31 August 2014

The Giff Ill Following Open Heart Surgery

William Gifford, better known for decades to fellow members of the 74th Aeromedical Evacuation Squadron as "The Giff," had open heart surgery last week in Massachusetts. A subsequent emergency procedure was necessary and his kidney function is impaired.

All of us who remember (with a little embarrassment and but great admiration) Giff's tendency to grab a microphone and start singing when we'd RON'd somewhere (why did it always seem to be New Orleans or Oceana?)  and after a couple (?) drinks at a dinner bar, pray that strength of character and humor sustains him and his family now.

Its too early to sign out on the Form 40, Giff!

30 August 2014

Monsanto Safety Warning About Agent Orange (2,3,5-T)

This is the extent of what Monsanto provided as a safety warning for the use of 2,4,5-T, famously better known as Agent Orange. Notice...not a word about personal safety, just how to protect other plants...Monsanto wouldn't want to be blamed for any wilted roses, but they don't mind poisoning generations of veterans!

VA Board of Veterans Appeals: Another Log Jam in Claims Processing

We all know of the lengthy delays built into the VA disability claims process, although we also must acknowledge the improvement in processing time. VA's inventory of overage claims is much better now than a year ago, and we hope for continued improvement. Lots of hard work has gone into that brighter statistic.

One less encouraging statistic is the entire Board of Veterans Appeals.

The problem begins with denied claims. If a veteran's claim is too complicated, it seems best to most adjudicators to deny it and force the vet to either drop the issue or file an appeal with the BVA. If the claim requires a bit of push-back by the adjudicator against C&P leadership, as in the case of C&P ordering C-123 claims to be denied, the adjudicator takes the easy path and denies, again forcing the vet to give up hope or appeal.

If the adjudicator's desk is crowded and production statistics are down, a denied claim counts just as much as an approved claim, especially when any "benefit of the doubt" or "non-adversarial" leeway is needed...and claims either denied or delayed both save the Department money right off the bat.

But of course the vet can appeal. While that is a solution, it is also the core of the problem.

Three to four years until a BVA decision. For a veteran who already has a diagnosed illness and has submitted a claim, then waited a year or two for a decision, he/she now has to wait another three to four years for a BVA decision. BVA statistics worsened during 2013 and are worse yet for 2014...they just don't have the administrative staff and ALJs necessary to handle the work.

But the problem caused veterans has a cause more incidious than just the BVA staffing.

First, it begins with the number of claims denied by regional offices, forcing the vet to an appeal. Too often, a complicated case is "resolved' by the VARO dumping the vet into the BVA line. Too often, the adjudicator's statistics are weak and easily improved by denying more claims, faster, as opposed to approving them. An approved claim, if made in error, is hard for VA to correct, but a denied one leaves VA with the good feeling that the vet still can find justice through an appeal.

But that's not the case. We call a one or two year wait for the claim to be processed at the regional office unacceptable, because during that period the vet is denied all medical care for the illness or injury, although, to be fair, sometimes VA provides limited treatment on a presumptive eligibility basis. Once the claim is denied, another dose of injustice, a huge one, is delivered...again, by the regional office.

The VA sits on the claim appeal at the regional office for years. The claim has to be prepared, with a Statement of the Case provided the vet and other administrative steps taken, before the appeal is packaged and sent to the BVA. And this is where VA has built-in an additional time-killer (part of their "Delay, Delay Until They Die" policy towards us?) According to the most recent BVA report to Congress, BVA takes "only" 245 days after receiving an appeal to make a decision.

The rest of the three to four year delay is accomplished at the regional office. 962 days, to be exact. 962 days to explain why the claim was denied (which they've already told you) and forward to the BVA. 962 days wasted on something that shouldn't take 62!

So if you're the veteran with soft tissue sarcoma, seeking life-saving treatment for your cancer, your claim has you waiting one or two years before a possible approval at the local VA regional office, or waiting a total of between four to six years if your claim is denied and you have to wait for BVA to decide on an appeal...hoping the decision is in your favor.

But VA hides another nasty trick up their sleeves regarding the BVA: either deliberately or through error, regional offices deny claims they know leave the veterans with some issue the BVA will remand back to the regional office for further development. Anything large or small, anything overlooked, can force BVA to remand the veteran's claim back to the regional office for more work. Forget to address one of the claimed illnesses, fail to order compensation physicals, forget to get something signed or dots dotted or some small detail, and the claim doesn't get resolved by BVA but remanded. In truth, a remand is an error on the part of the regional office, not the vet nor the BVA!

After remand, the claim might get approved at the VARO as a result of that additional work, or more often returned to the BVA...and that cycle takes "only" another 445 days. And sometimes another remand! Only a 28% chance of a BVA award but 45% change or a remand!

Back to your soft tissue sarcoma: you've now waited five to seven years hoping VA will save your life.

Good luck. Oh, and thank you for your service.


Why Does VA Oppose C-123 Veterans' Agent Orange Valid Exposure Claims?

They've fought us since the first inquiry..."NO" was their first and only answer in a knee-jerk response, after which
they cast about to create reasons for that position. "NO" was their research objective.

Faced with veterans whose claims could very reasonably fit into VA's 21-1MR requirements, instead of seizing on existing rules, laws,  scientific proofs and Federal Register commitments to include C-123 vets, Post-Deployment Health automatically sought ways to exclude, not to include.

Clear? The C-123 vets met each requirement of the VA's to be granted presumptive service connection. Perhaps rules could be interpreted different ways, but VA's only thought was to create interpretations against the C-123 vets. They stretched their rules, not to help us, but to exclude us.

So why the big NO when the law and science were behind the C-123 vets? VA found (created?) several of reasons:

1. VA already said no, and they remain defensive of that decision, unable to modify their position – they want the victory and they disregard the cost to us veterans over the last three years in terms of illnesses, deaths, medical & burial expenses, denial of care, etc. That would mean acknowledging their moral failures. Even if claims are eventually approved, VA saves money by delaying as long as possible (currently three to four years at BVA) to avoid providing medical care. Presently there are over a quarter million veterans' claims in appeal, meaning a quarter of a million vets denied medical care for the illnesses and injuries already established (unless otherwise qualified for VA care.) While VA managers decry the claims and appeals delays, the savings in medical care thereby could exceed a billion dollars each year*
2. Recognizing the C-123 veterans' service connection will cost VA money for health care and disability compensation. Presently C-123 veterans are denied VA medical care and have to make arrangements elsewhere, and are denied the VA peripheral care provided totally disabled vets (dental, rehab, pharmacy, counseling, prosthetics, vision, etc.)
3. VA has the attitude of having to "draw the line somewhere" regarding exposure benefits and will fight any post-Vietnam claims, as Post Deployment Health told the Associated Press
4. Recognizing C-123 post-Vietnam exposures potentially affects other toxic situations well beyond our small group. The White House has been deeply concerned with this since the beginning of Agent Orange concerns, as Peter Sill's box Toxic War perfectly illustrates
5. VA Office of General Counsel has become defensive to the point of insisting on the Department's power to redefine "exposure" to its own purposes; success in that redefinition could help VA oppose other exposure situations such as burn pits, dirty water, biohazards, etc.
C&P Claims Motto
6. Perhaps in some way, their folks in C&P and Post Deployment Health actually believe they are
correct
7. Attitude. They don't like veterans arguing with them
7. Successful opposition to claims such as ours may result in extra praise in their annual performance reviews and perhaps, win them bonuses. They look more productive by denying claims then by approving them
8. Along with their consultants, VA recognizes the threat that would be caused by recognizing our unique long-term exposure. The differences between high intensity/short term exposures and our long term/low intensity exposures was recognized in the first Air Force study and continues to worry experts
9. VARO raters worry about opposing C&P which has ordered C-123 claims denied; raters take easy route of using the boilerplate claim denial language
10. Denying the claim gets it off the rater's desk and lets the veteran lose hope or at least, stick the claimant with a three-four year BVA wait
11. Encouraged by their "Agent Orange Never Hurt Anybody" consultants, Post Deployment Health eagerly accepted the bioavailability concept as a scheme as VA's end-run around the 1991 Agent Orange Act and Congress' elimination of the medical nexus requirement for exposure claims. Brilliant! VA redefines exposure to prevent exposure claims.
12. C&P has already directed C-123 claims denied on the basis of TCDD being harmless, and by citing non-existent VA "scientific studies" and non-existent "VA directives" and any change would necessitate revisiting the injustice of those denied claims
13. The longer VA delays, the more C-123 veterans die and claims die with them

