In the Press
Wednesday, October 28, 2020The Supreme Court Should Not Muck Around in State Election Laws — A Commentary by Akhil Reed Amar ’84 et al. The New York Times
Wednesday, October 28, 2020Using the Law to Fight Epidemics, for Better and Worse The New York Times
Wednesday, October 28, 2020Can Artificial Intelligence Save the Regulatory State? — A Commentary by Donald Elliott ’74 The American Spectator
Wednesday, October 28, 2020Peaceful assembly can’t happen without the option of gun-free events — A Commentary by Ian Ayres ’86 and Frederick Vars ’99 The Washington Post
Monday, December 7, 2015
Veterans Clinic Seeks Information on Toxic Water Disability Claims
On December 7, 2015, The Veterans Legal Services Clinic at Yale Law School filed a Freedom of Information Act (FOIA) request on behalf of The Few, The Proud, The Forgotten; Vietnam Veterans of America; and the Vietnam Veterans of America Connecticut State Council seeking records that the Department of Veterans Affairs (VA) has long withheld on the Camp Lejeune Subject Matter Expert (SME) program.
The Camp Lejeune SME program tasks an anonymous group of clinicians with issuing medical opinions in disability compensation claims brought by veterans with diseases linked to one of the worst toxic contamination events in U.S. history—the leaking of cancer-causing chemicals into the drinking water at Camp Lejeune, a Marine training base in North Carolina. Since the VA launched the SME program in 2012, the grant rate for Camp Lejeune toxic water disability claims plummeted from approximately 25% to 8%, according to VA statistics. The FOIA request submitted to the VA seeks comprehensive records on the Camp Lejeune Subject Matter Expert program, including policies, procedures and objectives; fiscal impact; data and statistical information; and training records.
Between 1953 and 1987, nearly one million veterans, civilian employees, and their families at Camp Lejeune were exposed to toxic drinking water, resulting for many in illnesses, disabilities, and death*. As of February 2015, the VA had decided 9,636 toxic water disability claims brought by Camp Lejeune veterans, denying 8,909 and granting 778, according to the VA's own totals.
Even based on the little information disclosed about the Camp Lejeune SME program, veterans groups and medical professionals have identified concerns about the clinicians’ credentials, methods, and subject-matter expertise. SME program clinicians have repeatedly cited to scientific reports that VA officials have conceded are outdated. In at least one case, an SME program clinician cut and pasted a Wikipedia entry to provide a medical opinion on a rare type of cancer**.
At a press briefing on December 7, 2015, Senator Richard Blumenthal '73 (D-CT), ranking member of the Senate Veterans’ Affairs Committee, expressed his concern with the lack of transparency surrounding the program.
“The information sought in this FOIA request is the lifeblood of credibility and legitimacy and it should be disclosed,” Blumenthal said. “There is a broader point here, which is that toxins and potential poisons in the water at Camp Lejeune are only one example of toxic substances that may affect our warriors on the battlefield and in other arenas of service.”
“The VA claims it created the Camp Lejeune Subject Matter Expert program to assist veterans, but it is adversarial and unjust. Everything we know about the program indicates that it should be scrapped,” said retired Marine Master Sergeant Jerry Ensminger, founder of The Few, The Proud, The Forgotten and a father who lost his daughter to leukemia linked to Camp Lejeune toxic water exposure.
Rick Weidman, Executive Director for Policy and Government Affairs, Vietnam Veterans of America added, “The VA can no longer ignore our demand for answers. So-called experts cherry pick from bad science to write opinions that are used to deny veterans the benefits they deserve.”
“The VA’s lack of transparency is alarming given concerns about the qualifications and methodology of the Subject Matter Experts,” said Rory Minnis '17, a former Marine and law student intern at the Veterans Legal Services Clinic at Yale Law School.
“Understanding how this program influences VA’s adjudication of disability claims is crucial because the VA has identified the Camp Lejeune Subject Matter Expert program as a model for toxic exposure compensation claims in the future.”
The Few, The Proud, The Forgotten was founded in 1997 by retired Marine Master Sergeant Jerry Ensminger. The organization is dedicated to protecting the rights of Marine veterans, civilian employees, and families who were exposed to toxic drinking water between 1953 and 1987 at Camp Lejeune, the Marine Corps base in North Carolina.
Vietnam Veterans of America was founded in 1978 and is the only national veterans organization congressionally chartered and exclusively dedicated to Vietnam Era veterans and their families. VVA’s goals are to promote and support the full range of issues important to Vietnam veterans, to create a new identity for this generation of veterans, and to change public perception of Vietnam veterans.
In response to veterans groups filing a FOIA request with the VA on the Camp Lejeune Subject Matter Expert program, Senator Richard Burr (R-NC) and Senator Thom Tillis (R-NC) issued the following statements on Monday, December 7, 2015:
Senator Richard Burr (R-NC)
“The VA denied credible science for too long and resisted helping veterans afflicted with diseases from the poisoned water at Camp Lejeune. The VA’s Camp Lejeune expert panel demonstrates the lack of transparency that plagues the administration. These experts are VA clinicians lending their medical opinion on the side in virtual anonymity without even seeing the veteran. Many of the ‘experts’ have little background in cancer, let alone toxic exposure. Unfortunately, some of these providers misrepresent numerous scientific studies and cite dubious sources to overrule the judgment of veterans’ oncologists. While I’m disappointed in the prior conduct of the VA, I’m encouraged by their recent decision to grant presumptive disability status to Camp Lejeune veterans and will continue to fight for our veterans.”
Senator Thom Tillis (R-NC), Senate Committee on Veterans’ Affairs
“When it comes to determining the relationship between toxic exposures and negative health outcomes, the government’s preeminent expertise is not housed at the VA. That is why problems are created when the VA tries to assume this job without the necessary capabilities. We have seen example after example of uninformed and downright false scientific claims made in denial letters sent to veterans applying for benefits from the VA, and approved by so-called VA subject matter experts. The process is broken. The solution requires modesty on the part of the VA to stick with what it knows best, and wisdom to defer to the experts who serve at other federal agencies.”
* INSTITUTE OF MEDICINE, REVIEW OF VA CLINICAL GUIDANCE FOR THE HEALTH CONDITIONS IDENTIFIED BY THE CAMP LEJEUNE LEGISLATION 11 (2015)
** Arguments raised during the most recent meeting of the Camp Lejeune Community Assistance Panel convened by The Agency for Toxic Substances & Disease Registry on December 4, 2015. http://www.atsdr.cdc.gov/sites/lejeune/capmeetings.html