Does the VA Have a Duty to Interpret Scientific Evidence Uniformly When the Same Toxin Harms Veterans at Different Sites?

From Michele Vollmer at Penn State:

Penn State Law Veterans Clinic students think so. They have made that argument with success, winning service connection and 100% disability ratings in 2018 for three Vietnam Veterans diagnosed with Acute Myeloid Leukemia (AML). AML’s average age of onset is 67. Men and women who were 22 years old in 1968, the average age of military combatants in the peak year of U.S. deployment in Southeast Asia, are now 72 and at the peak of Acute Myeloid Leukemia risk.

Congress granted Vietnam Veterans the ability to presumptively receive service connection for certain diseases in the Agent Orange Act of 1991. Under the VA’s broad powers granted in 38 U.S.C. § 501, the agency can promulgate regulations to add diseases to the Agent Orange presumptive list. This same power permits the VA to create a presumptive list of diseases for veterans exposed to contaminated water at Camp Lejeune. The agency can add diseases as long as a rational basis for the newly added evidentiary presumption exists.

While the VA added AML to the Camp Lejeune presumptive list, it did not add AML to the Agent Orange presumptive list. In fact, all forms of leukemia are presumptively service connected under the Camp Lejeune regulations. Penn State Law students argued that this dichotomy was unfair when the same toxin, benzene, is found in the contaminated water at Camp Lejeune and in Agent Orange. Three individual VA decision makers agreed but the law clinic students in Spring 2019 will seek to change the law to eliminate the unfairness on a larger scale. How did this happen? The VA staff promulgating rules for Camp Lejeune relied on a report from The Agency for Toxic Substances and Disease Registry (ATSDR) while the VA staff making rules for Agent Orange relied on a report by the National Academy of Sciences. The two groups reviewed different studies for the same goal, to determine whether a link between benzene and leukemia exists. However, the studies examined by the ATSDR were broader, and overwhelmingly showed the similarities in all forms of leukemia, and the link to the environmental toxin benzene. Clearly, more coordination within the rulemaking arm of the VA is needed, especially when so many toxin exposure sites exist, see https://projects.propublica.org/bombs/, and toxin types are bound to overlap at multiple sites — just as benzene was a common contaminant in Camp Lejeune and Agent Orange.