VA’s Three Biggest Failures on C-123 Agent Orange Disability Claims: Early VA errors still hurt our claims

We were abused by a flawed claims system – flawed in that VA staff chose to actively oppose us although their legal duty demanded a non-adversarial pro-veteran process. Numerous federal agencies and independent experts argued for years in support of legal and scientific merits of our exposure claims but instead a handful of VA staff broke their own rules and turned a deaf ear.

Key conclusions regarding the three VA actions against C-123 veterans detailed in this report:

1    By January 2012 VBA had “an overwhelming preponderance of evidence” supporting C-123 veterans’ herbicide exposure claims but instead VA insisted it had a preponderance of evidence against the claims.

2    When C-123 veterans turned for help prior to June 2015, they were told no C-123 claims could be granted and thus very few “fought the system” and bothered to apply for disability benefits. VA staff was trained that C-123 claims could not be approved, so none were.

3    As far as VA records indicate, the only time CDC, NIH and other federal agencies opined in support of exposure claims was for C-123 veterans. VA disputed all such input and denied all claims anyway.

4    VA abused its duties per law and VAM21-1MR for “benefit-of-the doubt, fact-proven, non-adversarial, paternalistic, pro-veteran,” and “case-by-case” claims evaluation, instead imposing a C-123 blanket denial policy.

In the end, with help from CDC and numerous experts, we were proven correct in the law and the science. But, in the end, that meant years wasted while our claims should have been advancing. Years went by while VA refused veterans and families all care and benefits. Survivors couldn’t even get a folded flag. Years went by with VA instructing staff against every C-123 claim, and often discouraging vets from even applying. VBA must now adjudicate C-123 claims and appeals in the most pro-veteran basis, giving every possible benefit of the doubt...and a bit more!

People just can’t help it. Not only are they decades past wanting to hear about Agent Orange, their eyes unusually glaze over if I begin explaining how VA blocked 2100 of our Agent Orange claims for many years. Actually, nobody should be surprised at VA failings with our couple thousand when one remembers VA blocked tens of thousands of sick veterans’ claims until Congress jammed the 1991 Agent Orange Act into their playbook. To anyone who actually listens, my narration seems outrageous, phony or self-serving. If I get into any details I quickly lose my listener. Their expression says it all: “This is outrageous. VA would never even consider such anti-veteran deceptions. Someone’s making it all up.”

Actually, nothing’s made up or imagined, and I hope to make a case that SMCs are appropriate from 3/2011 forward, particularly loss of use of both legs, bilateral avascular necrosis of the hips (with revision in 2012, third replacement 2015 following diagnosis 2011, Hyperlinks in this essay go to the VA’s own source documents. VA resolutely opposed our claims in violation of every legal and moral duty and in total contrast to empty assurances given our elected representatives. In April 2011 I had faith in the VA, faith that they’d carefully check out my claim and weigh the supporting evidence; an approval would be forthcoming.

My trust in the VA lasted years past when I should have been screaming “foul,” but when they rejected all expert evidence from the CDC and NIH, I pretty much knew what so many veterans complained about was true. And when in 2015 I finally got thousands of pages of VA internal documents released thru the Freedom of Information Act there was little trust left.

Rather than dig into the dozen or so worst examples of VA mistreatment, I’ll write about three of their worst tactics that really hurt C-123 veterans, and stalled our disability claims for many years:
     • First, VA insisted in every possible response to veterans, Congress and the press that they had no “blanket policy” against our claims, and rather, each claim was carefully evaluated on a case-by-case basis. Nope!
    • Second, VA insisted from the very first it had “an overwhelming preponderance of evidence” against our claims. Nope!

     • Third, VA said we could submit claims for “fact-proven” consideration. Yes they said that, but Nope, there never was proper consideration of even a single claim.

Both issues were vital, and VA flat-out double-crossed, misled, betrayed, deceived, and bamboozled our elected representatives (except Merkley and Burr) up to January 9, 2015 when the Institute of Medicine C-123 report was published. Eventually, IOM, editorials, the six major veterans’ organizations and the Senate “gang of seven” pushed VA to act.

