Detailed Summary

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Status of the Legislation

Latest Major Action: 5/19/2010: Senate committee/subcommittee actions. Status: Committee on Veterans' Affairs. Date of scheduled hearing. SR-418. 9:30 a.m.

Points Against

The VA published a Notice in the Federal Register and the following was their response to public comment. It pretty much explains the reasons this bill should be rejected. You can read the entire thing at the link provided:
http:edocket.access.gpo.gov/2007/E7-22983.htm

In any event they have determined there is no QUALIFIED evidence. Qualified is defined as �statistically significant, capable of replication and has withstood peer review.� The NRCET Study (Australian Study) is none of these. The evidentary requirements are defined by the Agent Orange Act of 1991 PL102-4: http:www7.nationalacademies.org/ocga/laws/PL102-4.asp

Too long to post here, read it yourself at the links provided

The Following excerpt is from the FR.

Several commenters suggested that rescission of the Manual M21-1 is inconsistent with scientific articles purportedly showing that herbicide exposure in offshore waters could have occurred by virtue of wind drift or consumption of drinking water distilled from estuarine waters. We make no change based on these comments for the reasons explained below. Several commenters cited the Australian study as proof that American military personnel on ships off the coast of Vietnam were exposed to herbicides in drinking water.

The Australian study assumed that ocean water near estuarine sources could contain dioxin if dioxin had been used over adjacent land. It then noted that Australian Navy boats distilled water, obtained primarily from locations near such estuarine sources, to use as drinking water. Based on these factual predicates, the study found that the distillation process used by those boats did not remove dioxin when dioxin was added to salt water and the distillation process was performed in a laboratory, but, instead, the distillation concentrated the dioxin level in the water.

The study was not peer reviewed or published and, to our knowledge, has never been cited in any subsequent reputable study concerning herbicide exposure. Even assuming that U.S. Navy ships used a distillation process to obtain drinking water from the ocean (VA has been unable to obtain official confirmation of this from the Department of Defense), VA's scientific experts have noted many problems with this study that caution against placing significant reliance on the study. In particular, the authors of the Australian study themselves noted that there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War.

Further, although distillation concentrated the dioxin level in the water, the concentrating effect was shown to depend upon the amount of sediment in the water, such that a large sediment level, consistent with estuarine waters, could significantly reduce the concentrating effect. Moreover, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. This is true even if we were to assume that a person drank only such distilled water and did so for an extended tour.

A few commenters cited other studies that discuss generally the nature of air and water pollution, the manner in which certain pesticides can be borne by the wind, and the effect of water-borne pesticides on marine life. None of these studies bears significantly on the specific question whether herbicides used, and as administered, by the U.S. military during the Vietnam Era could have been blown by the wind into the ocean, or into inland waters that then carried the chemical into the ocean, to reach a boat offshore and result in any significant risk of herbicide exposure. Similarly, the studies do not suggest that if those herbicides could have been so transported, they could then be transmitted through a distillation process (assuming that one was used by U.S. ships) into drinking water, and then consumed by military personnel in any measurable quantity. One study merely indicated that Agent Orange is carcinogenic, a fact that VA does not dispute. Further, even if the studies show that herbicide exposure in offshore waters is possible in some circumstances, they do not provide a basis for maintaining a provision construed by the Veterans Court to impose a broad presumption of herbicide exposure based on receipt of the Vietnam Service Medal (VSM).

The purpose of the presumption of herbicide exposure is to eliminate the need for case-by-case showings of exposure where there is a reasonable basis for presuming the fact. The possibility of exposure in certain circumstances of offshore service does not, in our view, establish a basis for presuming exposure in all circumstances involving offshore service or receipt of the VSM. In our view, the cited studies are of minimal relevance to the instant action for the additional reason that the M21-1 provisions were not intended to establish a substantive rule, but to implement the congressional intent underlying the statutory presumption of herbicide exposure in 38 U.S.C. 1116(f). The commenters do not suggest that Congress relied upon the cited studies in enacting Sec. 1116(f), but appear only to argue that the cited studies would independently support a presumption of herbicide exposure for veterans who served offshore. It is VA's policy not to issue substantive rules through its M21-1 manual or other internal documents, but through notice-and-comment rule making and subsequent codification in the Code of Federal Regulations. Because the Veterans Court's conclusion that the M21-1 provisions established a substantive rule is inconsistent with VA's intent in issuing the M21-1 provision, VA is rescinding the M21-1 provisions. As stated in the notice of proposed rule making, VA will shortly issue a proposed revision to its governing regulation, 38 CFR 3.307(a)(6)(iii), to clarify our interpretation of 38 U.S.C. 1116(f). The issue of whether and to what extent the cited studies bear upon the congressional intent underlying Sec. 1116(f) is most appropriately dealt with in the context of that rulemaking. Additionally, we note that many VSM recipients did not even serve on ships off the shore of Vietnam. The VSM was awarded to all members of the Armed Forces who served between July 3, 1965, and March 28, 1973, either: (1) in Vietnam and contiguous waters and airspace thereover; or

(2) in Thailand, Laos, or Cambodia, or airspace thereover, in direct support of operations in Vietnam. See Army Reg.

