as early as 2001, EPA reported TCE exposure associated with neurotoxicity, immunotoxicity, developmental toxicity, liver toxicity, kidney toxicity, endocrine effects, and several forms of cancer.
For dependents and civilian workers who have filed Federal tort claims for injuries and deaths, this leaves them in a tenuous situation. The Navy JAG continues to sit on their claims but they have the right to peruse suit in Federal district court if they can secure the services of an attorney to represent them in what has to be a dubious outcome. This assumes that they have the money to pay for attorney fees or an attorney is willing to take the case on a contingency fee basis.
Many Lejeune veterans are now caught in a ‘Catch 22’ dilemma. To obtain disability compensation, they must file a direct VA disability and compensation claim, which requires them to secure a medical nexus opinion from a medical care provider that their cancers or other medical conditions “is as least as likely as not” due to military service. A major hurdle is that doctors are often reluctant to provide an opinion supporting a VA disability claim for toxic exposure. For disability compensation claims, the law requires that the VA be provided with evidence of exposure, medical records supporting the injury or illness, and a nexus statement from a medical care provider linking the injury or illness to military service. Some of this documentation may not be available to the veteran who is now seriously ill, out of work, and short of cash.
The latency period between exposures to cancer causing chemicals are usually 15 to 20 years or longer, according to the Centers for Disease Control and Prevention (CDC). After separation from the Marines, was the veteran exposed to toxic chemicals in his/her work? Was the veteran a heavy smoker? Is there a family history of a claimed medical condition?
The result too often is a denial of compensation benefits from the VA. The injured veteran and dependents are left to fend on their own. For those who served this nation honorably and through no fault of their own were exposed to toxic chemicals, this is a tragedy beyond description.
Here is the letter of January 11, 2011, to all VA Regional Offices and Centers:
DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420
January 11, 2011
Director (00/21) In Reply Refer To: 211A
All VA Regional Offices and Centers Fast Letter 11-03
SUBJ: Consolidation and Processing of Disability Claims
Based on Exposure to Contaminated Drinking Water at Camp Lejeune, North Carolina
The purpose of this letter is to inform all Regional Offices and Centers (ROs) that all disability claims and appeals based on exposure to contaminated water at Marine Corps Base Camp Lejeune, North Carolina, will be processed at the Louisville RO. This includes claims currently under appeal located at the Appeals Management Center (AMC), Pension Management Centers (PMCs), and Appeals Resource Centers (ARCs). All Camp Lejeune-related claims associated with paperless claims folders will remain at the Winston-Salem and Salt Lake ROs. This letter will describe procedures for transferring cases to the Louisville RO and guidance for processing these claims.
From 1957 through 1987, persons residing or working at the U.S. Marine Corps Base Camp Lejeune, North Carolina, were potentially exposed to drinking water contaminated with volatile organic compounds, including benzene, vinyl chloride, tetrachloroethylene (PCE) and TCE (TCE). Claims based on service at Camp Lejeune involve potentially complex issues of exposure and causation, and VA remains concerned about the potential for harmful effects associated with past exposure to the contaminated water supply. As the ATSDR, which has been contracted by the Department of the Navy, continues to research the effects of exposure from this incident, VA must be prepared to evaluate claims based on such exposure in a consistent manner. By centralizing jurisdiction to the Louisville RO, VA enhances its ability to process these claims efficiently and consistently.
Training Letter 10-03 dated April 26, 2010, informed ROs of various environmental hazards, including the Camp Lejeune incident, and provided specific guidance on handling claims based on exposure to contaminated water at Camp Lejeune. The training letter guidance remains in effect and should be referenced along with this fast letter when adjudicating these types of claims.
ACTIONS BY OFFICE OF ORIGINAL JURISDICTION (OOJ)
Effective immediately, all claims folders with pending claims or appeals based on water contamination at Camp Lejeune will be Permanently Transferred Out (PTOed) to the Louisville RO. This includes claims and/or appeals from the AMC, PMCs, and ARCs, if they include at least one Camp Lejeune-related issue. Pending claims are to be identified by the MAP-D special issue, “Environmental Hazard – Camp Lejeune.” Do not transfer claims where no disability is specifically alleged, e.g. a claim stating “Camp Lejeune” or “exposure at Camp Lejeune”. Follow the procedures in M21-1MR Part I, Chapter 1, Section B.3. If a disability is subsequently identified, then the claims folder is to be PTOed to Louisville. Additionally, do not transfer claims alleging disability of dependents, including birth defects, as VA has no statutory authority to compensate dependents of Veterans exposed to the water contamination. These claims are to be processed under the procedures at Part III, Subpart ii, Chapter 7.2.b.
