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.

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