31 July 2015

Correction: C-123 Widows NOT abandoned by VA Interim Final Agent Orange Rule

This is an honor I've had to do twice. It is very hard. I wouldn't
like to turn to a C-123 widow and tell her VA has decided to
abandon her, which is exactly what VA has done.
From Huffington Post (Lynne Peebles, reporter) July 21,2015:

"Meagan Lutz, a spokeswoman with the VA, confirmed that the new help is only available beginning on June 19, when the rule was published, or from the subsequent filing date. Widows of C-123 veterans, she said, will not be eligible for the disability compensation." 

In an email from VA to the Vietnam Veterans of America, this "clarification" was offered late on Friday, July 31:
"I don’t know what the source of the below communication was but it is not correct.  As we discussed during our meetings with VSOs on the C-123 rulemaking, the survivor of a covered C-123 crew member would be entitled to DIC if the cause of the crew member’s death is service connected.  We would make that determination based upon a survivor’s DIC claim that is pending on or after the effective date of the regulation.  With respect to prior denials, there is nothing that prevents a survivor from reopening a claim based upon the new regulation.  To the extent that the communication alleges that we have unlawfully denied retroactive benefits, section 5110(g) of title 38, United States Code, is clear that the effective date of any award of benefits pursuant to the regulation cannot be earlier than the date that we issued it."

24 July 2015

VA: We're not abandoning our C-123 widows and widowers!

Dear VA: Thanks for the proposed interim rule for our Agent Orange exposures. It took work.

But respectfully, no thanks. We're not abandoning the financial and medical needs of our widows and widowers! What a simply horrible demand. 

Please...your Plan B?