I. Blanket Denial Policy for denying C-123 claims; VA Insisted It Had No Blanket Policy Against C-123 Veterans’ Claims.

That sounds perfectly reasonable, especially because such a policy would be counter to VA laws and regulations. The issue only came up when we noticed that over time, not a single C-123 disability claim was approved. Zero. While most of our veterans hadn’t served in Vietnam to be given “presumptive service connection” status, VA’s rulebook VAM21-1MR explains that vets with proof of exposure from whatever situation will have the same benefits if the vet can, on a “fact-proven basis,” substantiate the claim.

We weren’t the first to raise the issue of non-Vietnam exposures. As early as 2001, Congress had pressed the VA to make sure every exposed veteran would be protected. VA responded in the Federal Register with three separate postings over ten years, assuring Congress no new legislation was needed and VA would handle every vet with proof of Agent Orange exposure the same as a Vietnam “boots on the ground’ veteran. In the most recent Federal Register post VA even said, “we wish to make clear…” And it was very clear – until we filed claims and then exposure didn’t matter.

When we argued that our fact-proven claims were all rejected and we accused VA of a blanket denial policy against us, it was denied by officials from Secretary Shinseki, Under Secretary Hickey, Mr. Murphy and every staffer when questioned. “We have no blanket denial policy with C-123 claims. Each is evaluated on a case-by-case basis” was the virtually uniform but erroneous response. And every VA assurance was in error because a blanket denial policy, by whatever name or procedure (uniform, across-the-board, generic, universal, unyielding, comprehensive, sweeping, overall – pick a phrase as they all mean blanket!) is exactly what VA used against us.

The proof of a VA blanket or across-the-board denial policy is in several forms:

A. The fact that not a single claim was ever approved (VBA agrees to this point)

B. The fact that on February 28 2013 the Director Compensation and Pension himself told me in his office that no amount of evidence from whatever source would permit a C-123 claim to be approved. Dr. Wm. Peterson, Chief of VHA Post Deployment Heath said the same thing in our conference together in March 2012. His Deputy Chief Dr. Terry Walters said the same thing to members of Senator Richard Burr’s staff (an Army Chemical Corps officer) and to Wes Carter. She even told the Associated Press “a line had to be drawn.”

C.  VBA and VHA both trained regional claims officials, instructing them that no basis existed for approving a C-123 claim, that exposure was virtually impossible, or that there are no regulations permitting any such claims. VHA’s official “Information Briefs” insisted (in error as the IOM concluded) that our exposures were scientifically impossible – what was impossible was only trying to establish our claims against such barriers.

D.  Emails and other documents from VA officials themselves

E.   Assessments by the Senate bipartisan C-123 group, who concluded ““It appears that [the VA] does, in fact, plan to deny any C-123 claims regardless of the evidence submitted in a particular case,” the lawmakers wrote in a 2013 letter.

By whatever name it might be called, the VA blanket policy against C-123 claims was 100% effective. No exact VA reference to implementation of a blanket denial policy has been found, however the very fact VA trained its field personnel and distributed official “Information Briefs” insisting there was no basis for approving a C-123 claim substantiates our allegation. The early Information Briefs are very interesting to compare to ones published after the IOM C-123 report.

VA’s internal emails further proof the existence of their blanket denial policy, as several examples show. VA Secretary Eric Shinseki responded to Burr in a letter saying, “VA does not have a ‘blanket policy’ for denying claims” filed by C-123 veterans but VA never mentioned that VA was simultaneously denying 100% of our claims. Perhaps no policy…maybe they just did it anyway.

        II.  “Overwhelming Preponderance of Evidence” against C-123 claim:

VA considered opinions from its own staff, plus from Dr. Alvin Young, as constituting “an overwhelming preponderance of evidence” against all C-123 claims. Dr. Young was paid $600,000 for his two-year C-123 claim opposition and representation of VA at the C-123 IOM hearings. VA references to “several scientists” usually refers to Young and Ginevan and Ross, two of his colleagues who testified in defense of Dow and Monsanto. Also to Dr. M. Newton, a retired scientist who advocated use of Agent Orange in Oregon’s forests.

