30 April 2013

Institute of Medicine - 16 January 2013

C-123 veterans were invited by the Institute of Medicine to present the basis for their Agent Orange exposure claims at the Institute's 16 January 2013 meeting at University of California-Irvine. The basis for their exposure claims for service aboard contaminated C-123 military medium assault transports used first in Vietnam for spraying Agent Orange, were discussed in detail with the IOM and are reported here.

Scientists from several universities, as well as from the CDC/ATSDR, US Public Health, EPA and others had already joined in confirming the Agent Orange exposure of C-123 veterans - all expert opinions were unpaid. Only the VA among federal agencies has concluded veterans weren't exposed and did so by inventing "bioavailability" as additional requirement, not in the law, to establish dioxin exposure. Further, VA has grouped all expert findings, other than those from VA staff, as "unacceptable lay evidence" to include exposure confirmations even from VA physicians and other doctors.

USAF faced the necessity of destroying the remaining C-123 aircraft stored at Davis-Monthan AFB's "boneyard" due to their Agent Orange contamination. Sales and parting out were not possible and a potential $3.4 billion EPA fine was in view. DOD Agent Orange Consultant recommended destruction of the airplanes, especially because veterans (already exposed!) who'd flown the airplanes earlier might learn of the contamination, and their exposure, and turn to the VA for medical care. OSD's statement clearly was to prevent veterans from proceeding on their claims, and the statement to the AF was taken up by managers at the 505th Sustainability Squadron as they sought Air Staff approval for C-123 shredding and smelting...and by repeating OSD's recommendation to hide the process from the media and the veterans, it became AF policy.

It should be clear. Veterans had ALREADY been exposed...the harm was done. They should have been told of this when first discovered by the USAF, rather than having the evidence about it destroyed specifically to prevent their learning of the C-123 contamination history and the right...indeed, for many, the NEED to turn to the VA for medical care for exposure to deadly dioxin. Shame on the Air Force Surgeon General for opting NOT to inform exposed veterans of the damage to their health "out of concern not to cause undue distress" as reads his distribution memo.

Shame on all parties involved for this "magnificent" deception. Shame on those who congratulated the players for their secrecy. Shame on the Base Public Affairs for a piece of tainted "journalism" which brings discredit to the United States Air Force!

28 April 2013

Report: Scientists Confirm Veterans C-123 Agent Orange Exposure

There are two foundations for C-123 veterans’ Agent Orange claims (legal and scientific) and we’re going to look into the scientific basis. But first the legal: under the 1991 Agent Orange Act, and the Federal Register of 8 May 2001, all veterans exposed to military herbicides will be treated the same as are Vietnam veterans.

The Basis for C-123 Agent Orange Veterans Claims 

The C-123 aircraft were contaminated with Agent Orange following their Ranch Hand spraying operations during Vietnam, and aircrews, maintenance and aerial port personnel after the war were exposed while flying and maintaining the toxic airplanes between 1972-1982. Agent Orange, especially in the earlier years of the Vietnam War, was contaminated with dioxin, also known as TCDDTCDD is a known carcinogen, and considered the most toxic of the toxins. Not a good thing in our airplanes!

Exposure to a toxin such as TCDD is via inhalation, ingestion or dermal routes. C-123 veterans experienced all three routes, but base claims on dermal exposure and inhalation. Generally, dioxin exposure is most readily via ingestion, then inhalation, then dermal routes.

In 1979 Air Force testing first confirmed the presence of “military herbicides” on the C-123, although no testing was completed for dioxin. The first comprehensive scientific testing of that same C-123 was fifteen years later in 1994 at the Air Force Museum, where the warplane was found to be “heavily contaminated” and “a danger to public health” by the Air Force toxicologists Drs Ron Porter and Wade Weisman. Using standard hexane wipes, they detected high levels of dioxin on all test surfaces, and consequently mandated HAZMAT protection for museum personnel working around that airplane until decontamination, which required three attempts, was decontaminated.

The 1994 Porter/Weisman data was joined by test results on airplanes stored at the Air Force boneyard in Arizona, where tests were completed between 1999 and 2009. These tests continued to show the toxicity of the warplanes, although degrading over time since the last Agent Orange spray missions completed in 1971.  Air samples were generally acceptable and wipes continued to report dioxin contamination.

Unable to justify decontamination of the aged airplanes and forced to address their disposal in some manner, the Air Force ordered all C-123s destroyed as toxic waste in 2010. At that point no further testing was possible, although two former spray aircraft used as museum displays may someday be examined (Pima Air Museum, AZ and the AF Museum at Warner-Robins AFB, GA). 

Thus, only the testing data already existent is available to analysis. When the veterans learned of the C-123 contamination via the Freedom of Information Act results in 2011, their inquiries to the Department of Veterans Affairs were immediately, and apparently without any even-handed analysis, rebuffed with VA insistence that the airplanes could not have exposed the veterans.

The veterans, convinced by the 1994 Air Force test results, turned to recognized experts in universities and government agencies to find confirmation of their exposure.