21 July 2015


Retired USAF Master Sgt. Casimir Cerniauska on right, his son on left


Retired Senior Master Sgt. Leslie Howe has battled two cancers -- non-Hodgkin lymphoma and prostate cancer, both of which have been linked with exposure to Agent Orange, the herbicide used by the U.S. military to destroy enemy cover and crops during the Vietnam War. Howe, 71, was never actually in Vietnam during the conflict, but in the 1980s he served aboard Air Force planes that contained trace amounts of the defoliant. Still, the U.S. Department of Veterans Affairs twice denied Howe's benefits claim, telling him in a letter that it "could not find a link" between his medical conditions and his military service.
"I flew in good conscience on that aircraft, not knowing the danger," said Howe, who recalled a distinct "aroma" at times while he worked in the aircraft as an air medical evacuation technician. "I did it because I wanted to serve my country."
c123 veterans
C-123 veterans reunited in early 2014: Master Sgt. Les Howe (back left), Master Sgt. Richard Matte (front center), Lt. Col. Mary Griffin-Bales (back center) and Senior Master Sgt. Steve Caraker (back right). (Matte family)
Similarly, retired Master Sgt. Casimir Cerniauskas, a World War II refugee from Lithuania, never hesitated in his decision to serve his adoptive country. He spent 37 years in the U.S. Air Force, including years loading and unloading cargo from contaminated C-123 airplanes -- the craft used to deploy Agent Orange in Vietnam -- in the U.S. after the Vietnam War had ended. Today, he's undergoing chemotherapy for myelodysplasia, a type of blood cancer, after already fighting non-Hodgkin lymphoma and being told that he couldn't qualify for the same Agent Orange-related benefits granted to veterans who served in Vietnam, where they were assumed to have encountered the herbicide.
"I don't regret serving," said Cerniauskas, whose three sons have all graduated from West Point and been deployed in Iraq and Afghanistan. "But how they make veterans wait, it makes me sick. They are dying. It's not right."
Howe and Cerniauskas both said they will be refiling their claims, now with renewed hope after what they say was a long-overdue policy change announced by the VA in June.
The limits and lags in medical care and disability benefits for veterans are well established. Look no further than a federal lawsuit filed in April by combat-injured veterans forced to wait up to two years or more for required records from the VA before they could apply for benefits. Jon Stewart, host of Comedy Central's "The Daily Show," has repeatedly called out the agency for its red tape and backlogs of claims. As The Huffington Post recently reported, nearly one-third of the 847,000 veterans with pending applications for health care through the VA have already died.
But perhaps no population of veterans are more frustrated by VA denials and delays than those who believe they were sickened by environmental exposures during their service. Many of those vets have stories and complaints similar to Cerniauskas and Howe's.
"The way the VA is doing things, and has been for quite a while, is just unfair," said Rod Longino, who served on an aircraft carrier during the Vietnam War and recalled "constant contact" with planes that had been through areas of "active defoliation" in Vietnam. Longino never entered the country himself during the conflict, but he has since been diagnosed with prostate cancer, respiratory disease and Type 2 diabetes, all conditions that have been linked with Agent Orange.
"I'm a poster child for Agent Orange," he said. The VA denied him benefits for the same reason they had the C-123 veterans: He hadn't been in the right place at the right time.
Agent Orange isn't the only concern. Thousands of former and current military personnel have encountered a number of other toxicants, from contaminated drinking water at North Carolina's Camp Lejeune to burn-pit smoke in the Middle East toplumes of radiation off the coast of Fukushima. More than 130 contaminated military sites are included on the U.S. Environmental Protection Agency's National Priorities List. Exactly how many veterans have developed exposure-related illnesses remains unclear, in part because it can take years, or even decades, for an exposure to manifest as a health problem like cancer or respiratory disease.
While the VA maintains that it does its best to be fast and fair, some advocates suggest that the roadblocks to care and compensation for those sickened by environmental toxicants go beyond simple bureaucratic inefficiency.
"The VA is following a careful script with exposures," said an aide for Sen. Richard Burr (R-N.C.), who has been an active advocate for veterans exposed to toxicants. "They are trying to hold off as much of the science as long as they can, concerned about the ramifications for their enterprise."
Chris Portier, former director of the Agency for Toxic Substances and Disease Registry at the U.S. Centers for Disease Control and Prevention, said his team determined a few years ago that the C-123 veterans could have breathed, absorbed and consumed enough residual dioxin, a component of Agent Orange, to have gotten sick. Dioxin is a known carcinogen and can disrupt the normal functioning of hormones, as well as immune, nerve and reproductive cells.
"We wrote the VA a pretty straightforward letter in 2012," said Portier. "But the VA didn't want to believe it when we said [the C-123 veterans] got these exposures." It took "congressional intervention" regarding the C-123 planes, he said, before the VA "had nowhere to go but to deal with the issue."
Bart Stichman, an attorney and joint executive director of the National Veterans Legal Services Program, told HuffPost that the delays follow a pattern at the VA, as illustrated by its actions and inactions concerning Agent Orange. Stichman's legal group represents C-123 veterans as well as so-called Blue Water Navy veterans, like Longino, who believe they were exposed to Agent Orange while serving offshore of Vietnam during the war.
"They've dragged their feet on the issue for a very long time," said Stichman. "All the way back to the late 1970s, when the issue first surfaced about Agent Orange."
Poisoned planes
During the 1970s and '80s, Howe and Cerniauskas were among a couple thousand Air Force reservists who served aboard repurposed airplanes that retained small amounts of Agent Orange after the Vietnam defoliation missions. The herbicide was ultimately revealed to cause cancer, diabetes and neuropathy, among other conditions. In 1991, decades after the health risks had become known, Congress ordered the VA to begin providing benefits to veterans who'd been exposed to the substance.
In May 1966, a U.S. Air Force C-123 flies low along a South Vietnamese highway spraying defoliants on dense jungle growth beside the road to eliminate ambush sites for the Viet Cong during the Vietnam War. (AP)
But initially, only veterans who served with "boots on the ground" during the war were eligible for those benefits -- which is why despite showing classic symptoms of Agent Orange exposure, C-123 and Blue Water veterans had generally been denied the same help.
Last month, the VA announced a new rule that at least heartened one of those groups. Cerniauskas, Howe and their fellow C-123 veterans are now eligible for the Agent Orange presumption. Fewer than 400 of them are expected to file claims, for a total VA expenditure that is estimated to eventually reach $47 million.