* Harvard's Kennedy School of Government calculations using IEF statistics

27 August 2014

Philadelphia VA: Distorted Image of Veterans

An insult to all Veterans from the Philadelphia VA:

On behalf of The C-123 Veterans Association, and as an individual member of the Vietnam Veterans of America, the Retired Officer Association, the Air Force Sergeants Association, the Disabled American Veterans, the Paralyzed Veterans of America, the Veterans of Foreign Wars and the American Legion, I say to the VA...we're not grouchy, we're not cranky, unrealistic or demanding of anything beyond what's right. We're not pissed off. And our widows don't need "being managed" or "dealt with," as the Washington Times and other sources today reported the VA having said.

Like many of you, we're Veterans. With a capital "V" as per the VA stylebook. We're sick. Some of us you'll treat because we have LOD injuries, but many of our crewmates you won't. That's what we work towards.

The Philadelphia VA last week conducted training for their staff and portrayed wounded, injured and sick Veterans with the following disgusting graphic in their slide show, "What to Say to Oscar the Grouch,' in preparation for the upcoming series of national VA town hall meetings.

How dare they attack us with such an insult!
VA labeled this graphic about vets, "100% GROUCHY. DEAL WITH IT."

We're not knocking VA health care.  We're just trying to get it! And we have to fight anti-Veteran attitudes like those in Philadelphia.

A side note: We respect the Ranch Hand vets who flew before us and are doing nothing to interfere with them, their association, our respect for their historical accomplishments, or their relationship and friendship with Colonel Young. Many of us are Vietnam vets as well as veterans of subsequent conflicts.

The only objections we have are with the VA's Veterans Health Administration for constructing improper barriers to our claims, and the Veterans Benefits Administration for welcoming those barriers from VHA. We're not too pleased with VA's Office of General Counsel, but their job is to defend the institution against the Veterans so we can't gripe much there. Also, we're not too pleased with the VA National Center for Ethics in Healthcare which seems inert.

Ranch Hand, your health studies have nothing to do with us, other than we both reflect a flight physical-healthy population and we flew the C-123s at different times. That's all, so give us a break, fellow Veterans. Trying to help our crewmates and maintainers does nothing to impact Ranch Hand. You should be helping.

Current Status - Institute of Medicine C-123 Agent Orange Exposure Committee

Actually, the full name just doesn't quite flow off the tongue, nor is it easily typed...I always have to look it up: Committee to Evaluate the Potential Exposure to Agent Orange/TCDD Residue and Level of Risk Adverse Health Effects for Aircrew of Post-Vietnam C-123 Aircraft."

They've been meeting and working very hard since the spring and apparently are about finished with their draft copy, according to the cryptic summation of the recent committee teleconferences. Once the draft is complete, it begins another process before reaching the Secretary of Veterans Affairs:
• Prior to release, report is reviewed by individuals who are not involved in authoring the report and whose names are not revealed to the committee or the study director during review.
Reviewers are selected by the major unit responsible for the project, in consultation with the National Academy of Sciences’ Report Review Committee.
• The review is overseen by a review monitor and/or coordinator.
• Each committee must respond to, but need not agree with, reviewer comments in a detailed “response to review” that is examined by the monitor and/or coordinator, who ensure that the report review criteria have been satisfied.
• The report may not be released to sponsor or the public until the chair of the Report Review Committee (or designee) signifies that the review process has been satisfactorily completed.
• The Department of Veterans Affairs will not be given an opportunity to suggest changes in the report.
• The names and affiliations of the report reviewers will be made public when the report is released.
The second bullet could be fatal: VA, as the "major unit responsible" will select reviewers already determined to prevent C-123 exposure claims, so whatever pro-C-123 exposure conclusions will be severely challenged, and whatever anti-C-123 exposure conclusions will be amplified. So whatever the committee itself recommends will be amended in some way at this point to a position more acceptable to the VA's Post Deployment Health Section. And you can bet they've already got their reviewers picked out! Only when its released and too late to be challenged, are the reviewers identified and in any case, nobody sees the committee's draft, or original version.

Remember: VA did not refer this to the IOM because there is any scientific question that we've been exposed. They referred it, and worded the charge to the committee, to create a basis for continuing to deny all C-123 exposure claims even though each C-123 veteran with an Agent Orange-recognized illness is presently legally entitled to presumptive service connection.

A strong point still in our favor is a fundamental IOM rule: In reaching consensus about an association between exposure and health effects, the Committee considers only peer-reviewed, published scientific literature. The committee also realizes that this group of veterans was never tested at any time for dioxin, and that VA rules for the Agent Orange registry actually prohibit such tests.

The committee realizes that our C-123s are unique in that they were tested to be contaminated – "highly contaminated," in the words of the toxicologists, long after we'd retired them to storage. No other such situation...boats, ships, tanks, trucks, helicopters...was ever determined to be contaminated as were our C-123s. "A danger to public health" as AF toxicologists offered in sworn testimony in 2000. And then, all aircraft destroyed as toxic waste, with special note made for this to be done because exposed vets would seek their exposure benefits.

The material gathered by the VA for IOM, including from its $300,000/year Agent Orange consultant and the Dow/Monsanto sponsored letters, was never peer reviewed. Of course, many other documents submitted to the IOM by the VA and the veterans weren't peer-reviewed, either.

And the only peer-reviewed scientific literature available which directly addressed the situation was Lurker, et. al. "Post-Vietnam Military Herbicide Exposures in UC-123K Agent Orange Spray Aircraft."

The committee is doing what it has to. We asked them also to exercise their independence and address the yes/no question of exposure.

We'll wait and hope for the best.We'll look forward with great hope to the end of September or, if delayed, maybe sometime in October bringing us the IOM report.

AF Studies Agree – C-123 Crews Potentially Exposed to Agent Orange

2009: HAZMAT Quarantine for Toxic C-123 Fleet
In a recently located 1979 Air Force report in the USDA A.L. Young Library of Agent Orange documents, the Air Force was tasked to report to DOD (for inclusion in the VA perspective on Agent Orange) on "Criteria for Determining Herbicide Exposure." The paper was created by Air Force System Command's Command Surgeon.

Page Four makes a vital point for us. It reads:
"2. Personnel assigned to selected support functions that may have resulted in exposure to Herbicide Orange. This group included. for example, personnel that sprayed herbicides using helicopters or ground application equipment; personnel that may have delivered the herbicides to the units performing the defoliation missions; aircraft mechanics who were specialized and occasionally provided support to Ranch Hand aircraft; or personnel who may have flown contaminated C-123 aircraft but were not assigned to Ranch Hand (e.g. during the Tet Offensive, all Ranch Hand aircraft were reconfigured to transport supplies and equipment, and were assigned to non-Ranch Hand squadrons."

To this, we can add a gem accidently released by the Air Force in last weeks very incomplete Freedom of Information Act release. Among hundreds of blank pages of redacted materials (about this 40-year old problem threatening our health...something still is held secret??) there was a couple of great interest.

Of very special note is the fact Air Force scientists were faced with tests taken over decades and needing to determine from them, dioxin levels on surfaces decades before the first tests were taken. There were no tests taken in 1971-72 as the aircraft were delivered to our squadrons, but the first comprehensive test was in 1994 and then on other aircraft in 2009.