The first of these was Dr.Fred Berman of Oregon Health Sciences University Toxicology Program. Berman, himself a licensed pilot, examined the results of Porter/Weisman and concluded veterans were exposed. Addressing the Secretary of Veterans Affairs Dr. Berman wrote:
Berman had earlier participated in a teleconference between scientists, VA staff and veterans on the issue of C-123 exposure, and in his independent expert opinion dismissed the VA’s contention that the “dried dioxin” on the aircraft could not have exposed the aircrew. In particular, he noted that there was no support in scientific literature for precluding exposure to dry, or surface dioxin, and that two of the authors cited by the VA had themselves stated their articles did not address aircrew exposure and were not relevant to that issue. 
Dr. Jeanne Stellman was also consulted by the C-123 veterans, and she, too, provided an in-depth analysis of their exposure. Dr. Stellman is world-famous in dioxin issues, a decades-long focus of her professional career in public health. Her conclusion paralleled that of Dr. Berman. She confirmed their exposure in her message to the veterans:
Dr. Stellman also concluded C-123 veterans were exposed more than ground soldiers were in Vietnam, and somewhat less than aircrews in the wartime Agent Orange spray operations. She strongly and directly criticized the VA’s “dry dioxin transfer” position (which VA used to argue against the veterans’ exposure) by writing, “These statements, to be blunt, are technically flawed and show insufficient understanding of surface contamination. Concerned about the poor science procedures followed by the VA, and acting on behalf of fifteen of her physician and scientific colleagues, Dr. Stellman wrote the Under Secretary of Veterans Affairs to challenge the government’s position on C-123 veterans.

Further support for the veterans’ exposure claims was offered by the CDC/Agency for Toxic Substances and Disease Registry. Deputy Director Dr. Tom Sinks, whose opinion was later joined by that of the ATSDR Dr. Christopher Portier, confirmed the C-123 exposures. While lamenting the paucity of available testing data, Dr. Sinks, and later Dr. Portier, wrote:

Further agreement with the veterans’ claims to have been exposed were provided by Dr. Wayne Dwernychukretired chief scientist of the Hatfield Group, the leading engineering and environmental group specializing in Agent Orange. Dr. Dwernychuk concurred with the findings of Berman and Stellman, and the ATSDR, and using the VA’s preferred language reported the group of C-123 veterans “is more likely than not to have been exposed.” Dwernychuk in addition, particularly challenged the statement used by the VA's director of Compensation and Pension in denying a veterans’ exposure claim, where the government stated “there is no conclusive evidence that TCDD exposure causes adverse health effects”. This statement I find blatantly disingenuous” wrote Dr. Dwernychuk.

Among the physicians examining the C-123 exposure issue are Dr. Arnold Schecterprofessor of medicine at the University of Texas Medical School. Dr. Schecter is perhaps America’s leading physician specializing in Agent Orange, and offered his opinion:

The US Public Health Service also reviewed the C-123 Agent Orange issue, and Dr. Aubrey Miller’s expert finding on behalf of that agency was:

Another expert offering her careful review of the exposure issue is Dr. Linda BirnbaumDirector of the National Institutes of Health/National Toxicology Program. Her opinion:
Each of these authorities has volunteered their independent expert opinions and findings, while the VA position against veterans’ exposure was written by staffers assigned to do so as part of their jobs. 

Observers might compare the CVs of the VA staff to those of the independent experts...those writing for the VA are hard to even find, if at all, in Google Scholar while the independent experts, like Shecter, Birnbaum and Stellman, total hundreds of pages of CV references and thousands of pages of scholarly contributions to this field. Isn't it clear...people opposed by the senior scholars of their profession! Imagine a court setting with opposing "experts" and the obvious differences between them...no court would fail to side with the veterans, and indeed, no BVA will fail to award service connection for a C-123 veteran but we simply don't have the years waiting for BVA justice!
Supporting the C-123 veterans’ claim to have been exposed aboard the toxic C-123 fleet are federal agencies such as the EPA, NIH and CDC, and prestigious universities and independent experts. The scientists named here have stressed to the veterans that they’re not advocates for one view or another, but instead neutral observers whose opinions are based on the science involved, not the politics. And the veterans note that gives their conclusion about exposure even more weight.
The C-123 veterans ask the VA to yield on its predetermined disqualification of these airman from Agent Orange medical care. Congressmen and senators are asked to stress to the VA our complete qualification under the law for the care we desperately need for our Agent Orange illnesses.
(note: source documents for each issue dealt with are downloadable from www.c123kcancer.blogspot.com)
-- http://youtu.be/JtFQ1svAp

26 April 2013

The Difference between Agent Orange and Dioxin

Clarity on Two Terms: 

Agent Orange

Agent Orange was one of a class of color-coded herbicides that US forces sprayed over the rural landscape in Vietnam to kill trees, shrubs and food crops over large areas. Agent orange was a 50/50 mixture of two individual herbicides, 2,4-D and 2,4,5-T. It remained toxic over a short period—a scale of days or weeks—and then degraded.  The production of agent orange was halted in the 1970s, existing stocks were destroyed and it is no longer used.  The effects of agent orange do however persist in the form of ecologically degraded landscapes in parts of the hilly and mountainous areas of Vietnam.  The pre-war forests that existed in most of these areas took hundreds of years to reach an ecologically-balanced mixture of large numbers of species of flora and fauna. Natural regeneration would take centuries to reproduce those landscapes.  In addition, in some of the sprayed areas soil erosion and landslides have sharply lowered soil nutrient levels and altered the topographical features of the landscape.  These changes have encouraged a few species of invasive grasses of low value.  Active replanting with species of trees and shrubs which are ecologically viable and have economic value will require substantial and sustained long term investment.



