04 January 2016

Senator Gardner (Colorado) Raises C-123 Questions With VA

There is a lot of subtle deception in VA's answer today to Senator Gardner's inquiries. In particular, how C&P twisted the ATSDR "vets were exposed" conclusion to Mr. Murphy's summary, "TCDD causes no adverse health effects." In the military, this is a prevarication and unacceptable. Also interesting was VA's response about how they opted to just disregard JSRRC's confirmation of veterans' exposure, because VA wouldn't accept CDC and other government opinions and instead accepted Dow, Monsanto, and VA's Agent Orange consultant to constitute "an overwhelming preponderance of evidence" to block C-123 claims. Finally, VA continues to insist below that C-123 claims were denied for want of medical nexus...but VBA avoids reminding the Senator no veteran ever need prove medical nexus...only Agent Orange exposure. That's the law!

– Response to Senator Cory Gardner (CO) – 
Questions re Agent Orange - TCDD/C-123 Exposure

1. In 2012, VBA Compensation and Pension (over Mr. Tom Murphy's signature) directed VARO Portland to deny an Agent Orange exposure claim. Included in C&P's advisory was its summation of the CDC/ATSDR C-123 report by Dr. Tom Sinks, "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects."

Question: does this remain C&P's official position regarding TCDD exposure and how have any adjustments in it (if any) been undertaken as regards this and other claims? Does the VBA perspective on TCDD differ from the scientific view of other VA departments?

Response:  The 2012 Compensation Service Director’s advisory opinion concerned that claim only. However, his advisory opinion was consistent with VA’s views on post-Vietnam exposure to Agent Orange on C-123 aircraft at that time.  VA’s current position regarding exposures on C-123 aircraft is reflected in the regulations published on June 19, 2015, which established a presumption of exposure to Agent Orange for a select group of Air Force and Air Force Reserve personnel who had regular and repeated contact with contaminated C-123 aircraft that the Air Force used in Vietnam in Operation Ranch Hand.  Under these regulations, a Veteran who meets the eligibility criteria for the presumption of exposure (air, ground maintenance, or medical crew members who served in units that had the aircraft after Operation Ranch Hand) may file an original compensation claim for a covered disability or may reopen a previously denied claim. (NOTE: question unanswered by VBA)

Question: this C&P statement was its summary of Dr. Tom Sinks' (CDC/ATSDR) conclusion that C-123 exposures resulted in 182-times exposure thresholds and 200-times greater cancer risks. Does the VA summary concluding its paragraph on the CDC/ATSDR report accurately reflect Dr. Sinks' conclusions?

Response:  Dr. Sinks’ views related to increased exposure were addressed in the January 2015 IOM report on C-123 exposures, and the IOM report provided the scientific and medical bases for VA’s current regulations.  As described above, these regulations provide a presumption of exposure to Agent Orange for certain C-123 crew members. (NOTE: question unanswered by VBA)

Question: has the above phrase been used on any other Agent Orange claims?

Response:  VA is not aware of the use of the above phrase in evaluating any other claim.

2. In March 2013, the DoD's Joint Services Records Research Center informed VA's Agent Orange desk in Compensation and Pension that evidence from federal health agencies (CDC/ATSDR, USPHS) existed supporting Agent Orange exposure claims of post-Vietnam C-123 veterans. VA21-1MR details the role of JSRRC confirmation of exposure, and VA personnel commented on whether the JSRRC information would affect veterans' claims. In May 2014, veteran-specific JSRRC confirmation of C-123 Agent Orange exposure was received by VBA.

Question: What exception was made in VCAA and VA21-1MR requirements, and by whom, allowing VA to disregard the JSRRC confirmations so that C-123 veterans' claims were not affected nor veterans informed over the years since receipt?

Response:  JSRRC assists VA and Veterans by researching service department records for information that will assist VA in making determinations on Veterans’ post-traumatic stress disorder and other claims for disability benefits.  Because the records in question were not service department records, VA does not consider them “JSRRC confirmation” of in-service events. (NOTE: question unanswered byVBA

3. VBA denials of C-123 veterans' claims, as well as internal correspondence, generally stated that "an (unspecified) overwhelming preponderance of evidence" existed against the claims.
Question: what constituted VBA's "overwhelming preponderance of evidence," and who in VA made that conclusion, especially as the January 2015 IOM report reached the opposite conclusion, and in what way did the "preponderance" serve to overwhelm beyond benefit of the doubt all evidence submitted by veterans from the CDC/ATSDR, NIH, USPHS and other sources, all of which was adequate to convince the IOM?

Response:  VBA is obligated to evaluate all the available scientific evidence regarding potential C-123 Agent Orange exposure and related claims for benefits, and VA considers all the available evidence and decides disability claims accordingly.  The Compensation Service Advisory Opinion in the case at issue did not use the term “overwhelming” regarding the evaluation of evidence.  Rather, it listed the evidence available at that time and concluded that it was not sufficient to establish the required medical nexus between potential contact with dried and solidified TCDD aboard post-Vietnam C-123s and the long-term health effects associated by law with active Agent Orange exposure in Vietnam or elsewhere.  The VA benefit-of-doubt doctrine is applied when evidence for and against service connecting the claimed disability is approximately equal.  In most post-Vietnam C-123 cases, this doctrine did not apply because the weight of the evidence was insufficient to establish the required medical nexus.  The January 2015 IOM report summarizing the available evidence led to the development of the current C-123 regulations.  This regulation establishes the required medical nexus through creation of a presumption of Agent Orange exposure for a select e group of Air Force and Air Force Reserve personnel. (NOTE: question answered deceptively; the same evidence which convinced the Institute of Medicine in January 2015 is the same evidence VBA had since 2011. Their decision VBA had "an overwhelming preponderance of evidence" was simply a policy decision, and even leaned heavily on the fact their web page simply said so, and was quoted as an authority. Legally, all any veteran must do to establish service connection for exposure to military herbicides is to prove exposure – NOT medical nexus. Read the law and your regs, VBA!))

NOTE: C-123 Veterans Association is grateful for VBA's very active and effective communication of the new VA C-123 policies and benefits, details below)VBA has taken an active role in informing potential applicants, current beneficiaries, Veterans Service Organizations, and other stakeholders about benefits this specific group may be eligible to receive based on the regulation from June 2015.  Outreach efforts included the following channels:
•         VBA’s C-123 website:  http://www.benefits.va.gov/compensation/agentorange-c123.asp,
•         VA’s VAntage Point blog:  http://www.blogs.va.gov/VAntage/21889/va-begins-awarding-compensation-for-c-123-agent-orange-claims/,
•         VBA’s C-123 fact sheet:  http://www.benefits.va.gov/benefits/factsheets/serviceconnected/AO_c123.pdf,
•         A VA press release:  http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2714,
•         Communication with stakeholders at conferences, and
•         Social media outlets.
In addition, the Veterans Health Administration’s (VHA) Post Deployment Health Services has:
•         Updated its Public Health website (http://www.publichealth.va.gov/exposures/agentorange/locations/residue-c123-aircraft/index.asp),
•         Disseminated information to VHA facilities via the VISN Environmental Health Leads, and
•         Will include an article on C-123 airplanes and AO residue in the next edition of the AO Newsletter.
Any Veterans with health concerns about AO should talk to their health care provider or local VA Environmental Health Coordinator.

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