28 June 2013

Tammy Takes on the Disability Scammers!

Veteran congresswoman hammers IRS contractor’s questionable veterans disability claim

Caroline May
Political Reporter
  • At a House oversight hearing Wednesday on “questionable contracting practices at IRS,” Illinois Democratic 
Duckworth, an Iraq War veteran and double amputee eviscerated Braulio Castillo, the CEO of Strong Castle, Inc., who used an injury he sustained at a military prep school to qualify for a veterans disability, 27 years after the fact.
“I’m sorry that twisting your ankle in [prep] school has now come back to hurt you in such a painful way — if not also opportune for you to gain the status for your business as you were trying to compete for contracts,” Duckworth said.
According to a report on the matter House Oversight and Government Reform Committee Chairman Darrell Issa released Tuesday, Braulio Castillo was able to get a designation under the VA’s Service-Disabled Veteran-Owned Small Business program for his business — as a result of the injury he sustained at U.S. Military Academy Preparatory School, which he attended for one year.
Castillo went on to play football as a quarterback at San Diego City College and later played at the University of San Diego.
“Did you injure that same foot again subsequently, in the years since you twisted it in prep school?” Duckworth asked.
“Not to my recollection,” he responded.
Castillo explained that his doctor suggested he seek benefits for his injury sustained in prep school.
Duckworth continued to press.
“Do you feel that the 30 percent rating that you have for the scars and the pain in your foot is accurate to the sacrifices that you’ve made for this nation?” she asked. “That the VA decision is accurate in this case?”
“Yes, ma’am I do,” he responded.
“You know my right arm was essentially blown off and reattached. I spent a year in limb salvage with over a dozen surgeries over that time period and in fact we thought we would lose my arm and I am still in danger of possibly losing my arm. I can’t feel it, I can’t feel my three fingers.  My disability rating for that arm is 20 percent,” she said.
Duckworth then read from a letter Castillo sent to a government official in which he claimed he and his family “made considerable sacrifices” for their country, including that his “service-connected” disability “should serve as a testimony to that end.” The considerable hardship he claimed are “crosses I bear due to my service to our country and I would do it again to protect this great country.”
“Shame on you Mr. Castillo,” Duckworth said. “Shame on you, you may not have broken any laws, we are not sure yet, you did misrepresent to the [Small Business Administration] but you certainly broke the trust of this great nation. You broke the trust of veterans. Iraq and Afghanistan veterans right now are waiting an average of 237 days for an initial disability rating and it is because people like you who are gaming the system are adding to that backlog so that young men and women who are suffering from post-traumatic stress, who are missing limbs cannot get the compensation and the help that they need.”
“Twisting your ankle in prep school is not defending or serving this nation, Mr. Castillo,” she concluded.
House Oversight Committee is looking into contracts Castillo’s business secured with the IRS due to his businesses designations and a friendship with a top IRS contracting official, potentially worth over $500 million.

25 June 2013

Secretary of Veterans Affairs Reaffirms Barriers to C-123 Veterans Agent Orange Claims

Last Monday, 7 June 2013,  Secretary of Veterans Affairs Eric Shinseki released his response to the challenge raised by Senator Richard Burr, Ranking Member of the Senate Veterans Affairs Committee, regarding post-Vietnam C-123 aircrew Agent Orange exposure.

