Marines Get the Shaft

(CAMP LEJEUNE, NC) – The government has given Camp Lejeune veterans the shaft by not providing VA disability compensation to Marines and Sailors who were exposed to toxic chemicals in the base wells, now have cancers and find themselves unemployed and unable to care for their families. 

BETRAYAL, available from Amazon, chronicles the story of the thousands of veterans and their families, once stationed at Camp Lejeune, NC, and former Marine Corps Air Station El Toro, CA, who continued to be ignored by the U.S. government by denial of the effects of exposure to environmental hazards. 
El Toro was closed in July 1999 while Lejeune remains an active Marine Corps base.  Both bases are EPA Superfund sites, a group of the most environmentally hazardous sites in the US. 
The last of Camp Lejeune’s toxic water wells were closed in 1987 while the TCE plume at El Toro cut a path right through the base wells, spreading three miles into the Orange County’s principal aquifer; for 16 years, the Marines denied ownership of El Toro’s TCE plume until forced to accept responsibility by a lawsuit. There’s no presumptive health care for El Toro veterans and no interest on the part of Congress in even considering health care coverage for El Toro veterans.  The Marine Corps and EPA deny that El Toro’s wells were contaminated, but that’s right up there with “will you love me in the morning”?    
Camp Lejeune’s wells were contaminated with organic solvents (carcinogens) for over 30 years.  Those injured from the base’s  toxic water wells (1957 to 1987) have access to VA health care for 15 specified health conditions listed in P.L. 112-154, but not to presumptive disability compensation.  The North Carolina Congressional delegation pushed hard for this legislation in a Congress that was mostly non-committal in supporting their health care needs. 
Legislation to provide VA health care for 15 medical conditions for Camp Lejeune veterans and their dependents was passed in the 112^th Congress in August 2012. 
No VA presumptive disability compensation was included in the Janey Ensminger Act.  As many as one million people were exposed to the toxic water; an unknown number have died without any compensation and VA health care. 
Government studies are underway to determine if there’s a scientific basis to link Camp Lejeune’s contaminated well water to disease; if this had happened in a civilian community, the outcome would have more likely than not been settled by a successful lawsuit.  However, veterans can’t sue the government for injuries occurring on active duty.  Their only resource is file for VA disability compensation—a lengthy and often arbitrary process.
Camp Lejeune VA claims were moved to the VA’s Louisville office where the VA over time would develop a cadre of VA claims processors.  At least that’s was the plan.  The sad news is that the overwhelming majority of Camp Lejeune disability claims are denied by the VA.  That’s not news to veterans of other military installations, but in this case, the centralization of all Lejeune VA disability claims in Louisville now appears to have been done to reduce the backlog of cases even if it meant the wholesale denial of hundreds of claims from veterans with cancers whose lives were shortened from drinking contaminated well water.   
The medical conditions included in the law are not something anyone would want to have and in many cases leave the veterans unemployed and fighting for their lives.  Medical conditions covered by include:  Esophageal cancer, Lung cancer, Breast cancer, Bladder cancer, Kidney cancer, Leukemia, Multiple myeloma, Myleodysplasic syndromes, Renal toxicity, Hepatic steatosis, Female infertility, Miscarriage, Scleroderma, Neurobehavioral effects, Non-Hodgkin’s lymphoma.’’
Lejeune veterans like their Vietnam Agent Orange brothers will have to fight for VA presumptive disability compensation.   Advocates for Camp Lejeune veterans need to present a strong legal argument to Congress and the public, convincing them of the merits of their position.  No one is going to do it for them.  The last contaminated wells at Lejeune were shut down in 1987.  Even young Marines in 1987 are now in their 40’s; many sick with debilitating cancers. 
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.  The VA has not written the administrative regulations to cover dependent health care and until that’s accomplished, dependents are on their own.    
For dependents 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 and 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.  To date, no dependent has won in Federal court. 
Camp Lejeune veterans, unlike Vietnam veterans, have no entitlement to disability compensation under the law P.L.112-154.  The law specifically states that there is no scientific evidence that the approved medical conditions were caused by the contaminated well water.  Despite this ‘lack of scientific evidence,’ EPA as early as 2001 reported TCE exposure associated with neurotoxicity, immunotoxicity, developmental toxicity, liver toxicity, kidney toxicity, endocrine effects, and several forms of cancer.
To obtain VA disability compensation, Lejeune veterans must now file a VA disability and compensation claim.  This requires them to secure a medical nexus opinion from a medical care provider that their chronic medical condition “is as least as likely as not” due to military service at Camp Lejeune and its contaminated water wells. 
Too often medical care providers are reluctant to provide nexus opinions for toxic exposure, something that they little formal education in.  The veteran now seriously ill, unemployed, and short of cash has no chance of an award for VA disability compensation without a medical nexus opinion.  
Another factor affecting VA disability compensation claims is the latency period between exposures to cancer causing chemicals and onset of disease, which are usually 15 to 20 years or longer, according to the Centers for Disease Control and Prevention (CDC).[1] The veteran may have been exposed to toxic chemicals after leaving the Marines or was employed in an occupational which increased the risk of exposure to toxic chemicals.  The VA Regional Offices will surely look the veteran’s work history, even if the claim is supported by a medical nexus opinion.  The result too often is a ‘Dear John’ letter from the VA. The veteran is then left to his own resources to fund critical medical care. For those who served this nation honorably and through no fault of their own were exposed to toxic chemical, this is a tragedy beyond description.  We believe there’s a strong legal basis for granting full presumptive VA disability compensation to Camp Lejeune veterans. 
Allison Lin, a graduate of Chapman University School of Law with a B.A. from the University of California at Irvine and spouse of a Marine veteran, agreed to review the legal basis for Congress to grant presumptive disability compensation to Camp Lejeune veterans.  Her analysis resulted in the publication of “WARNING: Don’t Drink the Water: An Examination of Appropriate Solutions for Veterans Exposed to Contaminated Water at Marine Corps Base Camp Lejeune,” published in the January 2012 Veterans Law Review.[2]   .
Allison Lin’s article was published before Congress approved health care for Camp Lejeune veterans and their dependents in P.L. 112-154 was signed by POTUS.  Her legal argument for presumptive disability for Camp Lejeune veterans is still relevant today.  With Allison’s permission, excerpts from her article are reprinted below:   