Dioxin is a member of the class of persistent organic pollutants which resulted from the deliberately accelerated production of 2,4,5-T, one of the components of agent orange.  Dioxin can shorten the life of humans exposed to it and is associated with severe degradation of health in this and, potentially, future generations. Dioxin is toxic over a long period—a scale of many decades—and does not degrade readily. Dioxin is not absorbed by plants nor is it water soluble. It can attach to fine soil particles or sediment, which are then carried by water downstream and settle in the bottoms of ponds and lakes. It continues to adversely affect people who eat dioxin-contaminated fish, molluscs and fowl produced around a handful of point sources of dioxin called dioxin “hot spots.” Dioxin's continuing impact can be slowed or halted by genetic counselling, cutting the dioxin exposure pathways in the human food chain and by environmental remediation of contaminated sites. The adverse effects of dioxin on human health can be ameliorated in most cases if detected early, but they cannot be fully corrected in some cases by any amount of time or money.  If dioxin permanently alters the intricate internal cellular and chemical balances involved in maintaining good human health, there is serious risk of life-long health problems which may ultimately lead to mortality.
Written by Wayne Dwernychuk, Hatfield Consultants and Charles Bailey, Director, Ford Foundation Special Initiative on Agent Orange.

AF destroys toxic C-123 fleet to keep veterans from learning they'd been exposed!

The latest C-123 Veterans Association YouTube video addresses the secret destruction of the Davis-Monthan AFB "boneyard" C-123 fleet. Revealed are documents showing partial justification was specifically to prevent veterans from learning they'd already been exposed...and to keep them from being able to turn to the VA for Agent Orange benefits.

The USAF faced the necessity of destroying the remaining C-123 aircraft stored at Davis-Monthan AFB's "boneyard" due to their Agent Orange contamination. Sales and parting out were not possible and a potential $3.4 billion EPA fine was in view. DOD Agent Orange Consultant's recommended destruction of the airplanes, especially because veterans (already exposed!) who'd flown the airplanes earlier might learn of the contamination, and their exposure, and turn to the VA for well-earned medical care. OSD's statement clearly was crafted to prevent veterans from learning about the Agent Orange issues and then proceeding on their claims, and the statement to the AF was taken up by managers at the 505th Sustainability Squadron as they sought and received the Air Staff approval for C-123 shredding and smelting...and by repeating OSD's recommendation to hide the process from the media and the veterans, it became AF policy. Special procedures were taken to make sure the destruction of the C-123 fleet was accomplished with as little public attention as possible, with hopes that no information would leak out at all.

It should be clear. Veterans had already been exposed. They should have been told of this, rather than having the evidence about it destroyed specifically to prevent their learning of the C-123 contamination history and the right...indeed, for many, the NEED to turn to the VA for medical care for exposure to deadly dioxin.

Shame on all parties involved for this "magnificent" deception. Shame on those who congratulated the Air Force players for their secrecy. Shame on Air Force Public Affairs for a piece of tainted "journalism" which brings discredit to the United States Air Force! The video shows cuts from military documents and other materials released under FOIA, the originals of which can be downloaded at www.c123kcancer.blogspot.com for further study.

USAF Secretary Donley To Resign

announced today in Washington DC:
WASHINGTON -- Secretary of the Air Force Michael Donley announced his plan today to step down June 21 as the Air Force's top civilian after serving for nearly five years.

"It's been an honor and a privilege to serve with our Air Force's great Airmen," Donley said. "Their accomplishments have been nothing short of impressive and I'm humbled to be a part of this team. The Air Force has been a way of life for so much of my career, I know it will be bittersweet to say farewell."

Donley was confirmed as the 22nd secretary of the Air Force Oct. 2, 2008, during a very difficult time for the Air Force. He served as the acting secretary since June of that year, as well as for seven months in 1993, making him the longest serving secretary in the history of the Air Force. He also served as the service's top financial officer from 1989 to 1993.

Though Donley has not yet announced any future plans, he remains dedicated during his remaining time to supporting the Secretary of Defense in the many challenges that lie ahead for the service.

"In the meantime, there remains much to do," Donley said. "This is an extraordinary and exciting time for our Air Force, filled with both challenges and opportunities. I remain confident that the strength and professionalism of our Airmen, and the commitment and determination of General Welsh and our military and civilian leadership team, will continue to see us through."

Donley's 35 years of experience in the national security community also includes service in the Senate, White House and the Pentagon. Prior to assuming his current position, he served as the Director of Administration and Management in the Office of the Secretary of Defense.

25 April 2013

VA: Help the C-123 Veterans Find a Way - process isn't supposed to be adversarial

Hey, VA. How about giving us a hand? What can VA do to help C-123 veterans establish our claims for exposure to military herbicides? Can any VA manager claim to have done anything to help us establish our claims? Why, even when a regional office like Portland writes for an advisory opinion because they're inclined to award service connection, does VA VBA take pains to shoot down the claim?

