Vets and toxic exposure — follow the money

“Follow the science” is a phrase we hear often nowadays, as our society continues to grapple with the COVID-19 pandemic. Essentially, it refers to the fact that science relies on quantifiable facts and evidence in order to make rational decisions.

Last week, when the House Committee on Veterans’ Affairs held a hearing on several pieces of proposed legislation addressing benefits for veterans suffering from the effects of toxic exposures, questions arose as to whether the U.S. Department of Veterans Affairs (VA) was following the science.

As noted by the committee’s ranking member, Rep. Mike Bost (R-Ill.), “Too often, they’re [veterans] denied benefits because there isn’t enough science to determine if their condition is linked to their time in uniform. Making that connection could take years. We need help now.”

When help is needed for veterans exposed to toxins, sometimes it’s not enough to follow the science; as noted in the 1976 film “All the President’s Men,” sometimes you need to “follow the money.” 

And, we also need to acknowledge that the two are often intertwined. 

“There shouldn’t be a price tag on the lives of war heroes and war fighters and their widows. This is what Lincoln’s motto is, to take care of the widow and the orphan, and they’re not really abiding by that, if they were to go with what’s cheaper,” said Rosie Torres, founder of Burn Pits 360, referring to VA’s motto.

One of the main reasons it has been so hard to follow the science when it comes to toxic exposure for veterans is that VA has traditionally taken a conservative approach to studying it. 

However, when VA is slow to follow the science, veterans have successfully followed the money, through the help of the federal court system. 

Now, as Congress continues to debate the rules and regulations around burn pits and resultant disabilities, veterans should once again follow the money through the halls of justice.

In 1979, Paul Reutershan, a former Army helicopter crew chief in Vietnam who was suffering from several forms of cancer, which he believed were caused by Agent Orange, became the lead plaintiff in a class action lawsuit against several chemical companies that manufactured Agent Orange.  

The case eventually settled for $180 million — the largest out of court settlement in history at that time — but not before Reutershan passed away.

Notably, the plaintiffs sued the chemical manufacturers and not the U.S. government due to the Feres Doctrine, a long-standing rule that arose from the 1950 Supreme Court case Feres v. United States, which held that those injured as a result of military service cannot sue the federal government under the Federal Tort Claims Act. 

In addition, at the time, individual veteran’s disability benefits claims were exempt from judicial review. Accordingly, another class action lawsuit, Nehmer v. U.S. Veterans’ Admin., was filed on behalf of Vietnam veterans in district court to invalidate a VA regulation, which found that only a single disability, chloracne, was “sufficient to establish service-connection…”

As a result of this lawsuit, VA has since paid out more than $4.5 billion to Vietnam veterans and their surviving families as a result of disabilities incurred from exposure to Agent Orange.

Turning to the current iteration of toxic exposure for veterans, burn pits, the Supreme Court rejected an appeal brought by veterans seeking to hold private companies responsible for the use of burn pits in 2019. But, this does not mean that those exposed to burn pits should stop seeking assistance from the judicial branch in obtaining benefits. 

First, as Congress continues working through potential legislative changes, courts are often needed to enforce Congress’ intent. As noted in subsequent litigation related to the Nehmer lawsuit: 

“What is difficult for us to comprehend is why the Department of Veteran Affairs . . . continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam war veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct.” 

The court went on to explain that veterans who’d suffered illness and injury from toxic exposures deserved better treatment from VA than they were currently receiving, and its hope that VA would better comply with the court’s orders. 

The court concluded with its hope that “our government will now respect the legal obligations it undertook . . . that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.”

Second, in 2017, the U.S. Court of Appeals for the Federal Circuit recognized that the U.S. Court of Appeals for Veterans Claims (CAVC) had class action authority. The CAVC, which was created by the Veterans Judicial Review Act of 1988 and did not yet exist at the time of the Agent Orange litigation, certified its first class action lawsuit in 2019. 

As a result, veterans are already following the money — in one of the first certified class actions approved, veterans’ advocates stated that, based on past estimates by the VA, it could be forced to pay out between $1.8 billion and $6.5 billion in reimbursements. 

Therefore, those denied benefits due to burn pit exposure could explore this avenue as a way to obtain benefits, specifically as it relates to the court’s authority to apply the All Writs Act to “compel action of the [VA] Secretary unlawfully withheld or unreasonably delayed.”

Although VA’s declaration to follow the science sound promising, as veterans from past wars can attest to, sometimes the department’s ability to do so is simply too slow and too bureaucratic to help those in need of benefits. Therefore, those who’ve been exposed should not be afraid to enlist the help of the federal court system to follow the money. 

Rory E. Riley-Topping is the founder of Riley-Topping Consulting, where she continues to work with various veterans organizations. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.