Overall, the VA reaffirmed its determined opposition against our exposure claims. There is enormous value in General Shinseki's letter, however, for the following reasons:
1. for the first time, the issue has reached cabinet level officials, and General Shinseki has earlier proven himself immune from any monitory impact of decisions to do the right thing; the Secretary's statements, however much in error, get attention and, eventually, more correctly stated
2. the General repeats with a broad brush the push-back we've had from VA leadership, mostly expressed by VBA's Director of Compensation Services, and by the Veterans Health Administration. The VA Deputy Director of Post Deployment Health, told Major Terry Redd, US Army Army Chemical Corps officer, then serving as a Military Legislative Fellow, that she and the VA "cannot permit" more Agent Orange claims like ours; this was at the conclusion of the March 2012 meeting (at the Senate Hart Building Minority Veterans Affairs Committee conference room)  of VA representatives with C-123 veterans, Dr. Jeanne Stellman of Columbia University, and representatives of Senator Burr's staff . Clearly "cannot  permit" doesn't relate to the Secretary's assurance that claims will be fairly considered! VA was asked privately by us to correct this statement if it had been made in error, and no such correction has been made. VA has been privately asked about a lot of errors at 810 Vermont and 1800 G Street, with our offer to forgive and forget, without response. Veterans had hoped law could trump policy - but VA feels entitled to decide what the law is!
3. the Secretary failed to consider one of the strongest pillars of our claim, that of the 8 May 2001 Federal Register in which VA agrees to treat veterans exposed to Agent Orange outside Vietnam, the same as veterans of Vietnam
4. the Secretary completely failed to address the fundamental justification for our claims, that of actual exposure, and did not notice or comment on the multitude of other federal agencies and outside experts asserting our position and challenging the VA's 2012 redefinition of the word "exposure" to add "bioavailability"
5. the Secretary relied on the recent input to him offered by Colonel Al Young, without noting the consultant's role in advising the USAF to destroy all the toxic C-123s to prevent veterans learning of their exposures and seeking VA care. Dr. Young was referred to the USAF by the Office of Secretary of Defense where he serves as Senior Agent Orange Consultant. Dr. Young is the OSD official who first recommended the complete destruction of all stored C-123 aircraft specifically because C-123 vets might apply for "presumptive compensation", as he put it, for their Agent Orange illnesses even though veterans had already been exposed! Dr. Young provided his input, in writing, to at least three AF officials, and Mr. Buddy Boor repeated it specifically as he sought Air Staff approval, soon granted, for, as AF officials put it, the "Navy way, the quiet way" "below the radar" smelting of the toxic aircraft
6. the Secretary noted a 1996 test of four aircraft and reported only two were contaminated; the Secretary seemed unaware of other tests that year on 14 C-123s, 14 of which reported positive for dioxin contamination, per the 2012 C-123 USAF Consultative Report. Other documents from AFMC and AMARC report 17 of 17, or 18 of 18 aircraft positive for dioxin
7. the Secretary restated the VA position that TCDD (dioxin) hasn't been proven to be harmful, and in stating this, ignored other VA publications explaining the potential hazards of that toxin, as well as warnings from EPA, NIH, ATSDR. Besides - the 1991 Agent Orange Act relieved veterans of having to prove the dangers of TCDD...all the LAW requires of us is an AO-presumptive illness and proof of exposure
8. the Secretary referred to the "scientific study" conducted by the VA, without being aware that the VA's Assistant General Counsel McCallum in March 2013 certified that no such study was ever done (in her denial of the FOIA request from veterans)
9. while assuring C-123 veterans their claims would be fairly evaluated on a case-by-case basis, the Secretary seems not to be aware of the boilerplate claim denial provided to VAROs, and the predetermination that no C-123 veterans were ever exposed (a ruling by VHA in guiding VBA in forbidding C-123 veterans' claims)

So all is kinda well, but getting much, much better. Today we had a DC-based law firm agree to evaluate and present on a pro bono basis our two appeals to the US District Court in Washington DC regarding the deceptive USAF and VA responses to our FOIAs. This is thanks to the intervention of the Yale Veterans Law Clinic. On another legal front, the National Veterans Legal Services Program agreed to conduct a legal review of our status under the 1991 Agent Orange Act, 38CFR and the Federal Register, with the goal being a formal brief to accompany claims as well as our request for legislative intervention. Stay tuned: there are significant newspaper articles about us nearing publication. 

Yesterday, we received reaffirmation from Rear Admiral Robin Ikeda, USPHS, the incoming Director CDC/Agency for Toxic Substances and Disease Registry. She informed C-123 veterans of her conclusion that C-123 veterans were indeed exposed, just as we have claimed. We also received excellent legal advice regarding recent decisions in both the 8th and 9th Circuit Courts, where jurists held arbitrary dismissal of expert toxicologist evidence (as done by Compensation Services rejecting all input from all toxicologists) is an abuse of discretion, unfair and illegal in both court and government agencies.  VA does, however, permit its own toxicologists to submit evidence but only in opposing claims. Clear and unmistakable error, we were told!

