17 October 2017

C-123 vets sue for USAF line of duty determination

Yesterday afternoon C-123 veterans filed suit  in the US District Court of Washington D.C., seeking USAF line of duty determinations (LOD) to recognize our Agent Orange exposures. We are represented by the firm of Perkins Cole LLP of Washington, D.C.

The military LOD is vital in protecting veterans' disability benefits from the Department of Veterans Affairs.

16 October 2017

Retroactive Disability Compensation: Today We WON!



C-123 veterans have been barred from disability compensation for our Agent Orange claims
submitted prior to June 2015. That's when the VA finally started honoring our claims but not going back to the date submitted for those of us who filed before VA's June 2015 decision. TODAY WE BEGAN TO CHANGE THAT AND GET OUR BACKDATED BENEFITS!

The VA's Board of Veterans Appeals, acting on a vet's C-123 claim first submitted back in 2011, on Thursday approved his appeal that sought retroactive benefits to the date first filed, thus picking up four years of retroactive disability compensation due him.

How was this done? I'd read about the restrictions on retroactive benefits with liberalizing rules and was a party to the negotiations with Secretary McDonald that left us so dismayed by loss of benefits for which we'd waited years.

An idea formed: I'd also read that reservists with line-of-duty injuries can achieve legal veteran status. It was easy to find a couple citations on the BVA web site, so it seemed possible to anchor a C-123 Agent Orange claim or appeal with a C-123 hearing loss disability. The claim would be on a "fact-proven" basis because VA already recognizes our exposures and there would be no need for the liberalizing rule to convey veteran status via presumptive service connection. We owe sincere thanks to the C-123 pro bono team (Chicago and Denver) at Faegre Baker Daniels, plus the National Veterans Legal Services Project for their input.

Most of us have some hearing loss, and this particular vet had earlier submitted a straightforward hearing loss claim, earning the small disability VA typically grants for hearing loss and tinnitus, based on the vet's flying activities. Those activities included C-123 duty, so the hearing loss triggered legal veteran status during the 1972-1980 period he was also being exposed to Agent Orange.

With legal veteran status established by his hearing injury, the Agent Orange illnesses for this vet simply became additional illnesses that VA covered.

Although this particular vet was already 100% disabled for other issues besides Agent Orange, if he hadn't already been receiving a VA check this decision would give him compensation from 2011 to June 2015, or about $110,000...serious pocket change, indeed! His claim was meant to be our association's "poster-child" claim to try to pave the way for others.

What's this mean for you? If your claim was submitted to VA on or after June 19, 2019, nothing. If it was submitted before and you are neither retired military nor already on VA disability, it means your claim can be appealed, or re-appealed, citing this decision, so long as you have a claim you can also make for hearing loss or some other disability. BVA decisions don't set precedent, but VA administrative law judges do give them great weight on similar claims.

I emphasize the issue of hearing loss...most flyers (or infantry, artillery, EOD) have it to some degree. Many of us have tinnitus, for which there is no test and a veteran need only state that ringing in the ears has become a problem. That hearing loss (or any other LOD injury) having its origins back in our C-123 days, is a disability that satisfies the law's requirements for full legal veteran status...and opens the door for your Agent Orange claim being backdated!

This appeal is in my Facebook NOTES section and HERE IS THE ACTUAL DECISION

22 September 2017

BVA Screws Up Another C-123 Vet's Appeal?

It looks like BVA has trampled over the facts of another veteran's appeal.

In early August 2017, a denied claim was reconsidered by the VA Board of Appeals in West Virginia. The vet claimed service connection for Agent Orange exposure during his assignment to the 327th Tactical Airlift Group at Lockbourne. BVA determined that the vet wasn't exposed to C-123 Agent Orange contamination because the 317th "was nor recorded as having operated or maintained  the ORH (OPERATION RANCHHAND) C-123 aircraft."
EXCEPT: The 317rh did fly assigned C-123 transports!

A two-second Google search showed that the 317th was assigned C-123 transports between 1969-1971,
"Further, the Board's previous remand directed the RO to determine whether the Veteran serviced Operation Ranch Hand (ORH) C-123 aircraft during his military service, which are affected aircraft under the regulation. The RO determined that the Veteran was stationed at one air base, Lockbourne Air Force Base, where ORH C-123 aircraft were stationed while the Veteran was present. However, the Veteran's assigned squadron, the 317th Air Lift Group, was not recorded as having operated or maintained the ORH C-123 aircraft, and he thus was not found to have regularly and repeatedly operated or maintained affected aircraft under the regulation. Therefore, this case turns on whether the Veteran was exposed to herbicide agents as a result of his military service in Thailand."

