Help Needed to Refute VA Dismissal of C-123 Dioxin Exposure as "Secondary"

Under Secretary Allison Hickey

The C-123 veterans need help addressing a couple of the positions VA has taken in order that they might deny our Agent Orange exposure claims.

General Hickey, in her 1 October 2012 letter to me, stated “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.” She, and the Director Compensation and Pension (C&P) have used that language to deny claims like mine.

This language is very similar, and perhaps even taken from Fast Letter 09-20. Issued by then-Director of Compensation Services Bradley Mayes, it addressed Thailand and other exposure situations outside the “boots on the ground’ population, and stated the VA allowed “no presumption of ‘secondary exposure’ based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam…no studies that we are aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred in Vietnam.

 

In their zeal to prevent claim approvals, Compensation Services clearly misstates the situation involving C-123 aircraft, proven contaminated by multiple Air Force tests. The C-123 veterans’ exposure was primary…not secondary. Secondary exposure a completely different situation in toxicology than that which applies to C-123 veterans. The C-123 crews, maintenance and aerial port personnel had long-term, intense, direct contact and thereby exposure to aircraft “heavily contaminated” with military herbicides, including Agent Orange and its toxic TCDD. It is scientifically incorrect for the VA to label exposure aboard C-123 aircraft to be merely “secondary.” It is therefore improper to dismiss C-123 veterans’ claims on the unscientific basis, erroneously presented, of mere secondary exposure when the instead these veterans endured primary (also known as initial) exposure, via dermal and inhalation routes, and perhaps ingestion as well.

Scientifically, and logically, “secondary exposure” is extremely simple – to touch that thing which first touched the contaminant. The hand touching the toxin, then touching the airplane, results in secondary exposure to the next hand touching the airplane. The VA should recognize that ours is the initial hand and not the secondary hand. Follow? The first hand has primary exposure, the second hand secondary expsoure.

C-123 veterans take no position on whether, as General Hickey states, there is or is not any legal basis for acknowledging secondary Agent Orange exposure, or remote Agent Orange exposure. That is not our situation, and that is not our mechanism for having been exposed to Agent Orange and other military herbicides, because our exposure was primary.

Kindly solicit the opinion of qualified experts from the CDC/ATSDR or NIH/NIESH, or any beginning toxicology graduate student, or even Google the definitions of “secondary exposure” and “remote exposure” to resolve any lingering question regarding the inappropriate, and apparently highly selective, application of these terms employed to deny eligible C-123 veterans’ claims. These claims are well-founded, clearly have merit, are substantiated by appropriate federal government agencies, reputable universities (Columbia, University of Texas, Oregon Health Sciences University, others) and independent toxicologists (and whose opinions are perfectly acceptable to the Institute of Medicine which routinely seeks out their counsel [Dr. Stellman, Dr. Birnbaum, Dr. Schecter], and clearly are not “inherently incredible”, to use the language of FL 09-20 and other VA documents. The critical observer will see these names cited through the IOM reports and elsewhere in peer-reviewed publications. The critical observer will not a similar presence for authors of the VA’s position.

Dr. Tom Sinks, Deputy Director of the CDC/Agency for Toxic Substances and Disease Registry, reviewed the situation and in his finding repeated the VA position “(the) VA has concluded the potential for long-term adverse health effects from Agent Orange residues in these planes is minimal. Even if crew exposure did occur, it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.” He then disputes the VA website information and language used in denying several veterans’ claims with his conclusion “I believe that aircrew operating in this, and similar, environments were exposed to TCDD.” Dr. Sinks did not find our exposure to be secondary. He did not find it to be insufficient to cause harm. He found it quite harmful, and also noted our cancer risk was 200-times greater than the screening value.

Can a reasonable rating officer review the C-123 veterans’ claims and dismiss them as inherently incredible, lacking merit, without scientific foundation, deceptive? That doesn’t seem to be the case, especially given the support of these claims by the EPA, NIH and CDC.

If a rating officer requires a C-123 veteran to submit evidence elevating a disability claim to the threshold of “as likely to or not” or deserving of the “benefit of the doubt,” adequate evidence has been submitted to satisfy that requirement. If a rating officer properly insists the veteran meet the law’s requirement of proving contamination and exposure, those proofs have been submitted and the veteran need only substantiate having an Agent Orange-presumptive illness for a claim’s approval.

The law requires veterans claiming benefits but who do not have Vietnam boots on the ground service to submit evidence of exposure to military herbicides to be considered for disability compensation. The C.F.R.s fine-tuned this with the VA’s stated obligation of treating veterans in this category the same as boots on the ground veterans.

The EPA defines exposure as “contact between a person and a hazard.” Another EPA definition is “contact between a chemical or biological agent and the outer boundary of an organism.” Therefore, our veterans’ skin coming into contact with the military herbicides throughout the interior of a contaminated C-123 resulted in primary exposure. The law does not state how much contamination. The law does not state how much exposure or what kind. The law does not specific what color, what flavor, what brand, what anything regarding the toxin other than it be “military herbicide” which, in our case, is Agent Orange.

Clearly the Department of Veterans Affairs has categorized C-123 veterans’ exposure as “secondary” merely to provide some basis, however shaky, for dismissing perfectly legitimate disability claims. These veterans had primary exposure, that exposure was to dioxin present on a wide variety of surfaces inside the warplanes (dust, ceramics, glues, wood, paper, cardboard, glass, composites, bare aircraft grade aluminum, paint on metal and other surfaces, fiberglass, glass, leather, nylon, dunnage of all types, and other surfaces) and that exposure was via dermal, inhalation and perhaps ingestion routes.

We're calling for any expert to weigh in on this. We need especially those experts in the federal government to comment. The Army's Public Health Command is looking into the issue, and considering especially the VA's dismissal of wipe tests used to determine the C-123 contamination and potential for exposure. Can you help? Can you provide a scientific or a legal opinion to help us?