Their four opinions, in VA’s view, somehow overwhelmed every proof of exposure from any source, including US Government agencies such as CDC. In fact, the phrase “overwhelming preponderance of evidence” excludes the possibility any reasonable doubt, overpowering any alternatives.

VA specified essay topics for Young to prepare against us. VA even paid him huge funds to champion VA’s C-123 opposition. He opposed C-123 claims at the IOM hearing but denied representing the VA, saying he was there only to explain the science. Contrary to protocol at such gatherings, he did not reveal his financial interest in the articles he wrote or his IOM presentation for VA. This is very important because:

1. It implied Young was there as an impartial expert witness and

2. It disguised the fact Young was the paid surrogate for VA, arguing for a negative IOM finding

The phrase “overwhelming preponderance of evidence” is a favorite of Mr. Jim Sampsel, manager of VA’s Agent Orange Desk. He used it frequently and included it in drafts of correspondence between the VA secretary and legislators to explain why claims were denied. Mr. Sampsel accused me of “grandstanding” and “hassling” Mr. Dominic Baldini at JSRRC and Dr. Mary Paxton of the IOM while pressing for VA to recognize C-123 veterans’ Agent Orange claims.

I disagree: Every veteran has the right to argue in support of a disability claim, and if done politely it should not be received with VA resentment. Former Secretary McDonald, Mr. Scott Blackburn, Mr. Baldini, Dr. Paxton, former Assistant Secretary Linda Schwartz, staff at St. Paul VARO or Assistant Secretary Brooks Tucker should be asked if Mr. Sampsel’s characterization is accurate. As the manager of VBA’s Agent Orange Desk, he actively opposed my claims. He even refused to permit JSRRC confirmation of my exposure, because that would satisfy VAM21-1MR requirements. I believe my arguments about Agent Orange, VA and C-123 veterans have proven correct over the years.

However, consider the evidence affirming the C-123 veterans’ exposure: CDC/ATSDR, NIH, NIEHS, USPHS, Committee of Concerned Scientists and Physicians, and many university schools of medicine and public health. None of the federal agencies or individual physicians or scientists was paid for their input, and 100% of the experts responding agreed we’d been exposed. VBA ignored them all or said their expert input was unqualified.

Mr. Sampsel remains unyielding in his opinions, even after the January 2015 release of the Institute of Medicine C-123 report confirming veterans’ exposures. Mr. Sampsel told a VA committee in 2016 that Agent Orange is merely “hype and hysteria.” In December 2016 he discussed me by name and then told his VA audience also said “hardly anybody” believes the IOM’s C-123 exposure conclusions. Mr. Sampsel failed to mention “hardly anybody” actually includes the CDC, VA itself, the National Institute of Health and the peer review committee of the National Academy of Science that approved the IOM C-123 report.  In fact, other than Sampsel, Young and his three associates, “hardly anybody” disagrees with the IOM report.

One especially deceptive part of VA opposing our evidence of exposure is the fact that in 2012 VHA Post-Deployment Health (just for that office, not the rest of VA) used a poster display at the Society of Toxicology for revision of their in-house redefinition of the toxicological tern “exposure.” They conflated exposure with bioavailability, so their new and unscientific (according to federal scientists) definition required veterans to go back to pre-1991 Agent Orange Act, and prove medical nexus, something virtually impossible decades after exposure.

III.  VA would evaluate claims on “fact-proven” basis

                                                                                                                          

This is a standard VA assurance for all Agent Orange and other exposure claims from veterans outside a “presumptive compensation” group. More than a mere assurance, it is the law, and was repeated constantly by VA claims officials as regards C-123 veterans.

But it was never allowed by VBA’s Compensation & Pension officials.

There are several proofs of this failure to honor its obligations to veterans Not once did a C-123 veteran’s claim gain approval, no matter how much evidence supported it. In fact, Mr. Tom Murphy and other C&P and VHA leaders stated that no matter how much proof from whatever federal or other scientific source, no C-123 claim would ever be approved. Mr. Murphy’s statement was made to his staff and Majors Wes Carter and Marlene Wentworth in Mr. Murphy’s office on February 28, 2013.