On that advisory opinion, VBA's attitude stands out. Over 100 pieces of supporting information were provided by the veteran in what was called by Portland "a plethora of supporting documentation" which then VBA's advisory opinion described as "a few." Well, how many supporting documents is a veteran required to submit to achieve "benefit of the doubt?" Then to insure the claim's denial, the VBA advisory ignored the veteran's exposure confirmation from the US Public Health Service, EPA, NIH and the CDC/Agency for Toxic Substances and Disease Registry. VBA wrote that opinions from scientists were not to be accepted, only physician's, but it then proceeded to ignore the physicians whose opinions confirmed the veteran's exposure.

To then guarantee the veteran's claim denial, the VBA finally also recommended denial for Agent Orange benefits because Agent Orange "hasn't been shown to cause long-term health problems." As the author of this blog I have to cite issues of my own claim because I know of only one other...appropriately, privacy laws keep me from accessing other C-123 veteran's claims, but I have to assume they are treated as negatively as my own which, along with another officer's we've advanced as our "poster child" claims. Back in 2011, we'd thought that a successful claim would provide president for others, and we know now that only CAVC three-judge decisions do that.

BTW, I was asked twice by VA leadership, since I'm already 100% disabled from Gulf War injuries, why I'm pushing the C-123 claims, mine included. Mine, and a few others like LtCol Paul Bailey, were early in because, first, it is our right to do so!  We learned of our exposure first and submitted claims hoping to uncover a path for our other veterans to follow. Without my own claim and the VA's responses, I'd have nothing to work with to help our membership. What bugs me is that I am pretty good at pushing paper and taking care of my issues, but not all veterans are - we all have our specialities and this can be mine, so I'll do the research, the typing, the mailings, phone reporters, read scientific journals, make trips, learn various computer skills like making YouTube videos (not too hard, actually...if you don't care about being too professional). I can just imagine how many eligible veterans fall by the wayside because they don't have the opportunity to self-advocate, and the VA certainly can't be counted on to help!

But I yell to all who will hear - veterans aren't supposed to be forced into this years-long struggle! Injured or sick, we should be turning to our medical issues and our families and trying to get our lives into something like they should be without these injuries and illnesses. Believe me, I had better things to be doing these last two years than trying to get the VA to do its job!

VA stonewalling, especially in the face of what any observer would consider overwhelming evidence supporting our exposure claims, is simply unconscionable. Wrong. Illegal. Mean.

VA is supposed to help veterans perfect their claims. The process is supposed to be supportive and not adversarial, and yet in two years we haven't had a bit of help other than two courtesy contacts . The 2011 teleconference and 2012 meeting at the Senate Hart Building were stark contests between two opposing sides, not a gathering of VA processionals dedicated to helping veterans establish legitimate claims.

We have mounds of evidence from other federal agencies, universities, independent scientists and even our own VA physicians - all unacceptable to VA's Health Benefits Administration. All perfectly convincing at a BVA hearing if we live that long. No BVA or CAVC judge is going to dismiss the finding by the Director and Deputy Director of the ATSDR that we've been exposed, or that of Dr. Schecter, or that of Dr. Birnbaum, or that of Dr. Stellman, or that of Dr. Berman - and so many more!

I can only hope somebody in authority looks back at the evidence gathered by the C-123 veterans and challenges VA leadership to explain why the big push from 810 Vermont and 1800 G Street to make sure our claims are denied.

Why make us wait? Can't VA simply follow the law? Why since Day One has VA opposed our claims, approaching us with a knee-jerk automatic predetermination that we must be opposed, rather than supported?

VA Directs 60-Day Processing for All Claims 2 years old and older

VA has directed its regional offices to complete processing of all claims two years old or more, and gave them 60 days to complete the project. Good in some ways, but I fear, it will lead to more of what's happening today.

Too often, a complicated case sits on a rating officer's desk, aging and eventually drawing attention to the officer's backlog. Too often, this is addressed with a simple denial of the claim, tossing the hands into the air and saying "Let the BVA sort it out."

The problem is that our lives continue. And with a claim denied and in the queue for the BVA (Board of Veterans Appeals) five years or more can be wasted, on top of the two or three it took to get the clam through the regional office! So perhaps then eight years of denied medical care, denied family benefits, denied compensation. Consider a veteran with kids headed for college - a 100% rating would entitle the kids to VA monthly support for 48 months...waiting eight years for a claim and a BVA decision, even if favorable, takes the kids through high school and college. Then, no longer eligible, what good the benefits the veteran earned.

"Fortunately" my two year old claim was denied even through supported by over 100 pieces of confirming evidence, and at age 66 with cancer, heart disease and more ailment than I can mention here a five year wait is useless to this veteran. When I mentioned that at the face-to-face meeting with VA's Compensation Services, a smile from them assured me it was the proper process, nothing else to be done.

I protest. What could have been done is a legitimate hearing of my claim and those of other C-123 veterans like Paul Bailey, both of us denied Agent Orange exposure recognition because the VA's Health Benefits Administration has introduced new flavors to the word in the law - eligibility - and using those new flavors finds a clever way to deny benefits.

