Federal Register posts our comment on the VA's new Agent Orange regulation

https://www.regulations.gov/comment/VA-2024-VBA-0006-0044

It needs to be repeated: From the very beginning, VA science and policy were 100% WRONG on C-123 Agent Orange

In fact, VA was wrong and was determined to prevent our disability claims as a matter of policy regardless of the science involved. From the very beginning our search for help, VA ignored it's fundamental obligation to us as veterans.

No other veteran or veterans organization, supported in the scientific claims for harmful Agent Orange exposure by the CDC and other federal agencies as well as dozens of independent positions and university based scientists, has faced such an automatic VA opposition.  Today's perspective, 18 months after the release of the Institute of Medicine C-123 Report, clearly shows VA opposition was policy-based. VA simply had no scientific or legal basis to oppose the claims – yet they did.

Rather than permit us the benefit of the doubt required by law and M21-1MR they immediately took an adversarial position. That was most perfectly expressed by Mr. Thomas Murphy (Director, VBA Pension and Compensation) when on February 28 2013 he insisted no amount of proof from whatever source would be accepted by VA to support our claims.

Mr. Murphy explained that Veterans Health Administration Public Health decided upon our first inquiries back in early 2011 that, no matter what, C-123 vets were not exposed and VA would deny every claim. VA would do this while insisting that every claim would be considered on a case-by-case basis... and then automatically denied.

As regards the requirement to give us benefit of the doubt, VA reserved it for itself and denied it to the veterans. Even after support for our exposures was submitted to the VA by the CDC ATSDR as well as the National Institute of Environmental Health Sciences, DoD JSRRC and dozens of independent physicians and researchers VA stuck to its illogical and unscientific as well as blatantly anti-veteran position

Nothing illustrates the deception VA used against us better than the simple comparison of the May 2011 VA position statement (below, formulated by Dr. Terry Walters and her colleagues in VHA Public Health) and the final report on us published by the Institute of Medicine in January 2015.

Let's look at VA's five bullet points:
1) Correct, but irrelevant. The 1991 Agent Orange Act requires VA to treat all veterans exposed to Agent Orange if they have relevant illnesses. VA repeatedly assured Congress and the public via the Federal Register that it would do so.
2) Deceptive. There is only the issue of exposure, not the kind of exposure. For the purpose of opposing our claims, VA introduced the idea of remote/secondary exposure and claimed it made proven contamination of our aircraft no different than the theoretical contamination of the equipment used in Vietnam.
3) Ridiculous! VA stated it would ignore all proof of exposure from whatever source such as the CDC. We did not know it for years but VA had unscientifically redefined the word exposure to require bioavailability for exposure to be recognized. VA created its own unique redefinition of exposure to block our exposure claims, and were criticized for doing so by leaders in other federal health agencies. Even under this redefined exposure, VA should have acknowledged the bioavailability of the C-123 Agent Orange contamination when the CDC informed of them that veterans had a 200 times greater risk of cancer. VA uses Dorland's  Illustrated Medical Dictionary as the standard text of definitions... except for the word exposure.
4) Deceptive. The 1991 Agent Orange Act eliminated the requirement that a veteran establish medical nexus of illnesses associated with Agent Orange and instead provided a presumption. The scientific evidence suggested as missing was already established by the Institute of Medicine and it's numerous earlier reports. Further, as with the first point, VA have a legal obligation as well as the duty under its own regulations to treat all veterans with a proven Agent Orange exposure.
5) The last bullet point is perhaps the VA's most blatant policy driven deception. The opinions referenced as supporting our claims came from the CDC ATSDR, National Institute of Environmental Health Sciences, and dozens of university scientists and independent physicians. Rather than acknowledging this volume of proof, the VA Agent Orange desk in Veterans Benefits Administration simply asserted that it had "an overwhelming preponderance of proof" against our exposures. In fact there was no such proof against our exposure claims and VA insistence otherwise was merely a policy statement. The IOM C-123 Agent Orange Report relied on the same body of evidence to reach an opposite conclusion – veterans were indeed exposed!

VA Conclusions Rigged Uo To Deny Claims For Five Years:
1) "Even though residual Agent Orange may be detected in C-123 aircraft by laboratory techniques years after Agent Orange use, it must be remembered that there is no bio-availability of TCDD in these aircraft. "

2) "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."

Terry J, Walters, MD MPH: Director, Environmental Health, VHA

BUT, the Institute of Medicine concluded after studying the same data:
1)  Veterans suffered bioavailability of the dioxin aboard the aircraft by all three possible routes (dermal, inhalation, and ingestion.) IOM specifically disproved the VA theory of no bioavailability of dried dioxin advanced by VHA Post-Deployment Public Health. That flawed concept was earlier advanced by Dr. Alvin Young who actually argued against any hazards of Agent Orange in his article "Environmental fate of TCDD and Agent orange and Bioavailability To Troops in Vietnam."  A frequent VA and DoD consultant, Young was beneficiary of a no-bid sole source $600,000 consulting contract most of which focused on our aircraft.
2) "Reservists experienced increases in their risks of adverse health outcomes." In fact, the CDC told VA veterans had a 200 fold greater risk of cancer.