What can you do, you ask? Please phone your senators' and congressional representative's office to identify their veterans affairs staffer. Speak with that person and review our issue and ask that VA be challenged for our mistreatment...don't hang up the phone until you get their promise to call either Will White on Senator Merkley's staff (Democrats) or Brooks Tucker on Senator Burr's staff (Republicans)! The only demand we have is that our specifically identified Ranch Hand spray aircraft be designated Agent Orange Exposure Sites, so that veterans with proper documentation of duty aboard them can proceed to making exposure claims with the VA for Agent Orange-presumptive illnesses.

Things are moving along. Slowly.

24 June 2013

(Received June 24 from the incoming Director of the Agency For Toxic Substances & Disease Registry)

Dear Major Carter,

Thank you for your email and warm welcome regarding my new acting position.  I have recently been briefed about ATSDR actions related to this situation.  I have also reviewed the ATSDR correspondence related to C-123 aircraft and I am in agreement with it.  I understand that the VA has already received our letters and that ATSDR staff have spoken with VA staff about your situation. 

The letter from ATSDR to General Hickey regarding exposures at Camp Lejeune was somewhat different.  We sent that letter after completing an extensive dose-reconstruction model of exposures to volatile organic compounds at Camp Lejeune.  We were obliged to notify the VA because they had been relying on out-of-date information previously generated by us. 

The limited, but high quality, sampling of C-123 aircraft that we reviewed in 2012 confirm that some post-Vietnam era C-123 aircraft were contaminated with TCDD dioxin.   All C-123 aircraft have since been destroyed.  Thus, it is no longer possible to further characterize human exposure pathways through additional sampling.  Without additional environmental sampling information, an official health consultation would not shed additional light on this situation beyond that provided in January 2012 and March 2013.  I understand that United States Air Force restricted entry into these contaminated planes once they were found to be contaminated.  ATSDR concurs with this position and believes it would also have applied to pilots and crew had these planes remained operational. 

I hope this email is helpful.  Thank you again for your service to our country.  

 Robin M. Ikeda, MD, MPH
Deputy Director, Noncommunicable Disease, Injury, and Environmental Health
Acting Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
4770 Buford Highway, MS F-39
Atlanta, GA 30341

From: Wes Carter [mailto:c123kcancer@gmail.com]
Sent: Monday, June 10, 2013 2:55 PM
To: Ikeda, Robin (CDC/ONDIEH/OD)
Cc: Sinks, Tom (CDC/ONDIEH/NCEH)
Subject: Opinion provided earlier by Dr. Sinks and Dr. Portier re: C-123 Agent Orange contamination and exposure

Dear Dr. Ikeda,

Congratulations on your assuming the helm at ATSDR. We are the C-123 Veterans Association, and in the past ATSDR has been very kind to provide opinions over the signatures of Dr. Sinks and Dr. Portier. These opinions confirmed our exposure to Agent Orange for the years we flew the C-123 medium assault transports used earlier in Vietnam for spraying Agent Orange.

Last week I visited with several senators and congressional representatives, as well as with Ms. Amanda Meredith and Mr. Steve Robertson of the Senate Veterans Affairs Committee. We have asked the assistance of both the staff director and the Republican General Counsel in approaching the Department of Veterans Affairs regarding our veterans' claims.

I was asked, and they also asked me, why the previous letters from ATSDR have been disregarded by the VA. In one instance, VA's Compensation Services summarized Dr. Sinks' opinion (without mentioning his conclusion that veterans were exposed) by appending the sentence, "In conclusion there is no conclusive evidence of long-term TCDD harm." In another, the Manchester NH Veterans Affairs Regional Office denied a veteran's claim by grouping Dr. Sinks' and Dr. Portier's findings in the unacceptable "lay evidence" category, and into that group also put the findings by the NIH and US Public Health Service. Dr. Linda Birnbaum is also very familiar with this issue, as is Dr. Jeanne Stellman at Columbia.

Similar official letters from ATSDR have been accepted by VA for Camp Lejeune, and we cannot understand why the VA rejects their merit here. Obviously the issue is critical for us, because most of our veterans are not retired military and not otherwise VA-eligible, so they are turned away when seeking care for typical Agent Orange illnesses by the VA hospitals.

