05 March 2015

My Agent Orange Claim: Four Years Old This Month

VA Claim still denied after four years waiting!
2011 just wasn't a super year for me, health-wise.

2011 also proved to be a terrible year to submit an Agent Orange claim. But as it worked out, that frustrated claim afforded me a tremendous sense of purpose in helping the men and women I served with between 1974-1980. I guess it was one path to acceptance of what was happening to me.

2011 is when I learned I had cancer and heart disease, and had heart surgery in Portland Oregon. As I learned more about my illnesses, I realized that other folks from our squadron were in the same predicament: I had the thought that information uncovered by preparing my claim would help the men and women I flew with who'd also been exposed.

2011 is thus when I began more active interaction with the Department of Veterans Affairs. In addition to being asked why I was submitting a disability claim when I was already rated 100% disabled, it also earned me the wrath of VA staff, which labeled me "persistent" and "adept at gathering legislative influence." Perhaps.

My wife and I talked it over and agreed it was a worthwhile family commitment for our time and money. I'd been a Medical Service Corps officer in the Air Force for years and a medic before that, a little background which might help. Back then, I didn't expect this project to take four years, but neither did I expect to be around this long.

Soon after I was diagnosed, I submitted a disability claim to the Portland VA for these recognized Agent Orange illnesses.

Four years on, even with each requirement in VA's regulation VAM21-1MR satisfied, even with JSRRC and IOM confirmation, it remains denied by the VA. It moves along, if indeed it moves at all, with the same glacial pace as with all other veterans' claims. It is in line for eventual consideration by the Board of Veterans Appeals, although it hasn't even been forwarded to the BVA but instead has sat for two years at the Portland VARO: BVA appeals can take three to five years, longer than the remaining lifespan of many veterans awaiting decisions.

Adjudication by the BVA takes only a few months once it has the claim. The longest part of the appeals delay is simply the years each regional office takes to putting a disputed claim in the mail for that hearing.

Claims sit in stacks, either physical or digital, for years. VA rules prohibit treating veterans' ailments, regardless of how life-threatening, during those years until the claim is decided. There is such a backlog of BVA appeals that the local office can't offer a guess as to when the claim might be heard.

Despite the unresolved claim for my Agent Orange-related illness, other injuries happen to provide my eligibility for VA care.  I am something of an exception among Reservists from this era. Like other veterans of the Gulf War or other conflicts, my own medical needs are already met by VA, TriCare and MediCare. After my injury, I was 100% medically retired from the Air Force as well.

Because I'm already 100% VA service-connected, rated "catastrophically disabled" by VA and eligible for all VA care, outstanding treatment is provided for my Agent Orange-related illnesses as well as all other ailments. However, most of my crewmates aren't able to turn to the VA for anything, and even their Agent Orange claims are refused...every single one of them. Working my claim, and discovering everything necessary to win VA's approval for our Agent Orange-related claims, would help our other C-123 veterans experiencing illnesses recognized as associated with toxin exposures.

I substantiated my own VA claim not only with the required medical evidence, but also proof of the exposure event because it was unusual:  Many of my squadron's C-123 transports were used for spraying Agent Orange in Vietnam. My claim was that, although I didn't serve in Vietnam, I was exposed via inhalation, dermal contact and ingestion routes of exposure to herbicide residue in the airplane.

Also submitted was USAF proof that planes from our squadron was tested "heavily contaminated with dioxin (the toxin in Agent Orange, also referred to as TCDD) on all test surfaces." That proof wasn't easily gathered from the Air Force...requests for it were denied for years until partially released under the Freedom of Information Act. But only partially. It has taken a suit in federal court to get even a fraction of the information about our exposures released. For some reason, these USAF documents often have hundreds of pages completely redacted...information about our health kept from us.

VA was prepared for claims from veterans with non-Vietnam exposure events – that is, prepared to deny. However, VA also took pains three different times to clearly ("clearly" was the word VA used) spell out to Congress and the public through the Federal Register the department's commitment to care for those exposed outside Vietnam with the same presumptive service connection as Vietnam's "boots on the ground" vets. VA subsequent actions in denying all such claims was in conflict with law, VA regulations, ethical standards it set for itself, and commitments made to veterans and Congress.