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.

VA Proposes Disability Benefits for Camp Lejeune Marine Veterans Exposed to Contaminated Water

  WASHINGTON – The Department of Veterans Affairs (VA) announced today that it plans to propose expanded disability compensation eligibility for Veterans exposed to contaminated drinking water while assigned to Marine Corps Base Camp Lejeune. Without a doubt, this is one of the most pro-veteran decisions ever reached by a Secretary of Veterans Affairs!

From 1953 to 1987, water sources at the base were contaminated with industrial solvents that are correlated with certain health conditions.  Secretary of Veterans Affairs Robert A. McDonald decided to propose presumptions of service connection for certain conditions associated with these chemical solvents following discussions between environmental health experts at the Veterans Health Administration and the Department of Health and Human Services Agency for Toxic Substances and Disease Registry (ATSDR).

 “The water at Camp Lejeune was a hidden hazard, and it is only years later that we know how dangerous it was,” said Secretary McDonald.  “We thank ATSDR for the thorough review that provided much of the evidence we needed to fully compensate Veterans who develop one of the conditions known to be related to exposure to the compounds in the drinking water.”

ATSDR determined that the drinking water at Camp Lejeune was contaminated with perchloroethylene, trichloroethylene, vinyl chloride, benzene and other petroleum contaminants from leaking storage tanks from 1953 to 1987.  ATSDR also determined that prolonged exposure to these chemicals increases the risk of certain health conditions.

Based upon VA’s review of current medical science and ATSDR’s findings, Secretary McDonald intends to propose creation of a presumption of service connection for the following conditions:

Kidney Cancer
Liver Cancer
Non-Hodgkin Lymphoma
Leukemia
Multiple Myeloma
Scleroderma
Parkinson's Disease
Aplastic Anemia / Myelodysplastic Syndromes

The Secretary’s proposal would also expand benefits eligibility to Reserve and National Guard personnel who served at Camp Lejeune for any length of time from August 1, 1953, through December 31, 1987.   These personnel would be presumed to have been exposed to the contaminated water during their Reserve or National Guard service and, in appropriate circumstances, to have been disabled by such exposure during service, thus allowing them to qualify for VA benefits under the statutory definition of “Veteran.”

  This would make them eligible for VA disability compensation and medical care for any of the presumptive conditions, and their surviving dependents would be eligible for dependency and indemnity compensation and burial benefits. A VA spokeswoman said compensation awarded as a result of the proposed regulations, if adopted, will "be effective no earlier than the date the final rule is published."

VA is working on regulations that would establish these presumptions, making it easier for affected Veterans to receive VA disability compensation for these conditions.  While VA cannot grant any benefit claims based on the proposed presumption of service connection for these conditions until it issues its final regulations, it encourages Veterans who have a record of service at Camp Lejeune between August 1, 1953, and December 31, 1987, and develop a condition that they believe is related to exposure to the drinking water at the base, to file a disability compensation claim with VA.

VA will continue to grant claims for disabilities claimed to be associated with exposure to the contaminants that can be granted under current regulations and review of the evidence in each case. If a claim for service connection for one of the proposed presumptive conditions would be denied under current regulations, the denial will be stayed until VA issues its final regulations. VA will announce when the regulations are final and presumptive benefits can begin to be awarded.

Veterans who served at Camp Lejeune for 30 days or more between August 1, 1953, and December 31, 1987, are already eligible to receive VA healthcare for up to 15 health conditions.

GREAT move, Mr. Secretary!

Veterans can establish eligibility for healthcare benefits by submitting VA Form 10-10EZ online at www.1010ez.med.va.gov/, downloading it at www.va.gov/vaforms/medical/pdf/1010EZ-fillable.pdf and returning it to any VA Medical Center or Clinic, or by calling 1-877-222-VETS (8387), Monday through Friday, between the hours of 8:00 AM and 8:00 PM (Eastern Time).

VA is reimbursing certain veterans’ family members for eligible out-of-pocket medical expenses related to the 15 covered conditions.

Department of Justice Confirms...AND EXCUSED...VA PHONY SCIENCE

VA Post Deployment Health simply made it up. Since accepted science didn't agree with VA policy objectives, VA simply revised science to insure veterans' claims were denied.

On December 1, the US Department of Justice confirmed that for years a handful of VA staffers had twisted science into a policy goal. That twisted goal: denial of valid Agent Orange exposure claims from C-123 veterans.

Please try to follow this. It is how VA refused years of medical care and other vital benefits to thousands of veterans who flew or maintained the former C-123 Agent Orange spray airplanes.

In 2012, faced with Agent Orange exposure claims from C-123 veterans, VA's Veterans Health Administration Post Deployment Health Section simply invented their own unique VA-only redefinition of "exposure" to prevent all such claims. The proper standard definition of exposure (Dorlands Illustrated Medical Dictionary, VA's standard reference) confirmed the veterans' claims, so VA twisted that word into phony science, meant only to further VA policy, not justice or good medical care.

All they had to do was bury a simple deceptive and scientifically-flawed sentence into a poster presentation VA gave at the 2012 Society of Toxicology conference in San Francisco:

"Exposure = contamination field + bioavailability."

