VA's Empty Promises to Senate & Veterans: "Case-by-Case C-123 Claim Evaluation"

Challenged by veterans, veterans service organizations and the media, VA has assured all who would listen that C-123 veterans aren't (from the VA perspective) eligible for presumptive service connection. Veterans argued that VA simply has a 100% VA blanket denial policy for C-123 exposure claims.

To which VA assured the veterans, veterans service organizations and the veterans' legislators that VA carefully considers each C-123 claim on "case by case basis." VA's actual intent, and result,  was to deny all C-123 veterans' claims but deny any accusation of a blanket denial policy.

(Cambridge University English Language Dictionary)

A "case by case" disability claim, decided on its merits, free from external pressures sounded perfectly reasonable. Reading into the phrase, one expects that VA will consider each claim's particular situation and proofs, making a just and fair decision on the facts. Especially considering VA's statutory duty to approach the claim on a pro-veteran basis!

Wrong. Never going to happen! Not on their watch.

Wrong because VA's decision against the C-123 veterans' claims was already made in early 2011 at 810 Vermont Avenue NW, Washington DC. The decision against the veterans was virtually automatic..."no more Agent Orange claims." We acknowledge that many, probably most folks in VA want to do right by veterans like us, but the VA itself certainly did not! VBA did this without specific denial language but instead their words of advice to the regional offices carried the message in several different formats:

• From VA's JSRRC Coordinator:
– "Until such time as the IOM review is completed, VA will continue to evaluate post‐Vietnam C‐123 claims on a case‐by‐case basis."
– "Therefore, exposure to tactical herbicides for crewmembers that served aboard post-Vietnam C-123 aircraft cannot be conceded."
– "No legal basis for providing this disability benefit."
– "Alice, there is no VA acknowledgement of AO 'remote' or 'secondary' exposure for post-Vietnam aircrews of C-123 aircraft used for Operation Ranch Hand."
– "The problem here is that there is some evidence from "scientific sources" supporting the claimed post-Vietnam Agent Orange exposure. However, the overwhelming preponderance of evidence is against any such exposure, including a VHA website stating that such exposure could not have occurred."
– "The real problem here is that Senator Burr and others have claimed that VA is denying these claims in a "blanket" and not following our stated "case-by-case" policy."
– "If you get a positive response from JSRRC on the direct claim, you can move forward with granting the claim (assuming all other requirements are met). (email regarding Navy veteran's claim, but Sampsel refused to "go forward' with C-123 claims also having positive JSRRC response.)
– "I can try to work on some guidance for the field on this issue that will walk a line between preponderance of the evidence and case-by-case evaluations."

• From then-Secretary Shinseki:
– "The potential for exposure to TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially nonexistent. As a result, there is no scientific basis for VA to establish the  presumption of Agent Orange exposure among this group of Veterans." Shinseki letter to Congressman Young, Oct 2011.

• From Senior Advisor for Benefits, Veterans Benefits Administration: 

- " Unfortunately, there is evidence from credible sources, including ATSDR, noting the presence of Agent Orange in the C123 aircraft, so it would be difficult to sever service connection, not to mention politically unpopular." Mr. Flohr found it "unfortunate" that other government experts confirmed C-123 veterans' exposure and Unfortunately allowed the veteran's claim to be approved.
– "This does, however, present a problem for us as, although there is no precedent set by the RO decision, it is public knowledge and others may file claims citing it." Flohr thought it a problem other veterans might also apply, rather than seeing the Bailey decision as helpful to other veterans.
• From Director Compensation & Pension Service:
– "Per discussions with Jim Sampsel, the evidence the DRO relied on was lay statement and NOT sufficient to grant SC." (re: Manchester NH VA reconsideration & award of LtCol Paul Bailey claim) Suggestion was that VA rule itself in error to withdraw the only C-123 award ever made. Murphy states Sampsel categorized expert input from CDC/ATSDR, DOD, NIH, US Public Health Service, Columbia University, Oregon Health Sciences University, and the veteran's physician as "lay statement."
– "In light of all the evidence in the claims folder and referenced above, exposure to Agent Orange cannot be presumed or accepted for this Veteran or any other crewmembers of post-Vietnam C-123 aircraft. The Veteran did not serve in Vietnam and has not served in any other area that would allow for presumption of Agent Orange exposure or direct occupational exposure to be accepted. Medical studies showed that it was unlikely the human body was able to absorb any dioxins from residual Agent Orange on aircraft surfaces, or that any exposure would lead to adverse health effects. Therefore, the Veteran's claims associated with Agent Orange exposure should be denied service- connection." Compensation & Pension ordered Portland to deny a C-123 claim the VARO wanted to approve.
.– "In summary there is no conclusive evidence that TCDD exposure causes any adverse health effects." Claim denied, although TCDD is considered, even by VA, as a human carcinogen.
• From VHA Post Deployment Health Section:
– "The potential for exposure to TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially nonexistent. As a result, there is no scientific basis for VA to establish the presumption of Agent Orange exposure among this group of Veterans."
• From Deputy Chief Consultant VHA Post Deployment Health Section:
– "We have to draw the line somewhere." Statement to the Associated Press.
– "Please see attached. I hope it is useful." Attachment to USAF C-123 investigation team was set of articles by Dow and Monsanto-sponsored scientists, plus Dr. Al Young, VA & USAF Agent Orange consultant who opposed Agent Orange exposure claims. Violated rules keeping agencies apart.
• From Under Secretary for Veterans Benefits Administration:
– "Exposure to tactical herbicides for crewmembers that served aboard post-Vietnam C-123 aircraft cannot be conceded." Letter to Oregon's Governor, June 2013. VBA had had in its possession the JSRRC confirmation of C-123 veterans' exposures since March 2013 but did not reveal that information.