Expecting that I'd have a difficult time submitting the claim and persuading the VA, I sought confirmation of both the contamination of the airplanes and the harm that exposure caused, these being VA's requirements in VAM21-1MR. The Center for Disease Control evaluated Air Force source documents and then provided expert input from its Agency for Toxic Substances and Disease Registry.

The CDC reported that our airplanes were contaminated and our exposures well beyond safety standards. The extra information that cancer risks were increased by 186-fold was what I found staggering. CDC said our C-123s were so contaminated we should have been flying and maintaining them in full HAZMAT.

All these proofs...nearly one hundred, didn't help the claim one bit. The claim was denied in 2012. VA disputed or ignored all the medical and scientific support. VA's Compensation and Pension service even took pains to somehow falsely summarize the CDC confirmation of my exposure with their sentence, "In summary, there is no conclusive evidence of TCDD exposure causing any adverse health effects."  

Clear? CDC said I was exposed with a 200-fold increased cancer risk, but VA denied the claim because TCDD is harmless. TCDD? That's the most toxic of toxins, and universally recognized, even by VA, as a human carcinogen. TCDD is the contaminant that made much of the Agent Orange used in Vietnam into a poison.

VA dismissed all the scientific evidence, stating VA had an "overwhelming preponderance of evidence" against my claim. And also, dismissed every C-123 veteran's claim. VA raters also denied C-123 veterans' claims by using the phrase, "regulations forbid recognizing non-Vietnam herbicide exposures." There are no such regulations, of course as VA later agreed when challenged.

In response, VA simply told raters to deny claims but using other phrases, directing all C-123 claims denied regardless of any evidence. This is according to the director of Compensation and Pension in Veterans Benefits Administration. Meeting with him in 2012, we were told no amount of proof from whatever source would permit a claim to be approved.

Denying a claim by pretending TCDD was somehow harmless meant VA denied an Agent Orange claim under the 1991 Agent Orange Act, because Agent Orange was harmless. VA's position was the toxin in Agent Orange causes no adverse health effects, so my claim for illnesses recognized by VA as Agent Orange-presumptive illnesses was denied because toxins in Agent Orange are harmless.

VA's twisting logic and proof makes my head spin. Even VA executives later reported the language denying my claim was "an unfortunate choice of words." What they meant was that the claim had to be denied whatever the reason VA could create, but some other reason should have been found...anything, just get the claim denied regardless of supporting evidence. Type anything, be creative, but deny the claim.

VA's "overwhelming preponderance of evidence" against my claim actually turned out to be a staffers' phrase describing two letters (one from a Dow-sponsored scientist and one from a Monsanto-sponsored scientist, neither of whom ever reviewed my claim,) plus a VA contractor who explains that Agent Orange is harmless. Frequently in VA's internal communications, that phrase was tossed out so routinely everyone in the department came to accept it as a settled fact. The characterization of VA's meager amount of contrary materials as an "overwhelming preponderance of evidence" doomed C-123 claims for years.

But there was no such preponderance: What little VA had paled in comparison to the veterans' evidence. VA even cited its own web pages as scientific evidence to belittle veterans' claims – part of that non-existent overwhelming preponderance.

VA staffers at the "Agent Orange desk" in Compensation and Pension were personally determined to prevent any non-Vietnam exposure claims such as ours. "We have to draw the line somewhere," VA leaders informed the Associated Press. No mention was made of the law, or VA's own regulations which should have insured approval of claims from C-123 veterans.

When other agencies such as DOD's Joint Services Records Research Center tried to provide VA persuasive source documents about C-123 exposures, VA refused to accept them, blocking JSRRC support of the veterans' claims. VA even refused to accept findings from the CDC/Agency for Toxic Substances and Disease Registry confirmed by Rear Admiral R. Ikeda, MD US Public Health Service, calling such evidence from other federal agencies the real problem and "unfortunate."