VA poster redefinition of "exposure"

Other government agencies deny any bioavailability requirement for
exposure to occur; NIH labeled VA definition "unscientific"

In their terminology slight of hand, VA said that exposure couldn't exist without a contaminate plus proven bioavailability of that contaminante. No proof of bioavailability, however impossible to actually prove, was to mean no exposure...at least to the VA. Burn pits, immunizations, dirty water, biohazards, toxins...all the things a veteran might encounter via inhalation, ingestion or dermal contact, VA would refuse to concede exposure unless the impossible was done...a vet had to prove the bioavailability of the contamination. 

Not only did this piece of VA newspeak conflict with Dorlands Illustrated Medical Dictionary, but also with other VA and government with VA's own standard source for scientific and medical terms. Other VA agencies used the proper definition of exposure, but not VHA's Post Deployment.

Other government agencies and other VA departments simply use the proper definitions published by the CDC Agency for Toxic Substances and Disease Registry, where "exposure = Contact with a substance by swallowing, breathing, or touching the skin or eyes." That's the CDC definition, the EPA definition, the NIH definition.

So back to the Department of Justice report on VA and its reinvention of "exposure" back in 2012.

In 2013, C-123 veterans filed suit against the VA in the US District Court of Washington, demanding the background for VA's "exposure" redefinition and the basis on which VA's Society of Toxicology poster came to be. This week, DOJ finally revealed: 

 Dr. XXXX did not create the poster based on existing documents, but upon her experience assessing that and other exposure scenarios.  The statement "exposure = concentration present + bioavailability" did not previously exist in any documents of which she is aware.

So the redefinition, published over the names of Dr. Terra Irons, Dr. Wendy Dick, Dr. Terry Walters and Dr. Michael Peterson (all of VHA Public Health) was simply made up. Never existed before, and created for this poster to then be used to block C-123 veterans' claims.

And that's exactly how it was used. In February 2013, C-123 vets met with Mr. Thomas Murphy, Director of VA's Compensation and Pension Service. Besides telling the veterans no amount of proof would be acceptable to establish their exposure claims, he explained that Dr. Terry Walters had already concluded no C-123 veteran's Agent Orange exposure was to be permitted based on her own redefinition of exposure.

Invited by Mr. Murphy to discuss the issue with Dr. Walters, we found her redefinition just as we'd been told, with the additional point she made that few, if any, Vietnam veterans were ever exposed to Agent Orange based on her new definition of exposure. And it was a definition of exposure contrary to every other federal agency, including the National Institutes of Environmental Health Sciences as well as other VA departments.

But we have to ask: how did a PhD one year out of grad school at Carolina opt to redefine a fundamental term in toxicology, just so OPH could deny exposure claims? And again, the Department of Justice simply reported to us that she did it, pretty much by herself, calling on her specialty of mollusk toxicology to provide enough scientific wherewithal to refuse medical care to thousands of Agent Orange exposed veterans.

And on that weak, policy-driven basis, VA continued to order C-123 veterans' Agent Orange exposure claims denied until June 2015. That date was the publication of the Secretary's Interim Final Rule, recognizing the Institute of Medicine finding that C-123 vets had indeed been exposed. And exposed in the true scientific meaning of that word!

Department of Justice Confirms...AND DISMISSES...VA Errors on C-123 Vet's Claim

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Both VA and the Justice Department casually dismiss VA's refusal to permit years of vital medical care legally due C-123 veterans.

This week the Department of Justice officially informed via email the C-123 Veterans Association that VA's Compensation and Pension Service was in error denying a C-123 vet's Agent Orange exposure claim. Let's look at this in two separate reports, beginning here with why VA took extraordinary steps to dismiss a veteran's exposure claim, an exposure confirmed by the CDC.

C&P was summarizing (poorly, unscientifically, dishonestly) the opinion of Dr. Tom Sinks, Deputy Director of the CDC Agency for Toxic Substances and Disease Registry. Sinks' opinion was that C-123 vets had a 182-times greater exposure to TCDD than military standards permit, and consequently will experience a 200-fold increase in cancer screening values. To make certain VA got the point, Dr. Christopher Portier, Director of the CDC ATSDR also affirmed the report. So did the director after him, Rear Admiral (MD, US Public Health Service) R. Ikeda. All of this did no good, even coming from the CDC.

Pretty gruesome, but just to make certain the C-123 veteran's claim was denied, C&P made all this evidence disappear by stating, "In summary there is no conclusive evidence that TCDD exposure causes any adverse health effects."

Read that ridiculous statement again very carefully: VA was saying that TCDD (the toxin which makes Agent Orange toxic) is harmless. Somehow, VA insisted that this known human carcinogen, the most toxic of the toxins, causes "no adverse health effects." Here's how Justice weakly defended VA's missteps:

"VA states as follows: The statement regarding TCDD exposure and adverse health effects was written in error and was incomplete.  It was referring to a statement submitted to VA by ATSDR, which was vague on potential exposure and health effects.  The TCDD statement should have read that ATSDR did not provide conclusive evidence that (the veteran's) claimed exposure to dried and solidified TCDD caused his claimed adverse health effects".