Science and the law say we C-123 veterans were exposed to military herbicides and are due care from the VA. The VA, in defiance of law, science, medicine, justice, common sense and simple logic, says otherwise in the face of other federal agencies far better qualified to in their confirmation of our exposure. Who the heck made the VA science different and better than that practiced by the NIH, US Public Health Service, EPA, and CDC?
-------------------------------------------VA LETTER BELOW-------
VBA Letter 20-13-05
VA Regional Offices
DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 204239

SUBJ: Guidance Regarding Special Initiative to Process Rating Claims Pending Over Two Years
This initiative is the first in a series of efforts to address VA’s oldest claims. This letter focuses on those rating claims pending for over two years. Further guidance will be provided regarding claims pending less than two years. The intent of this initiative is to work all claims pending for more than two years within 60 days from the date of this letter. Regional Offices (RO) must immediately begin to process these claims based on the below guidance. For the claims at issue, this guidance supersedes all other guidance from other offices or personnel. It does not affect those claims that already require priority processing (Homeless, Terminally Ill, Medal of Honor recipients, Former POWs, and Fully Developed Claims).
Guidance for Processing Claims Pending More Than Two Years:
Identifying Claims
This guidance applies to claims received on or before July 1, 2011. The date of claim of the oldest pending claim in the file will be used to identify claims addressed under this special initiative. Use the Special Issue indicator “OCR – Old Claim Review” to identify these claims electronically in VETSNET Operations Reports (VOR). Follow the Brokering/Shipping Instructions provided in the enclosure.
Use of RO Personnel
ROs will devote all RVSRs and as many VSRs as are needed to ensure that all two-year old claims are processed within 60 days from the date of this letter.
Upon receipt of this guidance, immediately identify two-year old cases and develop an aggressive plan to complete these cases as soon as possible but no later than 60 days from the date of this letter.
Rating Actions
Raters will immediately begin to process two-year old rating claims and develop an aggressive plan based on the “available evidence” in the claims file. The rating decision produced will be considered a provisional rating unless ALL evidence in support of the claim has been received (and the claim is considered ready-to-rate) or the rating assigned provides the highest level evaluation authorized for the particular diagnostic code for each claimed issue. The End Product (EP) will be cleared for any rating completed as a result of this special initiative and no issues will be deferred on a rating decision.
Category 1 Cases: ROs will issue rating decisions, as normal, for ready-to-rate cases that meet the two-year old criteria and for cases where the rating assigned provides the highest evaluation authorized in VA’s Schedule for Rating Disabilities for each claimed issue. These will be FINAL decisions and appeal rights will be provided.
Category 2 Cases: ROs will issue “provisional” rating decisions for other two-year old cases even if VA is still waiting for certain evidence. RVSRs will complete these claims based on the available evidence of record as long as the appropriate Section (§) 5103 notice (formerly VCAA notice) was provided to the claimant UNLESS the following requests for evidence are outstanding:
  • Service Treatment Records (STRs) for original claims;
  • VA medical records;
  • Any evidence needed to establish Veteran status and/or pertinent service dates, if
    available evidence is not otherwise sufficient;
  • VA examinations, if such exams are pending at the time the case is reviewed or if one
    is required in order to issue a decision.
    The above minimal level of evidence must be available before a Category 2 rating is completed. Therefore, in order to meet the required completion date for these cases, ROs must expedite procedures to secure this evidence and decide the claim.
    In any Category 2 case where the RO is awaiting VA exam results, ROs will contact the appropriate VHA facility or contract examination provider to expedite completion of the required exam(s) so that a decision may be issued promptly. Only order a new exam when one is required to decide the claim.
    RVSRs will rate on the available Service Treatment Records (STR) of record, to include copies supplied by the claimant. If no STRs are of record or no STRs have been developed, immediately
page2image22944 page2image23104
develop for such records, and ensure they are available at the time of the rating (unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile).
RVSRs should make a provisional decision based on the evidence of record. If required Federal records outside of STRs have not been received, issue the provisional decision and then request the Federal records. If private records have been requested only once, issue the provisional decision and then request the private records again unless it is clear a second request would be futile. Establish an EP 400 using the special indicator "OCR – Old Claim Review" to make the request for Federal and/or private records.
RVSRs will accept Acceptable Clinical Evidence (ACE) evaluations where possible, and rate on the medical evidence of record in accordance with 38 C.F.R. § 3.326.
Because the decision notification for Category 2 cases will inform claimants that a provisional decision has been made, it is not necessary to include such language in the rating document.
In the “evidence” section of the Rating Decision, RVSRs will list all evidence considered, as normal. The RVSR will also list evidence identified but not available at the time of the provisional rating.
No issue(s) will be deferred on a rating document.
Other rating considerations for Category 2 claims:
For claims falling within the provisions of this guidance, the prohibitions against certain partial rating decisions found in M21-1MR III.iv.6.A.1.b do not apply.
RVSRs will grant entitlement to service connection for the claimed disability at the highest justifiable evaluation level of disability based upon the evidence of record, as warranted.
One year from the date of notification of the provisional decision, ROs will assess all Category 2 claims and provide notice of a final decision to include appeal rights. Compensation Service will provide additional guidance in the future regarding procedures for the review of Category 2 cases after the one-year period has ended.
Authorization Actions
All Category 1 cases will be processed as normal.
For Category 2 cases, the following procedures shall be followed:
Before promulgation of the decision, local Veterans Service Organizations will be given a full 48-hours to review the rating decision. In addition, a POC (and alternate POC) shall be
designated within the Veterans Service Center so that Service Officers can contact these individuals directly if they have questions or concerns.
  • Upon promulgation of this provisional decision, clear the controlling EP.
  • No appeal rights will be provided to the claimant since the decision rendered is considered a provisional decision. After one year (or earlier if the claimant requests), the claimant will be
    notified that the claim has become final and provided appeal rights. This only applies to cases worked under this special initiative.
    Important: Be sure that any reference to "final" decision or appeal rights notification that is generated automatically in the notification letter is removed.