KEY POINT:
Not one of these VA officials ever follows their public "case-by-case" assurances, verbal or in print, of proper C-123 claims processing with the well-known fact (inside VA) that Veterans Benefits Administration and Veterans Health Administration together ordered that no C-123 claims be approved. 

This was done by incorrectly instructing VBA's regional offices that "no basis exists for service connection for post-Vietnam C-123 veterans' exposure claims." That's why not a single C-123 claim has ever been approved. VA simply told their regional offices "exposure cannot be conceeded." 

This is VA-speak for deny.

At VA, "case-by-case" equals denied claims...100% of the time.

The January 9 2015 report of the Institute of Medicine to the Secretary confirmed the C-123 veterans' exposures, and proved that VA had been wrong on the science, medicine and law all along. NEVER did VA obey requirements in the Veterans Claims Assistance Act to be pro-veteran, non-adversarial and insure that "benefit of the doubt" rests with the veterans.

VA was wrong. 

Veterans paid the price.

AF destroys toxic C-123 fleet to keep veterans from learning they'd been exposed!

Summary:

The latest C-123 Veterans Association YouTube video addresses the secret destruction of the Davis-Monthan AFB "boneyard" C-123 fleet. Revealed are documents showing partial justification was specifically to prevent veterans from learning they'd already been exposed...and to keep them from being able to turn to the VA for Agent Orange benefits.

Background:

The USAF faced the necessity of destroying the remaining C-123 aircraft stored at Davis-Monthan AFB's "boneyard" due to their Agent Orange contamination. Sales and parting out were not possible and a potential $3.4 billion EPA fine was in view. DOD Agent Orange Consultant's recommended destruction of the airplanes, especially because veterans (already exposed!) who'd flown the airplanes earlier might learn of the contamination, and their exposure, and turn to the VA for well-earned medical care. OSD's statement clearly was crafted to prevent veterans from learning about the Agent Orange issues and then proceeding on their claims, and the statement to the AF was taken up by managers at the 505th Sustainability Squadron as they sought and received the Air Staff approval for C-123 shredding and smelting...and by repeating OSD's recommendation to hide the process from the media and the veterans, it became AF policy. Special procedures were taken to make sure the destruction of the C-123 fleet was accomplished with as little public attention as possible, with hopes that no information would leak out at all.

It should be clear. Veterans had already been exposed. They should have been told of this, rather than having the evidence about it destroyed specifically to prevent their learning of the C-123 contamination history and the right...indeed, for many, the NEED to turn to the VA for medical care for exposure to deadly dioxin.

Shame on all parties involved for this "magnificent" deception. Shame on those who congratulated the Air Force players for their secrecy. Shame on Air Force Public Affairs for a piece of tainted "journalism" which brings discredit to the United States Air Force! The video shows cuts from military documents and other materials released under FOIA, the originals of which can be downloaded at www.c123kcancer.blogspot.com for further study.