Still, despite this victory, many C-123 veterans remain frustrated. They lament how long it took the agency to make its determination, which came months after a Januaryfederal report concluding that lingering amounts of the herbicide on the fleet of C-123s could indeed have sickened the reservists.
"That report was based on science done years ago. There was no new research," said Retired Maj. Wes Carter, who served aboard C-123s after Vietnam. "The VA had confirmation of the exposure back in 2011. They sat on the evidence."
The VA's offering is also not quite complete, some veterans and advocates argue. The agency, mirroring some of its prior policies, decided not to provide the newly eligible vets with retroactive compensation through the new ruling, a move Carter called "arbitrary" and "unconstitutional."
Meagan Lutz, a spokeswoman with the VA, confirmed that the new help is only available beginning on June 19, when the rule was published, or from the subsequent filing date. Widows of C-123 veterans, she said, will not be eligible for the disability compensation.
Carter himself was denied Agent Orange-related benefits for his cancer, heart disease and other medical problems, but still receives full disability due to other injuries from his military service. Many of his sick comrades, however, have struggled financially, some even passing away, in the decades since their service.
Critics have accused the VA of taking much longer than needed on the C-123 eligibility extension, saying that because the agency took years to bring those veterans into its Agent Orange benefits structure -- and because it is not offering retroactive compensation -- it will end up paying out just a minimal sum, since so many eligible veterans have already died and the ones who are left are getting on in years.
"Most folks have watched a serious amount of money go out the window," said Carter, who has been leading the effort on behalf of this community of veterans.
A representative for the VA did not immediately respond to a request for comment on the matter.
A history of frustration
Retired Master Sgt. Jerry Ensminger knows well the plight of the C-123 vets. In August 2012, after years of crusading for his comrades' cause, Ensminger stood alongside President Barack Obama as he signed legislation to provide medical care for Marines and their dependents who may have been affected by water contamination at North Carolina's Camp Lejeune Marine Corps Base between the late 1950s and the 1980s. The act was named after Ensminger's daughter, Janey, who was born on the base and died of a rare form of leukemia at age 9.
camp lejeune ensminger
President Barack Obama signs the Janey Ensminger Act of 2012 as retired Master Sgt. Jerry Ensminger (third from left) looks on. (Chip Somodevilla/Getty Images)
In a recent interview with HuffPost, Ensminger mentioned what a long time it had taken to achieve that legislation, despite scientists linking chemicals in the camp's water, such as trichloroethylene, with cancers and other health conditions now affecting his group of veterans. He also lamented the challenges that still face veterans seeking the government's help.
Just two years after the Janey Ensminger Act was signed, a seemingly unrelated Supreme Court case threatened to undo some of that progress by adding an additional barrier to Marines seeking compensation through lawsuits. The SCOTUS ruling in favor of CTS Corp., whose former electronics plant had leached toxic chemicals into local well water in North Carolina, upheld a state statute that cuts off liability 10 years after the last contaminating act by a company -- or by the government.
In one of its amicus briefs, the Department of Justice openly stated that the CTS case had implications for "ongoing litigation against the United States" over "allegations of contaminated drinking water" at Camp Lejeune.
Some advocates argue that Obama's Camp Lejeune bill itself fell short by only providing medical care, and not compensation for injury or disability. Ensminger also pointed to what he suggests is another, more recent, VA strategy to avoid these latter payouts. The agency has lately begun consulting with a group of nearly two dozen health professionals who offer their opinions about whether a veteran should receive disability benefits. Since these professionals became part of the process, Ensminger said, the rate of claim approvals has plummeted.
"Every time Congress passes a new law that will create a whole new batch of consumers, so to speak, then the VA scurries around and creates all kinds of their own rules," said Ensminger. "They are terrified by these environmental exposures that keep popping up."
He referred to a Veterans Health Administration PowerPoint presentation that outlined the implementation of the 2012 Camp Lejeune legislation. Under the heading "Implications and Complications," a bullet read: "Does this set a precedent for other military camps, posts, & stations that are potentially contaminated?" Among the environmental issues listed was residual Agent Orange contamination at a test site in Gagetown, Canada, and on C-123 airplanes.
Dan Sullivan -- co-founder of the nonprofit Sergeant Sullivan Center, which aims to raise awareness of the struggles faced by sick soldiers returning from the Middle East -- also said he sees a general "resistance" on the VA's part to acknowledge that the conditions soldiers experience in the line of duty may be linked to the ailments they develop later. Sullivan's brother, Sgt. Thomas Sullivan, suffered from chronic widespread pain, swelling and severe inflammatory bowel issues after serving in Iraq. He succumbed to the mysterious suite of illnesses in February 2009.
Experts have begun to link some veterans' medical issues with chemicals found in theplumes of smoke that rise from burn pits. The practice of burning feces, plastic bottles and other solid waste in open pits, often with jet fuel, was especially common in the early years of the U.S. military’s presence in Iraq and Afghanistan.
"It's still difficult to get a VA recognition of disability associated with burn pits," said Sullivan. Congress has directed the VA to establish a burn pit registry to aid in identifying potential long-term health effects.
Dr. Gerald Cross, chief officer for the VA's Office of Disability and Medical Assessment, acknowledged that "environmental issues will be very important in the future." He emphasized that his agency is trying to be "very sympathetic" of the veterans, and said the experts they've hired to review Camp Lejeune cases share the same commitment.
Linda Birnbaum, director of the National Institute of Environmental Health Sciences, said that she had spoken with the VA on "more than one occasion" to discuss the science around C-123 planes, Camp Lejeune and the persistent effects of certain chemicals.
"I did not understand how they could say there was no potential for exposure on the C-123s," said Birnbaum.
She added that she was similarly mystified there was any dispute about the water contamination at Camp Lejeune.
"When you look at the compounds present in that drinking water," she said, "where's the surprise that there would be potential for adverse health effects?"
But some longtime critics are beginning to voice cautious optimism about the VA's treatment of environmentally exposed veterans. Last Thursday, the VA awarded its first C-123 disability claim processed under the new Agent Orange rule to retired Lt. Col. Edward Kosakoski, who is currently in home hospice care with prostate cancer.
"Good job, VA," wrote Carter in an email announcing Kosakoski's news to other C-123 veterans. "Keep it up!"