  • Diary the case for one year from the date of the decision. Establish Diary Reason 39 - Review for Reevaluation.
  • After the decision is issued, the completed claims should be added to the files sent immediately for scanning. Follow the shipping instructions set forth in the enclosure.
  • If the claimant submits additional evidence or VA receives previously requested records within the one-year time period which allows a final decision to be made, VA will establish a new EP with a special issue “OCR – second review,” clear the diary, PCLR EP 400 if pending, and take the appropriate adjudicative actions.
  • If all evidence is received at any time during the one-year period after the provisional decision is issued, take the appropriate adjudicative action and issue a final rating decision with appeal rights.
  • In most instances, the effective date will go back to the date of claim of the earlier EP. Decision Notification Criteria
    The responsible party for preparing the decision notification for claims processed under this special initiative must include the following special language in the letter:
    “We have made a decision based on a special initiative to complete your pending claim. This is a provisional decision that is based on the evidence currently in VA’s possession. If you have additional relevant evidence pertaining to the issues decided here that you would like us to consider, please submit it to our office within one year of the date of this letter and we may reconsider our decision. If you want VA to obtain evidence that you previously told us about that was not available at the time of our decision, tell us and we may be able to obtain this evidence.
    If you want to receive a final decision with appeal rights before the one-year provisional period ends, send VA a signed statement as follows:
    “All necessary evidence was considered by VA. I request that this provisional decision be made final.”
Quality will continue to be assessed on decisions made under this special initiative. However quality will be measured based on the accuracy of the decision based solely on the evidence of record at the time the decision was made.

24 April 2013

USAF General Deceives US Senate & AF Veterans about Agent Orange Exposure!

In August 2012 the Senate Veterans Affairs Committee sought information from the Secretary of the Air Force about C-123 transport Agent Orange contamination and how the AF had responded to challenges about important details of an official, formal investigation of the issue which resulted in the May 2012 C-123 Post Vietnam Consultative Letter. The USAF responded to the Senate (Senator Burr, Ranking Member) in November 2012 with misleading and deceptive answers in their defense of the Consultative Letter. They implied aircraft were safe in "their present configuration" while in fact, the airplanes were safe only because they'd already been destroyed as toxic waste in 2010 by the AF and their "present configuration" was as aluminum ingots!

USAF was also asked about how its conclusion about C-123 veterans being unexposed differed from other federal agencies which concluded the opposite...that the veterans had been heavily exposed. In their response to Burr, the USAF called the AF views 'consistent" with CDC, an obvious falsehood. "Were exposed" (ATSDR) is not consistent with "exposure unlikely" (USAF). It doesn't take an English major to see the differences!

Finally, AF tests in 1994 labeled the C-123 fleet "heavily contaminated" and "a danger to public health" but the AF C-123 Consultative Letter, released in May 2012, erroneously dismissed that toxic description and in response to the Senate's inquiry, the AF wrote that the cautions and the requirement for HAZMAT protection was meant only for USAF Museum restoration workers - in fact, the toxicologist who completed the C-123 survey in 1994 himself confirmed in 2011 that the HAZMAT protection was for everyone as the interior of the C-123 was, as he first wrote, heavily contaminated. The veterans' point - they flew for a decade without HAZMAT protection and became exposed! If HAZMAT protection was essential for personnel inside them for brief periods in 1994 it was even more essential for crews flying these airplanes for a full decade!

For the third major issue raised by the Committee, the USAF again mislead the Senate with false or misleading answers. Clever wordsmithing is no substitute for honest, clear correspondence between general officers acting on behalf of the Secretary of the Air Force and legislative authorities. 

Other misleading answers to the United States Senate from the Air Force were equally obvious, and unworthy of the two-star officer who signed this report on behalf of the Secretary of the Air Force.

Also harmful was the fact that Veterans Affairs now cites the Air Force Consultative Letter, which the USAF response to Senator Burr defended, in denying veterans benefits for Agent Orange exposure.

An update on our Freedom of Information Act Requests: our FOIA to the VA for information on their position against C-123 veterans' exposure has
been denied effective 11 March 2013. After two years, VA now pretends no information exists in their files regarding C-123 Agent Orange exposure issues. 

Our request to the Air Force School of Aerospace Medicine for information on the 2012 C-123 Agent Orange Consultative Letter hasn't done any better. While approved, and approved without fees, the Air Force has sat on this request at Wright-Patterson AFB for over eight months. Last word was the response was routed to their JAG officers to see how much the AF could keep secret.

The public sends its treasure and its children to the Armed Forces in defense of the Nation. The public demands honest accounting for how that treasure is spent, and how the blood of their children is shed - and cannot abide the military deception in these areas.

19 April 2013

C-123 Veterans Post YouTube Video - VA Defiance of Freedom of Information Act

In 2012 C-123 veterans submitted a Freedom of Information Act request to obtain vital documents regarding the VA's treatment...shall we say mistreatment, of veteran's claims about Agent Orange exposure.