Mr. Murphy said Dr. Terry Walters of VHA Post-Deployment Health had already decided that no C-123 veterans were exposed and he would abide by that decision. I called her in March 2013 and she confirmed VBA’s position, based on her office redefinition of “exposure” to require bioavailability to be acknowledged.

Although neither the law nor VAM21-1MR specify the state Agent Orange must be (gas, liquid or solid,) Dr. Walters and her colleagues disqualified C-123 veterans because the airplane’s toxin contamination was dried residue from the Vietnam spraying operations. She insisted C-123 Agent Orange residue could not harm veterans via any of the exposure routes (dermal, inhalation, ingestion,) but the Institute of Medicine concluded all three routes poisoned the veterans. She also erroneously characterized C-123 contamination is “secondary.”

As CDC, NIH and NIEHS have confirmed, this redefinition of exposure was an unscientific attempt only within Post-Deployment Health, not the rest of VA, to conflate the two separate toxicological terms. It was created along the lines of Dr. Alvin Young’s (a.k.a. “Dr. Orange”) work and to prevent exposure claims in defiance of the 1991 Agent Orange Act as well as VA’s repeated assurances to Congress that all veterans establishing exposure to Agent Orange would receive the same benefits as Vietnam’s “boots on the ground” veterans.

Further proof is the fact that VA did not approve a single C-123 claim between 1980-2015. Of course, there were few in the early years, but more as veterans began hearing of the contamination the Air Force identified in our aircraft from 1994 on.

The next proof is clear and well-documented by VA: Dr. Walters and numerous other VHA and VBA managers frequently stated that there was no legal or scientific basis for C-123 veterans’ exposure claims. This was even part of Dr. Walters’ field training for claims workers, and repeated in numerous “Information Brief” releases. Her official but erroneous statements such as “The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially Zero.”

 Department authorities even had VBA claims workers convinced that “regulations do not permit” C-123 claims, although no such regulation ever existed. Another quote: “It is difficult to ascertain a basis upon which to find a health risk among crew members.” Another surprise quote from Dr. Walters: "No Vietnam ground troops were exposed to Agent Orange.”

There are other examples to cite that establish VA’s decision to avoid judging claims on a “fact-proven basis,” but one that truly stands out is Dr. Walter’s own decision to prohibit C-123 veterans from even being given an Agent Orange exam. While the exam is not an application for benefits, it helps establish injuries or illnesses that might be associated with herbicide exposure and can inform a veteran of the need to file a claim. Dr. Walters overturned VA policy providing the exam to any vet believing him/herself to have been exposed by forbidding C-123 veterans from the exam. She wrote that it was available only to Vietnam veterans or to non-Vietnam veterans exposed to liquid Agent Orange.  Another quote she used to block claims was “It is difficult to find any basis upon which to establish a C-123 claim.”  She also wrote that TCDD exposure was impossible via dermal or inhalation routes.

VA claims officials were formally instructed by Dr. Walters and other VHA and VBA leaders as part of the August 2013 “Domestic Environmental Exposures” programs that C-123 claims were unacceptable, and had no merit regardless of proof. Secretary Shinseki himself railed against the very idea that non-Vietnam veterans could qualify for benefits.

In considering the above, it is vital to know VA had been formally advised by the CDC/Agency for Toxic Substances and Disease Registry in January 2012 (and repeatedly thereafter) that these VA barriers to C-123 claims were in error. CDC had determined veterans were exposed more than 180 times the military safety threshold, and experience a 200-fold increase in cancers risks. NIH, US Public Health, the National Institute of Environmental Health Sciences all informed VA that C-123 veterans were harmed.

Joint Services Records Research Center told VA about C-123 exposure source documents in March 2013 as per VAM21-1MR, but was disregarded, with Walters and others continuing to insist claim be denied. VA, under leadership of Dr. Walters, Mr. James Sampsel, Mr. Tom Murphy and their consultant, Dr. Alvin Young, refused every claim.