VA Releases Newest C-123 Exposure Denials

In their most recent Internet posting, the VA's Public Health Division incorporates the results of the Air Force C-123 Agent Orange Report. In it they construct a false argument that crews weren't exposed when in fact, all scientific opinion is that we were! Three AF conclusions are cited by VA in their post and both the VA and AF have twisted scientific FACTS 180 degrees to deny the truth - aircrews WERE indeed exposed! (see their points below):

1. There indeed wasn't enough information or data to conclude how much any individual was exposed, but that cannot truthfully be used to deny that any of us were actually exposed. The lack of abundant data cannot be used to disprove a hypothesis when there is ample data indicating the certainty of exposure
2. Exposure in these aircraft was certainly more intense during Vietnam, and Ranch Hand aircrews were more greatly exposed, but this point cannot be used to create the false impression that post-Vietnam aircrews weren't also exposed - according to experts and testing data over the years, crews were exposed at a level greatly exceeding exposure by ground forces during the war
3. All evidence points to the fact that aircrews and maintenance personnel were indeed exposed to Agent Orange (TCDD) at an unsafe level, according to the CDC/Agency for Toxic Substances and Disease Registry

Conclusion: VA Public Health is dedicated to preventing C-123 veterans' Agent Orange exposure claims, and to preventing any vet's case-by-case evaluation which may introduce the truth!

Here is the VA Internet post of 20 June which incorporates mistakes from the AF Report:

Some Veterans who were crew members on C-123 Provider aircraft, formerly used to spray Agent Orange during the Vietnam War, have raised health concerns about exposure to residual amounts of herbicides on the plane surfaces.

VA’s Office of Public Health thoroughly reviewed all available scientific information regarding the exposure potential. We concluded that the potential of long-term health effects for the post-Vietnam crews that flew or maintained these planes was extremely low and therefore, the risk of long-term health effects is minimal.

Testing for Agent Orange residue on planes used in Vietnam

The U.S. Air Force (USAF) collected and analyzed numerous samples from C-123 aircraft to test for Agent Orange. USAF's recent risk assessment report (April 27, 2012) (2.3 MB, PDF) found that potential exposures to Agent Orange in C-123 planes used after the Vietnam War were unlikely to have put aircrew or passengers at risk for future health problems. The report’s three conclusions:

1. There was not enough information and data to conclude how much individual persons would have been exposed to Agent Orange.

2.   It is expected that exposure to Agent Orange in these aircraft after the Vietnam War was lower than exposure during the spraying missions in Vietnam.

3.  Potential Agent Orange exposures were unlikely to have exceeded standards set by regulators or to have put people at risk for future health problems.

How Veterans may have been exposed

During the Vietnam War, the U.S. Air Force used C-123 aircraft to spray Agent Orange to clear jungles that provided enemy cover in Vietnam. At the end of the spraying campaign in 1971, the remaining C-123 planes were reassigned to reserve units in the U.S. for routine cargo and medical evacuation missions spanning the next 10 years.

Crew members aboard one of these post-Vietnam C-123 planes reported smelling strong odors, which raised concerns about Agent Orange exposure – but Agent Orange is odorless. These odors may have come from various chemicals associated with aircraft.

Health effects of Agent Orange residue

The health effects of exposure to Agent Orange residue on airplanes differ from direct contact with liquid Agent Orange. In liquid or spray form, Agent Orange can enter the body through inhalation or ingestion (such as hand-to-mouth contact or getting into food). But in the dry form – for example, adhered to a surface – Agent Orange residue cannot be inhaled or absorbed through the skin, and would be difficult to ingest.

The potential for health effects depends on the amount of Agent Orange present, as well as its ability to enter the body. After reviewing available scientific reports, VA has concluded that the exposure potential in these planes was extremely low and therefore, the risk of long-term health effects is minimal. Even if crew exposure did occur, it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

Research studies on Agent Orange

Research on the health effects of Agent Orange has been extensive and it continues. Diverse populations have been studied, including herbicide sprayers and manufacturers, other Vietnam-era Veterans, and those exposed during industrial accidents. This information helps us to determine what potential health effects may be related to different levels of exposure.

Find out more about research on health effects of Agent Orange.

VA benefits

If you have health concerns about Agent Orange, talk to your health care provider or local VA Environmental Health Coordinator.

Veterans not enrolled in the VA health care system, find out if you qualify for VA health care.

Although the risk of long-term health problems from exposure to Agent Orange residue on post-Vietnam C-123 airplanes is minimal, Veterans who believe they have exposure-related health problems may file a claim for disability compensation. These claims will be decided on a case-by-case basis.

VA Congressional Liaison Offers Teleconference re: C-123 Agent Orange

The teleconference organized by the VA's Congressional Liaison Office is set for 2PM Eastern on October 27, and limited to those invited by Brooks Tucker of Senator Burr's office.