A full year later, and on 11 March 2013 VA's Assistant General Counsel "kindly" informed the veterans that no evidence exists. Nothing. No publications, research, emails, marginal notations, notes, correspondence, presentations..nothing exists within the Department of Veterans Affairs about C-123 Agent Orange exposure. Not even whatever the VA bases its refusal to honor veterans' claims for Agent Orange exposure, or why their Director of Veterans Compensation Service informed a veteran his Agent Orange claim is to be denied because Agent Orange is harmless.

We've complained, but FOIAs are commonly ignored or falsely responded to, and here's another one on the pile of dishonored requests. I guess obedience to the law is for those subject to the law, not for those responsible to administering it like the VA.

16 April 2013

VA Defies FOIA - Hides Documents from Senate & C-123 Veterans with "Don't Exist" Claim

"FOIA - a vital part of our democracy" The Department of Justice (but not the VA)

"They are honorable" Marc Antony, Julius Caesar, Act 3, Scene II)

FOIA-requested materials concealed from C-123 veterans. Documents don't exist? Well, they certainly DID until our FOIA was filed a year ago! But given the issue so important to C-123 veterans and in light of their team's preparation and participation in meetings on the issue of C-123 Agent Orange exposure, and the dedication they show to making sure it is never conceded, we can understand their preference to keep their materials under cover. And as Marc Antony said, "They that have done this deed are honorable."

C-123 veterans, joined by scientific experts and Senator Burr's Senior Policy Advisor, Mr. Brooks Tucker, conducted two meetings, one in 2011 and one in 2012, with representatives of the Veterans Administration to discuss C-123 Agent Orange exposure concerns. One meeting was a teleconference and the second, a gathering hosted by Mr. Tucker at the Hart Senate Building.

Extensive preparation went into these meetings on the part of the veterans and
scientific advisors, and VA representatives participated with perfect familiarity with the subjects discussed and also arrived at the Hart meeting with proposals to submit some issues to the Institute of Medicine for a special project. This makes clear that the VA representatives were prepared, and we certainly saw notes with more notes being taken. Last year, veterans submitted a broadly-cast FOIA net for all materials used by the VA for preparation for the meetings, and notes taken during that meeting, and other materials.

At first, the request was denied by the VA. Then the request resulted in an estimated $4700 fee, appealed by the veterans. Finally, the VA responded that no such materials exist. No memos. No emails. No briefings. No reports to superiors. No nothing. Yes, I know that a double negative, because there certainly was material, just not which they were willing to submit in response to the law.

"The law" you ask? Right...you remember...that thing which veterans are obliged to obey and which the VA flaunts. The law, which we, and they, were all sworn to protect and defend. The law. The foundation of our society and upon which we depend to compel government by, and not OF the people. Doesn't matter - big laws or small, one veteran or a thousand. Law is law - it must reign supreme, otherwise we are to expect (or beg) for our veterans' benefits from the whims of  a capricious and hopefully benevolent administrator.

But among others, VA disregards the Freedom of Information Act. Hello...neat word...freedom. Previously, considered important in American-style democracy. Here, VA even has their general counsel helping us to understand that these materials "have gone missing" in response to our FOIA. And as Marc Antony said, "They that have done this deed are honorable."

Really now, are we to believe that employees did nothing regarding Agent Orange, failed to send emails, didn't use references or correspond,  were hired without qualifications being noted, haven't published professionally, and addressed issues of contaminated aircraft and vehicles without research or conclusions, other than voicing them at the meetings with veterans? Did they beam down and back up again without documents? 

The VA claims in its online publications and correspondence with Congress that it conducted "scientific research" by its scientists and physicians, but it cannot account for that in any way, other than the internet pages. But that undocumented "scientific research" seems to have been enough to deny Agent Orange exposure benefits to C-123 veterans, and in the face of other federal agencies such as the EPA, NIH, CDC/ATSDR and US Public Health Service claiming the C-123 veterans were exposed. VA, by claiming no such materials exist, must have simply sat down and started typing at a computer with the only work product being the online pages about the C-123 veterans magically being spared Agent Orange exposure. Right. Uh-huh. 

VA, by responding in the negative here, doesn't even have copies of the Air Force test results, the materials provided by other federal agencies and universities...nothing.

How could the VA conclude it would charge us $4700 to collect and duplicate materials which, on 11 March 2013 and a year after the FOIA submission, VA reports the items don't even exist? How could mid-level mangers from the VA's VBA and VHA organizations not prepare, not take notes, and not generate work product following a meeting such as this? Attending for the VA were physicians, scientists and managers such as Director Post Deployment Health and Deputy Director. 

Why is VA hiding these materials? Why are they even hiding the ones already published on their web sites? 

Can you please help? 

And remember, Marc Antony assuring us "They that have done this deed are honorable" men and women, as indeed they are. And, "If you have tears, prepare to shed them now." (Julius Caesar, Act 3, Scene II)

13 April 2013

VA:"Bioavailability Equals Exposure" --- VA's Terribly Wrong Approach!