So, four years ago VA's imaginary "preponderance of evidence" was used to deny evidence from dozens of scientists and physicians, as well as confirming opinions about my exposure from CDC, US Public Health Service and the National Institutes of Health.

All of it from unpaid experts, stacks of it, but useless against VA's two letters, its Agent Orange consultant, and staff preferences.

It was this unofficial policy of some staffers in VA's benefits organization, not law nor science, which condemned every C-123 claim and denied benefits due these veterans. But the arguments from veterans continued, amplified by media, scientific evidence, peer-reviewed research and legislative attention.

Finally in 2014 the National Institutes of Health gave an in-depth evaluation of all the science and evidence regarding the C-123 airplanes' contamination and exposure of the veterans who flew and maintained them. The final report: C-123 veterans were exposed. VA was wrong all along.

In the near future VA will announce changes in how it handles C-123 veterans' claims. Probably, VA will more properly follow its own rules and regulations which should have protected these veterans all along. But between 2011 and March of 2015, VA staffers insured a 100% denial rate of claims which should have been approved. The veterans have paid for these failures at the VA, not the staffers who did this to us.

I've been privileged, and grateful, to be a VA patient since 1991 after I was injured in the line of duty. But had I not been eligible for VA care, as with C-123 veterans' whose claims for Agent Orange benefits are still denied here's just some of the care I received but would have been denied between 2011 and 2015:
Heart surgery, cataract surgery, two shoulder surgeries, two hip surgeries, infection control, wound clinic, colonoscopy, pharmacy, cancer care, specialty clinics, rehabilitation, prosthetics, counseling, nose surgery, throat surgery, wheelchairs, allowances to replace clothing damaged by my wheelchair, inhalation therapy/sleep studies and CPAP machine,  immunizations, dental surgery, independent living assistance, imaging, corrective footwear, glasses, hearing aids, VA home loan, monthly compensation, state tax benefits, automobile registration fee waiver, home health care, travel allowances, primary medical care, biopsies and other pathology/laboratory care, and more.
Without my other military injuries to qualify me for all this care, I'd be outside the VA hospital with my finger stuck to their door bell, trying to get in but their door still locked. I might have found vital care elsewhere, but at my own expense.

That's the situation still faced by my fellow C-123 veterans. Unlike me, blessed as I am by all the medical care I've had between 2011 and 2015, my friends are still denied all VA medical care because VA has that non-existent  "overwhelming preponderance of evidence," Fortunately it has been dismissed by the National Academy of Sciences, CDC, NIH, VA physicians, US Public Health Service and dozens of physicians and scientists, plus peer-reviewed scientific articles.

Legal scholars in Yales' Veterans Law Clinic examined the legal situation and affirmed the C-123 veterans' eligibility for presumptive service connection per VA rules and the 1991 Agent Orange Law.

Still, four years after submitting my own Agent Orange claim, it remains, like every other C-123 claim, ordered denied by VA's Compensation and Pension Service. Although the VA promises a "case by case evaluation," the fact is that promise only means a case by case denial of all such claims. So much for Due Process guaranteed by the Fifth Amendment.

These next few weeks seem likely to bring at least some changes to VA's treatment of C-123 veterans' claims, blessings long overdue. VA provides compensation for service-related injuries and illnesses, and claims denied can be back-dated and often lost compensation eventually recovered.

What cannot be recovered, however, are the costs associated with medical care denied by VA and obtained by C-123 veterans during these four years. Worse, there can be no recovery of the medical care refused, care never received even outside the VA system, for want of coverage. I know I wouldn't be alive today without the care I've received for my Agent Orange-related illnesses from the VA, care provided not because I am an Agent Orange veteran but because I'm a Gulf War veteran.

That's fine for me even with my Agent Orange claim denied these last four years, but a disaster for my C-123 crewmates left untreated by the VA.

We're counting on VA making this mess right, thanks to senior leadership, the National Academy of Sciences, our legislators and dozens of scientists and physicians who so generously offered their expertise.

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