11 January 2016

How VBA Misreated C-123 Vets for Four Years - a reminder of their abuse

C-123 veterans were, quite simply, abused from the first Agent Orange claims submitted right up to the present day, and we continue to be screwed until something is done regarding retroactive disability compensation. Know this: Most of the abuse was by certain staff in both VHA and VBA working hard, and quite successfully, preventing our exposure claims from being honored.

From Secretary Shinseki right on down the line of VA leaders, the promise to us and our Congressional representatives was repeatedly, "no blanket denial, and a case-by-case evaluation of claims." Specifically, the Secretary wrote (in his letter to Senator Burr, originally drafted by VBA's Agent Orange desk:)
"VA evaluates such claims on a case-by-case basis to determine if the available evidence supports service connection on a facts-found basis." "Accordingly, VA does not have a 'blanket policy' for denying such claims."
Secretary Shinseki even provided his official departmental C-123 fact sheet to the Senate Veterans Affairs Committee repeating that promise of fair treatment. This was in response to Senator Burr's letter asking...
"All of this suggests that VA may essentially have a blanket policy of denying any claims based on alleged exposure to dioxin while serving aboard the C-123 planes, regardless of the weight of information submitted in a particular case. 
With that in mind, I ask you to ensure that any disability claims from the veterans who operated these C-123s will not be pre-judged as lacking merit but, rather, will be considered based on the facts of each particular case."
The Secretary offered Senator Burr important general assurances of proper treatment of C-123 claims. Yet from the VBA decisions on our claims, we saw 100% denials by VA.

We saw the real VA policy repeatedly used to doom every single C-123 veteran's claim as repeated in most denied claims:
"Every attempt was made to verify your exposure to herbicides. Although you submitted numerous amounts of evidence to support your claim, VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides used after the Vietnam war while flying in aircraft used to spray those chemicals." 
The deception must be clear to all: Secretary Shinseki promised even-handed case-by-case C-123 claims, and denied any VA blanket policy against those claims. But VA then proceeded to refuse 100% of the claims, stating VA has regulations forbidding such claims.

It stayed this way for four and a half years. VA promising in every breath that C-123 claims were processed fairly and by the law, yet always refusing every one of them and not bothering to mention their universal denial to the legislators.

Further, remember VA's statement about "regulations do not allow..." Turns out there never was any such regulation. Never existed, and VA acknowledged recently it was often repeated but in error.

LtCol Paul Bailey, combat veteran of the 82nd
Airborne at age 18. He had 34 years of enlisted
and commissioned Army & Air Force service
.
There's more abuse. In Paul Bailey's 2013 Agent Orange denial, he submitted 49 pieces of substantiating evidence. VA is required to respond to each piece of evidence, but here they simply wrote that his lay statement wasn't adequate to prove his case.

Ignored completely were all other items of evidence. This included statements from aircraft commanders, squadron commanders, fellow veterans, university schools of public health, VA physicians, professors of medicine, toxicologists, toxicology tests on Bailey's aircraft, Air Force records, medical treatment records, CDC Agency for Toxic Substance and Disease Registry findings, National Institute of Health findings and more. All ignored without comment.

There is no correlation to VA's statement on the denial that "every attempt was made to verify your exposure." Rather, the facts make a lie of that statement because not only was no effort made to verify exposure but instead, a blind eye was turned to more than enough evidence to have granted service connection. Actually, VA did exactly that six months later when, under political and public pressure, VA Manchester NH reconsidered the case and granted the claim even though the raters in Manchester worked against headquarters' resistance.

The veteran had already entered hospice then with his final battle with cancer. A few weeks later, Paul Bailey was dead, ending our fifty years of friendship and service together.

There's even more to the abuse heaped on C-123 vets. Along with Major Marlene Wentworth, I met with VBA's Mr Tom Murphy, Director of Compensation and Pension. There, in front of his staff, Mr. Murphy explained how no amount of proof from whatever source would permit a C-123 claim to reach VA's "as likely to as not" threshold for approval.

He referred me to Dr. Terry Walters in VHA's Post Deployment Public Health Section, and in my subsequent phone call with her, she who explained that we were simply never exposed. She went further, detailing how exposure equals contamination field (such as Agent Orange) plus bioavailability...the ability of a toxin to enter the body and cause harm. Dr. Walters felt our "exposures" during ten years aboard former Agent Orange spray aircraft didn't satisfy her definition and therefore, we weren't exposed and our claims baseless. (Interesting how none of this reached Secretary Shinseki for his letter and fact sheet to Senator Burr!)

This redefinition by VHA of a fundamental term in toxicology was deemed "unscientific" by the director of the National Toxicology Program. The redefinition even differed from the CDC Agency for Toxic Substances and Disease Registry standard list of terms, and contrasted with Dorland's Illustrated Medical Dictionary, VA's usual text for scientific and medical definitions.

Still, however unusual or unscientific, Dr. Walter's redefinition served VHA's purpose – keeping C-123 claims denied until June 19 2015. Only in December 2015 did we learn from VA's answers to Senator Gardner's questions that their redefinition of exposure in VHA was the personal creation of Dr. Terra Irons, only a year or so out of Chapel Hill. No peer review, no acceptance by VA outside VHA Public Health, no nothing...just Dr. Irons. A key concept in science redefined just to keep C-123 veterans from VA treatment of C-123 Agent Orange illnesses.

Why? Because the law, and several restatements of VA's duties to exposed veterans detailed how VA would provide the full range of medical care and compensation to all vets who'd been exposed to Agent Orange. So to VHA, wanting badly to prevent C-123 claims, it became important to prevent acknowledgement of any exposure by us to Agent Orange.

So they simply changed the ground rules, redefined exposure, and as if by magic, we weren't exposed. At least, not until the January 9 2015 release by the Institute of Medicine of their C-123 Agent Orange exposure report. And that's when science finally overcame VHA individuals' attitudes and staff policies – because C-123 veterans indeed had been exposed. It was effective, but as illogical as redefining green as blue.

We were poorly treated by VA for many years. They let our crewmates sicken and die without VA medical care and other benefits due each of us. Even today, players in VA still work hard to prevent retroactive compensation due us as it is due all other veterans once disability claims are finally resolved.

It seems to take the intervention of the Secretary to make things right for us, and for so many other groups of veterans like our Camp Lejeune brothers and sisters.

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