You'll have to follow me on this. We're going to expose together a twisted piece of bureaucratic double-think which the VA has developed against us. It all dawned on me as an epiphany an hour ago exactly what the nice folks back at VA's Health Benefits Administration are trying to pull (I was driving home from a week's "tune-up" at the Seattle Spinal Cord Injury Clinic run by the VA...fantastic people and fantastic facility and a perfectly focused health care delivery program. VA did it right!)

Veterans Health Benefits Administration has introduced a sly, wrong-headed new slant on our Agent Orange exposure, telling us that "bioavailability" is now a required element of proving exposure. No bioavailability...some proven impact on the body caused by whatever  it encounters...equals no exposure. Bioavailability is the fraction of a toxin (or other element) absorbed by the body.

Now, that makes some sense to a physician trying to figure out how to treat a patient exposed to a toxic element, but it makes no sense in the world of administering VA medical care and benefits due Agent Orange-exposed veterans. Long ago, Congress grew frustrated at the VA's stonewalling veterans worried about Agent Orange illnesses and took the VA's discretionary power away, telling them to work with the Institute of Medicine and identify illnesses which seemed to be associated with dioxin exposure. Illnesses such as soft tissue sarcoma and prostate cancer were identified and a list of "presumptive illnesses" was established. No longer did a veteran have to find  a wealth of evidence to put forward to a VA rating officer to convince the VA to recognize one of those illnesses as service connected. Further, Congress told the VA to recognize every veteran with "boots on the ground" in Vietnam as having "presumptive eligibility" to be able to put the string together: Vietnam service equals eligibility for service connection for any of the presumptive illnesses. 

Congress also left the door open for more diseases to be recognized by the VA and by the IOM and added to the list, and made clear that individual veterans could still make a case for diseases not on the presumptive list to be considered...individually...for service connection. Congress also recognized the VA's position as stated in the Federal Register of 8 May 2001 (page 21663), where the VA explained veterans exposed to herbicides other than on the ground during the Vietnam War would be treated the same as "boots on the ground" Vietnam War veterans. This means such veterans would not have to prove medical nexus for their illnesses if those illnesses were on the presumptive illness list.

And that's where The C-123 Veterans Association is impacted. In 2011 Paul Bailey and Wes Carter (that would be moi) joined by other Westover veterans, uncovered the toxic track record of C-123 Agent Orange contamination and on presenting it to the VA and USAF expected our exposure to be recognized and service connection awarded.WRONG! We immediately butted right up against the VA's kne-jerk position of "You were not exposed to (fill in the herbicide) when (fill in the situation and date) because (we'll figure out something later). Claim denied. Thank you for your service."

Lesson learned...VA automatically denies, denies and denies, doing to C-123 veterans as they did to Vietnam veterans decades ago. Faced with tests and opinions from other federal agencies such as the CDC making it impossible to say there was no contamination, VA shifted their position to one of no exposure. Ah...but then veterans showered the VA with outside experts' findings that they were exposed, In response, besides denying the expertise of the world-leading scientists and physicians who confirmed our exposure (grouped as unacceptable "lay evidence" by the Manchester NH VA) VA's clever folks then really focused on denying exposure via redefinition of that very word, publishing their conclusion that we'd suffered no bioavailability to dry dioxin transfer to the skin, dermal absorption being one of the three routes of toxin exposure. Well, even according to their own VA Post Deployment publications, dioxin transfer via dermal exposure is quite likely, plus we had inhalation via the dust particles to which dioxin readily binds itself. Sorry...I forgot that even VA publications are not admissible unless supportive of whatever the contemporary VA perspective might be...their choice, depends on what claims they need to deny at the moment.

Enter bioavailability. VA now insists that C-123 vets had no exposure because we have no proof of bioavailability. But what should be seen here is VA's twisted evasion of the requirements of the 1991 Agent Orange Act, Title 38, Sections 3.07, 3.08, 3.8.1, and the Federal Register of 8 May 2001. Congress told the VA to stop horsing around and recognize the list of Agent Orange presumptive illnesses if a veteran had been exposed and stop insisting on the vet developing a medical nexus.

We flew a contaminated airplane. We were exposed. And by the VA now insisting on no bioavailability and forcing us to prove there was, they have gone back to demanding that herbicide-exposed veterans establish medical nexus by their bureaucratic ruling that no such bioavailability existed for "our" dioxin on our C-123s.

That's all it is. Bioavailability equals medical nexus. VA introducing bioavailability into the equation is their attempt to seize back control over medical nexus requirements. Got it? If not, read these two paragraphs again, and Google both terms for extra convincing. VA has tried to back-pedal three decades and force veterans to prove medical nexus.

And that's not legal. And that has very recently captured the attention of several senators and congressional representatives, now aware of the sly maneuvering by Health Benefits Administration. Obviously our C-123 cases reaching the BVA have been successful for those veterans, but our appeal to all is that regional rating officers weigh fairly a C-123 veteran's claim for exposure and accept that proof of service aboard these toxic warplanes constitutes herbicide exposure and thus meets the legal requirement for awarding service connection.

Every C-123 veteran should be as blessed as I was this week, surrounded by talented clinicians and support staff, extra-wonderful folks dedicated to making sure this veteran, and all the wheel guys at Seattle SCI clinic, received world-class medical attention. And respect. And affection.

We should all be so lucky. And I believe, we are all so qualified. Get with it, VA!