Refused, at least until January 9 2015 when the Institute of Medicine proved VA wrong, and confirmed what all the experts had been telling VA for four years: C-123 veterans were exposed and harmed by that exposure. It took years for VA to be told that the CDC/ATSDR was correct all along, years that VA denied C-123 veterans every benefit and compensation due.

         CONCLUSION:

C-123 veterans were routinely and systematically denied the protections of VCAA, and denied due process of our disability claims. VA resistance discouraged veterans from filing claims because at every level we were told there was no basis for approval. VA’s assurances of “claim by claim” adjudication based on facts-proven were deceptive – VA would insist until January 2015 that there was no exposure.

Besides hearing the same things as I negotiated with VA as chairperson of the C-123 Veterans Association, I was also told the same stuff going over my own claim while sitting in front of VSO representatives at Buncombe County NC, Nashville, Portland, McMinnville, Denver, Cheyenne. Even the VVA office at Washington DC VARO. Time after time claims experts, truly earnest advocates for my own claim, kindly showed me VA web pages, training letters, and memoranda from VA showing clearly that C-123 veterans clearly weren’t eligible for benefits.

Promises of “fact-proven” claims evaluation instantly disappeared, with VHA having already decided we’d had no exposures. VA blocked claims with these deceptive comments, all disproved in the final IOM C-123 report.

• “There is no scientific evidence that Veteran's presence in aircraft  containing solidified TCDD can lead to adverse long-term health effects” (VA Secretary Erik Shinseki)

• “There is no scientific basis for allegations of exposure.” (VHA Dr. Terry Walters)

• “Chances of exposure essentially zero.” (VHA Dr. Terry Walters)

• “ No evidence of long-term harm from TCDD exposure” (VBA Mr. Tom Murphy)

• “Unlikely sufficient residue could enter body to cause harm” (VHA Dr. Wendi Dick)

• “Difficult to establish any basis for claim: (VHA Dr. Terry Walters)

• “No bioavailability (routes for human body entry) for TCDD aircraft” (VHA Dr. Wendi Dick)

• “TCDD in post-Vietnam aircraft is not active and cannot enter the human body, therefore no TCDD “exposure.” (Mr. James Sampsel, VBA)

The earliest that VA waivered in this obstruction was early 2014 when plans finally were made to submit the C-123 question to the IOM.

Even then, VA stalled by saying all claims in processing would be “held” until the IOM decision…causing veterans to wait yet another year to get medical care and compensation in a fight Secretary McDonald described as already “too hard, too long,” and conceding our claims was “the right thing to do.” Even when the IOM did finally begin its study, VA actively opposed the issue via their highly paid surrogate, Dr. Young.

Remaining Questions:

• How did 100% of C-123 claims get denied if not a “blanket denial policy” by whatever name?

• How did CDC and other authoritative confirmation of exposure get ignored while Mr. Sampsel continued insistence on his flimsy “overwhelming preponderance of evidence?”

• Why did Sampsel and others set their increasingly high threshold of proof to prevent C-123 claims?

• In what way does VA say that we received any “benefit-of-the-doubt, pro-veteran, non-adversarial, paternalistic and pro-veteran” claim treatment as required by law?

• How does the VBA Agent Orange desk still insist that “the majority, the vast majority of scientists” agree with him about Agent Orange harmlessness?

• How does Mr. Sampsel equate “the vast majority of scientists” agreeing with him (Young, his associates, Dr. Newton, and the PHD staff) to be an “overwhelming preponderance of evidence” when weighed against CTC/ATSDR, NIH, NIEHS, the National Institute of Medicine, US Public Health, dozens of experts represented by the Concerned Scientists and Physicians, etc. who disagree and whom he dismisses as merely “some scientists?”

• How was PHD permitted to redefine for their own office use the term “exposure” via an official VA poster presentation at the 2012 Society of Toxicology conference?

• How did Young get an unbudgeted $600,000 no-bid, sole-source unsolicited contract for his Agent Orange articles? Why was the contract’s specification of a central data collection not completed? Why did VA spend money only to oppose C-123 claims?

• Why have none of the VA misstatements and other errors been corrected, such as letters to legislators, governors, and the press? Why, after many deceptive and erroneous “Information Brief” papers has VA not updated the issue?