Tachikawa Airfield, Japan, 18 August 1948 - c. 21 September 1948
Wiesbaden Air Base, Germany, c. 30 September 1948
Celle RAF Station, Germany (later: West Germany), 9 January – 14 September 1949
Rhein-Main Air Base, West Germany, 14 July 1952
Neubiberg Air Base, West Germany, 17 March 1953
Évreux-Fauville Air Base, France, 17 April 1957 – 25 September 1958; 15 April 1963 – 20 June 1964
Lockbourne Air Force Base, Ohio, 20 June 1964
Pope Air Force Base, North Carolina, 31 August 1971 – 20 August 1993
Dyess Air Force Base, Texas, 1 April 1997–present
C-47 Skytrain, 1942–1948
C-46 Commando, 1948
C-54 Skymaster, 1948–1949
C-119 Flying Boxcar, 1952–1957, 1957–1958
C-130 Hercules, 1957–1958, 1963–1964, 1964–1971, 1971–1993, 1997–2012
C-124 Globemaster II, 1963–1964
C-123 Provider, 1969–1971.
Lockheed Martin C-130J Super Hercules, 2010–present

Luckily, this vets' appeal was approved on other justification, but everyone involved let the vet almost get denied. BVA should have checked as should VFW, WHO REPRESENTED THE VETERAN!!

13 September 2017


   Every C-123 Agent Orange claim ever submitted was denied until June 2015, but still, VA insisted it had no blanket denial policy. How else are ten years of 100% denials described? With instructions like the examples below, there clearly was an official blanket denial policy. This denied Due Process, misled Congress when it tried to help us, ignored VAM21-1MR and provisions of US statutes and Federal Regulations. It was deceptive and an amazing abuse of discretion.

    Look at the following list of promises of case-by-case consideration. All of them, however earnestly offered, are shown to be false in the memo authored by VBA's Agent Orange expert, Mr. James Sampsel. He wrote, "If we were to adopt a case-by-case plan, an additional problem would be how to determine whether a particular post-Vietnam C-123 crew member was flying stateside on a former Ranch Hand aircraft." 

    See the point? He's discussing VA adopting a case-by-case plan, making it clear VA never had one! Why? Because VBA wanted to avoid the "slippery slope" his memo warned of.

VA has the means to punish veterans making false claims, but veterans have nothing except outrage to deal with VA's abuse of discretion and false promises.

"Scouts' Honor?"
• "All claims are considered on a case-by-case basis." – former Secretary Shinseki
• "All claims considered on case-by-case basis." – Under Secretary Hickey
• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel
• "All claims are considered on a case-by-case basis." – VA Deputy Chief Consultant Post-Deployment Health
• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26, 2012, May 23, 2014
• "Makes a case-by-case determination..." – VA Office of General Counsel
• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee
• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page
• "These claims will be decided on a “case-by-case basis" – VA Agent Orange consultant
• "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service
    • "Claims are evaluated on a case-by-case basis." – VA Public Affairs

"I cannot tell a lie!...except about C-123s"

     VBA informed regional off
ices how to deny all claims, and when ROs asked CS for they were told how to deny C-123 claims (VBA and VHA leaders made similar statements.)
     Every one of these was eventually shown to be in error, yet VA has never made right the harm done affected veterans.

•  “VHA has already informed CS that no C-123 exposure claims will be approved because there was no exposure” (Mr. Tom Murphy to Wes Carter and Major Marlene Wentworth, NC USAF on 28 Feb 2013, in his office)
•   "No amount of proof from whatever source will permit a C-123 claim approval. Because we've already determined there was no exposure." (Dr. Mike Peterson VHA to Wes Carter and Mr. Brooks Tucker [Senator Burr's staff] at Senate Hart Building meeting, May 2012)

•  "There was no exposure. (Consultant representing VA at June 2014 IOM C-123 hearing)

•  "VA laws and policies related to Agent Orange exposure, whether presumptive or based on fact-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide"*

"TCDD is believed to persist in the metallic (or painted) environment with the lack of direct sunlight; however, its exposure risk is low due to lack of bioavailability and possible routes of exposure."

