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Shulkin will decide whether to add more conditions to Agent Orange list by Nov. 1

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VA Secretary David J. Shulkin will decide “on or before” Nov. 1 whether to add to the list of medical conditions the Department of Veteran Affairs presumes are associated to Agent Orange or other herbicides sprayed during the Vietnam War, a department spokesman said Tuesday in response to our enquiry.

Any ailments Shulkin might add to VA’s current list of 14 “presumptive diseases” linked to herbicide exposure would make many more thousands of Vietnam War Veterans eligible for VA disability compensation and health care.

Ailments under review as possible adds to the presumptive diseases list include bladder cancer, hypothyroidism and Parkinson-like symptoms without diagnosis of that particular disease. But hypertension (high blood pressure) and stroke also might be embraced, or ignored, as part of the current review.

The process was sparked by the Institute of Medicine’s 10th and final review of medical literature on health effects of herbicide exposure in Vietnam.  The 1,100-page report concluded in March 2016 that recent scientific research strengthened the association between herbicide exposure and bladder cancer, hypothyroidism and Parkinson-like symptoms. Specifically, the institute, or IOM, found “limited or suggestive” evidence of an association to herbicide versus its previous finding of “inadequate or insufficient” evidence of an association.

The IOM report also reaffirmed from earlier reviews “limited or suggestive evidence” of an association between herbicide sprayed in Vietnam and hypertension and also strokes. That same level of evidence was used in 2010 by then-VA Secretary Eric Shinseki to add ischemic heart disease and Parkinson’s disease to the Agent Orange presumptive list.  Shinseki had stronger evidence, an IOM finding of “positive association” to herbicide for chronic lymphocytic leukemia, which he also added to the list that year.

Shulkin, the current secretary, has authority to use IOM findings to add all five diseases to the presumptive list, or he can choose to look at other studies and scientific evidence to support adding fewer ailments or none at all.

The IOM, renamed the National Academy of Medicine last summer, delivered its Veterans and Agent Orange: Update 2014, to then-VA Secretary Bob McDonald 15 months ago.  He immediately ordered a technical work group formed to review IOM findings and original studies it relied on, as well as any new science relevant to Agent Orange ailments. The workgroup’s findings then were reviewed by a smaller strategic workgroup, followed by an internal task force of senior VA leaders.

“The entire VA response packet (with specific recommendations for action) from the IOM Task Force was delivered to the Office of the Secretary for consideration” on Feb. 17, a senior official told us at the time.

Shulkin that month was confirmed as VA secretary.  The previous 18 months he was VA undersecretary for health and would have been familiar with the Agent Orange packet. So, what has happened since then?

VA officials are lean on those details. A spokesman said VA continues to work “diligently to review the National Academy of Medicine report on potential new presumptions for Agent Orange and prepare the Secretary to make an informed decision.  This includes everything from what the science is indicating, necessary regulations and a complete regulatory impact analysis.  There is no delay in the decision process. Rather VA is taking appropriate time to ensure we are prepared to provide any benefits and services based on the Secretary’s decision.”

Past VA secretaries had rigid timetables for accepting or rejecting IOM findings.  They also had to adhere to certain standards and procedures in determining if more diseases should be presumed service connected, and to explain in writing if they declined to add IOM-identified conditions to the presumptive list.

But Congress allowed those provisions of the Agent Orange law to “sunset” Oct. 1, 2015, six months before IOM delivered its last report. Shulkin therefore is under no “statutory deadline nor required to do anything” with the IOM report, except whatever he promised Veterans and Congress, said Bart Stichman, co-director of the National Veterans Legal Services Program, a nonprofit that advocates for Veterans and had lobbied to the Agent Orange provisions.

Many Veterans know what’s at stake and have been pressing VA to add more diseases to the presumptive list.  Also, thousands of sailors and Marines who served on ships in the territorial waters off Vietnam continue to press VA and the Congress to make Blue Water Navy Veterans eligible for Agent Orange benefits.

“I’ve been doing everything I can to bug the hell out of Secretary Shulkin” on the latest IOM study, said Rick Weidman, executive director for policy and government affairs for Vietnam Veterans of America.  Shulkin responds, Weidman said, that “he’s trying and it’s a process.”

Weidman said he suspects one big hurdle is the White House’s Office of Management and Budget, which likely resists saddling VA with sharply higher disability pay obligations for high blood pressure, bladder cancer or stroke contracted by any Veteran who stepped foot in Vietnam during the war.

OMB tried to block Shinseki in 2010 from adding three ailments, including heart disease, to the presumptive list. Shinseki went around OMB and appealed directly to then-President Barack Obama, who sided with Veterans, Weidman said.  The Congressional Budget Office calculated that within three years of that decision, ischemic heart disease, Parkinson’s and leukemia accounted for 280,000 additional compensation claims and $4.5 billion in retroactive disability payments.

Beside resistance from OMB, Weidman said Shulkin is counseled by senior staff who run post-deployment health services and study environmental hazards for VA and yet are skeptical of the science associating herbicide dioxins with higher incidence of various ailments. The Agent Orange “experts” they rely on, Weidman charged, haven’t published “one scientific paper in a reputable peer review journal. The whole crew should be fired and I’ve told the Secretary that.”

But is VA studying more than whether to add Agent Orange ailments? Anthony Principi, VA secretary in President George W. Bush’s first term, argues for more sweeping changes.  Like Weidman, Principi served in combat in Vietnam but believes the Agent Orange law went too far, forcing VA secretaries to build out lists of presumptive illnesses based only on suggestive links to their wartime service, and ignoring the impact of unhealthy lifestyles, heredity and aging.

Interviewed Tuesday, Principi said it doesn’t seem fair that an elderly Vietnam Veteran can begin receiving more disability compensation for heart disease at 75 or 80 than a young Marine receives who loses a leg fighting in Afghanistan.

Principi said he wants “common sense” changes to the Agent Orange law so that, for example, diseases on the presumptive list are deemed service connected only if diagnosed within 30 years of a Veteran exiting Vietnam.

There’s legal precedent if Shulkin were to propose such a rule, perhaps while adding hypertension to the presumptive list, said lawyer Stichman.  In 1994, he recalled, Congress allowed such a “manifestation rule” for Agent Orange-related respiratory cancers.  By 2001, however, it rescinded it on complaints by Veterans groups that there was no science to support limiting benefits in that way.

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