But DOJ missed much of the impact of VA's errors and even repeated those errors in its statement!

1. Not only was the scientific opinion of another federal health agency dismissed improperly by VA, but C&P did so by insisting ATSDR didn't provide "conclusive" evidence. The problem is that conclusive evidence isn't required at all in VA disability claims! The law states a veteran need only produce proofs "as likely to as not" or 50/50, with the benefit of the doubt always resting with the veteran.

But C&P quietly raised the bar to insure this claim was denied. C&P rejected the CDC opinion because it wasn't deemed to be "conclusive." In fact, few exposure illnesses are "conclusive." And how many federal agencies did VA require to support the veteran's claim? Here, VA rejected not only the CDC but also the National Institutes of Health and the US Public Health Service...three federal health agencies insisting this C-123 veteran was exposed to Agent Orange but the VA dismissed them all! Not for any legal or scientific reason but instead because, as VA's Post Deployment Public Health Section told the Associated Press, "we have to draw the line somewhere" against C-123 claims.

2. VA's clear obligation is to provide presumptive service connection to any veteran who either is "boots on the ground" during Vietnam, or along the Korean DMZ during certain years, or who is otherwise able to establish factual Agent Orange exposure. There is no requirement that the veteran prove the "adverse health effects" in the DOJ statement. NEVER must a veteran prove that Agent Orange is harmful...that is assumed in the law and repeatedly promised by VA in its Federal Register postings. If a veteran is exposed, the veteran's Agent Orange injury, if present, is required to be presumed...automatically.

But not here. The VARO adjudicator initially wanted to approve this claim on the basis of what she described as "the plethora of evidence," but VA C&P torpedoed the vet's claim.  C&P injected phony extra-legal requirements in its advisory opinion of the C-123 veteran's claim to insure the vet's failure. And DOJ took no notice, so busy were those attorneys defending the VA rather than the veterans who'd been wronged.

DOJ's attorney's should read their own report and consider the VA's very serious errors.

A little C-123 Agent Orange history:

• October 2011: teleconference with VA where they insist no possibility of C-123 veteran Agent Orange exposure

• January 2012: following request from C-123 veterans, CDC Agency for Toxic Substances and Disease Registry informs VA and USAF C-123 veterans experienced a 182-times higher exposure to dioxin than standards, and experienced a 200-fold greater cancer risk; VA dismisses everything

• May 2012: USAF School of Aerospace Medicine completes report demanded by C-123 veterans, finds no evidence of Agent Orange exposure or harm; "command interference" suggested by scientists associated with the study

• December 2012: USAF Surgeon General DECLINES request to notify C-123 veterans of potential exposures, stating, "Given the absence of a clear finding of potential harm, we believe it unnecessary to relay such individual findings to persons whom had entered or worked on C-123s between 1972 and 1982, and whom may be unaware of this assessment."

• January 9 2015: National Academy of Sciences Institute of Medicine reports C-123 veterans were exposed to harmful amounts of Agent Orange, repeating the CDC report that C-123 aircraft were unsafe in American airspace and should have been grounded, and the aircrews should have been flying them in full HAZMAT protection, not simple NOMEX flight suits. IOM also concludes the May 2012 USAFSAM C-123 report was scientifically flawed

• After four and a half years of foot-dragging VA begins awarding C-123 veterans Agent Orange exposure benefits, having denied them all medical care and other benefits prior to June 18 2015, and forbidding any retroactive compensation

VA Explains How It Arranged to Avoid Retroactive Benefits. An Exercise in Disappointments!

(from email received from Veterans Benefits Administration on Tuesday June 23; Names redacted and quoted by permission)

Wes, I've been working on the C-123 issues on behalf of Dave Mxxxx and Dave’s asked me to respond directly to you.  

Unfortunately, VA will not be able to extend any retroactive effect to Reservists’ disability compensation based on exposure to Agent Orange aboard C-123s.  

The June 19^th rulemaking was needed to establish Veteran status for Reservists based on the presumption that Agent Orange disabilities were incurred during active or inactive duty training, even though symptoms may have first manifested decades later.  

That rule was necessary to grant benefits, and so it is “liberalizing” and subject to the effective date provisions Congress enacted in 38 USC 5110(g), which provides that: 

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 

Under the statute cited above, VA can pay Reservists C-123 Agent Orange claims as early as June 19, 2015 if those claims are submitted, or initiated online via eBenefits.va.gov, by phoning 1-800-827-1000, or at a VA Regional Office public contact center, before June 19, 2016.  

We would urge any Veteran, former Reservist or Survivor whose C-123 Agent Orange claim was previously denied to submit a reopened claim for consideration under the liberalized rule. Former Reservists whose claims or appeals are pending right now will be entitled to benefits as early as June 19, 2015 if their claims are granted. 

We're sympathetic to your position that the VCAA and due process required VA to make available to decisionmakers the 2013 letter from ATSDR to JSRRC, but because C-123 Reservists were not Veterans in the absence of the rule published, and effective, June 19, 2015 rule, VA cannot provide benefits to former Reservists any earlier. 