• "Therefore, it can be concluded that crews who worked on C-123 aircraft after they were used in the Vietnam War were not at risk of developing TCDD/Agent Orange-related health effects"

* Liquid Agent Orange only? A novel concept, but an outrageous one in toxicology. Agent Orange and its contaminant TCDD are deadly as a liquid, gas, solid or anything in between. The IOM concluded that, despite VA's "liquid" slight-of-hand. C-123 veterans were exposed via dermal, inhalation and ingestion routes of exposure.
** Mr. Murphy references the letter to Secretary Hickey from the Committee of Concerned Scientists and Physicians, which sought to satisfy the legal and scientific requirements for veterans' Agent Orange benefits per 38 USC and the VA's three eligibility statements in the Federal Register, i.e. exposure alone.

Here is VA's first position statement from April 2011 addressing C-123 exposure inquiries. 
• The first point is correct: at that time, only Vietnam veterans had "presumptive exposure." The law was that other claimants would have to prove exposure on a fact-proven basis as we proceeded to do.
• The next four VA points were either disproved by the IOM or, with the third point, clearly CUE.

10 August 2017

Book review: Dr. Alvin Young's "The History, Use, Disposition and Environmental Fate of Agent Orange"

 Dr. Jeannie Stellman strongly supported our argument that C-123 veterans were
exposed to 
Agent Orange residue in our aircraft. Besides her presentation at the
June 2014 Institute of Medicine hearing, she
co-authored a scientific analysis of
the C-123 contamination
. Here Dr. Stellman reviews Dr. Alvin Young's extensive
publication on Agent Orange.
Perhaps the best summary of his book is her simple, short sentence: "Science also
seems to have ended in the 1970s and early 1980s for Young."
Logo of envhper
. 2010 Jun; 118(6): A266.
PMCID: PMC2898884
Book Review

The History, Use, Disposition and Environmental Fate of Agent Orange

By Alvin L. Young, New York:Springer, 2009. 339 pp. ISBN: 978-0-387-87485-2, $99  
It has been nearly 50 years since the United States initiated a military operation that sprayed approximately 20 million gallons of phenoxy herbicides and arsenicals on South Vietnam including Agent Orange, a formulation that was contaminated with dioxin. Alvin Young has been a major player in measuring and monitoring these herbicides since the 1960s. Retired from the Air Force (AF) and now receiving support from the herbicide manufacturers Dow and Monsanto, Young remains a governmental spokesman in post-conflict remediation dealings with Vietnam. His “new” book on the issue—actually, a largely unacknowledged compilation of his and others’ writing and research—contains some valuable information. This value though, must be weighed against a number of serious deficiencies in scholarship.
Young’s book contains a gold mine of data on the herbicides, some of which have been out of public view until now. But caveat emptor: Page after page of text and many illustrations and photographs are taken directly from Young’s prior publications without proper citation. There are also many lengthy direct quotations from other authors that appear without quotation marks or indents. Setting aside issues of copyright, the difficulty for users who wish to cite this book’s contents will be the absolute requirement of locating all references to distinguish original from reproduced text.
A second caveat: Many quotations are taken out of context, emphasis has been added without acknowledgement, and other authors’ work has in some cases been misinterpreted. For example, Major General John Murray—who evaluated military records aspects of the now abandoned Agent Orange Study—is quoted as seeming to urge abandonment of all military records–based studies with Young’s emphasis-added, capitalized, and boldfaced “NOT.” A check in the source material, though, will show that Murray’s very next sentence reads “It is, of course, understood that eight (8) other studies which require determinations of the likelihood of Agent Orange exposure conducted by the Veterans Administration and for which the Joint Services Environmental Support Group will provide exposure determinations and military record abstractions will rigorously continue” (Murray JE. 1986. Report to the White House Agent Orange Working Group Science Subpanel on Exposure Assessment. Washington DC:Office of Science and Technology Policy). Palmer’s work is cited as supporting the notion that science cannot contribute to understanding health effects of Agent Orange, because there are too many “quality of life issues.” A check of source material (Palmer MG. 2005. The Legacy of Agent Orange: Empirical Evidence from Central Vietnam. Soc Sci Med 60:1061–1070) reveals that Palmer did not say this; further, the year of his paper is incorrectly cited.
More recently, Young has proposed a new theory to support his contention that no U.S. troops were directly sprayed upon. He asserts that because there were no reports of U.S. casualties resulting from attacks by the fighter planes that escorted the spray planes, no troops could have been in harm’s way, and he cites Flanagan, a retired AF pilot who wrote of his varied experiences in Vietnam. In fact, Flanagan’s description of a spray mission disparages the Army recordkeeping on which Young relies: “Failure was never recognized … friendly casualties could be failures, but they, too, were never identified” (Flanagan JF. 1992. Vietnam Above The Treetops: A Forward Air Controller Reports. New York:Praeger).
In the interest of full disclosure, Young describes our methodology for updating and correcting herbicide spray records as demonstrating a “woeful lack of understanding” of AF reporting procedures. We must point out in response that our work (Stellman JM, Stellman SD. 2003. Characterizing Exposure of Veterans to Agent Orange and Other Herbicides Used in Vietnam: Final Report. Washington, DC:National Academies Press) was performed in collaboration with the persons at the Department of Defense (DoD) who were the most knowledgeable about these procedures—the Center for Research on Unit Records—and co-authored by Col. Christian (retired), former director of the DoD Joint Services Environmental Support Group. Young discounts the ability of spray plane navigators to know where they were or pilots to accurately spray their targets—thereby dismissing the utility of the voluminous spray records available, despite much evidence to the contrary.
Some assertions in the book either are disingenuous or contradict Young’s earlier work.

