22 January 2014

Open Letter to VA About "Blanket Claim Denials"

Subject: VA Assistant General Counsel Assures C-123 Veterans "No Blanket Denials" 

We C-123 veterans appreciate VA Associate General Counsel Mr. Richard Hipolet's assurances that the Department of Veterans Affairs has no blanket policy prohibiting C-123 veterans' exposure claims. I'm grateful that he wrote to explain VA's perspective.

He reminds us that the late LtCol Paul Bailey's claim was approved, but does not note that this was on appeal after denial months earlier using the standard boilerplate:

"VA regulations do not allow us to concede exposure to herbicides for Veteran's who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray the se s chemicals "
Other statements provided VAROs to deny claims are generally the remark that " Please tell the Veteran 'We are unable to verify or document that aircrew members were exposed..."

In any case, no C-123 veterans' claims have been approved short of reconsideration by a review officer or BVA. There, with more careful reading of the law and Federal Register of 31 Aug 2010 and 8 May 2001, and a somewhat more veteran-friendly and non-adversarial forum, claims are approved. Years later, after improper denials.

On 28 Feb 2013, in his office meeting between himself, his staff, myself and Major Marlene Wentworth NC USAF, the Director of Compensation and Pension Services (C&P) explained that the Deputy Consultant of VHA's Post Deployment Health had already concluded no C-123 veterans were exposed to TCDD. I was told no amount of proof from whatever source would permit C-123 veterans' claims to rise to the level of "as likely to as not" because of her determination. (A similar statement was made to Major T. Redd, an Army officer, following a meeting of C-123 representatives, Senator Burr's staff, and VHA representatives.)

Soon after our 28 Feb 2013 meeting with Compensation and Pension, the Deputy Consultant graciously explained to me by telephone that her decision was reached because no C-123 veterans could ever establish bioavailability. Helping me better understand bioavailability, she explained that with the bioavailability requirement none of the Vietnam War veterans were exposed either (except perhaps some Ranch Hand flyers) but they are covered by "boots on the ground" laws.

Bioavailability does not exist in the law, as Mr. Hiplot explains, but he does offer us the opportunity to appeal any of our claims denied by VA's new requirement for it. I have checked a wide variety of toxicological references and do not find exposure defined as has the VA, "exposure = contamination field + bioavailability."

Adding bioavailability was an effective way for VHA to reintroduce medical nexus, otherwise proscribed, and upon which for VBA to deny claims. It does not seem, however, to be scientifically accepted, and is unique to the VA...and within VA, to Post Deployment Health.

I've asked many experts, and most offered responses similar to that of the Director, NIEHS:
"In all my years as a toxicologist, I have never heard bioavailability as part of the exposure field. Exposure is contact between a chemical (of any type) and the skin." (Dr. Linda Birnbaum)

C&P earlier explained to me that Dr. Birnbaum's opinion is not acceptable, nor those of Dr. Stellman, Dr. Berman, Dr. Garzotto, Dr. Sheers, Dr. James, Dr. Dwernychuk, Dr. Portier, Dr. Sinks, Dr. Schecter, Dr. Miller, and others. He explains that only physicians (but somehow, not the civil or VA physicians whose opinions were overlooked) are qualified to comment on medical nexus...of course, the scientists were commenting on exposure, and not medical nexus.

C&P might note VA's respect for the Institute of Medicine of the National Academies. This last biennial report had only two physician members...all the rest were scientists. Scientists, experts to whom VA turns by law, whom C&P would disqualify for commenting on Agent Orange.

With varieties of sample denial language provided to VAROs, with regulations being cited which prohibit conceding our exposure, with the very word "exposure" redefined to exclude our qualification, with TCDD claims denied with assertions that TCDD isn't harmful, with assurances given us by both Compensation and Pension and by Post Deployment Health that no amount of supporting evidence would permit a successful claim, perhaps "blanket policy" against us could be the wrong words, but any independent viewer would likely reach that conclusion. We have.

Last week I visited with a VA claims specialist, asking about what "regulations" might be the ones mentioned in the claims denials. She pointed to the claim itself, the sentence saying "regulations do not permit," and she insisted that was the regulation. The denied claim, with no other substantiation, was her regulation. She explained that the Federal Register, other federal agency findings, nothing else matters...that was the regulation. She would look no further.

Today I spoke with Master Sergeant Richard Matte, hospitalized at Boston's Brigham and Women's Hospital. He lost his right leg last week to infections. Sergeant Matte earlier underwent a heart transplant, and his health is precarious. Sergeant Matte's claims for service connection for herbicide exposure have been denied.

Sergeant Matte evidences a variety of Agent Orange illnesses as did LtCol Bailey. Sergeant Matte flew the same airplanes on the same days from the same bases performing the same missions eating the same food sleeping in the same facilities with the same duties as LtCol Paul Bailey...whose claim for Agent Orange illnesses was approved. I know the details...I was Sergeant Matte's flight instructor and flight examiner in the C-123K.

We've already watched our first sergeant, Master Sergeant George Gadbois, die in pain with soft tissue sarcoma. Said farewell to General Mike and Doc Jones with prostate cancer, and Lou Patcowitz with ALS, and many others with cancers and heart disease.

Agent Orange exposures aboard Patches and the other toxic C-1123s caused so many leave us, far too early. Sergeant Gadbois and the other men's VA claims were all denied. Yet they, too, flew the same missions, the same days, the same airplanes as did LtCol Bailey.

I was the flight instructor and flight examiner for LtCol Bailey and Sergeant Gadbois. I went to both men's funerals. We've had too many funerals.

Would somebody from VA kindly look into Sergeant Matte's situation...somebody who has read the law regarding herbicide exposures and who is uncomfortable with VA's unique redefinition of "exposure" done by
Post Deployment Health
just to prevent TCDD exposure claims?


   Wes Carter, Chair
   The C-123 Veterans Association

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