Camp Lejeune Disability Claims Denied

The major media has covered this story for years.  The health effects on Marines, their dependents and civilian workers are tragic reminders of what happens when toxic chemicals are dumped into the ground and find their way into the aquifer and the tap water.

The main chemicals involved were volatile organic compounds (VOCs) such as perchloroethylene (PCE), a dry cleaning solvent, and trichloroethylene (TCE), a degreaser; however, more than 70 chemicals have been identified as contaminants at Lejeune, including benzene and vinyl chloride.

The last contaminated well was shut down in 1987.  Providing VA health care to those injured from the toxic water took another 25 years.

In August 2012, President Obama approved presumptive health care for 15 medical conditions for Camp Lejeune Marines and their dependents. 

The Janey Ensminger Act requires the VA to provide health care for Lejeune victims of the contaminated water who suffer from cancer of the esophagus, lung, breast, bladder or kidney; leukemia; multiple myeloma; myleodysplasic syndromes; renal toxicity; hepatic steatosis; female infertility; miscarriage; scleroderma; and/or neurobehavioral effects or non-Hodgkin’s lymphoma. 

Retired Marine Master Sergeant Jerry Ensminger spearheaded the drive for health care coverage through Congress.  Janey Ensminger, his 9 year old daughter, died from leukemia after ingesting the contaminated water.  

The law doesn’t provide for VA disability compensation to veterans injured by the contaminated water and veterans can’t sue the government for injuries linked to active duty.  Their only recourse is to file a VA disability and compensation claim.

Claims for Camp Lejeune water contamination are processed by the VA in their Louisville, KY, office.

At the VA’s Louisville office, the VA reviews all available evidence concerning the veteran’s service at Camp Lejeune, family history and exposures prior to and post-service, and all scientific and medical literature related to the particular claimed disabilities, according to an informed Congressional source.  This same source provided information  that supported the critical need for an acceptable VA medical nexus opinion. 

Camp Lejeune Marines have better odds at a black jack table than winning a VA disability claim, according to data provided by the Congressional source:   

The VA’s statistics as of January 31, 2014, showed that the VA’s Louisville office had processed 9,703 medical claims, approved 349 (3.6%), and denied 9,354 (96.4%).   

Why the extraordinarily high denial rate?  The information provided to me from the Congressional source stated that: 

Claims issues are denied when there is no credible medical opinion establishing a link between exposure to the contaminants and subsequent development of the claimed disability.  This is reflected most in the 9,354 miscellaneous conditions that have been denied.  In each of these, there was no or insufficient medical evidence establishing that it was at least as likely as not that the condition was associated with exposure to the contaminants in the water.  Please note that this information does not reflect the number of unique Veterans who have received decisions.  Rather, it reflects the number of individual medical issues decided, as Veterans may submit claims for multiple issues. A total of 5,217 claims have been decided, and 3,224 Camp Lejeune claims are currently pending. 

According to the VA, Camp Lejeune Marines failed to provide a “credible medical opinion” (nexus opinion) and medical evidence to support  VA disability claims.

That’s one possibility. The other is that the VA has an especially questionable review process for these disability claims; one that is designed to deny most of the them.  

Without an independent audit by the VA Inspector General or the GAO, it’s impossible to tell whether the fault lies with the veterans or the VA.   

It’s not unusual for veterans who suffer from cancers to be unemployed and desperate for ways to support their families. 

Most Americans would agree that when diseases are caused by exposure to toxic chemicals in military service, the government has a moral obligation to provide compensation to the veterans. 

The legal argument for presumptive disability compensation for Camp Lejeune veterans was published in the Veterans Law Review in January 2012. It fell on deaf ears. 

Should the Congress have approved presumptive disability compensation for Camp Lejeune veterans?  The short answer is ‘HELL YES’.  But, this is only wishful thinking at this point in time.    

It doesn’t matter if the veteran has one of the 15 medical conditions listed in The Janey Ensminger Act (Public Law 112-154). No nexus opinion is the fastest track to a VA denial of disability.    

VA regulations require that Marine and Navy veterans who served at least 30 days at Camp Lejeune during the period 1957 until 1987 and have one or more of the medical conditions listed in the The Janey Ensminger Act must file a VA disability compensation claim supported by a doctor’s medical nexus opinion. 

The nexus opinion makes the connection between an in-service event (e.g., contaminated water) and an existing medical condition. 

The doctor’s nexus opinion must state that the veteran’s medical condition is “at least as likely as not” due to exposure to toxic chemicals.  In simply terms, this means that there is a 50% subjective probability that the medical condition was caused by exposure to Lejeune’s contaminated water. 

In simply terms, if half the evidence supports the contaminated wells were the cause of the disease, the veteran wins.       

My personal experience is medical doctors with one exception knew nothing about the VA’s requirements and were hesitant to write a nexus opinion.  The one urologist who agreed to write a nexus opinion didn’t follow the prescribed VA format.  I was forced to pay for an independent medical evaluation (several thousand dollars) to support my VA disability claim.     

Why the hesitancy on the part of medical doctors to write a VA nexus opinion?  Fear of government retaliation?  An IRS audit?  Involvement in a government lawsuit? 

For a Lejeune veteran exposed to toxic chemicals in the contaminated wells, there’s a delay between exposure and the onset of disease. The delay can be as long as 30 or more years, according to scientists.     

Filing a VA disability compensation claim is a legal process.  Although there’s nothing to prevent  VA doctors from writing nexus opinions, its’ unlikely that VA doctors would be willing to risk criticism from VA  management by writing a  nexus opinion that results in a successful disability claim against the government. 

What other options are available to a veteran who is seriously ill, unemployed and without the funds to pay for an expensive independent medical evaluation?

Governmental local health departments at the city and county level provide health services to citizens within their boundaries. 

For example, doctors with the Philadelphia Public Health Dept. can write nexus opinion, but this would require the support of city government.      

Information on writing nexus opinions and the VA disability process is available on line from the College of William and Mary’s Lewis B. Puller, Jr. Benefits Clinic.

The mission of the clinic is to provide current and former military service members with knowledge of and assistance with pursuing available disability benefits resulting from their military service.

The Lewis B. Puller, Jr. Benefits Clinic provides an excellent series of videos on the veteran’s disability claim process, including the critical nexus opinion.    

A Marine veteran of Camp Lejeune with terminal cancer and unemployed may not have the financial  resources to pay for a nexus opinion.  A doctor would normally charge a fee for reviewing a veteran’s service and medical history.Would private medical doctors be willing to review a veteran’s medical history and military service records and write a nexus opinion on a pro bon? 

An alternative may be medical doctors employed by city and county health departments.  For example, the City of Philadelphia has an excellent Department of Public Health that local residents have access to even if they have no health insurance or money to pay for services. 

The unanswered question is will the city of Philadelphia (the city of Brotherly Love) and other city and county health department be willing to lend a helping hand to its Marine Corps veterans by writing VA acceptable medical nexus opinions?   

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.