USAF C-123 Report: We're going to set the record straight in 2018

Nearly five years ago the US Air Force School of Aerospace Medicine (USAFSAM) at Wright-Patterson AFB released their study of the post-Vietnam C-123 transports previously used for spraying Agent Orange. The planes were used for a decade after the

Vietnam War and had never been decontaminated of the military herbicides they dispersed. The study was ordered by the Air Force when C-123 veterans complained of likely Agent Orange exposure.

The study was flawed, and tainted with command interference obvious when compared to the 38-page draft report the scientists themselves submitted. The study seemed torn between political and scientific goals, rather than science alone as would be proper. Veterans were concerned about their health but the report assured them the planes were unlikely to have been contaminated enough to cause medical issues typically associated with Agent Orange exposure.

The Air Force declined to inform aircrews of the twice-proven C-123 contamination, insisting it "would only cause undue distress and provide limited benefit." Message: we'd already been poisoned, and knowing about the poison wouldn't help us very much.

This blog began on March 14, 2011, a year before the USAFSAM report was released, and we've earned a seven-year track record of honesty and accurate interpretations of USAF and VA source data. Seven years ago, we said the Air Force and the VA were both wrong about our exposures.

By January 2015, we were proven right and they were proven wrong when the definitive Institute of Medicine report "Post-Vietnam Dioxin Exposure in Agent Orange-Contam-inated C-123 Aircraft" was submitted to the Secretary of Veterans Affairs. They were wrong, but only the veterans involved paid any penalty for errors because for six years, VA refused these vets all medical care and other benefits.

Two of those six years, 2012 to 2014, are tied to the tainted USAFSAM report and how the VA misused it. For these years VA refused all medical care, compensation, family assistance...everything needed by disabled veterans, citing the USAFSAM report as justification for VA locking its hospital doors to C-123 veterans.

Today, we begin our challenge of the USAFSAM report, together with an exposure of the damage done when VA relied on the report to cancel their own 2012 promise for referral of the C-123 question to the Institute of Medicine.

The goal now is to have the Air Force either withdraw their C-123 report ("UC-123 Agent Orange Exposure Assessment, Post-Vietnam [972-1982]) or, more probable, annotate it in some way to describe its errors and shortfalls. It should not be allowed to stand, as it has for five years, as the official Air Force conclusion about C-123 veterans and our exposures. It fouls the scientific record and offends the veterans it mistreated.

Now a clarification as we move forward. We will deal with three reports:
1. The 2012 USAFSAM C-123 Report (done)
2. The 2012 VA-promised referral to the Institute of Medicine (promised, cancelled)
3. The 2015 Institute of Medicine report, ordered by the VA (done)

ANOTHER C-123 VETERAN'S AGENT ORANGE APPEAL TRASHED BY UNCARING BVA

WHAT A MESS! This elderly Massachusetts C-123 veteran served at Hanscom AFB before the 731st moved to Westover. His cancer claim was submitted years ago, and on appeal was heard in June...but was denied!

Read through it below. Look how the BVA and its aggressive attorney trashed this qualified veteran's appeal by simply ignoring everything the VA did last year in recognizing our Agent Orange veterans' benefits.

Their tact was to pretend the man wasn't a veteran...an issue resolved by Secretary McDonald's June 19 2015 Interim Final Rule which the BVA judge and the BVA attorney ignored, despite their duty under VCAA.

Citation Nr: 1622153 
Decision Date: 06/02/16    Archive Date: 06/13/16

DOCKET NO.  15-34 922 ) DATE
 )
 )

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lymphocytic leukemia (CLL).


REPRESENTATION

Appellant represented by: Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty with the United States Navy from April 1946 to April 1948, and on active duty as a member of the United States Navy Reserves from October 1950 to August 1952.  It appears that he had an additional period of active duty from August 1959 to August 1962 and a verified period of active duty for training (ACDUTRA) with the United States Air Force Reserves from October 28, 1962, to November 28, 1962.  Effective June 18, 1976, he was removed from Reserves status and assigned to the Retired Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of entitlement to service connection for CLL.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in April 2016.  A transcript of his hearing has been associated with the record.