Senator Burr will be represented by Mr. Tucker. Major Wes Carter, USAF Ret. (74th Aeromedical Evacuation Squadron, 439th MAW) will represent the C-123 aircrews from all squadrons. Offering expert toxicology information and interpretation of Air Force tests will be Dr. Fred Berman who heads the Toxicology Department of Oregon Health Sciences University. Explaining the VA position that C-123 dioxin contamination is not a health concern for aircrew veterans will be Dr. Michael Peterson, Chief Consultant, Environmental Health, Veterans Health Administration, Mr. James Sampsel of the Veterans Benefits Administration will explain why the VA cannot permit medical care for aircrew C-123 dioxin exposure and AO illnesses.


Our C-123K veterans only ask that since we can provide persuasive evidence from a host of government and scientific sources as to the dioxin contamination of our airplane, and can prove that we flew aircraft specifically identified as contaminated with dioxin, that the VA accept disability claims from those who also have Agent Orange-presumptive illnesses. I thought those were the ground rules described on the VA web site...perhaps not. Doesn't it seem wrong to deny veterans benefits not because of the abundant evidence of eligibility provided by the veterans but merely because of VA policy to prohibit such claims? 


Perhaps we can draw some comfort from the assurances of Dr. Peterson that we haven't been exposed to dioxin after all. 



Outside the scope of this teleconference, our small group working on this issue feels compelled to add an additional concern. We expect to eventually prevail (or at least, our widows will) regarding "Boots on the Airplane" so that if we can show service aboard a contaminated C-123 and proof of an AO illness, a claim can be put forward to the VA. Our new effort will be to uncover the confusing reason for the intensity of the VA's dedication in denying our claims....Questions arise:

• why did the Air Force take drastic measures to destroy ("the Navy way...the quiet way" as Mr. Boor of the 505th puts it)the surplus C-123 fleet specifically to prevent aircrews' Agent Orange exposure claims? 
• What right did AF have to take any action designed to prevent qualified veterans from putting claims forward to the VA as cited by Mr. Wm. (Buddy) Boor of the 505th?
• why did versions of the 75 ABW/PA press release about the destruction edit out mention of Agent Orange and dioxin?
• why is the Blue Water Navy's highly theoretical argument regarding Agent Orange reaching out to sea from contaminated Vietnamese rivers accepted by the VA but our proven exposure to dioxin on the airplane ignored by the VA? Where's the benefit of the doubt here?
• why did the Air Force, once dioxin contamination was scientifically established in 1994, fail to notify aircrews of their exposure to hazardous substances, in violation of both state and federal laws?
• why did the Air Force Office of Environmental Law, in 1996, recommend information about the dioxin-contaminated aircraft "be kept in official channels only?"
• why did the Air Force, having scientifically tested and labeled the surplus contaminated aircraft as "extremely dangerous, extremely hazardous, extremely contaminated" and a "threat to public health", one requiring employees to wear hazmat protection...why did the AF support the VA in characterizing AF actions as merely the result of "an overly cautious mindset" so that the severity of decades of Air Force tests, reports, correspondence and actions would be minimized or disregarded when weighing veterans' claims?
• why did the Air Force fail to reveal the dioxin contaminated C-123K/UC-123K aircraft stored in quarantine at Davis-Monthan during the Arizona State EPA Hazardous Material Survey team visit?
• why did the Air Force Office of Inspector General dismiss the aircrew's complaint without investigation?
• why did the Air Force Office of Special Investigations at Davis-Mothan fail to investigate complaints made by knowledgeable officers regarding the Agent Orange issue?
• why did State Department and the AF Security Assistance Center fail to notify foreign governments of sales to them of dioxin-contaminated C-123s? Is that why the VA opposes veterans claims for service aboard those contaminated aircraft..to minimize visibility?
• what role did the attitude of the Senior Consultant to the Office of Secretary of Defense have regarding efforts to prevent aircrew Agent Orange claims? Did his statement labeling them as "trash haulers, freeloaders" affect Air Force actions?
• why were FOIAs to the Air Staff, Air Force Board of Correction of Military Records, Air Force Surgeon General, School of Aerospace Medicine and Air Force Security Assistance Center not answered as required by law?
• why did the VA brief Congress about C-123s and Agent Orange, stating that there had not been any dioxin tests on the aircraft after Vietnam, and fail to reveal the many Air Force tests that were completed?
• what would the VA, EPA, USAF and other agencies say if Patches, in its 1994 degree of contamination, were to be returned to flight status...safe, or unsafe?
• After HQ USAF/IG rejected the aircrews' IG complaint regarding C-123 dioxin contamination it was refiled with DOD/IG in June. Their regulations describe an investigation cycle taking not more than 3 months, yet by the end of October why still no response?