When the Senate Veterans' Affairs Committee held a hearing last week regarding the blue-water Navy bill that passed the House in late June by a vote of 382-0, it did not seem as convinced as the House was about the bill. Two primary opposition points were discussed during the hearing: the “science” behind proving blue-water Navy veterans were exposed to Agent Orange and the way an expansion of benefits will be paid for.

The “science”

The VA continually has beat the drum to Congress that it should not expand the presumption of Agent Orange exposure to blue-water Navy veterans because the “science” does not support it.

The VA asked Congress to disregard a 2002 Australian study that found Australian sailors who served off the coast of Vietnam likely were exposed to Agent Orange. The VA's argument to Congress was that the Australian study tested water within 12 miles of the Vietnam shoreline, while U.S. forces were instructed to draw water onto their ships only outside of 12 miles. The VA's argument did not take into account the eventuality ships might have violated those regulations, something blue-water Navy veterans claim happened quite frequently but was not documented. The VA offered no proof to Congress that every single ship that served off the coast of Vietnam during the conflict strictly complied with the 12-mile rule.

While the VA asked Congress to disregard the Australian study, it has never successfully performed a study of its own to counter the Australian one, despite the fact it has been dealing with this issue since the 1970s. In 1981, following an act of Congress directing it, the VA gave the Centers for Disease Control and Prevention (CDC) $70.4 million to perform an Agent Orange study. The Government Accountability Office later found the CDC squandered much of the funds on unnecessary costs and poor or questionable contract administration practices. The CDC did, however, manage to conduct a “validation study” that merely confirmed military records could not establish Agent Orange exposure because of their inherent inaccuracy. So, when Congress tried to force the VA to perform a study of its own, the outcome was completely useless.

What is clear, therefore, is this is not a “science” problem but rather a record-keeping problem. There is no question scientifically what Agent Orange does to the human body; it is classified in the same category as arsenic, asbestos, and gamma radiation and is now a banned substance.

There is a question of who was exposed. The military did not keep accurate records of who was exposed to Agent Orange, and it did not keep accurate records of where ships were taking on water off the coast of Vietnam to rule out it did not occur within 12 miles of shore. Indeed, the Institute of Medicine stated in 2011, “Given the lack of measurements taken during the war and the almost 40 years since the war, this will never be a matter of science but instead a matter of policy.” Thus, VA's tired argument of “the science isn't there” is no longer relevant and should be replaced with “the record keeping isn't there” to which Congress should move forward in support of the legislation which recognizes this difference and holds the government responsible.

The “pay for”

As MOAA has noted in past articles, Congress is either unable or unwilling to pass any legislation related to additional benefits for servicemembers or veterans with an offset of the same amount of funds being identified to pay for it. After years of painstaking negotiations, veterans service organizations relented to allow VA home loan funding fees to be increased to pay for the increased cost of providing disability compensation and health care to blue-water Navy veterans, which is included in the bill the Senate currently is considering.

The ironic part of this compromise, though, is it most likely was not necessary at all because the cost of providing those benefits for blue-water Navy veterans was arguably already accounted for in 1991. In 1991, Congress passed and President George H.W. Bush enacted the Agent Orange Act of 1991, which required the VA to award benefits to a veteran manifesting specified diseases if they, “during active military, naval, or air service, served in the Republic of Vietnam.” The VA passed implementing regulations defining service in Vietnam as “service in the waters offshore” of Vietnam. In 1997, the VA general counsel opined that service offshore should be excluded from the definition, and that change made its way into the VA's formal regulations in 2002. Congress, however, already had passed the legislation in 1991, without such a restriction and presumably the funds to cover the benefits for that cohort.

Nonetheless, Congress now demands veterans either suffer cuts in their benefits or endure increased fees to pay for the same groups' disability and health care. Despite the fact the bill already includes a way to pay for this, the Senate Veterans' Affairs Committee speculated the funds would not be enough even though the Congressional Budget Office calculated it would be and with funds to spare.

The committee also theorized paying for this cost would be better borne out by rounding down periodic COLAs to the next lowest dollar to veterans' disability compensation checks. This is an idea MOAA has opposed in the past when it was proposed to pay for the VA CHOICE program. Although MOAA does not favor VA home loan funding fees rising either, that is a fee veterans with even so much as a 10-percent disability rating are exempted from, while reducing COLAs directly would impact disabled veterans.

While the Senate Veterans Affairs' Committee gave the impression at last week's hearing it had serious concerns about the blue-water Navy bill and hinted it potentially could make some significant changes to it, this would be a disappointing move for the Senate to make. The bill passed unanimously through the House and has unanimous support across veterans service organizations. For the Senate to now question the will of veterans and their representatives with nothing but its own speculation would be a major setback following decades of goodwill negotiations.

MOAA remains engaged with Congress as this bill works through the Senate and will provide additional updates as they occur. If you would like to share your thoughts with MOAA, email legis@moaa.org. To read MOAA's statement to the Senate Veterans' Affairs Committee, please go here.