Air Force staff wrote that the amount of dioxin present wouldn't correlate to actual exposures, but still the more dioxin, the greater the exposures.They had three ways to look at the numbers, and chose the most conservative, an approach which minimized the threat to veterans rather than considered the maximum danger.  Acknowledged was the fact that this could only be considered speculative...not the thought process, but the "guess" as to whether the actual 1971 exposures posed a greater threat or not. They guessed not. And they were wrong and it hurt us.

Their guess selected a model which assumed no or minimal degradation. That led to a minimal threat assessment to the veterans for their exposures aboard the aircraft between 1972-1982, and thus VA refusal of disability claims for Agent Orange exposures.

The importance: the estimates vary from extremely alarming (46,666 ng/m2) in 1971 to just 3493 ng/m2.

The AF guess as to which model to use went with the lower number because it implied a much lower threat of actual exposure. The difference in these two approaches is huge...the Air Force selected a model which minimized the threat by 1300% and led to inappropriately conservative and thus misleading conclusions in the final report. Previously, a threat assessment always errored on the safe side, not a guess which pretended no harm done.

And there were two other significant errors:
1. AF misstated the half-life of dioxin as only 2.75 years which it is much more on most surfaces
2. AF failed to calculate the effect of the 1972-1982 base-level attempts to physically scrape residues from the aircraft which reduced the contamination greatly before the first 1994 tests, themselves taken twelve years after the aircraft retired. This is an unknown but significant factor, but skilled mechanics spent hundreds of hours scraping every possible surface to reduce the contamination.

Final observation about the Air Force C-123 FOIA results. They withheld everything, releasing only hundreds of pages of blank paper, so there is no real way to assess how the study was done, why General Green was communicating with the Veterans Administration, etc.

As for the actual report, vs. the released conclusion, only the tantalizing table of contents was released.

26 August 2014

President's Executive Orders Address Veterans' Issues

Speaking today at the American Legion's 2014 National Convention, President Obama announced nineteen steps he is taking through executive orders to address the ongoing scandal in the Department of Veterans Affairs. Unfortunately, nothing was mentioned about the claims or appeals process. (CLICK for complete speech)

Yesterday, the VA itself released an Inspector General report which indicates no deaths can be positively attributed to the delays in patient care in Phoenix, despite whistle-blower allegations.

Among the key points in the President's orders are:

• A new recruiting campaign to fill shortages of doctors and nurses at VA hospitals.

• Automatically enrolling military personnel receiving mental health care into mental health treatment programs by the VA.

• A partnership with five national banks to help veterans get lower rate mortgages easier.

• New efforts to better understand traumatic brain injuries, including a $34.4 million VA suicide prevention study involving 1800 veterans at 29 VA hospitals, and more suicide prevention training for military and VA personnel.

• Automatic enrollment of separating service personnel in transition programs.

In recent weeks the VA has also trumpeted grants for homeless veterans throughout the country, dedicating millions towards this serious need.

The VA scandal erupted in April when a retired doctor at the VA hospital in Phoenix disclosed that long wait times may have contributed to the deaths of as many as 40 veterans. A preliminary investigation found that delays and falsified records were widespread through the VA system.

The President assured the Legionnaires, "We are going to fix what is wrong. We are going to do right by you and your families, and that is a solid pledge and commitment I’m making to you here.”

The American Legion has long been a supporter of C-123 veterans' Agent Orange exposure claims, for which we continue to express our gratitude.

Dave Zamorski Retires!

We note with respect and affection the upcoming retirement of Lieutenant Colonel David Zamorski, ART Administrator of the 439th Aeromedical Evacuation Squadron, Westover AFB, MA.

When I was Technical Sergeant, I watched David first come to the squadron, get oriented by Vinny McCrave, and advance to Senior Airman while earning his aircrew wings as an Aeromedical Evacuation Technician. In 1980 he was selected for a commission as a Medical Service Corps officer.

David's service includes OIF, and he is the longest-serviing member of the squadron (originally the 74th Aeromedical Evacuation Squadron.)

It will be hard to replace him!

Happy trails,

      Wes

25 August 2014

VA Attorneys Create Misleading C-123 Claims Barrier

(note: we asked VA's Mr. Ridgeway for corrections on the content but there has been no response)
Under the leadership of James Ridgeway, Chief Counsel for Policy and Procedure with the VA Board of Veterans Appeals, new and creative anti-veteran strategies have been introduced by his attorneys specifically to prevent C-123 exposure claims.

BVA attorneys are responsible for prevention of appealed claims, and represent their client, the VA Veterans Benefits Administration, in front of the BVA administrative law judges with gusto, creativity and zeal.

But not with complete honesty or accuracy.  In 2007 LtCol Aaron Olmsted's exposure claim was denied when VA's ignored, withheld, or pointedly did not seek or provide to Olmsted's representative) proof that the C-123s he piloted for thousands of hours had sprayed Agent Orange in Vietnam. Even when that Air Force evidence (it took three minutes on the Internet) was provided after the fact, BVA attorneys  and the ALJ and the VA regional administrator and the Secretary (even the BVA attorneys' association's ethics chairman) insured his widow Diane's claim remained denied. After all, to BVA counsel, success is found only in a denied claim, or at least one delayed past the veteran's death.

More recently, to prevent C-123 veterans' claims from approval, BVA attorneys have begun citing completely non-existent "scientific studies" by Veterans Health Administration. Please note: these proofs don't exist – VA made them up! 

The only scientific studies ever done concluded the opposite – that C-123 veterans were exposed and have a greatly increased cancer risk (CDC/ATSDR.) The only peer reviewed study reached the same conclusion...veterans were exposed.

In fact, VA's references to "scientific studies" amount to nothing more than several web pages which mention carefully selected (and most pointedly, carefully avoided everything pro-claimant) references, and a one-page policy statement VA Issue paper in 2011.  There have been no scientific studies completed which found the veterans were not exposed – even the 2012 USAF C-123 Consultative Letter and follow-on explanations to the Senate said VA should not use for rejecting C-123 veterans' claims and that individual exposures could not be calculated. This report has since been repudiated by some of its contributors.

Clearly, it is important, indeed Job One, for BVA attorneys opposing veterans to appease VBA. This seems to mean preventing helpful documentation falling into the hands of opposing representatives. So much for the legal requirement, but phony pro-veteran, non-adversarial and veteran-friendly VA treatment of veterans' claims. Faced with the possibility of a defeat by veterans having the full facts and by reference to actual scientific studies, VBA's victories against the veteran trumps the profession's expectations of this staff.

The Deputy Chief Consultant at VHA's Post Deployment Health Public Health section published a single page in preparation to oppose veterans' concerns in an upcoming teleconference with non-VA scientists and C-123 veterans. Together with her colleagues they explained in the October 2011 teleconference that most likely none of the C-123 veterans' claims would ever be approved.

Then on February 28, 2013, VBA Compensation & Pension, which denies claims on the basis that "TCDD hasn't been shown to be harmful") explained to me and Major Marlene Wilson USAF NC that none of the C-123 claims would ever be approved because VHA had already determined that none of the veterans were ever exposed. Thus VHA Post-Deployment Health overruled the Secretary's and General Hickey's assurances to veterans that all C-123 claims would be handled on a "case-by-case" basis.

This opposition to C-123 veterans claims was based on a theory VHA and VBA accepted in 2011 and formed upon the writings of its Agent Orange consultant. Apparently, he was the scientist who apparently first insisted that none of the Vietnam ground troops were exposed to Agent Orange in his 2004 article sponsored by Dow and Monsanto  (manufacturers of Agent Orange,) and in his July 2011 article in Military Medicine. He expounded on his theories which were music to the ears of VBA and VHA executives who, as reported in the Associated Press, were determined "to draw the line somewhere" regarding claims of exposed veterans. The consultant did so by disputing decades of more current research presented to the IOM and instead citing work decades old. The consultant argues that the 1991 Agent Orange Act was an inappropriate response to veterans' needs, even dismissing statistical evidence of Vietnam veterans' illnesses.