600-8-22, para. 2-13.). Clearly, the studies cited by commenters would not affect our decision as to veterans who served in Thailand, Laos, or Cambodia, or in airspace far above the jungles of Vietnam. If commenters relying on these studies believe the studies are relevant to the question whether Vietnam service should be extended to the waters off the shore of Vietnam, we direct readers to the revision of 38 CFR

3.307(a)(6)(iii), which we expect will be proposed before May 2008, and which will directly address the requirement of service on land in Vietnam. For the foregoing reasons, the Australian study and the other studies cited by commenters do not cause us to alter our decision to rescind the Manual M21-1 provisions. Similar to the above category of comments, several commenters argued that there is no scientific basis for VA to take the position that veterans who served on ships were not exposed to herbicides during that service. These comments misunderstand the nature of VA's action. This action would not result in a finding or presumption that veterans who served on ships were not exposed to herbicides; it would merely clarify that such veterans are not automatically presumed to have been exposed and that the issue of exposure must be resolved on a case-by- case basis to the same extent as most other factual issues involved in claims for VA benefits.

Comments Based on Personal Experience

The second group of comments received related the personal experiences of veterans who suffer from cancer and other ailments that can be caused by exposure to Agent Orange. While we are sympathetic to the needs of these veterans, Congress has been quite clear that VA cannot presume exposure to herbicides simply because a veteran has a disease linked to exposure to herbicides. Again, section 1116(f) states that a veteran with such a disease is presumed exposed only if he ``served in the Republic of Vietnam.'' To the extent that these commenters seek relief in their own individual cases, these comments are beyond the scope of this notice. The issue presented here is whether VA should rescind a Manual M21-1 provision that the Veterans Court misinterpreted as requiring VA to presume exposure for any veteran who received the VSM.

Do the math yourself folks. This Bill is just an excuse for a free go at the taxpayers wallet. In other words, a handout.

Points in Favor

Point # 1. The epidemiologic evidence itself supports a broader definition of service in Vietnam to serve as a surrogate for presumed exposure to Agent Orange or other herbicides sprayed in Vietnam. For instance, the Centers for Disease Control and Prevention, CDC-1990, study of selected cancers among Vietnam veterans found that the risk of the classic AO cancer, non-Hodgkins lymphoma was highest and most significant among Blue Water Navy veterans. More recently, the AFHS has demonstrated that TCDD concentrations in Vietnam-era veterans deployed to Southeast Asia, not just the Vietnam veteran Ranch Hand subjects, are generally higher than US background concentrations, although notably lower than in Ranch Hand sprayers themselves. Veterans and Agent Orange: Update 2008, http:www.nap.edu/catalog/12662.html, Chapter 10 Page 464, �¶6.

Point # 2. The evidence that this committee has reviewed makes a definition of Vietnam service limited to those who set foot on Vietnamese soil seem inappropriate. The ongoing series of hearings and appeals in the US Court of Appeals for Veterans Claims (Haas v. Nicholson) reflect this controversy. As discussed in Chapter 3, there is little reason to believe that exposure of US military personnel to the herbicides sprayed in Vietnam was limited to those who actually set foot in the Republic of Vietnam. Having reviewed the Australian report (NRCET, 2002) on the fate of TCDD when sea water is distilled to produce drinking water, the committee is convinced that this would provide a feasible route of exposure for personnel in the Blue Water Navy, which might have been supplemented by drift from herbicide spraying. Veterans and Agent Orange: Update 2008, http:www.nap.edu/catalog/12662.html, Chapter 10 Page 464, �¶5.

Point # 3. The committee notes that all previous VAO committees evaluating the epidemiologic evidence concerning exposure to the herbicides sprayed in Vietnam and the full spectrum of health outcomes have always considered information from naval Vietnam veterans to pertain to possible Agent Orange exposure. This committee considers that exposure assignment to be appropriate. No new studies considered in this update contained Navy-specific information, but such information has been factored into the evolving conclusions of VAO committees. Veterans and Agent Orange: Update 2008, http:www.nap.edu/catalog/12662.html, Chapter 8 Page 464, �¶2.

Point # 4. Given the available evidence, the committee recommends that members of the Blue Water Navy should not be excluded from the set of Vietnam-era veterans with presumed herbicide exposure. Veterans and Agent Orange: Update 2008, http:www.nap.edu/catalog/12662.html, Chapter 10 Page 464, �¶3.

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