C-123 Veterans' Comments Needed on VA Proposed C-123 Agent Orange Rule

Please help protest a particular point in the VA's proposed interim final rule dealing with C-123 Agent Orange claims. Veterans, you can do this by contacting your legislators and by submitting comments online at the Federal Register web page. 

Word your protest as you wish or consider the eight points I've listed below to include. 

The C-123 Veterans Association is trying hard to work with the VA on the issue of retroactive awards of our Agent Orange exposure claims. VA's proposed interim final rule addresses everything needed to provide our folks presumptive service connection for Agent Orange illnesses but it only recognizes claims from June 19 2015 forward.

VA states it will not permit retroactive claims, which VA does with other veterans' claims by back-dating compensation to the date the veteran files the claim with VA. In one instance, that has meant $130,000 to a post-Vietnam C-123 Reservist whose claim was decided before the rule VA now proposes. VA proposes that claims it delayed will be denied that retroactive adjustment, and that's wrong!

If the number of veterans VA expects to care for under the new rule generally have the same general original file dates as mine, for example, our veterans could be surrendering as much as $42,000,000 of back pay due us in this unfair process – that $133,000 apiece (four years times VA 100% SC.)

That is plain wrong! Wrong to punish us just because VA fought our claims which were proven valid by the IOM. Wrong to reward VA for denying us all benefits and compensation when their position against us is acknowledged to have been wrong even in the language of the Secretary's new rule.

So we will work hard on making this right. We have our arguments against VA's arbitrary date of June 19 2015 based on: 

1. Conflicts with earlier VA decisions by DRO & BVA that recognized fact-proven claims
2. Treats new claims differently than claims already awarded by VA
3. Forces veterans to surrender earned retroactive compensation without due process, even though these vets have faced years of denial of all VA care and benefits with claims unfairly denied with all facts now recognized in the Secretary's interim final rule. Everything the Secretary acknowledges in the details of the final rule was available to VA in 2011 yet VA failed to honor its duty to consider claims even on what it termed "a case by case" basis, forcing vets to seek care elsewhere or do without altogether. It would have been even a stronger case for acknowledging the claims had VA revealed the March 2013 report from the DOD Joint Services Records Research Center confirming the veterans' exposure, primary evidence VA officials suppressed contrary to VCAA.
4. Ignores VA OGC opinions' as mandatory precedents
5. Inserts a challenge on the issue veteran status not already raised in denied claims awaiting BVA or DRO - those claims were denied for scientific reasons now resolved by IOM but VA's new rule inserts a previously unvoiced challenge that C-123 folks weren't veterans, a point only possible by disregarding the OGC opinions
6. Ignores the March 2013 DOD JSRRC confirmation of the veterans’ exposures over two years earlier that should have forced recognition of the claims per VCAA and VA regulation VAM21-1MR
7. Fails to consider claims in a pro-veteran, non-adversarial, paternalistic and sympathetic manner as per law. VA fought to construct a barrier rather than letting itself remove one.
8. Abuses veterans rights through VA’s demonstrated intransigence in resolving the C-123 question when all evidence was available years earlier; VA uses the new rule to deny C-123 veterans benefits for the years VA stalled recognizing their claims, indeed, even ordering them postponed until the IOM, despite having all the convincing scientific and medical information in-hand all the years veterans claims were denied or delayed

