06 October 2012

VA Undersecretary for Benefits Writes re: C-123 Agent Orange

Under Secretary for Benefits Allison Hinkey(Brig. Gen. USAF Ret.)
Undersecretary for Benefits Allison Hickey wrote me yesterday to review the VA's position denying C-123 veterans service-connection for Agent Orange-related illnesses. We are especially respectful of her background as an aircraft commander, retired general officer and Air Force spouse. And we know from her appearance on the Hill she can really control her temper!

Secretary Hickey used her letter to explain a new point, not previously raised by the VA in preventing our claims: she writes "Currently, there is no equivalent legal basis for acknowledging "secondary" or "remote" Agent Orange exposure, such as that from contact with material or equipment previously used in Vietnam."

Here Secretary Hinkey misses the point. We are claiming primary exposure, as well, perhaps, as secondary, with the Agent Orange residue left on the airplane, as identified by every Air Force test between 1979 and 2009! As with the various successful claims by veterans who've been exposed in locales other than Vietnam, we have made clear that we were indeed not in Vietnam (other than our own many Vietnam veterans) but that our duties directly exposed us to "heavily contaminated" dioxin-laden aircraft - NOT to a "secondary" exposure.

She writes "...the potential for exposure to dioxin from flying or working in contaminated C-123 aircraft, years after Vietnam, is unlikely to have occurred in levels that could affect health." I offer a couple points here:
1. We flew these airplanes immediately after their use in Vietnam. The last spray missions were 1971 and we started flying (and cleaning out!) the C-123 in 1972. The first tests establishing contamination were in 1979 and the AF Armstrong Labs reported the airplanes still "heavily contaminated" more than two decades after Vietnam! Before being tested in '79 the aircraft had already gone through depot-level attempts to clean them out as well as base-level physical scraping the "crud" away.
2. Dioxin has a half-life of seven years (other than in direct UV) so, as the Agency for Toxic Substances and Disease Registry pointed out, the airplanes were MORE contaminated in earlier years 1972-1982, plus our exposure was not for the year or so Vietnam vets spent in-country but instead a full decade aboard the C-123!
3. The Agent Orange Act of 1991 and other statutes set no threshold for how much dioxin a veteran must be exposed to. The laws say "exposure". The laws say the Secretary of Veterans Affairs must weigh scientific and medical evidence in determining a veteran's claim for exposure - we suggest our scientific evidence is ample, sound, persuasive and overwhelmingly more expert than that of the VA's young toxicologist assigned to prevent our claims. The Secretary should be aware that the VA was unable to complete any new research because the airplanes were all destroyed in 2010, so they were only able to do a literature review. We point out that their selection of certain articles and failure to cite others was a blatant effort to twist science - to use (or incorrectly interpret) publications only to reach a pre-determinated negative conclusion. Hardly science!

The law, as we are given to understand it, requires a veteran to prove "boots on the ground" in Vietnam, or to meet a tougher standard of (1) proving the existence of contamination and (2) the route of exposure and (3) the presence of an Agent Orange-recognized illness and the nexus of that illness to the Agent Orange exposure. We have met this burden of proof. In spades!

How have we done this? How have we met every requirement thrown at us?
1. Contamination: Air Force tests done by qualified toxicologists established the presence of large amounts of military herbicides, including Agent Orange, as early as 1979 as reported in the Conway report. Conway also notes that the request for his survey came from the 439th Tactical Hospital, and followed years of effort by maintenance personnel and civilian depot facilities to remove the smell (associated with malathion, not Agent Orange) and black and brown gooey substances found throughout the fuselage. 
2. Route of Exposure: Toxicologists have weighed in this to support C-123 veterans. Drs. Jeanne Stellman, Fred Berman, Joe Goeppner, Wayne Dwernychuk and Tom Sinks explained in detail to the VA our exposure was via dermal, inhalation and ingestion routes. VA countered by creating a concept of "dry dioxin transfer" to explain how we were able to be in a contaminated airplane without  being exposed, but this has been debunked by toxicologists. Dr. Stellman flatly labeled it "unscientific!" We note the primary person assigned by the VA to create a position paper against our eligibility is a very recent PhD whose background was mollusk toxicology. We note the multitude of internationally recognized toxicologists who have established our exposure as "more likely than not."  A simple Google or Scholar search provides for a meaningful comparison of reputation and credibility - one that no court in the nation would fail to find persuasive.
3. Agent Orange illness & medical nexus: Of course, we allege no new Agent Orange illnesses, and rely on the already-establsihed list recognized by the Department of Veterans Affairs. Each of our veterans seeking medical care from the VA can and should evidence one of those illnesses to be qualified for VA care. The medical nexus between an individual veteran's exposure and an Agent Orange illness is, for all practical purposes, completely impossible to prove. Instead, we again rely on the VA's own policies as well as the various IOM reports. My own VA application was recently denied by the VA's Director of Compensation Service. He claimed that the four PhD toxicologists who detailed my/our Agent Orange exposure aboard the C-123 were not qualified to make their recommendations because they weren't physicians. Well, neither were most of the VA staff who worked this issue, and neither were any of the authors of references cited by them in their reports!

Secretary Hinkey, please spend some quality time with VHA to discuss the assignment given to construct a position for the VA's use preventing C-123 veterans' eligibility for VA care. Please spend some quality time with Dr. Tom Sinks, deputy director of the CDC/Agency for Toxic Substances and Disease Registry and Dr. Jeanne Stellman as they explain how our crews were exposed to long-term, low-dose TCDD toxins! Spend some quality time letting us make our case, Madam Secretary!

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