(C 28 107 548, dated 23 Aug 07) to the VA for service connection for diabetes, an Agent Orange-presumptive illness, based on his service flying with the 731st TAS at Westover and our C-123K/UC-123K aircraft which he stated were used for spraying Agent Orange in Vietnam and which had AO residue left on them.
The VA denied his claim. Citing the fact that he didn't serve in Vietnam, theVA's Board of Veterans' Appeals turned Tim down because he failed to provide evidence that the aircraft were contaminated. The finding reads
"while these planes may be of the type that were used in Vietnam to dispense Agent Orange from 192 to 1971, there is no evidence that any of the airplanes on which the veteran flew dispensed Agent Orange in Vietnam or that there was any residual Agent Orange on the aircraft the veteran served on. Further, the veteran has not submitted any evidence substantiating his contention that there was any Agent Orange material on the aircraft he served on. His assertion, standing along, is not sufficient to show he had actual exposure to Agent Orange years after it was used in Vietnam."Gosh, that's reasonable enough. No wonder Tim's claim and appeal were denied. He couldn't prove he was exposed to Agent Orange. But why not?
Easy. Because the VA and the Air Force stacked the deck against Tim, keeping from him the precise information cited above which he needed to prove his case. Back in 1996 a JAG officer in the Air Force Office of Environmental Law, considering the dioxin information that "Patches" at the Air Force Museum and other aircraft then stored as surplus at Davis-Monthan AFB's Boneyard, "should be kept in official channels only"...and that means keeping the information from reaching veterans like Tim to have the evidence needed to claim well-earned VA benefits. With the Air Force itself taking an active testing role in determining that there was indeed Agent Orange residue and toxicity in the C-123K fleet, including the eleven spray aircraft from the 731st and then keeping that information "in official channels only", Tim and other veterans like him faced an impossible challenge. The Air Force had the proof. The Air Force kept that proof from Tim, and denied him his well-earned veteran's benefits. It wasn't a simple matter of Tim not finding proof available somewhere, or that proof actually not existing. It was hidden.
Here, the Air Force took active measures to hide information from veterans like Tim so they wouldn't know the details of their exposure. Active measures to hide the information to protect veterans' health. Active measures to hide information to qualify for receiving medical care from the VA. These bad acts on the part of the misguided personnel who tried to hide the C-123K dioxin toxicity mean that the VA should, at every possible occasion, grant the benefit of the doubt to each C-123 crewmember, ACM, aerial porter, maintainer and air evac veteran seeking service connection.
From this writer's perspective, Tim is obviously due a reconsideration of his case due to the Government's misconduct in restricting availability of essential medical information, and Tim's award should be backdated not just to the date of his claim submission, but to the date his disease is likely to have been diagnosed under Nehmer. Further, Stephen I. Cohn, Veterans Law Judge, Board of Veterans Appeals and James Terry who is Chair of the VA Board of Appeals, should inquire as to why the Air Force via their misconduct and unethical behavior, did not notify aircrews of their exposure once it was officially known. They should ask why the Air Force allowed its veterans to struggle to put together VA claims but withheld the evidence veterans needed receive the benefits the very tests Air Force proved them eligible for! Amazing!
What say you, Judge Cohn. What say you, Judge James Terry? What evidence do you allow the government (although not the honorable gentleman representing the VA before you that day...I'm certain he was not at fault) to withhold at the expense of veterans who come before you seeking justice?