I’m sure that’s not what you wanted to hear, but we’re bound by the law and the law is pretty clear here.

          /signed/ 

VA Hid DOD Confirmation of C-123 Veterans' Exposures for Two Years – concealed evidence vital to veterans' Agent Orange claims

VBA Agent Orange Desk Policy??

VA HID VITAL DEPARTMENT OF DEFENSE OFFICIAL CONFIRMATION OF AGENT ORANGE EXPOSURE EVIDENCE FROM C-123 VETERANS. (click for full source file of this report)

VBA's Agent Orange desk hid evidence from the Board of Veterans Appeals and US Court of Appeals for Veterans Claims! The personnel involved (staffers in the Veterans Benefits Administration) violated every trust a veteran is asked to have with the Department of Veterans Affairs. VA let valid C-123 veterans' claims be denied by withholding official DOD information which would have established service connection. VA thus insured through this arbitrary and capricious abuse of authority that all our claims were denied.

Revealed in VA emails and other correspondence released last week under the Freedom of Information Act are proofs of the intensity and creativity, as well as total disregard for veterans' rights, with which VA's Agent Orange desk in Veterans Benefits Administration fought all C-123 veterans' Agent Orange exposure claims.

This was done not as matter of law, nor even VA's own regulations, but because of the personal policy preferences of a few individual staffers.

"Quick...hide the Agent Orange evidence!"

VA's operations manual VAM21-1MR states that VA will ask DOD's Joint Services Records Research Center (JSRRC) to verify non-Vietnam War veterans' Agent Orange exposures. Vietnam War veterans are considered by law to have been exposed, but veterans exposed elsewhere have the assertions investigated by JSRRC. And JSRRC affirmed the C-123 exposures.

VA has had all this proof from JSRRC for over two years (March 13 2013 and perhaps earlier from veteran-submitted documents which VA ignored.) The agency never revealed anything to its regional claims adjudicators, Decision Review Officers, veterans, veterans service organizations, or VA's Board of Veterans Appeals where denied claims are reconsidered. 

Once the C-123 issue arose, VA was overly selective about what evidence it would accept from JSRRC, insisting it had to be contemporary military material only. In effect, VA was cherrypicking evidence from what JSRRC provided, accepting anything against the veterans, refusing anything helping the veterans. 

After VHA informed VBA of its position against honoring any C-123 veterans' claims, VHA Public Health staffers put out a web page (click...pre-2015 page) insisting their review of "all available scientific information" (actually, cherrypicked information to prove their own point) was against the exposure claims. VA then cited their own web page as proof in subsequent claims and BVA decisions. "It's true because we say it is, and the proof is that we said it." Simply put, this was policy-driven (non)scientific deception.

VA's web pages were false, and were finally modified to a more neutral tone on March 15, 2015. The Institute of Medicine confirmed the veterans' Agent Orange exposure and harmful effects on January 9, 2015 in its report to Secretary McDonald. VHA and BVA opposition to C-123 veterans' claims since 2011 was wrong. The dozens of reports from the CDC/ATSDR, NIH, universities, physicians and USPHS all were ignored or disputed by VA, but in the end VA was proven wrong.

Many federal agencies (including the deputy director and two successive directors of the CDC/ATSDR) and independent scientists had provided expert federal agency input to JSRRC hoping to get it to VA for proper evaluation of C-123 veterans' claims. To ignore these proofs, VA insisted to JSRRC the materials that only DOD materials offered were acceptable: No input from other federal agencies, universities, state governments or scientific associations would be acceptable to VA. 

We thought that senseless barrier had been resolved when two US Public Health Service physicians informed JSRRC...and USPHS commissioned corps physicians are military officers by statute. One was Rear Admiral Robin Ikeda (MD, USPHS) at that time Acting Director CDC/ATSDR. Another was Captain Aubrey Miller (MD USPHS) assigned to the NIH/National Institute of Environmental Health Sciences.

VA's Secretary Hickey was also visited by the Director National Institute of Environmental Health Sciences who discussed the science and veterans' exposure proofs. 

Mountains of legitimate, persuasive, and expert input, but VBA and its Agent Orange desk ignored it all.

Players: 

•at JSRRC, Mr. Dominic Baldini, Chief

• at VA, Manager, Agent Orange Desk, Veterans Benefits Administration

Documents:

• 2013 email between JSRRC and VBA's Agent Orange desk; JSRRC's chief provides confirmation documents adequate to approve claims. VA never acts on these and over years permits claims to be denied without providing them in fulfillment of VA's duty to assist every veteran's claim.

• JSRRC response on a C-123 veteran's exposure assertion; happens to be mine because I have no access to any others due to privacy protections. 

VA's VAM21-1MR states that VA will inquire at JSRRC for a veteran's exposure to be substantiated. It says nothing about whether VA must act on that but implies it. Nothing is said about VA not acting, however that clearly violates VA's statutory obligation to assist the veteran. 

For years, VBA callously permitted sick C-123 vets' claims to be denied, and their appeals to the BVA denied, without providing these readily available and affirming JSRRC materials which would have been so decisive in any fair forum. Amazing that DOD ad  "yes" but VA still chose to interpret that as the "no" VBA's Agent Orange desk prefered.

