01 February 2014

VA and Department of Defense Ignore DOD Instruction 6055.05

Why this article? Because it affects 2100 veterans' claims, and we provide hot links and quotes to make readers aware that there is backup for what we discuss. This article addresses the DOD Agent Orange Site List, which is run by DOD managers who recently refused to add specific contaminated C-123 tail numbers to their list.

It is the military's responsibility: DOD is to designate those present
or former Agent Orange facilities as "Agent Orange tests and storage locations, and the dates associated. The list is handed off to the VA which publishes their own web pages and supporting documentation.

VA doesn't generate the list...DOD does. There is nothing in law military procedures or VA regulations like VA 21-1A which permits VA to avoid considering fact-proven exposure claims from other locations than those specified. 

The DOD OPR for this is DCS/Logistics, Installations and Mission Support. It was asked 
by C-123 vets to add, in a retrospective manner, the destroyed former UC-123K Agent Orange spray aircraft as designated sites.

However, DOD resists designating any new site at all, but has worked with VA and JSRRC to add Blue Water Navy vessels from time to time.

The C-123 veterans provided the decades of test data showing the TCDD contamination, plus the various letters between the Air Staff and general officers by which the aircraft are referred to as "the Agent Orange airplanes." We wrote DOD's list managers a couple times and they kindly responded to our first letter but not sense. They wrote once, saying that we were fully understood. And flatly declined. And ignored our following letters providing them answers to the challenges they mentioned.

Helpfully (?), they referred us back to the VA for help. The VA which had earlier referred us to DOD. Which had first referred us to the VA. At some point in this decision-avoidance cycle, we gave up and wrote DOD's OPR, but ended up still strapped in, ejection seat as well as self-destruct mechanism armed, aboard military's go-ask-somebody-else decision avoidance aerospace vehicle, the famed Mark One A1 Merrygoround.

Our earlier request resulted in DOD saying the medical community (whose...VA?) had not been able establish the degree of harm caused by the C-123 dioxin contamination. DOD then said, based on that (not the confirming TCDD exposure tests,) her "assessment remains unchanged. We cannot designate these aircraft Agent Orange sites." Obviously the AF can designate them Agent Orange airplanes, which they've done for decades. In 2013, however,  DOD insists, even so, Defense cannot designate them "Agent Orange sites." Perhaps there is some sort of difference? Airplane? Site?

DOD certainly knows the history: VA asked DOD in 2006 to compile a list of CONUS exposure sites, and there was no mention of any qualifier as to a site having to have established any degree of medical harm or threat. None! And Defense must also know that our aircraft did nearly all the contamination work in Vietnam, and much of it here at home. 

Despite the expert opinions and AF evidence given, does DOD consider the toxin's vessel, our C-123, somehow less contaminated, less hazardous, than the fields the aircraft contaminated with its Agent Orange sprays?

Problems abound regarding the DOD AO list:
1. DOD resists designating exposure sites, especially abroad, due to obvious international relations complications.
2. VA raters routinely deny AO exposure claims, citing the absence of the location described by the veteran as not on the "approved" or "authorized" VA list of sites. What VA list? It is a DOD list. No requirement exists for any place to be on the list to acknowledge exposure by VA or AF, but places and ships named do help a veteran establish exposure – a site unnamed is certainly not to be taken as proof against exposure
3. DOD has been shown reams of its own military documentation generated over the decades as to C-123 Agent Orange storage sites, plus it has unrestricted access to the secret VA and AF C-123 documents and history as to the continued toxicity of the UC-123K fleet, and refused to add to their list. In fact, DOD senselessly referred the problem back to the VA for resolution...who refers the veterans back to the DOD...which refers the veterans back to the VA. Get the idea? See above.
4. There is no regulatory barrier to designating exposure sites with unknown potential for harm, the basis for DOD's refusal. Rather, the applicable DOD manual is DOD Instruction 6055.05 does two things important to C-123 veterans:
A. 6055.05 establishes DOD's definition of exposure, which contracts directly with the VA's own unique, policy-driven definition created to block C-123 claims
*DOD: The intensity, frequency, and length of time personnel are subjected to a hazard*VA: Exposure + contamination field + bioavailability.
1. See the difference? VA added bioavailability in their 2012 official redefinition of exposure. This is a redefinition with which other federal agencies, professional medical and scientific societies, industrial toxicologists and university medical schools and public health schools disagree. VA Post Deployment Health is pretty much against the world on that issue. VA leadership supports because more claims can be denied, regardless of legal or scientific basis, or condemnation by their peers in science and medicine.  
2. By the DOD definition of exposure, C-123 veterans were indeed exposed while on duty and subject to the effects of DOD Instruction 6055.05 and preceding publications. USAF tests identified the contaminated aircraft aboard which we served for ten years. Other federal agencies, such as ATSDR and NIEHS, confirm our exposures aboard the C-123, and by the DOD definition of being frequently placed over ten years in an aircraft "heavily contaminated with TCDD on all test surfaces" fulfills the definition perfectly.

B. Unfortunately for us, USAF failed the C-123 crews by ignoring the reporting provisions of 6055.05 and preceding regulations, both as for unit and individual reports. Tellingly, in later years the Deputy Surgeon General of the Air Force opted not to inform the TCDD-exposed C-123 aircrews "to prevent undue distress." 

I guess DOD's letter reporting difficulty in establishing just how much harm the TCDD caused it suggests the the Air Force not only that it is best not to tell us, but best to keep the C-123s off the DOD list. Perhaps authorities didn't read the copy I sent of the official finding by the CDC/Agency for Toxic Substances and Disease Registry. It was written by Deputy Director Dr. Tom Sinks, who in 2012 officially informed the VA and AF that :
1. C-123 crews underwent exposures 182 times the military screening value for TCDD exposure.
Does DOD set an even higher threshold to permit agreement that we've been even potentially harmed? Does it require 183? 184?
2. US Army screening values calculate to a 200-times greater risk of cancer for C-123 veterans.
Does DOD set an even higher threshold to permit agreement that we've been even potentially harmed. Does DOD require 201? 202?
I believe the Department of Defense would be concerned if the Secretary of Defense learned that office exposures where he works doubled his cancer risk...he'd likely seek different Pentagon accommodations. Why this profound disregard for the C-123 situation? Are we not veterans with a legitimate concern? 

Was the restatement of the ATSDR findings by the Director of the ATSDR (Dr. Christopher Portier) in March 2013 and then by the incoming Director, Rear Admiral R. Ikeda MD US Public Health Service, not adequate to satisfy?

Expert toxicologists informed the AF and VA repeatedly that our C-123 crews were subjected to 25 times the maximum TCDD exposure limits recognized by the CDC, State of New York and other agencies. That is not enough for DOD?

Why are the thresholds of proof of exposure set higher for
us...without even definitions as to how high VA leadership wants them set...than for other veterans claiming exposure benefits? Did we give somebody a bad ride back in the day, or not have hot coffee for all the passengers and we ticked off a future AF general or VA administrator?

Is the problem what it truly MUST be...leadership failure in the VA; folks who simply decided on their own that no C-123 claims will be permitted to receive service connection? Not on their watch!

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