02 September 2013

Springfield Republican: C-123 Vet Wins VA Agent Orange Claim

Westover veteran exposed to Agent Orange  wins appeal for benefits by Jeanette Deforge
After more than two years of battling for benefits to help Westover Air Reserve flight crews exposed to Agent Orange, one veteran has scored a major victory. 

Retired Lt. Col. Paul Bailey, who is suffering from incurable prostate cancer which has spread to his pelvis and ribs, recently learned a federal review panel overturned a denial of assistance and granted him Agent Orange-related disability benefits. 

Bailey, 67, and other veterans who served on C-123 Provider planes from 1972 through 1982 at Westover Air Reserve Base, in Chicopee, learned three decades later the planes they flew and worked on were previously used to spray Agent Orange in Vietnam and were contaminated with the residue. 

Many are now falling ill from prostate cancer, diabetes and heart disease, which are all conditions known to be caused by dioxin, the toxic chemical in Agent Orange. 

“I absolutely believe it was exposure to Agent Orange that caused it,” Bailey said. “There is nothing else that I can think of that would have made it spread so fast. It (prostate cancer) is very slow growing, it is not prevalent in my family and it spread really fast.” 

Bailey, who retired from the Air Force after 37 years and now lives in New Hampshire, earned medical and retirement benefits. The disability benefits are tax free and will go to his wife upon his death. 

Until this award, the U.S. Department of Veterans Affairs repeatedly rejected applications for benefits based on post-war service on the C-123s. While acknowledging the planes were contaminated, officials contend the toxic residue would not penetrate human skin. 

Veterans received another blow when an Air Force study released in April 2012 said crews were unlikely to have fallen ill from being exposed to dioxin. It also cited a lack of data to make a definite determination.

Officials for the Office of Veterans Affairs have repeatedly said the toxic element of Agent Orange cannot be inhaled or absorbed and would be difficult to ingest so they continue to deny requests for claims. They have not changed their position in the past few weeks because of Bailey's award.

“The VA’s Office of Public Health thoroughly reviewed all available scientific information regarding the exposure potential. We concluded that the potential of exposure for the post-Vietnam crews that flew or maintained these planes was extremely low and therefore, the risk of long-term health effects is minimal,” its website reads. 

Bailey’s ruling is a victory but it is not precedent-setting, said Archer B. Battista, of Belchertown, a semi-retired lawyer for the firm of Lyon and Fitzpatrick who served at Westover starting in 1974 and retired as a colonel from the Air Force Reserve in 2001. 

“It doesn’t seen like a slam dunk that says I flew on the planes so I’m in the pool for eligibility,” he said. “I think the decision in Paul’s case will be persuasive but not necessarily determinative.” 

Battista, a Vietnam War Veteran, was diagnosed with prostate cancer in 2009 when he was 62. He receives benefits because of his exposure to dioxin during the war, but has joined with other Westover veterans to fight for those who are not eligible for the same assistance. 

Ideally veterans would like to see a ruling similar to the congressional Agent Orange Act of 1991 which grants medical and disability benefits to anyone who can show they stepped foot in Vietnam between 1965 and 1970 and are ill with one of 15 different diseases presumed to be caused by Agent Orange, he said. 

“I think the importance of it is finally they have gotten the VA to recognize that it has to give credence to this scientific evidence,” he said. 

For two years, Veterans Affairs officials have acted like a “bureaucratic monolith with its fingers in its ears” ignoring test data showing the planes were contaminated and statements from multiple scientific experts saying the veterans were likely to have been exposed to dioxin from the residue, he said. 

“Sooner or later the righteous side prevails. You look at the evidence and you see the agency backing farther and farther into the corner,” he said. 

To apply for benefits, military personnel submit claims to their regional veterans department. If rejected, they can appeal to the federal Board of Veterans Appeals. 

Bailey instead requested an administrative review of the denial, which was done in New Hampshire. He submitted 56 different pieces of evidence, many of them gathered by a friend, retired Air Force Major Wesley Carter. 