Perhaps BVA isn't aware of the fact that VA's entire foundation for opposing C-123 veterans relies on its Agent Orange consultant who, in 2011 described us, the veterans Ridgeway seeks to keep out of VA hospitals, as "trash-haulers, freeloaders looking for a tax-free dollar. I have no respect." Apparently BVA is okay with such distain from its experts but not with experts whose opinions are respectful and in favor of our exposure claims.  The current $300,000/year no-bid, sole-source Agent Orange consulting contract has created such useful ammo for Ridgeway's case work.

BVA's team seems to have begun misleading judges at the Board of Veterans Appeals with citations of VHA's non-existent "scientific studies" approach in 2013. A search of BVA decisions shows the frequent reference, and reliance by BVA judges upon these non-existent references. This is despite truly scientific studies which conclude the C-123 veterans were indeed exposed. Those are never mentioned by VA.

Ridgeway's staff clearly ignores, and of course avoids informing the veterans' representatives, about similar findings by other federal agencies which have reached the same conclusion that C-123 vets were exposed...National Institutes of Health, the Agency for Toxic Substances and Disease Registry, and the US Public Health Service. Proofs of veterans' exposure claims are ignored or dismissed by Ridgeway's skilled attorneys.

BVA also ignores the Yale Law C-123 conclusion that the veterans are presumptively service connected for recognized Agent Orange illnesses. BVA's motivated staff of attorneys finds it best to dismiss any such legal or scientific proofs arguing for the veteran.

The first BVA citation below is for a Navy, not C-123 veteran, but the inclusion of such language is terrifically wrong! VBA did not "review all available scientific evidence" but instead VHA Post Deployment Health selected references it felt best blocked exposure claims to fulfil VHA policy. This can be seen from their cited references, paid-for opinions, Dow/Monsanto opinions but avoidance of unpaid and independent expert input from ATSDR, NIH, USPHS, Columbia, OHSU, etc., all of which argue in the C-123 veterans' favor.

Further, this policy by BVA defies statements from VA leaders, including Secretary Shinseki and Under Secretary Hickey, that each claim will be considered on a case-by-case basis, as instead VA automates the denials not only at BVA but directs RO denials as well. We see some BVA decisions against veterans with this language about non-existent "guidance:"
"The VA and DOD have specifically provided guidance that such secondary exposure cannot be granted service connection, to include working on planes that carried or sprayed, or being stationed on vessels which transported the herbicide."
More troubling examples:
"Citation Nr: 1426689: the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have reviewed all available scientific information (?) regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. See http://www.publichealth.va.gov/exposures/agentorange."
And from an April 2014 BVA decision, also reflecting VBA's damage. (Actually, these studies and findings have repeatedly been brought to VA's attention.)
"Citation Nr: 1413377: there are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred."
From others:
 "An undated Compensation Service Memorandum indicates  that there was no presumption of secondary exposure based upon being near or working on aircraft that had flown over Vietnam or handling equipment once used in Vietnam, noting that the aerial spraying of tactical herbicides in Vietnam did not occur everywhere and that it was inaccurate to think that herbicides covered every aircraft and piece of equipment with Vietnam.  Additionally, the undated Memorandum notes that the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation Ranch Hand.  The Memorandum also reflects a comment that there were no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. "
"Citation Nr: 1337387: note, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange.  VA's Office of Public Health is noted to have thoroughly reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces.  It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.  (See www.publichealth.va.gov/exposures/agentorange.)  Otherwise, other than his unsubstantiated allegations, there simply is no evidence that the Veteran was exposed to Agent Orange or other herbicides based on his contact with any military vehicle that may have once been used in Vietnam."
Mr. Ridgeway, together with VBA/VHA, has institutionalized the C-123 non-exposure position, citing totally  non-existent "scientific" studies on VBA web pages which were policy statements and not scientific studies, and which are contradicted by VA's Federal Register publications and statements by VA leadership. These unscientific positions then become cited by BVA in refusing care to exposed veterans.

Nothing supporting the veterans' claims, although proofs are present in the files of VA's Office of General Counsel, VBA Under Secretary Allison Hickey, and VHA's Dr. Victoria Daveys, is made available to veterans by the VA during claims, appeals or cases before the US Court of Appeals for Veterans Claims. According to FOIA responses from VA, nothing about C-123s even exists, other than its web pages.

It seems to BVA and Mr. Ridgeway's staff that VHA web pages citing non-existent "scientific studies" by Post Deployment Health trump repeated VA Federal Register publications addressing non-Vietnam herbicide exposures.

As the President told the American Legion On August 26, " That's how we will uphold the sacred trust with all who've served in our name." 

BVA sees upholding the "sacred trust" much differently than do the veterans before the board.

Court of Appeals for Veterans Claims Sees Trouble Ahead With Caseload

In its current condition, the U.S. Court of Appeals for Veterans Claims can handle its caseload. But a judge on that court with close ties to The American Legion told Legionnaires at the 96th Annual National Convention in Charlotte, N.C., that things are changing.
Past National Commander Alan Lance, Sr., a judge on the U.S. Court of Appeals for Veterans Claims, told the Legion’s Veterans Affairs & Rehabilitation Commission on Aug. 24 that staffing issues facing the court – along with an increase in appeals coming before it – could put the court in a precarious spot.
“Right now, we have nine judges, and we’re adequately staffed and prepared to deal (with the current caseload),” said Lance, the Legion’s national commander from 1999-2000 and a former Idaho attorney general. “Very soon, we’re going to start losing judges. Unless Congress reauthorizes the maximum strength of nine judges, that strength will be reduced to seven judges at about the time (the court’s caseload will increase).
“In addition to that, we have judges whose terms of service will expire, and it takes a while to get a judge nominated, confirmed and through the process. So … we’re going to be pretty busy, we think. I’m sure we’ll have some suggestions at the appropriate time, but right now we’re just watching it come down the mountain, trying to figure out when it’s going to hit and how much it’s going to be.”
In 2002, the Court of Appeals for Veterans Claims handled more than 17,000 cases. That caseload could approach more than 50,000 this year. “We’re prepared to deal with it right now, but as circumstances change, we may be coming back and explaining our problems to you,” Lance said.
An understaffed Department of Veterans Affairs’ Group 7 – attorneys tasked with more or less prepping cases to go before the Court of Veterans Appeals and then argue cases on behalf of VA – will impact the court, Lance explained. “They’re going to be requesting more time … and they’re going to slow up the appellate process if they’re not properly staffed,” Lance said. “Our court has no control over this. It’s the (VA) secretary’s bailiwick. But if (Group 7’s) processes slow down, then our processes will slow down. That’s my concern.”

Deceptive VBA Freedom of Information Act Response!

On July 29, 2014, in partial response to my suit in the US District Court of Washington DC for information due me under the Freedom of Information Act, VBA sent a letter. It seems inaccurate and incomplete....in the extreme!

VBA stated, in effect, they had no records relating to the C-123 issue except the three or four Internet pages on the VA web sites.  They denied knowing anything about the current IOM study, other than that it is underway.

Their denial is so broad, they even denied their VBA staff preparing the letter Secretary Shinseki sent to Senator Burr regarding the C-123 veterans. Good thing, because the letter was riddled with errors. A perfect example of how Secretary Shinseki was torpedoed by his staff as they went about their personal agendas.

As for the information which surely exists, VBA insists there were no notes taken before, during or after any of our meetings. No knowledge of the hundreds of pages of letters and forms and source documents the C-123 veterans provided. No knowledge, no records, no recordings, no emails, no correspondence, Nada.

