In September, I wrote about Camp Lejeune in Jacksonville, North Carolina. In that post, I discussed a brief history of Camp Lejeune and the water contamination there as well as the list of diseases that a veteran is entitled to medical treatment for. Today’s article will cover more of the actual claim related to Camp Lejeune.
In 2012, Congress passed The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 201 (also known as the Janey Ensminger Act, for the deceased daughter of Master Sergeant Jerry Ensminger who died of leukemia after ingesting contaminated water.) which required that the VA provide medical care for Lejeune veterans who served at least thirty days at Camp Lejeune during the qualifying period (January 1st, 1957 and December 31st, 1987.) The list of covered ailments can be seen in the previous post above.
While the act provided free medical care for those qualifying veterans (and in some cases their families) it did not provide a presumption of service connection for the same diseases. When the VA grants a presumption, it concedes that a veteran qualifying for the presumption has a disease because of some service connected exposure. The most notable of these presumptions is Agent Orange related disease. This article covers those presumptions more in depth.
Once a presumption is granted, if a veteran presents with a presumed disease, the VA will grant the disability claim with (almost) no questions asked. This is what the VA is currently discussing behind closed doors. On August 3, 2015 the VA announced that it was opening discussions about presumptions and on August 19 the VA met with Agency for Toxic Substances and Disease Registry (ATSDR). Currently the VA is considering granting presumptions for kidney cancer, angiosarcoma of the liver, and acute myelogenous leukemia, each of which are known to be caused by exposure to the volatile organic compounds (VOCs) that infiltrated the Camp Lejeune water system.
However, until those presumptions are established, a Camp Lejeune veteran must file his claim just as any other claim for disability and then wait for a decision. This process is not always easy. The VA has a nasty habit of denying service connection for diseases related to exposure at Camp Lejeune even when those same diseases are presumptive for healthcare purposes. Their most common refrain is that there is no credible medical opinion to establish a link between exposure to the VOCs and the veteran’s current disease.
The “credible medical opinion” is also known as a nexus opinion. A nexus from a doctor (even better if he is an expert on the subject) that the veteran’s disease is “at least as likely as not” caused by his exposure to the contaminated water at Camp Lejeune. The nexus opinion provides a link between the veteran’s service and his current medical condition. Not having a nexus opinion is the quickest way to lose a Camp Lejeune claim. Even with one, the current regime makes it very difficult to win a claim. One source states that as of January, 2014 the VA’s Louisville office (their hub for Camp Lejeune claims) had processed 9,703 Camp Lejeune claims. Of those, 349 were granted and 9,354 were denied. Or in other words, the VA granted 3.6% of the claims and denied 96.4%.
Some believe the number of denials have risen because of the subject matter experts (SME) program launched by the VA in 2013. In 2013, the VA hired 22 experts to review veterans’ cases and offer opinions about whether or not their disease was related to their in-service exposure to VOCs at Camp Lejeune. Before these experts were hired, the VA was approving approximately one in four claims filed by Camp Lejeune veterans, not necessarily a high rate. But, after the experts were hired, the rate plummeted to closer to one in twenty. The SMEs have a tendency to point to a 2009 study by the National Research Council, which stated that at the time of the study, there was insufficient scientific data to link exposure to base water to adverse health effects.
These SME opinions make it all the more important that a veteran have an independent nexus opinion. This again turns on the “at least as likely as not” language mentioned above. When the VA has an opinion stating that the veteran’s condition is not related to service and the veteran can provide his own credible opinion stating that it is, the evidence is considered in equipoise. This is to say, the evidence shows that it is at least as likely as not the veteran’s condition is related to service. Under the VA’s own regulations, they are to equally balanced claims in favor of the veteran.
With congressional support bolstering efforts to get a presumption for our Camp Lejeune veterans, it seems like it could be on the horizon. Much like the initial presumptions that the VA has proposed for Camp Lejeune, in 1991 presumptions for Agent Orange exposure started with a list of only three diseases. Today, it has fourteen diseases linked specifically that are presumed if a veteran was exposed. One hopes that if the Camp Lejeune presumptions are codified, they will go the way of Agent Orange presumptions. Thank you for your service.