The matter has recently reached the desk of Secretary Shinseki. May I again ask ATSDR's leadership in restating to the General the opinion that we were exposed, and if possible, in the form of an official health consultation? Reading the criteria for an official health consultation, it seems to fit the requirements. 

Because the C-123 contamination had been kept "in official channels only" by the Air Force until released via FOIA in 2010, we only recently began presenting claims to the VA, and in every instance the claims have been denied, and all those reaching the VA's Board of Veterans Appeals a year or more later have been overturned in favor of the C-123 veteran. At our age and with our illnesses, however, we need very much for appropriate decisions to be made on the initial claims, rather than years later in appeal. 

I hope we can continue to count on Dr. Sinks, you and the ATSDR for help.


Wesley T. Carter, Major, USAF Retired

23 June 2013

Vietnam Veterans of America proposes updated resolution of support for C-123 veterans!

(following is the proposed resolution presented for consideration by the 2013 convention of the Vietnam Veerans of America, updating their 2011 resolution which as been so influential...our thanks, VVA!)


Issue: The United States Air Force (USAF) used its fleets of C-123K transport aircraft in more than 9,100 missions, for aerial application of more than twenty million gallons of toxic herbicides between 1961 and 1971 in Vietnam. The aircraft were returned to the United States for continued use in airlift missions by USAF squadrons at Westover Air Force Base, Massachusetts; Pittsburgh Air Reserve Station, Pennsylvania; and, Rickenbacker Air Reserve Base, Ohio between 1972-1982 and were then retired from service and placed in storage. Veterans whose duties brought them into intense contact with these aircraft were exposed to military herbicides.

Background: The United States Air Force (USAF) in 1979, in response to the presence of noxious fumes, conducted scientific tests on unit aircraft and identified and determined that significant levels of military herbicides and insecticides used in Vietnam still contaminated the aircraft; and,
additional tests carried out in 1994 by USAF Armstrong Laboratories still showed the presence of herbicides, and in particular, the presence of highly toxic Agent Orange contaminant dioxin. Finding that the contamination was considered sufficient by the USAF, it then required the use of HAZMAT protective equipment when carrying out tests or otherwise entering the aircraft. As late as 2009, further USAF tests conducted at Davis-Monthan AFB, Arizona demonstrated continued contamination of these aircraft. USAF toxicology staff has testified in federal proceedings that toxic levels of contamination due to the herbicides were a danger to public health; and that the levels observed in the aircraft greatly exceed the Department of Defense’s (DoD) own standards for maximum permissible exposure to any dioxin contaminating interior surfaces.

 Other federal agencies have reviewed the data and concurred that exposures to personnel at levels exceeding DoD recommendations are likely to have occurred. In response to the State of Arizona and US Environmental Protection Agency environmental concerns, the USAF withdrew the aircraft from commercial resale, quarantined them and, in April 2010, ultimately took extraordinary disposal measures and smelted the remaining fleet. It is estimated that approximately 1,500 service members, including aircrews and maintenance personnel were exposed to military herbicide-contaminated conditions on the C-123 aircraft; with many of these personnel, who now having health problems commonly associated with herbicide exposure and have endured lengthy legal struggles to prove these problems are service-related. The Secretary of the Department of Veterans Affairs, under Public Law 102-4, has statutory responsibility to accurately designate situations and locations that caused veterans to have been exposed to military herbicides used in Vietnam, as well as their contaminants.

Resolved, That: Vietnam Veterans of America, in light of the review of the data and scientific information available currently, has confirmed that post-Vietnam service aboard the C-123 led to dioxin exposure at about the same intensity as with ground troops from the Vietnam War. And, having secured expert scientific opinions as to the length and breadth of that exposure; urges the Department of Veterans Affairs to promptly designate the C-123K aircraft, used after the Vietnam War in the United States during 1972 to 1982, as having been Agent Orange exposure sites to permit the approximately 1,500 veterans who were aircrew or maintenance personnel to be eligible for Agent Orange-related benefits.