Even in a partisan era, compensating and treating veterans who have suffered disabilities while serving the nation receives bipartisan support.[3]  To receive medical benefits or disability compensation from the Department of Veterans Affairs (VA), veterans have the burden of proving that a disability or medical condition is service-connected, and may do so by referring to their military records which may document injuries or illnesses incurred while in service, as well as any resulting disability.[4]  However, in most cases, the burden of proving service connection may be a challenge to overcome when the fact and extent of exposure to a particular hazard during service is uncertain and when any relationship between a medical condition appearing after service and an in-service event is inconclusive.[5]  
Medical conditions that may be related to soil and groundwater contamination at US military installations, such as Marine Corps Base Camp Lejeune (Camp Lejeune),[6] are currently not considered to be presumptively service connected by VA.  This Article explores whether, and to what extent, these conditions should receive presumptive service connection by VA.  Because scientific certainty linking contaminant exposure in military service cannot be achieved in a time frame necessary to address the health care needs of our veterans, Congress should require VA to operate similarly to the established statutory guidelines used in prior presumptive reviews and create presumptions of service connection for certain diseases shown to have a positive association with contaminants that were present in the water at Camp Lejeune. [7]  
A positive association should not require evidence of a causal association but only credible evidence that exposure to the contaminants is associated with increased incurrence of the disease.[8]  To determine what diseases have a positive association, Congress should require VA to wait until the ATSDR[9] completes its anticipated epidemiological studies on the Camp Lejeune population.  After the studies are completed, VA should be required to review the subsequent reports and all other sound medical evidence to establish presumptive service connection for diseases found to be positively associated to the contaminant exposure.  In addition, Congress must enact a presumption that veterans who were stationed at Camp Lejeune during the time the water was contaminated were exposed to such contamination.  A presumption of exposure is appropriate because, although there is clear documentation of serious contamination, it is not feasible to determine whether and to what extent a particular individual was actually exposed due to data limitations.[10]  With presumptions established, veterans would be relieved from the burden of proving service connection, and would be eligible for medical benefits and service-connected disability compensation from the VA.   
This Article proposes that Congress should enact legislation requiring the Secretary of the VA to review upcoming epidemiological reports on Camp Lejeune and use such information to prescribe regulations that establish a presumption of service connection for diseases found to have a positive association with exposure to the contaminants that were at Camp Lejeune.  The Secretary should also use the information from the scientific studies to prescribe regulations establishing a presumption of exposure to all contaminants in the water system at Camp Lejeune for veterans who were stationed at Camp Lejeune during the period in which the water was contaminated.  This Article further proposes that Congress require the ATSDR to commence similar epidemiological studies for other contaminated military bases, such as former Marine Corps Air Station El Toro, assessing whether there is an association between exposure to the contaminants in the water and a particular disease.  Also, Congress should direct VA and the Department of Defense (DOD) to work together in compiling a list of individuals who served at other contaminated military installations on the Environmental Protection Agency’s (EPA) Superfund list[11] and notify such individuals of potential exposure to the contamination and any health risks associated with such exposure

