VA Secretary Insists "No Blanket Policy Against C-123 Exposure Claims" in Letter to US Senate – the facts prove Secretary wrong!

Repeating statements made earlier by Under Secretary Allison Hickey, Secretary Eric Shinseki on 7 June 2013 responded to Senator Richard Burr's letter of April 2013. You have to wonder...what happened to the staffer who wrote this flawed letter and asked the Secretary to sign it? Is he still employed?

Senator Burr had questioned the VA's universal denial of C-123 claims. He repeated several of the phrases used by VA in their C-123 disability claim denials, including the frequent "VA is unable to acknowledge Agent Orange-related illnesses as a result of this service." Senator Burr specifically suggested that:

All of this suggests that VA may essentially have a blanket policy of denying any claims based on alleged exposure to dioxin while serving aboard the C-123 planes, regardless of the weight of information submitted in a particular case."

On 7 June Secretary Shinseki reassured Senator Burr and the Senate Veterans Affairs Committee:

"...while there are no provisions for acknowledging presumptive, indirect, secondary, or remote exposure based on claimed contact outside of Vietnam or Korea with aircraft. equipment, or personnel from these locations, VA evaluates such claims on a case-by-case basis to determine if the available evidence supports service connection on a facts-found basis. In making such determinations VA applies the benefit-of-the-doubt principles contained in 38 United States Code § 5107(b) and 38 Code of Federal Regulations § 3.101 Accordingly, VA does not have a "blanket policy" for denying such claims."

Perhaps Secretary Shinseki and Under Secretary Hickey have been left unaware that VHA's Post Deployment Health Section has instructed Compensation and Pension that ALL C-123 CLAIMS MUST BE DISAPPROVED because none of the veterans has ever been exposed. Golly, this sounds to us like a "blanket policy" to deny claims. And why?

This VA perspective that C-123 vets lack exposure is via Post Deployment Health's special, uniquely VA definition of "exposure" by which VHA added the word "bioavailability" to it...no proof of bioavailability, says the VA, equals no exposure. Elsewhere in science and medicine, exposure occurs upon contact, ingestion or inhalation...and we've double-checked with the CDC/Agency for Toxic Substances and Disease Registry, EPA, National Institutes of Health, medical schools and schools of toxicology. Even the Society of Toxicology's list of terms clearly explains exposure without the after-effect of bioavailability. Nowhere can we find (outside the VA Post Deployment Health...not even in other VA departments!!) any expert or medical dictionary to say otherwise. 

Let's be very clear: a cornerstone of the VA campaign against C-123 exposure claims is their denial that exposure ever took place. By slight-of hand, they deny exposure, not by saying we weren't in contaminated airplanes, but by pretending that the airplane's contamination couldn't expose us because there was no bioavailability proven. Again to be clear: exposure is one term, and bioavailability another. One is not part of the other, but they are related. (1) Exposure comes first, and (2) bioavailability may follow. But exposure, exposure, exposure! Only exposure is specified in the law. Scientists and physicians across the country have insisted to the VA that C-123 veterans were exposed via dermal and inhalation routes.

Or, as University of South Florida's Dean, Dr. Richard Pollenz explained it to the C-123 veterans on 10 January 2014:

"Bioavailability MUST follow exposure and it is a complex concept based on the chemical nature of the agent.  There is also the major concept of biotransformation since nearly all compounds are metabolized once they enter the body."   

Another expert disagreeing with the VA is Dr. Linda Birnbaum, Director of the NIH/National Toxicology Program and also Director, National Institutes of Environmental Health Sciences. She told us "In all my years as a toxicologist, I have never heard of bioavailability as part of the exposure field. Exposure is contact with a contaminant."

At the University of Texas Medical School, Dr. Arnold Schecter MD, a  highly esteemed Agent Orange researcher, commented, "Any dictionary or toxicology textbook will have a definition of exposure and also bioavailability. The issue of bioavailability is a different matter." Dr. Schecter has concluded that C-123 veterans were exposed and also that, unless specific testing to prove otherwise, C-123 veterans were actually exposed to Agent Orange with resultant bioavailability.

Now back to the Secretary's earnest assurance to Senator Burr that VA has no blanket policy against C-123 veterans' exposure claims and that each claim will be evaluated individually.

Perhaps the Secretary, and Under Secretary Hickey, are also unaware of just three of the more frequently-used blanket denial policies VA employs against C-123 veterans, provided the regional offices by Compensation and Pension Service:

1."In summary, there has been no long-term adverse health effects of TCDD exposure."
Gosh, ain't it great to know that VA's director Compensation and Pension (his quote above) has decided to deny claims on the basis that Agent Orange is harmless. Ignoring the very laws they are responsible for enforcing, VA opts to disregard proven veteran exposure and instead deny claims by pretending that dioxin is harmless. Don't you feel reassured?

