05 March 2018

Col. Archer Battista Scholarship for veterans attend law school available

The Hampden County Bar Association is once again offering the Col. Archer B. Battista Veterans Scholarship to any veteran who is attending law school.
The scholarship, which will be granted for at least $1,000, was named for Battista, who served in the Air Force for 33 years in active duty and as an Air Force Reservist. He was a pilot and participated in over two hundred missions in the Vietnam War, for which he was awarded two Distinguished Flying Crosses and twenty Air Medals, and served in multiple missions to Saudi Arabia during Operations Desert Shield and Desert Storm.
Battista graduated from Western New England University School of Law and practiced law from 1977 until 2013. He also served as president of the Hampden County Bar Association, a member of its board of directors and an ex officio director.
Battista, who died of cancer in 2016 at the age of 70, was an active part of a team of former Westover Air Force Reserve members who successfully spent four years fighting for benefits for military crews who fall ill after being exposed to Agent Orange while flying C-123 Provider planes that had been previously used to spray the chemical in Vietnam.
4-year fight over: Vets win Agent Orange benefits

After retiring, Battista was instrumental in establishing a Veterans Treatment Court in Western Massachusetts. The court addresses the unique situation of military veterans facing criminal charges, offering specialized supervision and care. Battista also served as a mentor to veterans going through the court process and received the Adams Pro Bono Publico from the Supreme Judicial Court of Massachusetts for his work.

24 February 2018


That's how I read it. 

And if I'm right, it means retroactive disability for some Reservists who happen to satisfy requirements for statutory veteran status. Translation: If a Reservist has some other service-connected disability dating from before the June 2015 liberalizing rule, such as tinnitus, the law's requirement for being a proper "veteran" for benefits is met. VA "will presume that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service."

The earlier injury for tinnitus or whatever satisfies requirements for veteran status without having to rely on the liberalizing rule's effective date of June 19, 2015. Ideas?

Here's the Federal Register C-123 posting:

Further, in consideration of the reserve component members with such service, VA will consider this presumed herbicide exposure to be an “injury” under section 101(24)(B) and (C). In turn, if such individual develops a presumptive disease listed in 38 CFR 3.309(e), as specified in 38 CFR 3.307(a)(6)(ii), “it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service.” 

23 February 2018


WHAT THE HECK? As a lifetime DAV member, I'm outraged! DAV has just debased itself and honored the administrator who bottled up our C-123 claims for four years, Mr. Thomas Murphy of the Veterans Benefit Administration. DAV forgets it was Mr. Murphy who approved the infamous no-bid sole-source $600,000 contract to Al Young to oppose Agent Orange claims. DAV forgets its own powerful denunciation of VA and that contract. Only with a blank memory could DAV or any other veterans organization lower itself to "honor" Mr. Murphy. Background: Along with Major Marlene Wentworth, I sat in front of Mr. Murphy in his office the afternoon of February 28, 2013 and read back to him his toxic September 25, 2012 advisory opinion in which he personally denied a C-123 veteran’s disability claim that the regional office had wanted to approve.Each of the four pages of Murphy’s opinion reeked of mistakes and revealed his passion in preventing C-123 claims. He excelled in that passion by denying 100% of our claims for over four years. For this disservice to thousands of C-123 veterans DAV now chooses to honor him? Outrageous! The thrust of that advisory opinion back in 2012 was his dismissal of all expert input establishing a veteran’s exposure from our Agent Orange-contaminated C-123 aircraft. Supporting the claim were reports from federal agencies, including the CDC/ATSDR, NIH, US Public Health Service, the National Institute of Environmental Health Sciences. Dozens of experts of the Committee of Concerned Scientists and Physicians also confirmed C-123 veterans’ exposure injuries. 
It is my understanding this particular application had more supporting evidence than any other VA disability claim ever submitted. Where typically a doctor’s note, some proof of service and perhaps an outside expert opinion would accompany a disability claim, this C-123 claim had a full-court press of government and independent experts, all making clear the fact of C-123 Agent Orange exposure. It was, in VA terms, “an overwhelming preponderance of evidence.”
None of which sufficed for Mr. Murphy. Determined to maintain the zero-approval stone wall he and others built against C-123 claims, he simply dismissed everything. He said these scientists and physicians, many of whom previously were VA and IOM experts, weren’t even qualified to comment.
Most outrageous was his dismissal of the report by Dr. Thomas Sinks, Deputy Director of the CDC/ATSDR. Dr. Sinks’ opinion on C-123 Agent Orange was dramatic: C-123 vets had exposure 182-times military safety limits and face a 200-fold greater risk of cancers. Later, Sinks' report would prove pivotal in the final IOM report confirming C-123 exposure injuries.
The Sinks report was also affirmed by the CDC/ATSDR director Dr. Christopher Portier and other NIH executives, including Rear Admiral R.Ikeda MD, US Public Health Service.
Not nearly enough for Mr. Murphy, who trashed the CDC/ATSDR report:

Read carefully Mr. Murphy’s last sentence: "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects."  Read that he did not repeat the frightening CDC/ATSDR details about exposures 182-times safety limits, or increased cancer risks.
Agent Orange is harmless? No health effects? Mr. Murphy summarized the CDC/ATSDR report about our 200-fold greater risk of cancers as “no adverse health effects?”
Later, a VA spokesperson called that “an unfortunate choice of words,” but it sufficed for Mr. Murphy’s purpose of ensuring that no C-123 claims would get past his desk. Years would pass before the first claim did succeed in 2015.
With his staff also present, I read his statement to him during our meeting on February 28, 2013 and Mr. Murphy said it would stand. He also said no evidence from whatever expert would permit C-123 claim approval because VHA had already decided we were never exposed. Meanwhile. on the other side of its official mouth, VA was falsely insisting that all our claims were evaluated on a case-by-case facts-proven basis. 
For Mr. Murphy’s mistreatment of thousands of C-123 veterans and his failure to follow his own VAM21-1MR regulation, DAV now stoops to “honor” this Agent Orange claim opponent. Totally disgraceful!

10 February 2018

VA’s Three Biggest Failures on C-123 Agent Orange Disability Claims: Early VA errors still hurt our claims

We were abused by a flawed claims system – flawed in that VA staff chose to actively oppose us although their legal duty demanded a non-adversarial pro-veteran process. Numerous federal agencies and independent experts argued for years in support of legal and scientific merits of our exposure claims but instead a handful of VA staff broke their own rules and turned a deaf ear.

Key conclusions regarding the three VA actions against C-123 veterans detailed in this report:
1    By January 2012 VBA had “an overwhelming preponderance of evidence” supporting C-123 veterans’ herbicide exposure claims but instead VA insisted it had a preponderance of evidence against the claims.
2    When C-123 veterans turned for help prior to June 2015, they were told no C-123 claims could be granted and thus very few “fought the system” and bothered to apply for disability benefits. VA staff was trained that C-123 claims could not be approved, so none were.
3    As far as VA records indicate, the only time CDC, NIH and other federal agencies opined in support of exposure claims was for C-123 veterans. VA disputed all such input and denied all claims anyway.
4    VA abused its duties per law and VAM21-1MR for “benefit-of-the doubt, fact-proven, non-adversarial, paternalistic, pro-veteran,” and “case-by-case” claims evaluation, instead imposing a C-123 blanket denial policy.

In the end, with help from CDC and numerous experts, we were proven correct in the law and the science. But, in the end, that meant years wasted while our claims should have been advancing. Years went by while VA refused veterans and families all care and benefits. Survivors couldn’t even get a folded flag. Years went by with VA instructing staff against every C-123 claim, and often discouraging vets from even applying. VBA must now adjudicate C-123 claims and appeals in the most pro-veteran basis, giving every possible benefit of the doubt...and a bit more!

People just can’t help it. Not only are they decades past wanting to hear about Agent Orange, their eyes unusually glaze over if I begin explaining how VA blocked 2100 of our Agent Orange claims for many years. Actually, nobody should be surprised at VA failings with our couple thousand when one remembers VA blocked tens of thousands of sick veterans’ claims until Congress jammed the 1991 Agent Orange Act into their playbook. To anyone who actually listens, my narration seems outrageous, phony or self-serving. If I get into any details I quickly lose my listener. Their expression says it all: “This is outrageous. VA would never even consider such anti-veteran deceptions. Someone’s making it all up.”