Further, in light of the inaction by both the United States Air Force and the Department of Veterans Affairs in ameliorating the present situation encountered by these approximately 1,500 veterans; VVA will also advocate with the United States Congress for the introduction of enabling legislation that would grant presumptive herbicide exposure status to US servicemembers who served in the units cited above. 

VA Cheats On Toxicologists' Expert Evidence - defies 8th & 9th Circuit Courts!

In its energetic denial of claims for service connection regarding C-123 Agent Orange exposures, Compensation & Pension's director dismisses expert findings provided about C-123 veterans by some of the field's leading toxicologists. 

The director explained to PVARO that as toxicologists, these scientists lacked medical credentials to establish medical nexus. C&P perhaps passed over the fact that medical nexus was not the issue but EXPOSURE was, medical nexus not being a veteran's responsibility to establish if claiming an Agent Orange presumptive illness. When arguing against veterans, however, VA has no trouble citing toxicologists as experts! 

     VA's own toxicologists are welcome to oppose veterans' claims - but unacceptable to VA in presenting veterans' claims? This VA perspective defies logic.

     In any case, C&P was in error in dismissing the toxicologists' findings. I refer readers to Marmo v. Tyson Fresh Meats, Inc. Decided by the 8th Circuit in 2006, the Court decided that  toxicologists are allowed to testify that exposure to a certain chemical is the cause of particular injuries. While I respect C&P's dedication in preventing our claims' approval, it is misplaced fervor. 

      It is also inappropriate and discriminatory, failing to permit the applicable portions of the 1991 Agent Orange Act, Title 38 CFR and other promulgations of Agent Orange and veterans issues protect C-123 veterans. VA's verbal shell
game, switching exposure discussed by the scientists with medical nexus which was not addressed by them, was meant to confuse and misdirect. In fact, toxicologists are uniquely QUALIFIED to address questions of toxin exposure. Here, especially, with several federal agencies as well as the most reputable scientists in their field offering findings in our favor. For whatever reason C&P felt appropriate, they did not address but ignored the MEDICAL opinions provided by physicians to better doom the claims.
      In a decision earlier this year, the 9th Federal District found in Whitlock v. Pepsi Americas that such baseless dismissal of expert testimony of toxicologists and chemists regarding exposure issues was an an abuse of discretion by lower courts, and presumably, decision-making bodies such as VAROS making such blanket dismissals would also be illegal.

     I am not sure of the law, but if a federal court cannot
freely disregard expert testimony of toxicologists and chemists addressing exposure questions without earning criticism for abuse of discretion, I cannot imagine greater privilege in doing so by the Department of Veterans Affairs, especially when those opinions are from other federal agencies with the statutory responsibility for determining issues of toxicological exposure. 

     The National Academies Press "Reference Manual on Scientific Evidence: Third Edition" (2011) provides an excellent narration of the generally accepted role of toxicology in addressing exposure questions and the acceptance of toxicological testimony in legal proceedings.

      C&P is skilled and creative in preventing fair and legal evaluation of C-123 veterans' exposure claims, but I ask that VA consider actually basing our claims on law and science, not individuals' preferences.

     Finally, as many BVA citations such as 0634583 and 1110601 make clear, the VA itself has no reservations using VA's own toxicologists in making claims determinations regarding exposures. Is the C&P' suggestion that veterans can't be protected by expert toxicologists' evidence but the VA is free to do take advantage of their professional qualifications necessary to deny claims? 

    It is also amusing (no...actually it hurts!) that VA BVA decisions frequently dismiss PHYSICIAN evidence from veterans because the doctor lacks toxicological expertise - but here C&P opts to dismiss toxicologists instead! Anything to deny a claim. Are they making up the rules as they go along??

22 June 2013

Coverup in the Desert - USAF destroyed evidence of veterans' Agent Orange exposure!

The question has surfaced in Washington about the manner in which the Air Force came to decide to destroy the dioxin-contaminated C-123 aircraft, then in desert surplus storage in 2010. The C-123 veterans, exposed during our decade of flying the toxic C-123 fleet, need an opinion  as to what we should make of it, being from our impression a situation involving destruction of evidence? How can the AF misdeeds which affect our veterans’ exposure claims be categorized, because the airplanes were destroyed with the specific objective of preventing our claims?

