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Marines in 'Catch 22' with GovernmentRobert J. O'Dowd for Salem-News.com
The VA is not going to wake-up tomorrow morning and realize the necessity of approving Presumptive Disability for TCE exposure. Congressional support is needed to make this change.
(SOMERDALE, N.J.) - The Feres doctrine prevents veterans from filing tort suits for injuries from exposure to contaminants on active duty. Even when the government is clearly negligent, the veteran’s only alternative is to file a VA disability claim.
The ‘catch’ is that the VA requires 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.
Marines and other veterans exposed to trichlorothylene (TCE), a known carcinogen, on active duty can not file a tort suit for damages. The Feres doctrine, based on a 50 year old Supreme Court decision, effectively prevents law suites from anyone injured on active duty. The only alternative is to file a VA disability compensation claim.
A ‘Catch 22’ dilemma is that the VA requires a nexus statement or opinion from a medical provider that the cancer “is as least as likely as not” due to military service.
In 1947, Lt. Rudolph Feres died in a barracks fire at Pine Camp, N.Y. His widow sued the government for its negligence. She lost. In Feres vs. the United States, the Supreme Court decided in 1950 that the government is not liable for injuries to members of the armed forces sustained while on active duty from the negligence of others in the armed forces. There have been numerous attempts to reverse the Feres doctrine over the years. They all failed. (see: usmilitary.about.com/library/milinfo/blferes.htm)
An egregious example of the effect of the Feres doctrine is the case of Marine Sergeant Carmelo Rodriguez, a 29 year old father and part-time actor, who died of stage 4 melanoma several months ago. Rodriquez, weighing less than 80 pounds, died at his home before CBS News Correspondent Bryon Pitts could interview him. Pitts reported while Sgt. Rodriguez was in Iraq military doctors misdiagnosed his skin cancer. Surgery may have prevented his death.
Under the Feres doctrine, Rodriquez’s family is prevented from filing suit for medical malpractice, even though the government’s negligence is clearly evident. (see: cbsnews.com/stories/2008/01/31/eveningnews/main3776580.shtml and video.aol.com/video-detail/cbs-evening-news-marines-cancer-misdiagnosed/4134201233)
Absent the unlikely reversal of the Feres doctrine, the only alternative for those injured on active duty is to file a VA disability compensation claim.
VA Disability Compensation
To qualify for a service-connected disability compensation, the VA requires veterans to file a disability compensation claim with the Department of Veterans Affairs with supporting documentation showing: (1) medical evidence of a current disability; (2) evidence that the disability was incurred in or aggravated during service; and (3) a medical statement that links (nexus) the current disability with a disability incurred or worsened in service. (see: vba.va.gov/bln/21/compensation/index.htm#bm01)
Getting a medical doctor to sign off on a disability related to chemical exposure in the military often requires the expertise of a highly paid professional with a background in medicine and toxicology. The cost to a veteran can easily run into several thousands of dollars. HMOs do not pay for nexus statements. Many veterans, who are sick with cancer, can't work, and with limited assets do not have the means to pay for highly skilled medical professionals. Failing to provide the nexus statement from an expert will cause the disability claim to be denied. Sadly, that happens more often than not.
To prevail in a filing of a VA disability claim, a veteran has to prove, to a high degree of certainty, that the condition(s) were caused by or aggravated by military service and that the conditions are disabling to a degree that they are likely to interfere with gainful employment. Simply having served in the past and then later in life developing a medical condition is not enough to win a monetary benefits award. For example, military service records must support exposure to TCE. For cancer which can occur 20 years or later after separation; a veteran needs a medical opinion linking the cancer to military service.
So, a veteran who was exposed to TCE, for example, in the military and develops leukemia years later needs evidence of the exposure in the military (ingestion, inhalation and/or dermal contact) and an opinion from a medical care provider linking the leukemia to military service. The Pentagon owns most of the EPA Superfund sites (133 at last count) and 1,400 other sites contaminated with TCE. Evidence of a route of exposure may be difficult to obtain because of missing records and the lack of sampling data in the past. For example, at former MCAS El Toro (EPA Superfund site), there is no TCE vapor samples from hangars used to degrease aircraft parts for several decades. Determining the risk of occupational exposure under these circumstances would be difficult at best.