09 August 2017

LtCol Al Young earned Legion of Merit in 1984, helping VA block veterans' Agent Orange disability claims

In the 1983-84 time frame, VA firmly opposed all veterans' Agent Orange disability claims, insisting the only possible ailment was chloracne. Dr. Al Young was on loan to VA from the Air Force where he'd spent years defending and promoting the infamous herbicide. At VA he labored mightily to continue its defense, but it was an uphill struggle because science and Congress sided with the vets. Still...Dr. Young gets fair credit for blocking veterans as long as they were.

Let's be clear...earning one of the military's most senior decorations shows how faithful and successful Dr. Young (then a lieutenant colonel) was in fulfilling his duties. It was his sduty at VA, not the faithfulness with which he performed his duty, that has a stigma.  Young was assigned (81-83)  to head up VHA's Agent Orange Projects Office.

It may hard to credit Dr. Young with personally obstructing the claims of tens of thousands of sick Vietnam veterans...perhaps full credit doesn't fall on him, but his inventiveness, contemporary comments and writings on Agent Orange are quite suggestive.

I find it impossible to accept that "Dr. Orange" would have earned his Legion of Merit for advancing veterans' claims of illnesses due to Agent Orange exposure. He, and the VA through his leadership were suggesting sick vets were mental cases or trying to exploit pensions, or merely suffering the results of aging and poor health choices. Anything but Agent Orange! Young suggested that at least "a few" sought "public recognition for their sacrifices in Vietnam" and "financial compensation during economically depressed times."

Dr. Young, who was considered the government's ranking expert on Agent Orange, said the VA had not found any adverse health effects "clearly related" to dioxin exposure among 85,000 veterans. He was not one to be swayed by statistics suggesting otherwise, not even in recent years. He seems to never waive from his mantra about Agent Orange issues arising solely because of social, legal or political reasons, not science and medicine. At the time, VA savored such words as reinforcement to their wall against exposure claims. Young's message spread far and wide, thanks to events such as his Nightline interview, Air Force book and point-man influence throughout the VA.

I find it more likely that VA so appreciated Dr. Young's years successfully spent opposing our claims that the Legion of Merit was his proper due. At most, as he told the New York Times, "We just don't know," and the issue is only a "controversy." Thus his opposition to AO disability claims then, and ever since. Another quote from Young fits well here: "I was wrong." (as he said following Harvard's disproving Young's critical hypothesis that dioxin quickly degrades in soil.)

Back in those years he spent at VA, a staff member of the Senate Veterans' Affairs Committee derided Dr. Young as "a glorified weed-killer" who is "not qualified to discuss the health effects of exposure to Agent Orange."

So congratulations are due for his demonstrably successful years of hard work in service to the USAF and the VA. It took an act of Congress in the form of the 1991 Agent Orange Law to overturn VA's obstruction of vets' claims. LtCol Young's qualification for the Legion of Merit..." senior leadership/command positions or other senior positions of significant responsibility" is obvious, but it grates to consider he earned it by working against Vietnam veterans' claims.

From the Agent Orange Review Feb 1985 (ironic, right?)

• Here's a contemporary article: what role did Dr. Young and his position on Agent Orange have on the type of systemic anti-veteran VBA rules overturned by the US District Court? Why did 31,000 vets have to suffer, finding relief not at the VA but in the courtroom?