VBA repeatedly (2011 through late 2014) advised regional offices and VA personnel everywhere that there was no basis for VA to "concede" C-123 veterans' Agent Orange exposure. Because the Agent Orange desk refused to "concede" the veteran's exposure, that amounts to directions to regional offices to deny the claims, and many simply wrote, as on the Paul Bailey initial denial, "VA regulations forbid..." 

With Senate inquiries heating up the issue, VA later admitted it has no such regulation and no "blanket policy" against C-123 claims. Even today, VBA insists C-123 claims are handled on a case-by-case basis, yet on a case-by-case basis every single one is denied. Still, it certainly sounds like a blanket denial of all claims!

We ask our fellow citizens and legislators to remember that despite all the controversy and VA-pushback, C-123 veterans were eventually proven correct by the IOM C-123 report. VA was shown to be in scientific and procedural error in opposing reasonable claims. VA all this JSRRC and other federal agencies' proof in its possession since 2011, yet allowed exposed veterans to sicken and die by hiding the evidence.

VA treatment of veterans' rights

They had all the DOD evidence necessary for the benefit of the doubt, pro-veteran, non-adversarial confirmation of our exposures from 2011 on, but chose to ignore, denigrate or simply hide that evidence to insure their policy of "no C-123 claims will be approved" as per statements by VHA Post Deployment Health. VA used its rules against veterans' interests where desired, but freely ignored the rules when staffers had their anti-veteran personal agendas to pursue. These staffers should re-read opinions by federal courts that emphasis VA's regulation VAM21-1MR has the force of law...adhering to it is a veteran's responsibility and also VA's.

​Related topic:

DOD's Agent Orange contractor produced their 2006 list of Agent Orange storage, transport, manufacture and testing sites outside of Vietnam. DOD was asked by VA to provide this. VA cites it when confirming or denying veterans' claims for exposure in other than the Vietnam "boots on the ground" basis.

As part of his 2012-2014 $600,000 no-bid sole source contract with VBA, the contractor submitted a report, citing himself, which generally concluded no changes were necessary in his 2006 report. Each of his monographs produced under the contract confirmed VA policy, perspectives, opposition to various veterans' claims, etc. None challenged or suggested changes, improvements, nothing.

DOD (Armed Forces Pest Management Board apparently has responsibility) has refused per the AFPMB director to amend this list even with IOM, ATSDR and other proofs of additional sites, yet VA continues to cite it in denying claims and denying appeals at BVA.  (example one)  (example two) Both VA and DOD have refused to update this nine-year-old list.

Any "proof" cited by the government to provide or deny a citizen's rights should be accurate. This DOD list is not accurate and is fatally flawed, yet VA employs it to block claims.

How Board of Veterans Appeals Sinks C-123 Exposure Claims

The impact of VHA's Post-Deployment Health Section is felt throughout VA and the veterans' community. Especially, it is felt by veterans whose appeals to the Board of Veterans Appeals are torpedoed by the unscientific policy statements fielded by Post-Deployment Health.

Below is a BVA finding which touched on a veteran's exposure claim. Look at the wording used by the BVA judges, especially "reviewed all available scientific information..."

But Post-Deployment Health didn't review all available information. Instead, they were charged with creating policy statements to block C-123 veterans' exposure claims. That meant they selected materials which opposed the basis for C-123 claims, and ignored materials which supported the claims.

If a scientific reference doesn't support the policy of preventing C-123 claims, VA doesn't mention it. Anything supporting a veteran's claim is disregarded in favor of materials selected by VA to deny claims.

So "all available scientific information" is VA-speak for carefully selected materials to prevent claims, not actually all available information. If VA had opted to provide a more scientific basis for considering C-123 claims, they wouldn't have ignored input from the CDC/Agency for Toxic Substances and Disease Registry, the US Public Health Service, the National Institutes of Health, Oregon Health Sciences University, Columbia University and others. VA wouldn't have ignored VA researchers and physicians who affirmed C-123 exposures, or ignored juried publications including the February 2014 Environmental Research article.

The paragraph below is from a recent veteran's claim denied by the Board of Veterans Appeals, citing boilerplate language about how Public Health reviewed "all scientific information" when, in fact, Public Health disregarding all information supporting C-123 veterans' claims and cited only those materials agreeing with VA policy. Further, the quote proves the BVA itself disregards any evidence favorable to C-123 veterans.

Furthermore, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange.  VA's Office of Public Health is noted to have reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces.  It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.  See http://www.publichealth.va.gov/exposures/agentorange.

Compensation & Pension Exec Gets $11,000 Bonus for Defending Agent Orange!

VA's Veterans Benefits Administration includes the famed Compensation and Pension Service. Its director's bonus in 2013 was over $11,000 and over $20,000 with earlier years' checks. Well-earned? Perhaps so, but let's check.

In 2012, its director explained to C-123 veterans and the worlds of science and medicine that:

"In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects."