But how can VBA deny the existence of the September 27, 2012 $600,000 contract they let to A.L. Young Consultants? How can they deny existence of documents approving the contract, arranging the funding, receiving the contractor's reports, correspondence, distribution within VBA and VHA...how can they honestly evade answering the FOIA in a formal response? How can they deny correspondence between VBA and Joint Services Records Research Center? How can they deny ordering VAROs, such as Portland, to deny C-123 veterans' claims and then deny existence of the emails which were already provided the claimants?

Because this is the VA. What can you do? Appeal?

They do as they wish, as there are no individual penalties for deception or evasion. And they take their sweet time about their inaccurate and incomplete response – the FOIA was given them in October. Instead of responding in the 20 days FOIA requires, VBA opted to ignore it and take until the end of July to respond. So much for VBA adherence to the President's own directives, and statements from the President about FOIA being a fundamental element of American democracy.

This fits in perfectly with the overall VA policy of delay, delay until we die. That's not just a phrase...they mean it.

What VA Doesn't Want the Institute of Medicine C-123 Post-Vietnam Agent Orange Exposure Committee to Know:

VA gathered the Institute of Medicine this spring and summer to study the post-Vietnam C-123 transports and the aircrews' Agent Orange exposures. Their report on what the VA should do will be submitted to the Secretary of Veterans Affairs by the end of September 2014. C-123 veterans notified IOM staff and the VA we consider this an an unethical step by VA to prevent currently qualified exposure veterans from receiving care the law now provides, with VA seeking to use IOM to construct a specific barrier in our situation.

But the committee doesn't have all the facts before it. The C-123 veterans wish to make known the various reports, studies, and other relevant documents, because the end of June was the committee's cut-off date for formal submission and many new items have been uncovered in the last two months.

Here are new developments or materials not previously submitted to the committee:

1. USAF has withheld hundreds of pages of its post-Vietnam C-123 Agent Orange study from release to veterans and the public, but provided everything to the VA. 
The USAF, through suits filed in the US District Court of Washington DC, has released some of the materials sought under the Freedom of Information Act request we first filed in 2012. Last week, years late and too late for the IOM, USAF released only heavily redacted materials, with nearly every page of the 380 completely blank. The only useful item was a single paragraph in which the USAF research team on post-Vietnam C-123 exposures grouped our exposures with those of Operation Ranch Hand. They then concluded because Ranch Hand veterans are reasonably healthy, the C-123 veterans were somehow not exposed to harmful amounts of Agent Orange. Actually, the AF should have likened our degree of bioavailability to the Vietnam ground troops or even more, according to Dr. Jeanne Stellman of Columbia.

2. VA withheld most pages of its post-Vietnam C-123 Agent Orange activities from release to the veterans and the public.
VA promised through the US District Court requested documents by the end of May, but continues to request postponements and releases nothing except the request for the next postponement. VA references "scientific studies" on its web pages which even the VA Board of Veterans Appeals cites as authority for denying C-123 exposure claims, yet apparently no such studies exist...only the VHA collection of references and selection of those best aimed at preventing veterans' claims. Subsequently in July 2014, VBA officials even denied knowledge of the A.L. Young Consultants $600,000 contract let in 2012, and of all reports, correspondence and other information.

3. Other Federal agencies have concluded the C-123 veterans were exposed and suffered harmful results.
At one point, with the draft provided by a staffer at VBA who'd been a leader in blocking C-123 claims, the Secretary of Veterans Affairs told the Senate that "many independent scientists voluntarily came forward" to argue against C-123 veterans' exposure claims, but it turns out there were only three, and each was paid to offer their opinions, one by VA and the other two by Dow and Monsanto. The Secretary dismissed the dozens of "Concerned Scientists and Physicians" who'd written him through Dr. Stellman as their corresponding scientist, and all of whom were unpaid. The Secretary, writing Senator Burr, dismissed these experts with a minimizing adjective as "some."
Please note that three voices against the veterans are termed "many" but dozens confirming the veterans' exposures are termed, "some."

He ignored input from the National Institutes of Health/NEISH and the CDC/Agency for Toxic Substances and Disease Registry in explaining to the Senate why VA refuses C-123 claims. The Secretary's misleading letter to the Senate, perhaps an example of what the Secretary meant when he resigned because of poor staff work, was prepared by VBA which has opposed C-123 veterans' claims since we first began submitting them in 2011.

4.  Explaining the VA perspective to the IOM C-123 committee was VA's consultant, paid $600,000 for his services, but a detail not revealed to the committee. The Dow and Monsanto-sponsored reports properly noted their chemical industry sponsorship.  All six major veterans service organizations have demanded the VA cease contractual relationships with this firm.

5. As I told told the committee, the legal issue for the benefits claimed by C-123 veterans is exposure itself, and not bioavailability.
The law, regulations, US Code and Federal Register simply specify exposure to be eligible for what VA terms "presumptive service connection" for recognized Agent Orange illnesses. We've established our exposure to the satisfaction of legislators and Yale Law School as well as other federal agencies. Agencies with the actual statutory authority and expertise in exposure issues such as CDC, NIH and the US Public Health Service have informed VA that we've been both exposed and harmed by it. VA currently orders all C-123 exposure claims denied but the Board of Veterans Appeals almost always overturns and awards benefits to the veteran. To address this, VA's office of General Counsel has opined that VA can redefine exposure in any unique manner it wishes to prevent exposed veterans from being able to meet the law's requirement which only states "exposure."

6. VA, and the consultant explaining VA perspectives to the IOM committee, did not reveal that its spokesperson at the June 16 IOM was personally involved in ordering destruction of the toxic C-123s in 2010 (and as he stressed, to prevent potential veterans' claims), a unique element of his personal background which should have led VA to select another consultant regarding these veterans' health.
In a 2009 series of "Decision Memoranda" to Air Force leaders, the consultant, in his capacity as Senior Consultant to the Office of Secretary of Defense, recommended cessation of all further testing and the immediate destruction of the toxic C-123s, then in quarantine storage at Davis-Monthan AFB, AZ. Citing the consultant's unique authority from the Office of Secretary of Defense, Mr. Wm. Boor requested and received from the Air Staff approval for destruction.

This has provided the consultant a unique historical role over four decades:


7. VA Expenditures Regarding C-123 veterans' exposure claims:
    -Support Veterans' Claims: $0.00
    -Prevent Veterans' Claims: $600,000 plus contractor expenses, VA staff salaries, travel & benefits
    -Contract extension with Institute of Medicine: unknown but language of the charge is considered to direct a negative response regarding the legal question of exposure and to force an inconclusive response regarding degree of harm, as this has been the result of previous IOM, unless the committee opts to exceed its charge and act with independence. Dow & Monsanto also sponsored letters opposing C-123 veterans' exposure claims at the June 16 2014 Institute of Medicine hearing.

8. In 2013 the USAF Assistant Surgeon General informed the Senate Veterans Affairs Committee that the USAFSAM C-123 Consultative Letter should not be used by VA in denying C-123 veterans' claims.

Still, VA cites it as the foundational document in preventing all C-123 veterans claims. VA further cites its own "scientific study" which is actually only a single page point paper typed in 2011 in preparation for the initial teleconference between VHA, VBA,C-123 veterans, and several scientists. The VA "scientific study" pointedly ignored every finding and opinion supporting C-123 veterans' claims...only publications which could be interpreted to argue against exposure were cited. This "scientific study" was thus only a policy statement.

In its response to the Senate, the AF illogically also reported that its conclusion aircrews were not exposed was "consistent" with the ATSDR finding that aircrews were exposed, and AF simply disregarded the ATSDR finding that the aircrew cancer risks were greatly increased.

9. The Air Force Ranch Hand Study considered non-Ranch Hand C-123 aircrews as potentially exposed from flying converted spray airplanes.
From the early study:
"Another possible control group, the non-Ranch Hand C-123 population, is known to be too small (approximately 3000) to provide flexibility and replacement under the proposed best match variable concept (see below and Section VI,A). Many of the Ranch Hand aircraft were reconfigured for transport and insecticide missions and thus, non-Ranch Hand crews responsible for these other missions, may have been exposed to Herbicide Orange residues in these aircraft. This group may not be considered truly unexposed to herbicides..."