[1]  The latency period between exposures to cancer causing chemicals: “Workplace Safety and Health Topics: Occupational Cancer,” Centers for Disease Control and Prevention (CDC), http://www.cdc.gov/niosh/topics/cancer/.
[2] Allison Lin “WARNING: Don’t Drink the Water: An Examination of Appropriate Solutions for Veterans Exposed to Contaminated Water at Marine Corps Base Camp Lejeune,” Veterans Law Review, January 2012, http://www.bva.va.gov/docs/VLR_VOL4/AuthorsCopies3-AllisonLin.PDF .
[3] Oversight on VA Disability Compensation:  Presumptive Disability Decision-Making:  Hearing Before the S. Comm. on Veterans’ Affairs, 111th Cong. 1 (2010) [hereinafter VA Disability Compensation Hearing] (statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Veterans’ Affairs).
[4] See infra Part II.B.
[5] See infra Part II.B.ii.  See, e.g., Camp Lejeune:  Contamination and Compensation, Looking Back, Moving Forward:  Hearing Before the Subcomm. on Investigations & Oversight of the H. Comm. on Science & Technology, 111th Cong. (2010) [hereinafter Camp Lejeune Hearing] (statement of Thomas J. Pamperin, Associate Deputy Under Secretary for Policy and Program Management, US Department of Veterans Affairs); Sidath Viranga Panangala et al., Cong. Research Serv., R41405, Veterans Affairs:  Presumptive Service Connection and Disability Compensation 1 (2010).  This test does not apply when a presumption exists, or where the injury was incurred while engaged in combat with the enemy.  38 USC. § 1154(b) (2006).
[6] Marine Corps Base Camp Lejeune (Camp Lejeune) is home to over 180,000 Marines, Sailors, their families, and civilian employees.  About the Base, Marine Corps Base Camp Lejeune, http://www.lejeune.usmc.mil/about/ (last visited Sept. 2, 2011).  Camp Lejeune’s mission is to “maintain combat-ready units for expeditionary deployment” and helps prepare the Armed Forces for combat and humanitarian missions abroad.  Id.
[7][7] See generally infra Part IV.
[8] 38 USC. § 1116(b)(3) (indicating the use of a “positive association” standard for Agent Orange exposure claims).
[9] The Agency for Toxic Substances and Disease Registry (ATSDR) is charged under the Comprehensive Environmental Response, and Liability Act (CERCLA) to evaluate the presence and nature of health hazards at identified sites and to help reduce further exposures.  ATSDR Background and Congressional Mandates, Agency for Toxic Substances & Disease Registry, http://www.atsdr.cdc.gov/about/congress.html (last updated July 16, 2009).
[10] See infra Part IV.A.
[11] Superfund is the name of the environmental program that addresses abandoned hazardous waste sites and is the name for the fund established by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).  Superfund, Basic Information, US Envtl. Protection Agency, http://www.epa.gov/superfund/about.htm (last visited Sept. 2, 2011).  CERCLA allows the Environmental Protection Agency (EPA) to clean up Superfund sites and to compel parties responsible for the pollution to perform cleanups or reimburse the government for cleanups that EPA undertakes. 
 
 

Robert O'Dowd

Robert O’Dowd served in the 1st, 3rd and 4th Marine Aircraft Wings during 52 months of active duty in the 1960s. While at MCAS El Toro for two years, O’Dowd worked and slept in a Radium 226 contaminated work space in Hangar 296 in MWSG-37, the most industrialized and contaminated acreage on the base.

Robert is a two time cancer survivor and disabled veteran. Robert graduated from Temple University in 1973 with a bachelor’s of business administration, majoring in accounting, and worked with a number of federal agencies, including the EPA Office of Inspector General and the Defense Logistics Agency.

After retiring from the Department of Defense, he teamed up with Tim King of Salem-News.com to write about the environmental contamination at two Marine Corps bases (MCAS El Toro and MCB Camp Lejeune), the use of El Toro to ship weapons to the Contras and cocaine into the US on CIA proprietary aircraft, and the murder of Marine Colonel James E. Sabow and others who were a threat to blow the whistle on the illegal narcotrafficking activity. O’Dowd and King co-authored BETRAYAL: Toxic Exposure of U.S. Marines, Murder and Government Cover-Up. The book is available as a soft cover copy and eBook from Amazon.com. See: http://www.amazon.com/Betrayal-Exposure-Marines-Government-Cover-Up/dp/1502340003.