Really? This is reassuring, but wildly inaccurate even though it met VA policy objectives for denying exposure claims. Other VA executives and the entire Department of Veterans Affairs including the Secretary, consider TCDD to be a known human carcinogen. So do the CDC, NIH, EPA, OHSA, World Health Organization, National Institute of Environmental Health Sciences, National Toxicology Program and most middle school students. The Institute of Medicine confirmed C-123 veterans' Agent Orange exposures, and the harm to veterans who served aboard them, in their January 9, 2015 report.

TCDD, aka dioxin, is clearly not good for anybody. Not even veterans.

But Compensation and Pension's director wrote this statement in recommending his denial of an Agent Orange veteran's claim for Agent Orange medical care and benefits under the 1991 Agent Orange Act.

But perhaps the irony isn't immediately obvious: an Agent Orange claim was denied by C&P because, according to them (at least for the purposes of the veteran trying to get medical care) Agent Orange and its toxic component TCDD are harmless. No adverse health effects. Claim denied.

No adverse health effects. Except (well, by golly, according to the VA itself,) prostate cancer, diabetes, soft tissue sarcoma,multiple myeloma, B-Cell leukemias including hairy cell, Parkinson's disease, ischemic heart disease, Hodgkin's disease chronic lymphocytic leukemia, or non-Hodgkin's lymphoma. Plus peripheral neuropathy (acute or subacute), and a couple others which Compensation and Pension group into its "no adverse health effects" category.

Puzzled by this, veterans read it aloud, and showed the statement to the director of Compensation and Pension, in his office together with his staff, without any challenge or correction from him or them other than his statement that he wasn't familiar with everything leaving over his signature. This was on February 28, 2013.

His statement has been allowed to stand, and the veteran's claim remains denied and in appeal for three years. Three years have provided the director, and VA itself, ample time to amend or correct such an obvious error and anti-veteran missive. Some veterans' groups term this, "Delay, deny wiat
'till they die."

His bonus checks have probably been cashed already, the money long since spent. Certainly, denying veteran's claims is a VA money-saver which justified the bonus payments but it is not in line with what the Nation expects of the VA.

I've met the director of Compensation and Pension Service. One has to acknowledge the gentleman (he's a veteran himself) is, indeed, a hard-working and faithful public servant, but he seems more policy-oriented than veteran-oriented.

His policy as he explained it to Major Marlene Wilson and me: no C-123 claims were to be permitted, per VHA. And despite VA's assurances to Congress of C-123 "case-by-case" decisions, all have been denied per VHA. No claims been permitted – ever. Thus far, only DRO or BVA actions have permitted C-123 veterans to receive earned benefits and VA medical care. Every other claim remains denied or "suspended."

The TCDD veteran is still waiting for his claim to be reconsidered, the claim not even forwarded by the regional office to the Board of Appeals following the 2012 denial.

Appeals of bad decisions take three to four years in the VA system, with the greatest delay at the regional offices where claims sit for years before heading to the BVA. There, however, decisions are quickly resolved in just months. It seems delays are caused by volume, but also by design, allowing years to take a deadly toll of veterans already sick enough to have applied in the first place. Too often, veterans are sick enough not to survive the appeals process but continue in hopes of aiding their survivors.

Compensation and Pension Service, in ordering all C-123 claims denied (regardless of the language with which it was done, that was both the intent and the effect) disregarded VA's own assurances to Congress via the Federal Register that all non-Vietnam veterans exposed to Agent Orange were eligible for care.

Here is the entire paragraph in the opinion signed by the director, in which he summarizes (accurately? Read the Sinks letter and then C&P's summary) expert input to the VA from the CDC/Agency for Toxic Substances and Disease Registry. Nowhere in his summary of the CDC's finding does the director bother mentioning the CDC key points: C-123 veterans were exposed to 182-times the screening value for dioxin, and experienced a 200-fold increase in cancer risk.

Later, CDC reported to VA and DOD (repeatedly, by several subsequent directors of the ATSDR including Rear Admiral R. Ikeda, MD USPHS) that the C-123 veterans actually should have been flying in full HAZMAT protection, their airplanes were so contaminated with Agent Orange.

CDC-recommended C-123 aircrew and maintenance worker protection - FULL HAZMAT

Department of Veterans Affairs: "pro-veteran, non adversarial. All benefit of the doubt resolved in favor of the veteran." Thank goodness for the Institute of Medicine, and those worthy executives (specifically Under Secretary Hickey and Dr. Loren Erickson) in the VA who in2014 reordered the C-123 study, first promised by VA in 2012 but a promise forgotten once made but put right again by these folks. Again, thank you!

We agree that mistakes happen, even with veterans' claims as horrible as such cases may be. That's understandable. What is not understood and not forgivable is having the error pointed out (repeatedly, in writing as well as face-to-face) and yet the error allowed to stand for years! Wrongly denied veterans' claims mean financial loss, plus painful suffering and even death unless the vets can locate other care.

But "other care" can be hard to get for an Agent Orange veteran, even one blessed with solid health insurance. That's because most insurance carriers have a war clause and Agent Orange is a recognized weapon of war – thus no insurance, either. 