For El Toro, the case is even more ambiguous since there are no documented government routes of exposure. With an estimated 8,000 pounds of TCE in the soil and groundwater and a TCE plume cutting its path through the base wells, the risk of exposure is probable, even in the absence of “supporting data.” In fact, the government has gone to great lengths to deny any risks of exposure to any chemicals at El Toro. In January 2009, the Agency for Toxic Substances Disease Registry (ATSDR) reported to El Toro petitioners that only the Navy had the authority to determine the risks of occupational exposure in the military. Asking the polluter to assess the risk of pollution makes no sense at all. To me, this is something like asking your teenager to explain how they managed to fail Chemistry. You just know the answer will have nothing to do with poor study habits or the Periodic Table.
Another hurdle for anyone filing a VA disability claim is medical support of injury related to military service. With a long latency period, veterans may not exhibit cancer until years after exposure and separation from the military. The National Institute for Occupational Safety and Health (NIOSH), a Federal agency in the Department of Health and Human Resources, is responsible for research and recommendations for the prevention of work-related injury and illness. According to NIOSH, “the time between first exposure to a cancer-causing agent and clinical recognition of the disease is called the latency period. Latency periods vary by cancer type, but usually are 15 to 20 years, or longer. Because of this, past exposures are more relevant than current exposures as potential causes of cancers occurring in workers today.” (see: cdc.gov/niosh/topics/cancer)
An unknown number of Marines and Sailors have been exposed to TCE in the drinking water at Camp Lejeune. Jerry Ensminger, a retired Camp Lejeune Marine and veteran advocate, told me that even with a documented route of exposure, a Lejeune Marine can expect to be denied VA disability compensation, but can win after filing an appeal of the denial. I’ve checked the VA appeal claims on-line for Camp Lejeune. There are less than a handful of cases. Either no veteran became seriously ill from the contaminated base wells or despite the on-going efforts to notify Lejeune veterans, many do no know of the TCE contaminated wells and have not “connected the dots of their illnesses to Camp Lejeune’s well water.” My money is on the last possibility.
The long latency period for cancer means that the veteran’s military service records will not have documentation of cancer. So, a veteran exposed to carcinogens in the military has a steep road to climb. No one knows this better than Dr. Michael Gros, former Naval Medical officer assigned to Marine Corps Base Camp Lejeune North Carolina.
Moving his family to Camp Lejeune, NC, in July 1980, Dr. Michael Gros, a graduate of Baylor College of Medicine, had no idea that this would be a life threatening experience for him that would change his life forever. (see: cdc.gov/niosh/topics/cancer/)
Moving his family to Camp Lejeune, NC, in July 1980, Dr. Michael Gros, a graduate of Baylor College of Medicine, had no idea that this would be a life threatening experience for him that would change his life forever.
Dr. Gros completed an internship and residency at the NRMC, Portsmouth, VA. He chose Camp Lejeune as he said, “Since it was stateside and, at the time, seemed safe for the family. Little did we know that quite the opposite was true. Unknown to us, Camp Lejeune had ground water and well water contamination with various volatile organic compounds such as trichloroethylene (TCE) and perchloroethylene (PCE), among other chemicals, which may have originated as early as the 1950’s. This was due to improper disposal of these agents used in machinery overhaul and improper location of wells in areas affected by seepage into the water table. Our house at H-57 MOQ was supplied by the Hadnot Point water system. Acceptable levels of TCE are http://energycommerce.house.gov/cmte_mtgs/110-oi-hrg.061207.Gros-Testimony.pdf and cdc.gov/niosh/topics/cancer/)
During his three years a Camp Lejeune, Dr. Gros and his family ingested and inhaled “poisonous water and its vapor from showering and bathing (worse when heated up). Our food and the baby’s formula and toddler’s Kool Aid were mixed with this seemingly clean water. This poisoning has no taste and no smell and so is undetectable by usual means. The cancerous effects do not appear until 10-15 years post exposure (latency period noted in ATSDR documents).”
By 1997 lab tests showed that he was seriously ill. Dr. Gros had developed a “slowly progressive and untreatable Non-Hodgkins lymphoma called Cutaneous T-Cell Lymphoma (CTCL), otherwise known as Mycosis Fungoides.
His only “treatment option would eventually be a bone marrow transplant when the disease reached such a point that my resistance to infection would be so low that I could no longer see patients.”