24 August 2014

The Army Proved the C-123 Exposures, Despite VA Dismissal

It was heavily downplayed by VA and USAF in their C-123 reports. The Army's Technical Guide (TG) 312, considered the "gold standard' in its treatment of surface contaminations was dismissed as irrelevant regarding implications for C-123 post-Vietnam veterans.

It had to be. TG 312 was too accurate, and too spot-on to simply ignore, as VA and USAF had ignored the expert input from other federal agencies. VA's agenda was, and is, to "draw the line somewhere" (VHA to the Associated Press 2014) and prevent any further Agent Orange exposure claims (VHA to Major T. Rudd, US Army Chemical Corps 2012.) Because it helped establish C-123 veterans' exposures, the Army's TG 312 was a hurdle before VA in blocking claims, so they simply tipped it over and went around. VA's stated policy objective regarding post-Vietnam claims was, as they've stated since the beginning, to prevent approvals.

The Air Force Times itself did a complete explanation of the whole mess, and VA's intransigence, with a full-page article and also its editorial echoing that of other major publications.

By careful selection of which references to use and which experts and other federal agencies to ignore, VA VHA formed their arguments to prevent claims, and against the veterans, rather than letting the full body of evidence be evaluated to form their policy.

VA dismissed TG 312 as having no relevance for the C-123 interior and the aircrews' exposure. The complex interior of the C-123, mind, is of aviation grade aluminum, painted aluminum, wood, canvas, leather, glass, adhesives, other metals, canvas, fiberglass, wrapped electrical cables...many different surfaces upon which Agent Orange and its contaminant, dioxin, penetrated over the Vietnam years and then began to degrade.

The slow degrading was through weak UV exposure, as well as dioxin's half-life, different on different surfaces. But it was there, for decade after decade following Operation Ranch Hand in Vietnam, through the decade we flew them (1972-1982,) through the next decade while Patches (#362) sat at the USAF Museum, until Patches was tested "heavily contaminated on all test surfaces" in 1994.

TG 312, along with the USAF toxicologists who actually tested Patches, clearly showed these former spray aircraft a toxic threat to the crews who'd flown them. So VA dismissed both. VA said the AF tests were not applicable to the rest of the C-123 fleet (which hadn't been decontaminated but was determined with repeated tests to be contaminated with Agent Orange,) and TG 312 was based on wipe samples which disturbed the surfaces testing tested and therefore was inaccurate.

TG 312 is the "gold standard" of the US Army, respected by virtually every government, university and independent toxicologist, but VA's goal was to insure it somehow did not apply to the C-123 because tests on the C-123s, evaluated against TG 312, supported the veterans' exposure claims, even VHA's unique redefinition of "exposure" to require bioavailability. And wipe tests prescribed by TG 312 had adjustments calculated for physical disturbance in the testing procedures, a critical point mischaracterized by VA.

But most tellingly, the bioavailability is addressed in the TG 312  equations.  The surface and airborne concentrations are multiplied by various factors to yield an estimated dose by the various routes of exposure. For example,  by the direct dermal contact route, specific to dioxin, TG 312 notes the dermal absorption factor is 0.001, perhaps less significant unless exposed to large amounts over longer periods  However, the major routes of exposure are dermal to oral and inhalation which bypass the dermal barrier.  So VHA Post Deployment Health and the VA/Dow/Monsanto consultant were only partially correct positing that via direct dermal contact dioxin is not readily bioavailable.*

Exposure by ingestion and inhalation, exposure and yes...also bioavailability. Less so by dermal contact which was still intensive over the decade working on these transports, but it was there, too. We were exposed, and there was bioavailability. As Yale Law and other legal scholars agree, C-123 post-Vietnam veterans who flew former Agent Orange spray aircraft met the legal and regulatory standards to present vet's exposure claims. In 2001, 2008 and 2010, VA even said so, but this was before the C-123 vets grew concerned about our exposures, so VA had to redefine the word "exposure" used in several Federal Register promises to treat exposed veterans, so that they could better pretend we weren't exposed.

But VA says, "NO." VA orders regional offices to deny claims, has its C&P Agent Orange Inquiry Desk return "recommend disapproval" responses to claims forwarded IAW VA 21-1MR,  and create web pages alluding to non-existent "scientific studies" which were merely selective literature reviews to form words around VA's "we cannot permit any C-123 claims," as per the Deputy Chief Consultant, VA Post Deployment Health. "VHA has told us no C-123 veterans were ever exposed," according to C&P's statement on February 28, 2013 in his office conference with C-123 veterans.

The recent non-release of the FOIA'd USAF C-123 records, in which only a handful of hundreds of white pages had copy left on them after nearly all information was redacted, a line showed that the point-of-contact the Army for TG 312 would like to follow and assist the USAF C-123 investigation – but all such information was redacted and we don't know any more.

Neither do we know much about the VA's $600,000 sole-source, no-bid two year contract  for post-Vietnam Agent Orange exposure claim prevention...so many pages of the contract were redacted when released by VA. Amazing: the US government opts not to release information about Agent Orange studies it pays to conduct to the veterans who have been exposed and who need that information to accept, or to challenge its conclusions.

One final observation: the VA sought out the US Army Public Health Command for input regarding its TG 312 and the two organizations communicated regarding the C-123s. We veterans also wrote the Army with questions, but our inquiries were ignored, both the formal letters and the emails. The Army Public Health Command has in its mission statement the duty to assist in this regard, but withheld that assistance except to the VA.

* email, Dr. Peter Lurker to Major Wes Carter, 23 August 2014

23 August 2014

Obama Nominee for Ass't Secretary for Policy & Planning Schwartz Says, "U.S. must find 'better ways' to get medical care to veterans."

Retired Col Linda Schwartz, PhD.
(note: Dr Schwartz once flew with the 74AES from Westover AFB, MA)
Linda Schwartz, the commissioner of Veterans' Affairs in Connecticut, gave the keynote speech at the Community Mental Health Summit hosted by the University of Alabama at Birmingham (UAB) on Fri., Aug. 22, 2014.
Jesse Chambers | jchambers@al.com
Print Jesse Chambers | jchambers@al.com By Jesse Chambers | jchambers@al.com

BIRMINGHAM, Alabama – A recently passed federal law should be good news for veterans seeking to get access to health care through the Veteran's Administration (V.A.), according to Linda Schwartz, the commissioner of Veterans' Affairs in Connecticut.

The Veterans' Access to Care through Choice, Accountability and Transparency Act – signed by Pres. Obama about two weeks ago – is "massive" and contains "sweeping changes to call the V.A. to be accountable," Schwartz said today at the Doubletree Hotel downtown just prior to her keynote speech at a Community Mental Health Summit hosted by UAB.

As part of the new law, "we are going to see if some of these things that the V.A. has been doing... are effective or not," Schwartz said.

A U.S. Air Force nurse during the Vietnam War, Schwartz has a doctorate in public health from the Yale School of Medicine.  She is also Obama's nominee as assistant secretary of Veterans Affairs for Policy and Planning at the U.S. Department of Veterans Affairs.

BVA Cites Non-Existent VHA "Scientific Studies" to Deny Exposure Claims

The first BVA citation below is for a Navy veteran and not C-123, but the inclusion of such language is
terrifically wrong! VBA did not "review all available scientific evidence" but instead VHA Post Deployment Health selected references it felt best blocked exposure claims to fulfil VHA policy. This can be seen from their cited references, paid-for opinions, Dow/Monsanto opinions but avoidance of unpaid and independent expert input from ATSDR, NIH, USPHS, Columbia, OHSU, etc.