I am reminded of the famous quote from Upton Sinclair:

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

VA Defies NIH & CDC – Insists Dioxin is Harmless

The Department of Veterans Affairs defies scientific opinions from leading health experts at CDC, EPA, OHSA, the National Toxicology Program, National Institutes of Health, and elsewhere throughout the government. VA has refused veterans' dioxin exposure disability claims on the basis of dioxin being harmless. The veteran had claimed exposure to Agent Orange, which contained dioxin, the common name for the toxin TCDD.

"In summary, there is no conclusive evidence of TCDD causing any adverse health effects."

This statement summarizes VA's denial of a veteran's claim based on Agent Orange exposure aboard the Air Force Agent Orange spray C-123 transports, flown after the war until 1982. Agent Orange is simply harmless?

The summary is the official position of Veterans Benefits Administration executive Mr. Tom Murphy. Mr. Murphy is Director, Compensation and Pension Service, and heads VA's organization managing disability claims. His statement, over his signature, was read back to him at his office in February 2012, in the event of a possible misquote or typo. It was not retracted or modified and he allows it to stand as part of his decision to refuse VA medical care for an Air Force veteran's prostate cancer, a recognized Agent Orange exposure ailment.

Mr. Murphy did mention he could not be familiar with every document leaving his office over his signature, but again, permitted no change or modification of this unusual statement, even considering that it served as his basis for refusing medical care for a veteran's cancer, as well as several other ailments the VA associates with Agent Orange.

A year after being submitted, the veteran's claim was denied in 2012. The claim remains denied over two years later, still in appeal in the VA' s additional two to three year long process with the Board of Veterans Appeals. There, such an obvious scientific mistake is nearly certain to be corrected, but the process (called remand) merely sends the claim back to the original VA office with the errors pointed out and instructions to reconsider.

More years thus await a cancer victim seeking a VA's help surviving terrible illnesses. If he or she survives, it will only be because care was found somewhere other the the Department of Veterans Affairs.

Veterans who served in Vietnam are all presumed to have been exposed to Agent Orange and are provided care. VA had been asked by Congress and veterans service organizations about meeting the needs of veterans exposed outside Vietnam and three times via the Federal Register VA assured Congress that all exposed veterans are to be treated. Here, by pretending both that Agent Orange is harmless and exposed vets somehow weren't' exposed per the VA's unique definition of "exposure," VA's unofficial policy of blocking disability claims perfected. Why?

VA is determined, as its Deputy Chief Consultant of Post Deployment informed the Associated Press, with denying Agent Orange claims because, "You have to draw the line somewhere." Other federal agencies, such as the National Institutes of Health, CDC, OHSA and EPA, are concerned with health, not drawing lines over veterans' TCDD exposure claims. At VA, veterans' health and survival comes second to "draw line somewhere." In such denials, VA carefully considered the input received from Dow and Monsanto, who along with the VA's $300,000 per year Agent Orange consultant, strongly oppose veterans' exposure benefits.

This was strongly opposed by the Committee of Concerned Scientists and Physicians, with Dr. Jeanne Stellman of Columbia University as the corresponding scientist. The input of these dozens of experts was ignored because VA had predetermined (in VHA's Post Deployment Health Section) that all the claims were to be denied regardless of proofs and evidence.

Mr. Murphy was manifestly wrong in his statement regarding TCDD being harmless. Rather, TCDD is the most toxic and potent of the toxins.  To VA a denied claim, even if eventually overturned in the veteran's favor,  is a win-win situation because VA is able to deny medical care for many years in the process. Years when caring for cancer and heart disease patients becomes a very expensive proposition.

Here's what the National Institutes of Health tells us about about dioxin:

"TCDD dioxin is listed as a human carcinogen in the Thirteenth Report on Carcinogens published by the National Toxicology Program because it causes cancer, particularly lung cancer and non-Hodgkin’s lymphoma. 

Exposure to high levels of dioxins can cause reproductive and development problems, suppression of the immune system, increased heart disease and diabetes, changes in hormonal levels, liver damage, and abnormalities of the pancreas, circulatory, and respiratory systems. 

Exposure to low levels of TCDD can cause dermatitis, gastrointestinal problems, and excessive body hair. 

Exposure to low levels of all dioxins can cause a burning sensation in the eyes, nose, and throat; headache; dizziness; fatigue; blurred vision; urinary tract disorders; muscle and joint pain; impaired muscle coordination; nausea; and vomiting."

Here's what the Department of Veterans Affairs and Mr. Murphy tells us about dioxin:

 "Claim Denied." "In summary, there is no conclusive evidence of TCDD causing  any adverse health effects."  

The statement might be scientifically and medically wrong and absolutely contrary to experts throughout the government (as well as in the VA!) but Mr. Murphy's objective was met: VA drew its line and, as the VA and Office of Secretary of Defense Agent Orange consultant put it, veterans he considers "freeloaders, trash-haulers looking for a tax-free dollar from a sympathetic congressman" were told to seek care elsewhere...anywhere but the Department of Veterans Affairs.

Mr. Murphy's statement thus gets another claim out of the infamous VA backlog by the easy step of denying it, and helps resolve VA's budget and long lines in VA hospitals by keeping Agent Orange veterans' decisions denied as long as possible.

If only veterans could turn to Mr. Murphy to resolve their cancers with his pen as readily as he solves VA's problems.