We have located a set of AF papers via FOIA from Davis-Monthan AFB dealing with the toxic planes, which had been stored at Davis-Monthan AFB AZ since 1982 once we'd retired them to the desert.

One of the attention-grabbing points is the AF statement that their analysis of the EPA fines, which might be leveled for improper storage of hazardous/toxic materials, could reach $3.4 billion. There was also memo discussion of hosting Arizona EPA inspections but routing inspectors around the special fenced HAZMAT quarantine area into which the C-123s had been moved. The item that most offends veterans seems wrong to us but on what basis we can’t say.

Base officials had worried about these airplanes ever since 2000 when it became clear they could not be sold as surplus, not transferred to foreign governments, or even parted out for their very valuable engines.

Davis-Monthan solicited OSD’s suggestions about ridding themselves of the toxic C-123s. OSD concurred with AF understandings expressed in various memos that the airplanes could not be sold without enduring liability questions, even for parts such as avionics or engines, including on aircraft which had never been to Vietnam, and engines never unpacked from their storage wrappings.

OSD came to the conclusion that the aircraft needed to be destroyed to bring the issue to a conclusion. Base officials eventually found an EPA loophole which permitted toxic airplanes, which themselves should have been declared to the EPS, to be shredded into cell-phone sized scraps and then smelted, such waste being exempt from EPA hazardous labeling.

In a series of three memos to base officials, including the 505th Operations Officer, Major Carol McCrady, Dr. Al Young reviewed the situation, described an article about the stored airplanes which was published in Orion Magazine, and explained that visibility of the situation could lead to the already-exposed veterans turning to the VA for what he called “presumptive compensation.”

Mr. Buddy Boor then summarized in his position paper the Air Force options, and reiterated Young’s warning that the veterans might learn of the exposure and turn to the Department of Veterans Affairs for “presumptive compensation.” This recommendation traveled upstream to the Air Staff for its eventual approval.

OSD had stressed the need to minimize media attention. OSD recommended that base Public Affairs prepare a press release in case of media inquiry. OSD helped with
various editing cycles, eliminating words like “dioxin” and “Agent Orange’ and other attention-grabbing terms. 

Finally, OSD congratulated the Air Force on minimizing media attention – which was completely non-existent. C-123 veterans worry about the role of this OSD consultant, who describes us as "trash-haulers, freeloaders" for whom he has no respect but would have respect if we'd earned Purple Hearts. 

Well, our membership has plenty of Purple Heart Medals, POW Medals, Air Medals, Distinguished Flying Cross Medals, Bronze Star Medals, Aviator wings, parachute wings, Combat Infantry Badge and others - OSD should have checked before publicly disparaging us. He has his merits but we believe OSD's consultant isn't the right person to have a role in guiding the Air Force in preventing our access to VA medical care.

 What can be done to classify the wrong described here? To us it seems that this is destruction of evidence of our having been exposed. 

It is an inappropriate destruction of evidence by the AF to prevent our claims succeeding with the Department of Veterans Affairs. Obstruction of justice? Bad attitude? Nothing? Eliminating the airplanes has resulted in the Secretary of Veterans Affairs claiming that only two out of four airplanes tested positive for dioxin in 1996, when in fact 14 of 17 did. And it kept the AF from being able to more closely examine the toxic planes in subsequent studies, in particular the 2012 Consultative Report from the USAF School of Aerospace Medicine – the absence of test data led the AF to conclude they had no way to firmly conclude whether or not aircrews were exposed, and upon that indecision VA somehow based its interpretation of the AF report.

This hurt us. The Air Force has a legitimate interest in protecting present and future employees and military personnel, but it has no role in taking actions to prevent already-exposed veterans from turning to the VA for benefits. We feel the AF had a duty to inform us of the exposure, yet the question never arose until mentioned in the distribution memo from the Deputy Surgeon General of the Air Force when he mentioned there would be no notice so as to “prevent undue distress” to the veterans. 

We indeed have experienced distress.

 How can we describe these bad acts? What laws were violated? What OSHA regulations (if OSHA is applicable) were violated? Can we do anything about this?