Please go to the Federal Register web page to enter your comments! Today the VA blocked my comments above, so please lend your voice to the struggle.

18 July 2015

VA Awards First C-123 Agent Orange Claim to Ed Kosakoski

Great News!

Retired LtCol Ed Kosakoski, former commander of the 74th Aeromedical Evacuation Squadron, Westover AFB MA, was awarded service connection for his Agent Orange exposure and resultant prostate cancer. The VA's action was taken yesterday, July 17 and retroactive to June 19. 

Staffers for Under Secretary for Benefits Allison Hickey notified his family of the good news. Ed's claim happened to be the first to be processed under the VA's interim final rule ordered by Secretary McDonald for post-Vietnam C-123 veterans, with the St. Paul VARO assigned to process all C-123 claims.

A pharmacist in civilian life, Ed's military service began in the Army, rising to Master Sergeant before earning his Air Force commission and transfer to the Air Force Reserve. As a squadron commander he took special interest in helping his senior airmen earn their commissions, and so many did his unit developed a reputation as "Colonel K's OCS." He is married to retired active duty LtCol Ingrid Kosakoski.

Good job, VA!

17 July 2015

Air Advisors Focus on Medevac Skills in Kabul

(from Air Force Association)
Air advisors with the Train Advise Assist Command-Air hosted 10 Afghan flight medics and a flight nurse for medical evacuation training on July 9 at Kabul international airport, where they simulated medevac procedures on a C-130H Hercules. Advisors and their trainees worked to reconfigure the cargo compartment with stretcher stations, and conducted procedures such as offloading patients and setting up litters. 

Afghan medics receive basic medical training through their national medical hospital, and then are sent to TAAC-Air for additional instructions to improve skills and techniques for medevac missions, TAAC-Air officials said. In order to build a sustainable training plan for Afghan military medics, TAAC-Air advisors are refreshing skills, such as movement fundamentals, with their trainees. The Afghan flight medics are the "cream of the crop," said MSgt. Matthew Scott, the senior enlisted advisor at the NATO clinic in Kabul and an​ emergency room manager from Eglin AFB, Fla. 

"We are working to get the young medics involved and get them so they can assist the experienced medics and soon do it by themselves," he added. The TAAC-Air advisors host weekly training events with the Afghan flight medics, with assistance from USAF aeromedical evacuation experts.

16 July 2015

VA starting to have good news for 74th AES C-123 veterans!

News today that two AME folks have received their VA disability decision...and both were positive!

Dick Matte, who is hospitalized and hoping to get transferred to a rehab center, received his 100% VA disability award, backdated a year (he thinks.) Dick previously got a partial award from VA and this completes things. Now, Dick will need to arrange his state benefits and the Combat Related Special Compensation program. Dick's clam was a regular claim for exposure, following an initial denial and an appeal with the help of Yale Law School. Coming before the VA's new C-123 decision, this makes Dick one of the very few C-123 vets succeeding in their claims thus far.

Ed Kosakoski, long-time commander of the 74AES, is in home hospice and VA called to say his prostate cancer has been given a 60% disability rating, with other issues still being considered. This should help both families and what a relief! Ed's claim may be the very first processed under VA's new C-123 Agent Orange exposure rule.

Good job, VA! Thanks for taking care of our friends!!