Claims received prior to installation of the special issue identifier in MAP-D in October 2010 cannot be identified through VETSNET Operations Reports (VOR). For this reason, all employees should be on the alert for these cases including appeals from previous denials based on Camp Lejeune water contamination.
Take no further actions on existing claims or appeals prior to PTOing the file, unless non-Camp Lejeune issues associated with the file can be resolved immediately, (e.g., GAP an Award and release letter).
Backfile the enclosed FLASH notice in the center section of the claims folder prior to shipment. See Enclosure A. The OOJ will notify the claimant that his or her claims folder is being transferred to the Louisville RO. The enclosed letter is to be used for this purpose. See Enclosure B.
Continue the end product controlling the Camp Lejeune issue and any other claimed issues when the claims folder is PTOed.
For all future Camp Lejeune-related claims, the OOJ will establish the appropriate end product and immediately PTO the claims folder to the Louisville RO. Do not initiate development of these cases prior to transfer. Also, applications for benefits that do not meet the requirements of a substantially complete claim should not be PTOed, (i.e., those applications that do not identify an actual claimed condition as a result of exposure to the water contamination).
The Louisville RO has established a separate PO Box for all corresponding mail. Send all mail that needs to be associated with a Camp Lejeune claims folder to the following address (This PO Box address is also provided to claimants in the attached notification of transfer letter):
Department of Veterans Affairs
Louisville Regional Office
ATTN: CLCW Team
PO Box 2648
Louisville, KY 40201-2648
Actions by Louisville RO
Following receipt of claims folders, the Louisville RO will update COVERS and conduct a comprehensive review of the case to determine what actions are required. All actions should be taken expeditiously. When it is necessary to send the claimant a VCAA notice letter, include language requesting the dates of service for the Veteran at Camp Lejeune, (i.e., month and year of arrival and departure), and where the Veteran lived (on-base or off-base) and worked on base. Autotext the request for this information into the notice letter.
Compensation and Pension (C&P) Service recently developed an “Environmental Hazard – Camp Lejeune” special issue under the MAP-D contentions screen. It is imperative that all claimed issues based on the Camp Lejeune incident are correctly identified using this specific MAP-D special issue. To ensure conditions are identified on the coded rating conclusion, a special issue for RBA 2000 will be installed in the February 2011 coordinated install. When processing Camp Lejeune claims, a Corporate “Camp Lejeune” Flash should be placed on every Veteran ’s record with verified service at Camp Lejeune during any period between 1957 and 1987.
Establish EP 685 in addition to the standard EP for all Camp Lejeune contaminated water appeals.
The Louisville RO will assume responsibility for processing all pending issues and appeals (including both Camp Lejeune and non-Camp Lejeune claims and appeals) until all Camp Lejeune-related issues are finalized and the folder is PTOed back to the OOJ. For purposes of this fast letter, a finalized claim is one in which a decision has been completed and no appeal has been received within the one-year appeal period. The Louisville RO will assume jurisdiction for any appeals received on Camp Lejeune claims and all other non-Camp Lejeune claims and/or appeals received during the one-year appeal period.
Because a special issue identifier for Camp Lejeune conditions cannot be immediately added to RBA 2000, the Louisville RO is to establish a database containing the following information on all completed Camp Lejeune cases:
OOJ (RO Station Number)
Specific claimed conditions due to exposure to contaminated drinking water
Whether the condition(s) was granted or denied
If denied, state reason (e.g., no exposure, no current disability, no nexus)
Claims Processing Policies and Procedures
Training Letter 10-03 provides guidance on handling claims for disabilities potentially resulting from exposure to drinking water contamination at Camp Lejeune. C&P Service is currently drafting a new training letter specific to the Camp Lejeune exposure that will provide updated guidance. It is imperative that VA examination and medical opinion requests include a discussion of the facts and circumstances surrounding the claim. The Camp Lejeune fact sheet must accompany the claims folder to the VHA facility. Any details such as date, location, and length of time on Camp Lejeune, medical, occupational, and environmental exposure history, and any other pertinent facts, should be made available to the examiner. Any noteworthy evidence should be brought to the examiner’s attention by including it in the remarks section of the examination request and flagging the appropriate item in the claims folder. C&P Service provided training to the Louisville RO Staff on December 21, 2010, to ensure consistency of application of Training Letter 10-03 and to address other concerns as needed.
The Veterans Health Administration leadership will ensure clinicians receive training and guidance on conducting C&P examinations and rendering medical opinions for disabilities based on exposure to water contamination at Camp Lejeune.
If you have questions concerning this fast letter, please submit to: VAVBAWAS/CO/211/ENVIRO.
Points of Contact at the Louisville RO are:
Primary POC: Laura Kuerzi-Rogers, VSCM
Technical POC: Ellen Bauer, DRO
The Office of Field Operations POC is: Adam Kinder
Thomas J. Murphy
Compensation and Pension Service