FINDINGS OF FACT

1.  In November 2012, the Board denied service connection for CLL.

2.  Evidence added to the record since the November 2012 Board decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for CLL.


CONCLUSIONS OF LAW

1.  The November 2012 Board decision is final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 3.160(d), 20.1103 (2015).

2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for CLL.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  

The Veteran's petition to reopen the claim of entitlement to service connection for CLL was filed as a Fully Developed Claim (FDC), as a part of a VA program to expedite VA claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.   When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to the claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA.  Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  The notice that accompanies the FDC form informs a Veteran what evidence is required to substantiate a claim for service connection, a Veteran's and VA's respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the Board finds that VA's duty to notify has been met.

Moreover, there is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

With respect to VA's duty to assist, service, VA, and private treatment records have been associated with the claims file.  

Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

As noted, the Board denied the Veteran's claim of entitlement to service connection for CLL in a November 2012 decision.  

The record before the Board at the time of the November 2012 decision included evidence of a diagnosis of CLL in 2007.  It also included the Veteran's service records, showing that he performed as an Air Reserve Technician (ART) from 1970 to 1973, and that he participated in ACDUTRA as required by his enlistment in the Air Force Reserves.  

The record at the time of the November 2012 decision also included the Veteran's contention that while working as an ART at Hanscom Air Force Base from 1970 to 1973, he was exposed to Agent Orange from C-123 aircraft that had been used to spray the defoliant in Vietnam.  In this regard, the Board noted that certain civilian positions in the military departments were filled by individuals who were members of the active reserves, which, in the case of the Air Force, were known as ART positions.  Jeffries v. Dep't of the Air Force, 999 F.2d 529, 529-30 (Fed.Cir.1993).  Although they are full-time civilian employees, ARTs "are also members of the Air Force Reserve unit in which they are employed.  In addition to their civilian assignments, ARTs are assigned to equivalent positions in the reserve organization with a reserve military rank or grade."  Id. at 530.  ARTs "are required to serve as members of the Air Force Reserve one weekend a month and at least fourteen days a year of annual training."  See http://www.afrc.af.mil/shared/
media/document/AFD-070125-046.pdf.  "On these weekend Unit Training Assemblies (UTAs) and during their annual two-week tour of duty, ARTs train with fellow reservists."  Id.    At all other times, however, ARTs were civilian employees.  Id. (noting that "[d]uring the normal five-day workweek, ARTs perform as civilians-maintaining and operating the Reserve facility in direct support of their unit").

The Board also considered the possibility of service connection on the basis of incurrence of CLL during a period of ACDUTRA as required by the Veteran's Reserves status.  The Board observed that ACDUTRA was defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)  (West 2002); 38 C.F.R. § 3.6(c) (2014).  The Board also noted that inactive duty training is defined, in part, as "duty (other than full time duty) prescribed for Reserves . . . by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A) (West 2014); 38 C.F.R. § 3.6(d)(1).  "The term 'Reserve' means a member of a reserve component of one of the Armed Forces."  38 U.S.C.A. § 101(26). 

The Board indicated that when a claim was based on a period of ACDUTRA, in order to establish entitlement to benefits, there must be some evidence that the disability for which service connection is being sought was "'incurred or aggravated' during the relevant period of service."  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (quoting 38 U.S.C.A. § 101(24)(B); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); and McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 ("if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). 

The Board noted that Veterans who serve on regular active duty are entitled to several presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-to assist them in substantiating their service connection claims.  38 U.S.C.A. §§ 1111, 1112, 1153 (West 2014); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2015).  However, where a claim is based on a period of ACDUTRA, the claimant "can never be entitled to the presumption of service connection" because "[b]y definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service."  Smith, 24 Vet. App. at 47. "By contrast, for a claimant whose claim is based on a period of [ACDUTRA] to establish entitlement to benefits, there must be some evidence that his or her condition was "incurred or aggravated" during the relevant period of service."  Id.  