14 July 2015

VA Resolves Claims Backlog Through Veterans' Deaths; 1/3 on backlog have died per VA report

Scott Davis, a program specialist at the VA's Health Eligibility Center in Atlanta and a past whistleblower on the VA's failings, provided HuffPost with an April 2015 report titled "Analysis of Death Services," which reviews the accuracy of the VA's veteran death records. The report was conducted by staffers in the VA Health Eligibility Center and the VA Office of Analytics.
Flip to page 13 and you'll see some stark numbers. As of April, there were 847,822 veterans listed as pending for enrollment in VA health care. Of those, 238,657 are now deceased, meaning they died after they applied for, but never got, health care.
While the number is large -- representing nearly a third of those listed as pending -- some of the applicants may have died years ago. The VA has no mechanism to purge the list of dead applicants, and some of those applying, according to VA spokeswoman Walinda West, likely never completed the application, yet remain on the pending list anyway. West said the VA electronic health record system has been in place since 1985, suggesting some of the data may be decades old and some of those people may have gone on to use other insurance.
About 81 percent of veterans who come to the VA "have either Medicare, Medicaid, Tricare or some other private insurance," said West. "Consequently, some in pending status may have decided to use other options instead of completing their eligibility application."
But Davis disputed West on every point. For starters, an incomplete application would never be listed as a pending application, he said. Beyond that, the health records system West is referring to is just that: general health records, not pending applications for enrollment in health care. The VA has only required enrollment in health care since 1998, he said, and there was no formal application process before that. Davis provided an internal VA chart that shows backlogged applications only beginning in 1998.
As for some vets having other insurance, Davis said it is "immaterial and a farce" to suggest that means VA shouldn't be providing vets with the health care they earned.

"VA wants you to believe, by virtue of people being able to get health care elsewhere, it's not a big deal. But VA is turning away tens of thousands of veterans eligible for health care," he said. "VA is making it cumbersome, and then saying, 'See? They didn't want it anyway.'"
At a minimum, the high number of dead people on the pending list indicates a poor bookkeeping process that overstates the number of living applicants -- a number that should be closer to 610,000.
Davis sent copies of the report to House and Senate committees that oversee veterans affairs, and to the White House, hoping to spur congressional and presidential action to pressure VA to clear its health care backlog.
A spokesman for the Senate Veterans Affairs Committee did not respond to a request for comment. Eric Hannel, the staff director of the House Veterans Affairs Subcommittee on Oversight and Investigations, said his team is looking into the report's findings.
"We take it seriously," said Hannel.
A White House spokesman did not respond to a request for comment.
Davis recently sent a letter to Sen. Johnny Isakson (R-Ga.), who chairs the Senate Veterans Affairs Committee, laying out the problems with the health care backlog. He highlighted that 34,000 combat veterans are among those listed as pending for health care -- none of whom should be on that list since combat veterans are granted five years of guaranteed eligibility for VA health care.
"They have no business being there," he said. "These are men and women who served in Iraq and Afghanistan."
The best thing President Barack Obama can do, said Davis, is force the VA to allow veterans to upload their so-called DD-214 forms when they apply for health care. The form is a lifelong document that shows a person's military record. If veterans could use it to show their eligibility for health care, and if the VA assigned staff to review all of the pending applications, it would clear the logjam in the system, he said.
"The White House has the ability to direct the VA to do this immediately," said Davis. "That would get rid of the pending eligibility issue."

08 July 2015

C-123 Agent Orange Breast Cancer – What Do We Know So Far?

We've just started looking into this terrible disease which seems to strike veterans more frequently than women without military service. In particular, we want to address Agent Orange exposures aboard our C-123 aircraft. There seems to be an association between the confirmed dioxin exposure on the C-123s and the women's long-term, low-dose exposures between 1972-1982.

We don't know much. I'll list here what we've got so far:

1. We don't know the details of our own cohort...who many women, how many illnesses?

2. We don't find strong association of dioxin exposure with breast cancer in the literature.

3. WHO says dioxin increases the risk of all cancers. Men also get breast cancer, but more rarely.

4. VA does not include breast cancer among their list of Agent Orange-presumptive illnesses.

5. Our exposure range in age of the veterans spans most of the reproductive years (age 18 & up)

6. According to Lurker et al., the primary route of exposure is dermal to oral with a minor contribution from inhalation and not very much contribution from direct dermal contact

7. Our population is too small for a valid epidemiological analysis, so we may have to be satisfied with spikes and raw data. With regards to an epidemiological study, the Agency for Toxic Substances and Disease Registry (ASTDR) provides epidemiological studies of hazardous waste sites that are on the National Priority List (NPL). Typically, ASTDR staff and local public health officials identify the number of cancer cases in the area around the site and compare them to what the normal rate of cancer would be (i.e., a control group outside the affected NPL site).