In November 1999, he learned from a telephone call from the Agency for the Toxic Substance and Disease Registry (ATSDR) of the toxic water at Camp Lejeune. At that point he “made the connection between my disease and TCE and PCE exposure, which I had suffered during three years of continuous exposure at Camp Lejeune, North Carolina. My son seemed fine. However, I had progressive lymphoma. I was happy to know that an infant study was to be done, but I was shocked to learn that no studies were felt by ATSDR to be warranted on the thousands of exposed adults.” Dr. Gros was awarded a 100% VA disability compensation. (see:
The health affects of chronic exposure to TCE are staggering. In 2001, EPA reported TCE exposure associated with neurotoxicity, immunotoxicity, developmental toxicity, liver toxicity, kidney toxicity, endocrine effects, and several forms of cancer. EPA’s 2001 report found: "Mechanistic research indicates that TCE-induced carcinogenesis is complex, involving multiple carcinogenic metabolites acting through multiple modes of action. Under EPA's proposed (1996, 1999) cancer guidelines, TCE can be characterized as highly likely to produce cancer in humans."
The disability claims of Marines and other service veterans who have diseases linked with TCE exposure can be resolved by given them "presumptive disability" entitlement.
Under "presumptive entitlement" the VA presumes that specific disabilities diagnosed in certain veterans were caused by their military service. Within the Defense Department, potential exposure affects an untold number of military personnel. A 2003 Air Force study estimated that there were 1,400 TCE-contaminated military sites. The Federal government knows the heath affects of exposure to TCE.
Presumption relieves the veteran of persuading VA that TCE exposure was the cause of a disease and of proving that an exposure occurred during military service. Only Congress and the VA have the authority to approve presumption disability entitlement.
Presumptive entitlement eliminates the need for an expensive medical nexus statement. How would "presumptive entitlement" work? The Agency for Toxic Substances Abuse Registry (ATSDR) has identified a number of diseases linked to TCE exposure. If one of the conditions linked to TCE exposure is diagnosed in a veteran and the veteran served in a location contaminated with TCE, the VA presumes that the circumstances of his/her service caused the condition, and disability compensation could be awarded.
The VA has four groups of veterans under this umbrella right now (Former Prisoners of War, Vietnam Veterans (Exposed to Agent Orange); Atomic Veterans (Exposed to Ionizing Radiation); and Gulf War Veterans (Undiagnosed Illness).
I have no idea of total cost to the government for including TCE exposed veterans under the presumptive disability category. From personal experience, I have some idea of the cost to a veteran of not doing this.
I have medical coverage so all of my operations and chemotherapy were paid for. Others are not so fortunate. I also have the means and the skills to find an expert medical practitioner who can write a nexus medical opinion to support a VA disability compensation claim. Others are not so fortunate. I have the funds to pay several hundred dollars per month for prescription drugs. Others are not so fortunate. I could go on and on but you get the idea.
We know that TCE exposure is a national problem and that many military bases are contaminated with these toxins. We also know that chronic exposure to TCE is linked to a number of diseases. A statistician could predict the number of veterans who are affected by exposure to TCE suffer health affects. Some reasonable estimate of cost could be made to satisfy the OMB budget folks.
It's not feasible to wave a magic wand to remove all of the TCE from military installations and to cure the health affects of exposure to veterans and their dependents. Since we can't make a miracle happen, why not at least compensate those affected by exposure by including them in the VA's Presumptive Entitlement Disability category?
The VA is not going to wake-up tomorrow morning and realize the necessity of approving Presumptive Disability for TCE exposure. Congressional support is needed to make this change. Why not take a few minutes to email your representative to ask that TCE exposed veterans be included under the VA's Presumptive Disability category.
Here is a complete list of the articles that have been generated on the contamination of the former Marine Base at El Toro and at Camp Lejeune, North Carolina:
Bob O’Dowd is a former U.S. Marine with thirty years of experience on the east coast as an auditor, accountant, and financial manager with the Federal government. Half of that time was spent with the Defense Logistics Agency in Philadelphia. Originally from Pennsylvania, he enlisted in the Marine Corps at age 19, served in the 1st, 3rd, and 4th Marine Aircraft Wings in 52 months of active duty in the 1960s. A graduate of Temple University, Bob has been married to Grace for 31 years. He is the father of two adult children and the grandfather of two boys. Bob has a blog site on former MCAS El Toro at mwsg37.com. This subject is where Bob intersected with Salem-News.com. Bob served in the exact same Marine Aviation Squadron that Salem-News founder Tim King served in, twenty years earlier. With their combined on-site knowledge and research ability, Bob and Tim and a handful of other ex-Marines, have put the contamination of MCAS El Toro on the map. The base is highly contaminated with TCE, trichloroethelyne
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