The Board further observed that while CLL was a disease associated with exposure to herbicide agents and thus subject to the presumption of service connection despite a lack of evidence of the disease in service, see 38 C.F.R. § 3.309(e) (2014), the logic of Smith precluded application of the presumption of service connection provided for by 38 U.S.C.A. § 1116 (West 2014).  The Board pointed out that the Veteran, as an ART, was also a member of the Air Force Reserve, and that his service would have been limited to ACDUTRA.  See http://www.afrc.af.mil/shared/media/document/AFD-070125-046.pdf. (discussing requirements of ARTS Reserve service).  The Board concluded that evidence showing incurrence or aggravation of CLL during any relevant service period was lacking, noting that CLL was not diagnosed until 2007, and that there was no evidence to suggest that the disease first manifested during any required period of ACDUTRA while the Veteran was an ART.  The Board determined that, regardless of whether the Veteran was indeed exposed to herbicides at Hanscom Air Force Base sometime between 1970 and 1973, without a showing that his CLL first manifested itself during a period of ACDUTRA, any ACDUTRA performed while an ART did not qualify as active military service, and Veteran status for purposes of the current claim has not been achieved. 

The Veteran sought to reopen his claim in February 2015.  In support of his petition to reopen, he submitted annual statements of Reserves credits for 1972 and 1973, as well as a July 1973 discharge order.  He also submitted written statements describing his work as an ART, maintaining that he was exposed to Agent Orange during that time, which included active duty.  

Also added to the record is the Veteran's April 2016 hearing testimony.  He reiterated his contention that he was exposed to Agent Orange during his time working at Hanscom Air Force Base as an ART.  He also stated that he worked on contaminated aircraft while on ACDUTRA.

As discussed, service connection for CLL was denied because the Veteran's employment as an ART did not qualify as active service, and because there was no evidence that CLL first manifested during any period of ACDUTRA.  Since the November 2012 Board decision, evidence added to the record includes the appellant's contentions that he was exposed to Agent Orange during his employment as an ART at Hanscom Air Force Base, and that he was also exposed during periods of ACDUTRA.  These contentions and theories of entitlement were before the Board at the time of its November 2012 decision and are therefore cumulative.  In consideration of the foregoing, the Board finds that as no new and material evidence has been submitted, the claim of entitlement to service connection for CLL may not be reopened.  

ORDER

New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for CLL is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

VA worked & spent $$$ to oppose Institute of Medicine C-123 result

Documents released today under supervision of the US District Court Washington DC provide all the details: VA submitted the C-123 exposure question to the Institute of Medicine for evaluation, but then worked behind the scenes to insure the IOM gave only the desired conclusion...the conclusion VA staffers felt best met their own policies. Thank God (and IOM staffers,) IOM didn't fall for VA's tricks.

This week, after years of delays and obstruction by VA, hundreds of pages of internal correspondence and emails were released dealing with the C-123 Agent Orange exposure concerns of over 2100 veterans who flew these transports following Vietnam. The aircraft were contaminated, but VA from the beginning took extraordinary steps to prevent exposed veterans from receiving vital medical care and disability compensation.

The efforts seem to date back to 2007, when LtCol Aaron Olmsted's Agent Orange exposure claim was denied by VA on the basis he had no proof his C-123s were the ones actually used in Vietnam for spraying Agent Orange. Records show Olmsted flew hundreds of hours in these aircraft, but VA's legal "duty to assist" was viewed by the Department with disdain.

No effort was made by VA to locate readily available records to confirm Olmsted's assertions, something veterans themselves did with a simple phone call and two days' waiting for results from the Air Force Historical Records Agency. VA could and should have done this in meeting its duty to help the veteran locate records, but their victory over his claim was more important. Even when proof of Olmsted's claims was finally offered the VA, it was ignored by the BVA, by the regional administrator, and by the attorney who opposed Olmsted at the BVA hearing.

