Of particular interest to C-123 veterans is Title 38 CFR Part 3, "Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes." In this publication of the Federal Register (Vol. 66, No. 89/Tuesday, May 8, 2001) VA incidentally addresses the military herbicide exposure of veterans who were exposed through service other than in Vietnam or other areas provided "presumptive" exposure status, such as the Korean DMZ.
VA was seeking in this action to address issues surrounding type 2 diabetes, and also addressed the exposure outside Vietnam as a comment that no specific rule was necessary to address that population, because VA "will presume that the disease (the acknowledged set of Agent Orange-presumptive illnesses) is due to the exposure to herbicides."
This is the reason BVA judges have correctly awarded service-connection to C-123 veterans in Boston and in Pittsburgh, after regional VA offices failed to follow their own rules and regulations.
Currently, to circumvent their own rule, VA denies "exposure" itself. Unable to deny contamination because the AF tests clearly establish the dioxin contamination of the C-123 fleet, and unable to deny the Agent Orange illness our physicians identify, VA is left with their trump card - to pretend that no exposure took place!
The law, however, is quite clear. "Exposure" is even clearly defined by the EPA itself as "contact between an agent and the visible exterior of a person," or, alternately, contact between a chemical or biological element and the outer boundary of an organism." That's us, folks.
Fighting back, determined to prevent access to their medical care for our Agent Orange illnesses, VA conducted a literature review which they termed a "scientific review" - citing in some cases 30-year old discredited articles, and carefully avoiding publications which confirm our exposure (such as the DOD TG 312), VA bars the hospital door. They even ignore, or cite as irrelevant and incompetent "lay evidence" expert opinions from EPA, US Public Health Service, CDC/Agency for Toxic Substances and Disease Registry, National Institutes of Health, the National Toxicology Program, Columbia University, University of Texas Medical School, Oregon Health Sciences University Toxicology Program, and many, many more highly qualified scientists and physicians. How many does it take to convince? Actually, VA has said it doesn't matter - no proof will be considered, regardless of qualification or expertise, per VA's Compensation Services.
How? Again, because they dispute "exposure" and claim it is secondary, where in fact it is initial, or primary. They claim it is too little an amount to harm...but the law does not require any amount of poison to be poison! And VBA claims Veterans Health Administration findings eliminate any need to evaluate a veteran's proofs because VHA rules come first.
Some regional offices have quoted one of the VA's internal decision-making matrix for claims rating officers, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. This is meant to address issues such as B-52 flying over Vietnamese air space, or aircraft flying from Thailand without landing inside Vietnam, and hypothetical contamination of aircraft or equipment later serviced outside Vietnam, such as trucks, armored vehicles and the like. This does not address contaminated C-123 spray aircraft, saturated with Agent Orange, and which official USAF tests confirmed as being "heavily contaminated" and "a danger to public health." Here's what the decision matrix states:
If the Veteran’s claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, please be advised that there is no presumption of “secondary exposure” based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there are no studies that we are aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred.Following is the critical language in the Federal Register meant to include C-123 veterans in the group of veterans who will be treated the same as Vietnam veterans, regarding Agent Orange exposure:
One commenter urged that VA amend the proposed regulation to include veterans who did not serve in the Republic of Vietnam, but were exposed to herbicides during their military service.Section 1116(a)(3) of title 38 of the United States Code establishes a presumption of exposure to certain herbicides for any veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, and has one of the diseases on the list of diseases subject to presumptive service connection. However, if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e)). We therefore believe that there is no need to revise the regulation based on this comment."