“After reviewing and weighting the evidence of record, the Decision Review Officer has determined that the preponderance of the evidence suggests you were exposed to herbicide onboard U.S. Air Force C-123K aircrafts. Reasonable doubt in regards to the exposure to certain herbicide, to include Agent Orange, as the result of occupational hazards onboard C-123K aircrafts is resolved in your favor,” said the decision from the Department of Veterans Affairs Manchester (NH) Regional Office. 

Several veterans have won claims from the Board of Veterans Appeals, but it can take between two and five years, which is far too long for a veteran who is gravely ill or needs medical care, said Carter, now an Oregon resident, who served as an air medical technician and flight instructor with Westover’s 74th Aeromedical Evacuation Squadron for 20 years and flew in the C-123s from 1974 to 1980.

In comparison, Bailey’s appeal took a matter of months.

Carter, who has heart problems, a spinal cord injury and prostate cancer, discovered that he and his fellow crew members were exposed to Agent Orange when he started research to find out why he was so ill. 

He found a wealth of documents through the Freedom of Information Act, including tests from 1994 and 1996 showing at least 11 of the 16 planes at Westover tested positive for dioxin. One was labeled “highly-contaminated” a decade after it was retired. 

Documents included 15 years of memos, safety reports and complaints from private companies and military workers. In 2000, the government canceled sales of the toxic planes and in 2010, the remaining 18 were shredded and smelted to satisfy Environmental Protection Agency regulations. 
Citing the information, Carter said he thought it would be easy for those who fell ill with one of the conditions linked to Agent Orange to receive benefits.

But then the decisions began arriving: Denied for Carter. Denied for Bailey. Denied for multiple others.

“I didn’t think there would be illogical push back contrary to the law, contrary to the face of evidence,” Carter said. “Naively, I thought two years ago, ‘Here is some proof.’” 

In the time since Carter discovered the contamination, he created and constantly updates a blog on the subject, made YouTube videos and lobbied elected officials.

“How much proof does a veteran need to provide to the VA,” he said. “This should not be our job. I’m supposed to be focusing on my family and my health.” 

U.S. Sen. Richard Burr of North Carolina, the ranking Republican on the Veterans’ Affairs Committee, is one of the few advocating for the group. 

In April, he wrote to Eric K. Shinseki, secretary for Veterans Affairs, asking the C-123 veterans’ claims receive a fair evaluation. 

To bolster their case, he outlined the test results and opinions of scientists and how they conflict with the position of Veterans Affairs officials. 

“These and opinions from other experts suggest, at a minimum, that there is no clear-cut answer to the question of whether the veterans who flew on these planes and maintained them were putting their own health at risk. With that in mind, I ask you to ensure that and disability claims from the veterans who operated these C-123s will not be pre-judged as lacking but, rather, will be considered based on the facts of each particular case,” Burr wrote. 

For John Harris, who served in the military for 33 years before retiring as a lieutenant colonel in 1997, the political pressure brought by Carter may be the final element needed to reverse what seems like blanket denials for C-123 veterans. 

Harris, of Mashpee, said he has been trying to contact congressmen as well but most of his calls and emails have been ignored. 

“It seems they are just denying everything and letting the guys die and the claims go away,” Harris said. 

The fight for the C-123 veterans is especially frustrating since Harris and Battista estimate there are fewer than 2,000 eligible to make claims. 

They and others have been continuing to focus on a second part of the puzzle, which is trying to contact Reservists and National Guard members who served on the planes and don’t know they were exposed to Agent Orange. 

The attempt is especially difficult when trying to reach those who served at Rickenbacker Air National Guard Base in Ohio and in the Pittsburgh Air National Guard, which also flew some of the former Agent Orange spray planes. Air Force officials have refused to share records requested for that purpose, Harris said. 

“We had a lot of people who stayed for a year or two. I put ads in the Air Force magazine and the Reserve Officer magazine asking people to contact me and nobody, nobody contacted me,” Harris said. 

Those who know they were exposed can share the information with their doctors and take preventative measures to stay healthy and get early diagnosis if they do fall ill, Battista said.

“How do we notify people who are not yet sick?” he asked.

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