2.  . "VA regulations do not allow us to concede exposure to herbicides for Veteran's (sic) who claim they were exposed to herbicides after the Vietnam War while flying in aircraft used to spray those chemicals."

 Neither the Senate nor the Library of Congress can find any VA regulation as specified above. The most applicable document is the 8 May 2001 Federal Register, page 23166, where VA agrees that all exposed veterans will be treated the same as Vietnam veterans. There simply is no regulation to which the VA refers! Washington even orders the regional offices to deny the C-123 claims. Come on...that kinda suggests a blanket policy, right?

3 [From C-123 veterans' claims decisions] . "VSR. Please tell veteran, "We are unable to verify or document that aircrew members were exposed to Agent Orange resulting from Agent Orange residue or dioxin contaminated aircraft or aircraft parts. Although residual TCDD, the toxic substance in Agent Orange, may be detected in C-123 aircraft by sophisticated laboratory techniques many years after its use, the Office of Public Health concluded that the existing scientific studies and reports support a low probability that TCDD was biologically available in these aircraft. Therefore, the potential for exposure to TCDD from flying or working in contaminated C-123 aircraft years after the Vietnam War is unlikely to have occurred at levels that could affect health." 

Okay...let's look at these several issues, and see that they don't hold water.

First, with instructions to "tell the veteran" all the above to each Agent Orange-presumptive illness claimed would to anyone with a middle school grasp of English suggest a blanket policy. To repeat – it clearly is a blanket policy, despite the Secretary's earnest yet mistaken assurances to Senator Burr.

As to the issues, VA absolutely CAN (but refuses) to document and has repeatedly been provided original military documents establishing the contamination of the former UC-123K transports and the exposure aboard of the aircrews. Multiple federal agencies have tried to certify this to the VA but so far they have ignored the EPA, CDC, USPHS, CDC/ATSDR, National Toxicology Program, University of Texas Medical School, VA Regional Medical Center Portland, Oregon Health Sciences University, Boston University School of Public Health, Columbia University of School of Public Health, Dr. Wayne Dwernychuk (Hatfield Consultants), NIH/National Institute of Environmental Health Sciences University – conclusion: VA "unable to verify or document" because they simply refuse to accept all such documentation, just as the C-123 veterans were told would be the case by C&P's director.

Next, Agent Orange not only "may be" but certainly was detected...in every stored C-123 at the desert Boneyard before they were all destroyed as toxic waste.

Next, VA said it takes "sophisticated" laboratory techniques. Nope, only standard testing. The Army has the military's standard manual calle TG312, and the testing procedures done on the C-123s was standard among toxicologists and in accordance with TG312. The CDC, NIH, USPHS and EPA stand behind the AF tests proving the contamination, and from those test results, all the agencies (except VA) conclude the C-123 veterans were exposed. Because it is their responsibility for enforcing the various veterans' laws, VA feels comfortable, and indeed, somehow entitled to disregard them when dealing with C-123 vets.

The Secretary writes "detected many years after its use" to imply that somehow, age made it worse. In fact, it was worst in Vietnam when the Agent Orange was sprayed, then next-worst immediately after we started flying which was the year after the war ended, and the Agent Orange aged and became less potent over the years. His letter should say "detected for all years after its use." That's why AF toxicologist Dr. Ron Porter testified in a federal hearing that the C-123 fleet was "a danger to public health."

Our exposure, for a decade beginning in 1972, one year after the last spray missions, was quite intense, over a long period, and not to be dismissed as something noticed years afterwards. Tests from 1979 on proved the contamination! Only one C-123 was ever decontaminated, and that was at the USAF Museum on Tail #362 "Patches" and was completed fourteen years after we retired the airplane!

Next, the Secretary reports that his Office of Public Health concluded existing scientific studies don't suggest a probability of TCDD (dioxin) being biologically available. Of course, both the Secretary and the Office of Public Health fully understand that the law says nothing about Agent Orange being "biologically available," only that veterans establish their exposure. Bioavailability has nothing at all to do with Agent Orange exposure disability claims. And that's the law. 

Finally, exposure to TCDD unlikely to occur at levels to affect health. See the above...affecting the veterans' health, better known as "medical nexus," has nothing to do with claims for diseases recognized by the Secretary of Veterans Affairs as Agent Orange presumptive illnesses. Again, that's the law. If a veteran claims an illness not recognized by the VA as associated with Agent Orange, that's when medical nexus must be proven.

What a snow job. What a blanket abuse of veterans' rights!

What a blanket policy keeping C-123 veterans out of VA hospitals!