In more recent years, VA's tricks included paying its principal consultant while he appeared before the IOM to "defend the VA's science" and most certainly, to oppose the great volumes of science supporting the C-123 veterans. The consultant had been awarded his VA no-bid sole source $600,000 contract, the work product of which focused on obstructing C-123 exposure claims. The contract, and its obvious conflict of interest (or certainly the suggestion of that possibility) was not revealed to the committee by VA or the consultant.

Note also that in 2011 the consultant labeled C-123 veterans with disdain as "trash-haulers, freeloaders looking for a tax free dollar...I have no respect." One senses this profoundly negative attitude even better endeared him to the VA, rather than disqualifying him as it should have from any effect on the health care of these 2100 exposed veterans he dislikes so much.

His 2009 role in having recommended destruction of the stored surplus C-123s as toxic waste and to prevent veterans from learning of the contamination was not discussed with the IOM. It should have been...so many things should have been revealed, both to the veterans and the IOM.

Previously a paid consultant to both Dow and Monsanto in their efforts to fight veterans' claims, and with years as an Air Force officer manning VA's own Agent Orange desk helping prevent such claims, the consultant was the perfect go-to guy for VA's Veterans Benefits Administration and Veterans Health Administration, whose senior staffers personally opposed expanding Agent Orange coverages to anyone.

Records now show that VA coordinated closely with their consultant, who nonetheless insisted he wasn't before the IOM to represent the VA. Not only did VA pay him $600,000 for work including monographs attacking the veterans' claims, but he was under that lucrative VA contract even at the time. IOM's questions to the consultant were answered only after first being passed by the VA to insure they met the Department's policy objectives, before being released to the IOM:

In the following email, the consultant writes the US Air Force and clearly states he is presenting to the IOM C-123 committee "on behalf of Compensation Service and the (VA) Office of Public Health." No, not independent at all, but he was presenting to the IOM as VA's voice:

The VA consultant referred frequently to his many monographs being "peer reviewed." This is highly questionable, as no researcher is permitted to select the reviewers as was done here. Peer review is meant to be a critical challenge to protect the scientific record, not this buddy-stamp from close associates holding identical views. Despite VA's own high standards for scientific research, this was allowed to pass without challenge to its many violations of VA Directive 0005 (Scientific Integrity.)

This attitude persisted into more recent years, as detailed in this week's FOIA results. VA expressly sought to "counter" scientific materials with paid-for input from selected sources, rather than letting science and the IOM proceed independently:

Besides contracting with its preferred "go-to" Agent Orange consultant, Veterans Health Administration also paid Sandia Labs to construct arguments against the many scientific experts whose professional opinions were universally in support of C-123 veterans' exposures;

Veterans have tried to stress the fact that of the dozens of independent scientists and physicians who concluded the veterans were exposed and harmed, none were paid.

VA didn't waste a penny seeking any independent views or opinions which might agree with the veterans' claims, but spent hundreds upon hundreds of thousands of dollars to insure the defeat of those veterans' hope for VA recognition of Agent Orange exposures. Hardly "pro-veteran, non-adversarial, every benefit of the doubt rests with the veterans." 

Rather, we see the firm, steady determination to prevent C-123 veterans' access to medical care by spending VA dollars, bending rules and procedures, creating obstructions, implementing personal policies, and the deception of senior VA executives by staffers by feeding them error-laden memoranda to sign.

VA staff and contractors even tried to deceive IOM and senior VA leadership with data from tests performed on "Patches," the USAF Museum's former Operation Ranch Hand C-123. The contractor stressed a point about "only two areas" being TCDD contaminated. In fact, the testing officials determined that there were two "hot" spots but the majority of the C-123 interior was not contaminated, or was an area not tested for lack of accessibility. Big difference.