8. VA is required to assess our claims in a pro-veteran, non-adversarial, paternalistic manner. While it's not likely, we can hope that VA's subject matter experts can offer input.

9. VA does not list breast cancer among the presumptive illnesses recognized for service connection, so breast cancer will have to be approached on a "fact-proven" basis for which we must establish at least a plausible medical nexus.

10. There are many potential allies in the breast cancer community to whom we can reach out for help.

11. We have momentum and credibility, having fought the basic C-123/Agent Orange battle and won.

12. We don't have and don't want funds, either raised from among ourselves or accepted from outside.

13. If this takes a long while, resolution is likely to be more for our survivors than ourselves.

14. Our veterans need to submit claims to the VA for any and all ailments, even if not presently on VA's list of recognized Agent Orange illnesses. Benefits date from the application.

C-123 Agent Orange Exposure & Breast Cancer

Breast Cancer: I need input on this as we try to convince VA to extend their Agent Orange coverage to include breast cancer. 

Please let me hear from survivors, researchers, epidemiologists...all those with an expert insight to this problem.

03 July 2015

Federal Court Sides With Veterans in Toxic Exposures Lawsuit

Ninth Circuit Court sides with veterans in toxic exposures suit, and includes a sly dig at the quality of VA medical care.

The U.S. military must continue to alert veterans exposed to chemical and biological weapons experiments of any new information that may affect their health and provide them ongoing medical care, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed in part, and reversed in part, a ruling by U.S. District Judge Claudia Wilken.
Wilken sided with the plaintiff class, comprised of thousands of Army veterans, in sustaining claims that the government had duties to them and that those duties were judicially enforceable. The appellate panel agreed, but also reversed a part of the judge’s order.
Wilken, while finding that the government was obligated to provide medical care to the test subjects, declined to compel the U.S. Army to provide that care on the grounds that care was available through the Department of Veterans Affairs. But the appeals court said that was an insufficient basis to deny the requested relief because there was no evidence that the care available at the VA would be “equal in scope and quality” to what the veterans are entitled to.
Health Problems
The plaintiffs sued the CIA, the Department of Defense, and others, accusing them of failing to properly treat health problems caused by the experiments, which took place between 1942 and 1975. They said the government exposed them to chemical agents, germs and drugs in researching how to defend against nontraditional weapons attacks, and failed to provide proper notice to many of the veterans about health hazards they faced by participating in the experiments.
The government has acknowledged the testing program, and in fact a 1953 DOD directive, and an Army regulation dating to 1962, require that subjects be tested only with their informed consent. A 1988 amendment adds that “[t]he duty to warn exists even after the individual volunteer has completed his or her participation in research.”
The government argued, however, that the 1988 amendment is not retroactive, a position rejected by Wilken and the appellate panel.
Fletcher’s Opinion
Judge William Fletcher, writing yesterday for the Ninth Circuit, noted that the regulation was revised in 1990 to make it explicitly applicable to “[r]esearch involving deliberate exposure of human subjects to nuclear weapons effect, to chemical warfare agents, or to biological warfare agents.” The change, Fletcher said, “would have made little sense if the notice requirement applied only prospectively.”
The government’s contrary argument, he said, was a “convenient litigating position” rather than an administrative interpretation to which a court should defer.
“We conclude that [the regulation] requires the Army to provide former test subjects with medical care for any injuries or diseases that were proximately caused by Army experiments in which they participated,” Fletcher wrote. “The fact that the VA provides medical care to some former test subjects, for reasons independent of [the regulation] does not relieve the Army of its duty….”
Fletcher’s opinion was joined by Senior Judge Mary M. Schroeder.
Senior Judge J. Clifford Wallace dissented in part, arguing that the Army regulation does not include a “specific, unequivocal command” that the Army provide medical care to former research volunteers, and that the district judge’s order denying that form of relief should be sustained “on the alternative ground that their claim is not judicially enforceable under section 706(1) of the Administrative Procedure Act (APA).”
The case is Vietnam Veterans of America v. CIA, 13-17430.

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