Further, this defies statements from VA leaders, including Secretary Shinseki and Under Secretary Hickey, that each claim will be considered on a case-by-case basis, as instead VA automates the denials not only at BVA but directs RO denials as well.
"Citation Nr: 1426689: the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have reviewed all available scientific information (?) regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. See http://www.publichealth.va.gov/exposures/agentorange."
And from an April 2014 BVA decision, also reflecting VBA's damage. Actually, these studies and findings have repeatedly been brought to VA's attention.
 "Citation Nr: 1413377: there are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred."
From others:
 " An undated Compensation Service Memorandum indicates  that there was no presumption of secondary exposure based upon being near or working on aircraft that had flown over Vietnam or handling equipment once used in Vietnam, noting that the aerial spraying of tactical herbicides in Vietnam did not occur everywhere and that it was inaccurate to think that herbicides covered every aircraft and piece of equipment with Vietnam.  Additionally, the undated Memorandum notes that the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation Ranch Hand.  The Memorandum also reflects a comment that there were no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. "
"Citation Nr: 1337387: note, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange.  VA's Office of Public Health is noted to have thoroughly reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces.  It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.  (See www.publichealth.va.gov/exposures/agentorange.)  Otherwise, other than his unsubstantiated allegations, there simply is no evidence that the Veteran was exposed to Agent Orange or other herbicides based on his contact with any military vehicle that may have once been used in Vietnam."
VBA/VHA have institutionalized the C-123 non-exposure position, citing non-existent "scientific" studies on its web pages which were policy statements on VA web pages, contradicted by VA's Federal Register publications and statements by VA leadership. These unscientific positions then become cited by BVA in refusing care to exposed veterans.

It seems to BVA that VHA web pages citing non-existent "scientific studies" by Post Deployment Health trump VA Federal Register publications addressing non-Vietnam herbicide exposures.

Can't this be corrected or is it too late?

19 August 2014

$600,000 VA Contract to "Help" Agent Orange-Exposed Veterans With Claims

Not the contractor. I wish we'd had $600,000 for research!
Really? VA spent the money only to "help" us?

No.

 Veterans Benefits Administration spent $600,000 on a no-bid, sole-source unsolicited consulting contract to "help" veterans with post-Vietnam Agent Orange claims...by getting the claims denied and reducing subsequent appeals. VA even emphasized his work would help VA assure veterans of assistance in researching their claims, meeting that statutory requirement. But in fact, from what we've been allowed to read, ot a word in the 25 or so reports support post-Vietnam exposure claims.

In his proposal, the consultant wrote:
"Although the Department presumes exposure for Vietnam veterans and US Korean  veterans, this is not the case for veterans potentially exposed outside of Vietnam or Korea. For these cases, the Department of Veterans Affairs has been placed in a very difficult position, because without appropriate record identification, the Department has had to rely upon minimal documentation, and often only on the unsubstantiated documentation, to determine the validity of the veteran’s claim. Clearly, it would have been beneficial to all parties to have had all the available records related to the allegation or incident."
The real suggestion here was that post-Vietnam exposure claims needed to be obstructed. As for the catagorization of all available resources, that certainly would be helpful, but only if the consultant included reports, publications and other materials supporting the vets' exposure argument along with the VA's efforts to obstruct their claims. Beneficial?

Hardly. This consultant defends the innocence of Agent Orange, and insists that no veterans of Vietnam were actually exposed. His consistent view, his predictable view, that closed-mind made this consultant the go-to expert for VA to use preventing C-123 Agent Orange exposure claims.

And his proposal even dismisses our claims by calling them "allegations." Mr. Consultant, an allegation by definition is typically put forward without proof, but we've offered our proof for our claims! For years, at least since 2004 as best we can tell, the consultant has led the VA in redefinition of exposure to require bioavailability. That is because redefining exposure against us is the only "out" VA has available to deny our claims.

Three times VA assured Congress and veterans via the Federal Register that exposed veterans in situations other than Vietnam will be treated with the same presumptive service connection as Vietnam veterans. The only requirement was proof of exposure. Now that contamination of the C-123s has been well-established, the consultant helped VA redefine the whole issue which apparently was first stated by VHA's Post Deployment Health Section in preparation for the October 2011 teleconference with C-123 veterans.  In the "VHA Issue Brief" VHA echoed the consultant's toxic logic from his 2011 article appearing in the journal of the Association of Military Surgeons of the United States.

Then VHA presented a poster at the 2012 Society of Toxicology in which they repeated their VA redefinition of exposure to prevent exposure claims: "exposure = contamination field + bioavailability." That was just a little line inserted in the poster's C-123 section, but it has become the foundation of VA's scheme to deny all C-123 claims. Every single one of them. Only Paul Bailey's claim, denied at first but approved over a year ago on reconsideration, has been okay'd, and since then VA has kept VHA's public promises to "draw the line somewhere" because "VA cannot permit a C-123 claim."

And VA certainly doesn't permit any claims. Rating officials even cite non-existent regulations or publications or scientific studies. There's no such thing1 One of the most recent claim denials stated:
"The VA and DOD have specifically provided guidance that such secondary exposure cannot be granted service connection, to include working on planes that carried or sprayed, or being stationed on vessels which transported the herbicide."
We should restate one terrific reason VA selected this consultant for the juicy no-bid contract: he holds C-123 aircrew veterans in terrible destain. Although he himself is a retired brother USAF officer, in 2011 he wrote a correspondent that C-123 veterans are "trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman. I have no respect." This is the consultant the VA selected to help tell themselves and IOM we were not exposed. This is the consultant having a terrifically negative impact on our claims.

He permitted no respect for our combat tours, or our Purple Hearts, our Distinguished Flying Crosses, our Air Medals, our POW Medals...no respect for our wings. Obviously VA, eager to prevent C-123 exposure claims, chose the right guy with the right attitude to trash our claims. VA knew about the consultant's insensitive comments and firm views against us because the veterans had brought the issues to the department's attention several times.

Imagine, however, if this gentleman was a consultant on VA employee health coverage. Imagine how unhappy VA employees would be if the same consultant had called government employees "trash-haulers, freeloaders" for whom he had no respect. They wouldn't tolerate it...they'd scream bloody murder! They'd know VA decisions about their health shouldn't be entrusted to that person.

But VBA feels it was a bargain, just $600,000 to help prevent C-123 exposure "allegations" which are, in fact, perfectly valid exposure claims!

VA Withholds Details on Post-Vietnam Agent Orange Consulting Contract – $600,000 Spent to Block Claims

Today VA released a redacted version of its contract let to A.L. Young Consultants of Cheyenne, Wyoming. Its principal, Dr. Al Young, is a retired USAF colonel and has over four decades of experience developing Agent Orange as a military herbicide, and his reports are used by VA and DOD to prevent veterans' claims for Agent Orange exposures.

Dr. Young's views are well-known, consistent over the decades, and likely the reason he was sought out by VA...the results of the work are quite predictable...no Agent Orange exposures to anybody. His perspective on Agent Orange exposure is well-summarized in his 2011 article carried in AMSUS, the journal of the Association of Military Surgeons of the United States.

Although I over-simplify, it seems the point is because the most exposed population of veterans in Vietnam was the Operation Ranch Hand aircrews, since they show no greatly significant differences in illnesses from the general population, and since ground troops were sprayed less than the aircrews, therefore no exposures occurred to the ground troops. VA caring for Agent Orange illnesses is a waste of money and a political response to veterans' demands.

The failure in this logic is the decision to ignore recent decades of conclusions by the Institute of Medicine, as well as other direct researchers. Exposure to Agent Orange results in statistically higher risk of a long list of illnesses recognised by the Institute of Medicine, and exposure to Agent Orange is supposed to provide a veteran presumptive service connection for those illnesses.

But VA wants to use Young's reports to backtrack on Congress. Young's definition of Agent Orange exposure requires bioavailability...the veteran must prove the presence and harm caused by the Agent Orange exposure. VA also wants to actually redefine "exposure" to its own version, being "exposure = contamination field + bioavailability." This is unique to VA, because other federal agencies accept the CDC/Agency for Toxic Substances and Disease Registry's definition, "exposure = skin (or eye) contact with a chemical (of any type) or its ingestion or inhalation."