Actually, nothing’s made up or imagined, and I hope to make a case that SMCs are appropriate from 3/2011 forward, particularly loss of use of both legs, bilateral avascular necrosis of the hips (with revision in 2012, third replacement 2015 following diagnosis 2011, Hyperlinks in this essay go to the VA’s own source documents. VA resolutely opposed our claims in violation of every legal and moral duty and in total contrast to empty assurances given our elected representatives. In April 2011 I had faith in the VA, faith that they’d carefully check out my claim and weigh the supporting evidence; an approval would be forthcoming.

My trust in the VA lasted years past when I should have been screaming “foul,” but when they rejected all expert evidence from the CDC and NIH, I pretty much knew what so many veterans complained about was true. And when in 2015 I finally got thousands of pages of VA internal documents released thru the Freedom of Information Act there was little trust left.

Rather than dig into the dozen or so worst examples of VA mistreatment, I’ll write about three of their worst tactics that really hurt C-123 veterans, and stalled our disability claims for many years:
     • First, VA insisted in every possible response to veterans, Congress and the press that they had no “blanket policy” against our claims, and rather, each claim was carefully evaluated on a case-by-case basis. Nope!
    Second, VA insisted from the very first it had “an overwhelming preponderance of evidence” against our claims. Nope!
     Third, VA said we could submit claims for “fact-proven” consideration. Yes they said that, but Nope, there never was proper consideration of even a single claim.

18 January 2018

Agent Orange exposure and cancer incidence in South Korean Vietnam veterans: a prospective cohort study

Cancer. 2014 Dec 1;120(23):3699-706. doi: 10.1002/cncr.28961. Epub 2014 Aug 7.

Agent Orange exposure and cancer incidence in Korean Vietnam veterans: a prospective cohort study (South Korean Vietnam War Veterans)
Yi SW1, Ohrr H.
Author information
During the Vietnam War, US and allied military sprayed approximately 77 million liters of tactical herbicides including Agent Orange, contaminated with 2,3,7,8-tetrachlorodibenzo-p-dioxin. To the authors' knowledge, few studies to date have examined the association between Agent Orange exposure and cancer incidence among Korean veterans who were exposed to Agent Orange during the Vietnam War.

An Agent Orange exposure index, based on the proximity of the veteran's military unit to the area that was sprayed with Agent Orange, was developed using a geographic information system-based model. Cancer incidence was followed for 180,251 Vietnam veterans from 1992 through 2003.

After adjustment for age and military rank, high exposure to Agent Orange was found to significantly increase the risk of all cancers combined (adjusted hazards ratio [aHR], 1.08). Risks for cancers of the mouth (aHR, 2.54), salivary glands (aHR, 6.96), stomach (aHR, 1.14), and small intestine (aHR, 2.30) were found to be significantly higher in the high-exposure group compared with the low-exposure group. Risks for cancers of all sites combined (aHR, 1.02) and for cancers of the salivary glands (aHR, 1.47), stomach (aHR, 1.03), small intestine (aHR, 1.24), and liver (aHR, 1.02) were elevated with a 1-unit increase in the exposure index.

Exposure to Agent Orange several decades earlier may increase the risk of cancers in all sites combined, as well as "several specific cancers", among Korean veterans of the Vietnam War, including some cancers that were not found to be clearly associated with exposure to Agent Orange in previous cohort studies primarily based on Western populations.

06 January 2018

USAF C-123 Report: We're going to set the record straight in 2018

Nearly five years ago the US Air Force School of Aerospace Medicine (USAFSAM) at Wright-Patterson AFB released their study of the post-Vietnam C-123 transports previously used for spraying Agent Orange. The planes were used for a decade after the
Vietnam War and had never been decontaminated of the military herbicides they dispersed. The study was ordered by the Air Force when C-123 veterans complained of likely Agent Orange exposure.

The study was flawed, and tainted with command interference obvious when compared to the 38-page draft report the scientists themselves submitted. The study seemed torn between political and scientific goals, rather than science alone as would be proper. Veterans were concerned about their health but the report assured them the planes were unlikely to have been contaminated enough to cause medical issues typically associated with Agent Orange exposure.

The Air Force declined to inform aircrews of the twice-proven C-123 contamination, insisting it "would only cause undue distress and provide limited benefit." Message: we'd already been poisoned, and knowing about the poison wouldn't help us very much.

This blog began on March 14, 2011, a year before the USAFSAM report was released, and we've earned a seven-year track record of honesty and accurate interpretations of USAF and VA source data. Seven years ago, we said the Air Force and the VA were both wrong about our exposures.

By January 2015, we were proven right and they were proven wrong when the definitive Institute of Medicine report "Post-Vietnam Dioxin Exposure in Agent Orange-Contam-inated C-123 Aircraft" was submitted to the Secretary of Veterans Affairs. They were wrong, but only the veterans involved paid any penalty for errors because for six years, VA refused these vets all medical care and other benefits.

Two of those six years, 2012 to 2014, are tied to the tainted USAFSAM report and how the VA misused it. For these years VA refused all medical care, compensation, family assistance...everything needed by disabled veterans, citing the USAFSAM report as justification for VA locking its hospital doors to C-123 veterans.

Today, we begin our challenge of the USAFSAM report, together with an exposure of the damage done when VA relied on the report to cancel their own 2012 promise for referral of the C-123 question to the Institute of Medicine.

The goal now is to have the Air Force either withdraw their C-123 report ("UC-123 Agent Orange Exposure Assessment, Post-Vietnam [972-1982]) or, more probable, annotate it in some way to describe its errors and shortfalls. It should not be allowed to stand, as it has for five years, as the official Air Force conclusion about C-123 veterans and our exposures. It fouls the scientific record and offends the veterans it mistreated.

Now a clarification as we move forward. We will deal with three reports:
1. The 2012 USAFSAM C-123 Report (done)
2. The 2012 VA-promised referral to the Institute of Medicine (promised, cancelled)
3. The 2015 Institute of Medicine report, ordered by the VA (done)

16 December 2017



(CNN) Officials at the Centers for Disease Control and Prevention, the very agency tasked with saving and protecting the lives of the most vulnerable, are now under order by the Trump administration to stop using words including "vulnerable" in 2018 budget documents, according to The Washington Post.
In a 90-minute briefing on Thursday, policy analysts at the nation's leading public health institute were presented with the menu of seven banned words, an analyst told the paper. On the list: "diversity," "fetus," "transgender," "vulnerable," "entitlement," "science-based" and "evidence-based."
Alternative word choices reportedly were presented in some cases. For instance, in lieu of "evidence-based" or "science-based," an analyst might say, "CDC bases its recommendations on science in consideration with community standards and wishes," the source said. But those working on the Zika virus's effect on developing fetuses may be at a loss for appropriate -- or acceptable -- words.
The reaction in the room was "incredulous," the longtime CDC analyst told the Post. "It was very much, 'Are you serious? Are you kidding?'"
    As news of the word ban spreads at the CDC, the analyst expects growing backlash.
    "Our subject matter experts will not lay down quietly," the unnamed source said. "This hasn't trickled down to them yet."

    05 December 2017

    Retired USAF C-123 Vets with Agent Orange Illness Eligible for Combat Related Special Compensation

    Combat-Related Special Compensation (CRSC) provides special compensation to military retirees who have retired pay reduced because of receiving U.S. Department of Veterans Affairs (VA) disability compensation. This means that qualified military retirees with 20 or more years of service that have "combat related" VA-rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation. Instead they will receive both their full military retirement pay and their VA disability compensation. The following is a summary of Combat-Related Special Compensation:
    Once a military retiree has been determined to be qualified he/she will receive their regular retirement pay plus an additional sum based on their VA disability rating.


    The following CRSC eligibility requirements apply:
    In order for members to be eligible for CRSC, they must meet all of the following criteria:
    1. Receive military retirement pay for one of the following reasons:
      • Served on Active Duty, the Reserves, or National Guard with 20 years of creditable service;
      • Served on Active Duty, the Reserves, or National Guard and is also a permanent medical retiree (Chapter 61) regardless of years served;
      • Served on Active Duty, the Reserves, or National Guard and is classified as a Temporary Disability Retirement List retiree regardless of years served; or
      • Served on Active Duty, the Reserves, or National Guard and is classified as a Temporary Early Retirement Act retiree with 15-19 years served.
    2. Have 10% or greater VA rated injury that is combat-related.
    3. Military retirement pay is reduced by VA disability payments (VA Waiver).
    4. Must be able to provide documentation that injury was a result of one of the following:
      • Purple Heart
      • Armed Conflict
      • Simulating War
      • Hazardous Service
      • Instrumentality of War
      • Agent Orange
      • Radiation Exposure
      • Gulf War
      • Mustard Gas or Lewisite