Appeal to VA Secretary Shinseki re: C-123 Agent Orange

Patches - Tail #362

McMinnville Oregon

October 2, 2012

Honorable Eric K. Shinseki
Secretary
Department of Veterans Affairs
810 Vermont Avenue NW
Washington, DC 20420

Dear Mr. Secretary,

On September 25, 2012 my application for Agent Orange exposure benefits was denied by Compensation Service. The fundamental basis for the denial was his suggestion that, while the C-123 aircraft which I flew were contaminated with TCDD remaining from their Vietnam War missions, there likely wasn’t enough dioxin remaining to expose aircrews. I ask that you make a decision that C-123 aircrews have indeed been exposed.

Disputed by VA in my application were independent scientific opinions about me presented by Dr. Tom Sinks, Deputy Director of the CDC Agency for Toxic Substances and Disease Registry, Dr. Jeanne Stellman, Professor Emerita of Columbia University’s Mailman School of Public Health, Dr. Fred Berman of Oregon Health Sciences University’s Toxicology Department, and Dr. Joe Goeppner, an independent toxicologist and retired senior officer of the US Army Chemical Corps.

C&P’s basic reason for disputing these opinions is that they were proffered by scientists, and not physicians. However, the VA’s earlier materials were themselves mostly prepared by scientists, themselves not physicians. Further, Dr. Stellman is perhaps one of the top two persons in the world most expert on the subject of Agent Orange, whose research and opinions have been accepted widely.

I have repeatedly asked my civilian and VA physicians to comment on the possibility of my own exposure to Agent Orange. In every instance I have been told that such a possibility is best evaluated by toxicologists or epidemiologists, not physicians. As has been stated by numerous witnesses before the Senate Committee on Veterans Affairs, including you, individuals almost always would find it impossible to establish any certainty of medical nexus, and such a nexus is best established by considering a larger population. In our case, with only about 1500 aircrew and flight nurses involved, Dr. Stellman has concluded we are too small a population for any epidemiological conclusions.

Yesterday I again sought medical opinions from physicians in the Oregon Health Sciences University Orthopedics Department where I am a current patient for hip replacements. Even my own hospital and physician have stated that they lack any professional grounds to evaluate such a situation. Dr. Bill Hersh, head of OHSU’s Clinical Epidemiology Department, apologized  yesterday, saying he cannot be involved with this issue as it is not his area of expertise…it seems to be nobody’s. Even my own primary care provider and other physicians treating me at the Portland VAMC will not comment, perhaps because they are prohibited from discussing Agent Orange issues. Clearly, “exposure” is an issue best judged by toxicologists.

As I read the 1991 Agent Orange Act, veterans like me who have strong evidence we’ve been exposed are to be given several considerations, although not presumptions as for the “boots on the ground” Vietnam veterans. On an individual level, as you have stated, it is unlikely that any veteran can establish a medical nexus with absolute certainty. However the act, as explained in your testimony before the Committee in 2010, states:

 The statute specifies that a "positive association" exists whenever the Secretary determines that the credible evidence for an association is equal to or outweighs the credible evidence against an association.  The language and legislative history of this act made clear that it did not require evidence of a causal association, but only credible evidence that herbicide exposure was statistically associated with increased incurrence of the disease.  The Act further specified that, in determining whether a positive association exists, VA must consider the IOM’s report and any other sound scientific and medical evidence available to VA.

Mr. Secretary, we maintain that we have satisfactorily established sound scientific evidence that our contaminated C-123 aircraft exposed us to dioxin. The VA’s Public Health released their review of literature, which led to their conclusion that while our crews may have been exposed, it likely wasn’t enough exposure to cause long-term health effects. Ignored in their research, not cited as references in any of their announcements, were the opinions from experts like Dr. Stellman, Dr. Sinks, Dr. Goeppner and Dr. Berman. Are these not experts qualified to present sound scientific evidence? Is VBA suggesting a VA threshold of five more more PhD opinions, or even that no number of PhD opinions would be adequate to sway him?

As the Air Force destroyed all the C-123 aircraft in 2010 specifically because of their contamination, no further study of them is possible…only literature reviews. The only tests done were begun in 1994 and even though that airplane hadn’t sprayed Agent Orange for over 23 years, it was tested as “heavily contaminated on all test surfaces, interior and exterior.” Later tests, completed after more decades stored in Davis-Monthan AFB’s Boneyard, also showed contamination but in decreasing levels…reasonable, considering the half-life of dioxin. In 1972-1982, as Dr. Sinks maintains, contamination and also exposure were much more intense.

The scientific experts  consulted and from whom we sought independent scientific opinions evaluated the same source materials as did the VA’s Public Health. Like the CDC/Agency for Toxic Substances and Disease Registry, their conclusions regarding C-123 aircrew exposures were:

The only available environmental samples indicate that the sampled aircraft was contaminated with TCDD at a level greatly exceeding current screening levels established by the Department of Defense. Given the available information. I believe that aircrew operating in this, and similar, environments were exposed to TCDD.

I find it amazing that Dr. Stellman’s and Dr. Sink’s opinions are automatically dismissed in particular because neither is a physician, yet the principal authors of the VA’s materials is herself not a physician but a PhD toxicologist who has never seen the inside of a C-123.

After careful weighing of our situation, both the Vietnam Veterans of America and the American Legion have passed national resolutions addressed to you, asking that our veterans receive service connection for Agent Orange exposure.

The issue ultimately will be resolved by you under authority of the Agent Orange Act of 1991 or by appeals channels within the VA, or by eventual court action. It is unimaginable that a fair-minded scientist, jurist or other reviewer of this situation wouldn’t find that, at the very minimum, I as a C-123 veteran and the men and women I flew with, clearly meet the statutory requirements of the law, as well as of justice and common sense.

I ask, therefore, for both common sense and justice from you.

Respectfully,

Wesley T. Carter, Major USAF Retired
Chair, C-123 Veterans Association

wes@c123agentorange.com
www.c123agentorange.com  &  www.c123kcancer.blogspot.com