Dr. Young is well-known to the C-123 veterans, and apparently, he feels well-informed about us. He wrote a correspondent that C-123 veterans are "trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman. I have no respect." As one can expect, C-123 veterans are uncomfortable having VA led to its anti-C-123 veteran decisions by a person who denigrates us so soundly. Perhaps, VA should have sought a consultant who hadn't already announced his conclusions and who hadn't expressed distain for the patient population involved.

If VA gets away with this, veterans of all types of exposure are threatened, because VA can redefine away their proven exposures. Burn pits, radiation, dirty water, biohazards, immunizations, bugs...any exposure not provided for by law, as with the 1991 Agent Orange Act, leaves VA free to create impossible barriers for any veteran seeking medical care.

VA Ups Their Opposition – Claims Are Now Denied On VA & DOD "Specific Guidance"

The VA in Montana has shot down another C-123 veteran's claim. This vet, with more problems than I
want to type, received his claim denial in March and it has Compensation and Pension attitude all through it.

What is chilling is the justification for denying the Agent Orange-related illnesses of this former mechanic who worked on Patches:
"The VA and DOD have specifically provided guidance that such secondary exposure cannot be granted service connection, to include working on planes that carried or sprayed, or being stationed on vessels which transported the herbicide."
So much for empty assurances from the Secretary on down that each claim is considered on a case-by-case basis. They should have assured us instead, and more honestly, "each claim is denied on a case-by-case basis, regardless of justification."

How can they promise pro-veteran, non-adversarial claims processing? They ought to simply put a paragraph that C-123 veterans need not apply.

We have no idea where the DOD "specific guidance" comes from, unless it is the 2006 list Battelle and Al Young prepared for DOD.

17 August 2014

C-123 Exposure & Health Studies Withheld by USAF in Defiance of Freedom of Information Act

Subject: August Release of Freedom of Information Act materials by the USAF Surgeon General's Office – USAF Defied the Law But Accidentally Let Vital Information Leak*

The C-123 Veterans Association had requested information about the May 2012 USAF C-123 Consultative Letter and how its conclusions were reached, and details about the scientific studies performed. Nothing secret, nothing personal. Stuff we're entitled to!

Instead, the USAF released two sets (Release One and Release Two) of documents last Friday, each a duplicate of the other, and each redacted past the point of honesty and respect for the law. The only information not redacted was an irrelevant EPA document on radiation assessment....nothing was revealed about the C-123 study of post-Vietnam exposures.

What the heck? President Obama assured the American people on his first public act that a citizen's right to access to information is "a fundamental element of American democracy." The Air Force, perhaps, missed that press release, and also the one where the President ordered Federal agencies to be as open as possible.

Here, in their response to my 2012 FOIA request, and to my October lawsuit filed in the US District Court of Washington DC, the Air Force sent me blank pages, devoid of meaning. Remember – these are publicly-funded studies by the USAF Surgeon General's Office and the USAF School of Aerospace Medicine, about whether or not 2100 veterans were exposed to Agent Orange. Further, the Air Force study is the foundation of the VA refusal to permit a single C-123 veteran's Agent Orange claim to be considered. So...VA refused to permit us to have our cancers treated because of a secret Air Force study...not classified in any way, but still hidden from public view, and denied us as we seek VA benefits, by the USAF Surgeon General.


What arrogance and abuse of discretion. This "Freedom" of Information Act response was anything but freedom! Virtually every line of every page released was redacted, denying C-123 veterans access to USAF School of Aerospace Medicine in May 2012.
the studies completed about our Agent Orange exposure by the Air Force after they agreed to look into our concerns with scientific integrity. That study, however, failed to meet the true definition of scientific integrity, with command interference, unnecessary JAG interventions, and close cooperation with the VA but not with CDC/ATSDR nor NIH.

The AF C-123 study meekly concluded that individual exposure assessments were impossible, but then illogically also concluded that because of that impossibility, the C-123 veterans were probably not exposed to harmful amounts of Agent Orange. What an amazing twist of logic!

* But there was a single paragraph, truly golden hidden among the pages of white, a paragraph that they missed redacting and which perfectly explains our eligibility for Agent Orange exposure care:

"USAFSAM concludes that there is not enough data to evaluate or model individual exposures and performing an epidemiological investigation would not be possible.   They then looked at the results that were available from a general population and occupational perspective and conclude that although dried residuals of dioxins were present, the exposures to anyone encountering the Aircraft either occupationally or from the general public should be within the exposures experienced by the Ranch Hand personnel that were exposed in Vietnam.   The Air Force conducted an extensive epidemiological study of the Ranch Hand personnel (referred to as the Air Force Health Study) and to date the results do not provide evidence of disease in the Ranch Hand veterans caused by elevated levels of exposure to Herbicide Orange."

Read the paragraph's middle carefully, especially the fact that USAFSAM considered post-Vietnam C-123 exposures

"within the exposures experienced by the Ranch Hand personnel that were exposed in Vietnam." That confirms our exposure which is the only issue under the law to be eligible for Agent Orange illness care and benefits. The exposures were not hypothetical, not imaginary, not remotely possible...but "within the exposures experienced by Ranch Hand." There was no conclusion that we were not exposed, only that harm had yet to be proven by the exposures.

The USAFSAM study illogically concluded that because the Ranch Hand spray veterans have not evidence elevated illnesses, then the C-123 veterans must not be harmed either.

The logic failure is in failing to note that post-Vietnam C-123 vets were never tested, as was the Ranch Hand population. Further, our exposures were long term/low dose exposures, and over a ten year period versus a Ranch Hand eleven month tour in Vietnam. We were older, with more women, and during the decade we flew our sick crew members were removed from service when they presented developing Agent Orange illnesses, such as cancers, diabetes, and IHD.

Both groups of aircrews remain distinct from the "general population" in that we had flight physicals, everyone was a high school graduate (or more) if enlisted and a college graduate if commissioned. We had enlistment or commissioning physicals, which separated many who were already ill, used illicit drugs, had significant arrest records, or who did not meet education, physical or mental requirements. We had excellent medical and dental care, constant drug testing, weight control, excellent prospects of post-military graduate education and employment, and in so many ways were healthier and fortunately likely to stay healthier than the general population, Agent Orange issues not withstanding.

Conclusion: both Ranch Hand and post-Vietnam aircrews should be in better health than their contemporaries, and it seems they are. But, the overall group of Vietnam veterans, a large enough population for meaningful epidemiological studies, continues to show the ravages of Agent Orange-releated diseases.

VA even prohibits the kind of testing on us for the presence of dioxin which the Ranch Hand vets have had for decades. Ranch Hand remains the only studied population, one made up of under 2,000 veterans, similar in size to the post-Vietnam C-123 group of about 2,100. Both, too small for meaningful examination. Which is why Congress, in frustration with VA foot-dragging, simply directed with the 1991 Agent Orange Act that all Vietnam veterans, and those veterans able to prove their exposure to Agent Orange, will be treated for recognized illnesses.

Three times the VA "more clearly" explained the agency's policy toward non-Vietnam Agent Orange exposures in the Federal Register. VA stated that exposed veterans would receive the same presumptive service connection for recognized Agent Orange illnesses, providing exposure itself was established. We've done that.

As can be read above, the Air Force established our exposure. ATSDR confirmed the exposure, as did the NIH/National Institute of Environmental Health Sciences and the US Public Health Service. There is a pro-veteran requirement in the VA claims process....we'd like to see some!

USAF and VA: A great partnership in denying responsibility along with denying medical care for the harm done.

By the way, below is an example of the Air Force perspective on what they feel veterans are permitted to see in military studies about us, paid for by the public, requested by the veterans. It is the first page of what AF sent out last week following two years of our actions to compel release of material which should be in the public domain: