"An unfortunate choice of words" – how VA denied Agent Orange claim by insisting Agent Orange is harmless

Just received from the Department of Justice: DOJ has summarized VA's response to our inquiry regarding the famous statement used by VBA Compensation and Pension to deny a C-123 veteran's claim. VA actually ordered the claim denied by insisting there is no evidence of Agent Orange and its toxic component TCDD causing human health injuries.

Now, DOJ says that was "an unfortunate choice of words." Unfortunate but still adequate, however, for VA to have denied the claim for five years!

One of the first C-123 Agent Orange exposure claims faced the determined opposition of VBA's Compensation and Pension Service, a determined opposition which continues even years later, despite all scientific evidence.

Opposition (guided by VA's go-to consultant Dr. Al Young) which has included even denying Agent Orange claims by insisting that Agent Orange is somehow harmless and that Agent Orange benefits specified by Congress in the 1991 Agent Orange Law for Agent Orange exposure with resulting Agent Orange illnesses...claims which are to be denied on the personal whim of VA staffers annoyed at veterans seeking care. (sorry for the run-on sentence.)

C&P's view was that C-123 veterans' Agent Orange exposures are to be blocked, despite meeting the requirements of the 1991 Agent Orange Act, and VA's own regulation VAM-21-1MR.

Portland's VA Regional Office forwarded a C-123 vet's claim to VBA's Agent Orange desk as required, with the field's recommendation for approval given the vast amount of supporting evidence and compliance with the law. Compensation and Pension responded with what has continued to be their blanket denial of all such claims. Here is what was just an early example of their extra-legal injection of personal attitudes into claim denials:

BVA Cites VA Consultant's Flawed Reports to Deny Veteran's Disability Claim

The Board of Veterans Appeals instructed the RO to refer the case to the JSRRC to corroborate the Veteran's claimed exposure. The list of DOD Agent Orange storage, transport and testing sites was compiled in 2006 by a consultant who disagrees with the harmful effects of Agent Orange exposure. The list is considered a DOD list because it is controlled by the Armed Forces Pest Management Board but mostly used by VA to confirm or deny veterans' claims for duty in such areas.

Problem: The list hasn't been updated in nine years and even the consultant in 2012 agreed it was obsolete and required extensive updating. VA is wrong to deny claims citing such an obsolete and unreliable document. VA must have agreed because in 2012 (a year BEFORE the claim below was denied) it provided a no-bid sole source $600,000 contract to the consultant for review of all such material.

"In March 2013, the RO also contacted the U.S. Army Garrison/Armed Forces Pest Management Board and requested that they verify the use of herbicides on or around bases in Okinawa, Japan, from February 1974 to May 1976 an April 2013 Memorandum, the Armed Forces Pest Management Board (U.S. Army Garrison Forest Glen) responded that a recently published report by Dr. Alvin Young titled "Investigations into Allegations of Herbicide Orange on Okinawa, Japan" provides the most complete data available on this subject. 

Dr. Young's findings were that there were no documents or records to validate that Herbicide Orange was shipped to or through, unloaded, used or buried on Okinawa. The internet link to the full report was provided. 

VA Compensation and Pension Service has reviewed a listing of herbicide use and test sites outside Vietnam provided to VA by the Department of Defense (DoD). This list contains 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. Testing and evaluations of these tactical herbicides were conducted by or under the direction of the U.S. Army Chemical Corps, Fort Detrick, Maryland."

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.

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.

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 Officials Asked to Designate C-123s as "Agent Orange Manufacture, Use, Storage, Transport" Sites

NOTE: 21 Feb 2015: Freedom of Information Act requests last week revealed DOD and VA agreed between themselves not to act on these requests.
(Letter sent to dozens of VA & DOD officials, seeking proper OPR action for such designations)

Dear Sir or Madam,

This Friday, the Department of the Air Force General Counsel informed us that it is the responsibility of the Department of Veterans Affairs to identify and list Agent Orange (military herbicide) sites associated with manufacture, transport, testing and use. Three times in two years we have sought just such a designation from LtGen Judith Fedder, DOD's OPR for installations, and each time have been told it is a VA responsibility. VA has repeatedly assured us, to the contrary, it is a DOD or AF function.

What is clear, from the DOD 2006 list, is that VA requested DOD to provide a list which was then prepared by a consultant (who has labeled Agent Orange veterans as "freeloaders, trash-haulers looking for a tax-free dollar from a sympathetic congressman. I have no respect.") through Battelle. He also sought and received an unbudgeted $600,000 contract through Veterans Benefits Administration on a no-bid, sole source two year deal for opposing post-Vietnam exposure situations on behalf of VBA and VHA.

In somewhat of a curious historical background, the consultant, in his capacity of Senior Agent Orange Consultant to the Office of Secretary of Defense, is credited by the USAF as being "the strongest proponent all along for immediate destruction without further testing" of the toxic C-123s in 2009, decades after they'd been designated by AF toxicologists as "heavily contaminated on all test surfaces" and "a danger to public health."

The VA consultant, towards the end of his two year contract, also assured the Institute of Medicine in June 2014 that the C-123s had been "decontaminated" after Vietnam although there is no documentation to that, and the suggestion runs contrary to Air Force tests over decades showing them still contaminated.

In reviewing the Air Force test results, the CDC informed the Institute of Medicine in June 2014 that aircrews should have been wearing full HAZMAT, or the airplanes grounded as unsafe in American airspace. The totality of this evidence of C-123 contamination exceeds that of nearly every site presently on VA and DOD lists.
• For instance, none of the vessels on VA's lists ever tested as positive for Agent Orange contamination, yet more than two dozen of our aircraft did.
• None of the Navy's ships were destroyed due to their contamination, yet all of our aircraft were.
• No Navy toxicologists testified in federal court that vessels were "a danger to public health," yet Air Force toxicologist Dr. Ron Porter did so regarding C-123s.
• No other federal agencies informed VA or DOD that Navy ships were contaminated and their crews exposed, yet CDC, NIH, USPHS, NIEHS and the National Toxicology Center have each so described our former Agent Orange spray aircraft.
• No naval ships were ever quarantined due to their herbicide contamination, yet all surplus C-123s were placed into HAZMAT quarantine at Davis-Monthan AFB.
• No US Navy ship were ever described by the Department of the Navy as "the Agent Orange ships" the Department of the Air Force referred to the C-123s as for decades.
• The EPA never proposed an illegal HAZMAT storage fine for naval vessels, yet EPA and AF JAG determined the Air Force was liable for a potential $3.4 billion fine for C-123s stored at Davis-Monthan, cited as partial authority for the unique destruction scheme in April-June 2010.

Accordingly, I request information as to the proper contact in your office of primary responsibility this function, as well as the criteria established for addition to the list, and your forwarding to them this request.

Please help us locate the authority by which Compensation and Pension rejects input from reputable toxicologists and epidemiologists, as well as physicians, who advised VA as to the contamination and exposure to military herbicides by C-123 veterans seeking who were seeking service connection for Agent Orange-presumptive illnesses. C&P stated these professionals lacked credentials to address medical nexus, but it is clear in VA 21-1MR as well as the numerous Federal Register postings that medical nexus is not a requirement for claims for VA-recognized Agent Orange illnesses. Was C&P unclear as to this requirement or did it seek to introduce conflict?

In a related matter, I'd appreciate any basis for which Compensation and Pension Service denies Agent Orange exposure claims with their statement, "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects." This statement seems to run contrary to VA's long-established position, as well as contrary to contemporary medical and scientific understanding. It also seems contrary to the requirements of VA M21-1MR, Title 38, the Federal Register VA postings, and the 1991 Agent Orange Law: how can Agent Orange claims still be denied on the basis of VA suggestions that Agent Orange causes no adverse health effects?

We understand that addressing these questions might cause some difficulty, but please accept that our veterans being refused VA medical care also causes difficulty, as well as suffering and deaths. At least, the VA officials receiving this email and its associated documents will have the relevant materials in their files for which future examination might prove useful in understanding years of delays, circumventions and obstruction of benefits sought by eligible veterans – or our survivors.

Respectfully,

/s/  Wesley T. Carter, Major, USAF Retired
Medical Service Corps
(former Stan/Eval Flight Instructor & Flight Examiner, C-123K aircraft)

The Army Proved the C-123 Exposures, Despite VA Dismissal

It was heavily downplayed by VA and USAF in their C-123 reports. The Army's Technical Guide (TG) 312, considered the "gold standard' in its treatment of surface contaminations was dismissed as irrelevant regarding implications for C-123 post-Vietnam veterans.

It had to be. TG 312 was too accurate, and too spot-on to simply ignore, as VA and USAF had ignored the expert input from other federal agencies. VA's agenda was, and is, to "draw the line somewhere" (VHA to the Associated Press 2014) and prevent any further Agent Orange exposure claims (VHA to Major T. Rudd, US Army Chemical Corps 2012.) Because it helped establish C-123 veterans' exposures, the Army's TG 312 was a hurdle before VA in blocking claims, so they simply tipped it over and went around. VA's stated policy objective regarding post-Vietnam claims was, as they've stated since the beginning, to prevent approvals.

The Air Force Times itself did a complete explanation of the whole mess, and VA's intransigence, with a full-page article and also its editorial echoing that of other major publications.

By careful selection of which references to use and which experts and other federal agencies to ignore, VA VHA formed their arguments to prevent claims, and against the veterans, rather than letting the full body of evidence be evaluated to form their policy.

VA dismissed TG 312 as having no relevance for the C-123 interior and the aircrews' exposure. The complex interior of the C-123, mind, is of aviation grade aluminum, painted aluminum, wood, canvas, leather, glass, adhesives, other metals, canvas, fiberglass, wrapped electrical cables...many different surfaces upon which Agent Orange and its contaminant, dioxin, penetrated over the Vietnam years and then began to degrade.

The slow degrading was through weak UV exposure, as well as dioxin's half-life, different on different surfaces. But it was there, for decade after decade following Operation Ranch Hand in Vietnam, through the decade we flew them (1972-1982,) through the next decade while Patches (#362) sat at the USAF Museum, until Patches was tested "heavily contaminated on all test surfaces" in 1994.

TG 312, along with the USAF toxicologists who actually tested Patches, clearly showed these former spray aircraft a toxic threat to the crews who'd flown them. So VA dismissed both. VA said the AF tests were not applicable to the rest of the C-123 fleet (which hadn't been decontaminated but was determined with repeated tests to be contaminated with Agent Orange,) and TG 312 was based on wipe samples which disturbed the surfaces testing tested and therefore was inaccurate.

TG 312 is the "gold standard" of the US Army, respected by virtually every government, university and independent toxicologist, but VA's goal was to insure it somehow did not apply to the C-123 because tests on the C-123s, evaluated against TG 312, supported the veterans' exposure claims, even VHA's unique redefinition of "exposure" to require bioavailability. And wipe tests prescribed by TG 312 had adjustments calculated for physical disturbance in the testing procedures, a critical point mischaracterized by VA.

But most tellingly, the bioavailability is addressed in the TG 312  equations.  The surface and airborne concentrations are multiplied by various factors to yield an estimated dose by the various routes of exposure. For example,  by the direct dermal contact route, specific to dioxin, TG 312 notes the dermal absorption factor is 0.001, perhaps less significant unless exposed to large amounts over longer periods  However, the major routes of exposure are dermal to oral and inhalation which bypass the dermal barrier.  So VHA Post Deployment Health and the VA/Dow/Monsanto consultant were only partially correct positing that via direct dermal contact dioxin is not readily bioavailable.*

Exposure by ingestion and inhalation, exposure and yes...also bioavailability. Less so by dermal contact which was still intensive over the decade working on these transports, but it was there, too. We were exposed, and there was bioavailability. As Yale Law and other legal scholars agree, C-123 post-Vietnam veterans who flew former Agent Orange spray aircraft met the legal and regulatory standards to present vet's exposure claims. In 2001, 2008 and 2010, VA even said so, but this was before the C-123 vets grew concerned about our exposures, so VA had to redefine the word "exposure" used in several Federal Register promises to treat exposed veterans, so that they could better pretend we weren't exposed.

But VA says, "NO." VA orders regional offices to deny claims, has its C&P Agent Orange Inquiry Desk return "recommend disapproval" responses to claims forwarded IAW VA 21-1MR,  and create web pages alluding to non-existent "scientific studies" which were merely selective literature reviews to form words around VA's "we cannot permit any C-123 claims," as per the Deputy Chief Consultant, VA Post Deployment Health. "VHA has told us no C-123 veterans were ever exposed," according to C&P's statement on February 28, 2013 in his office conference with C-123 veterans.

The recent non-release of the FOIA'd USAF C-123 records, in which only a handful of hundreds of white pages had copy left on them after nearly all information was redacted, a line showed that the point-of-contact the Army for TG 312 would like to follow and assist the USAF C-123 investigation – but all such information was redacted and we don't know any more.

Neither do we know much about the VA's $600,000 sole-source, no-bid two year contract  for post-Vietnam Agent Orange exposure claim prevention...so many pages of the contract were redacted when released by VA. Amazing: the US government opts not to release information about Agent Orange studies it pays to conduct to the veterans who have been exposed and who need that information to accept, or to challenge its conclusions.

One final observation: the VA sought out the US Army Public Health Command for input regarding its TG 312 and the two organizations communicated regarding the C-123s. We veterans also wrote the Army with questions, but our inquiries were ignored, both the formal letters and the emails. The Army Public Health Command has in its mission statement the duty to assist in this regard, but withheld that assistance except to the VA.

* email, Dr. Peter Lurker to Major Wes Carter, 23 August 2014

VA Denies Another C-123 Veteran Agent Orange Claim

Honoring its promise made us on February 28, 2013, the director of VA's Compensation Services (C&P) completed denial of my own C-123 Agent Orange service connection claim today. This completes C&P's 25 September 2012 advisory opinion provided the Portland VARO in which he directed opinions from toxicology scientists be disregarded because they weren't physicians.

The same advisory opinion also detailed the VA's one paragraph summary of the official finding of Dr. Tom Sinks, Deputy Director of the CDC/Agency for Toxic Substances and Disease Registry. Deliberately and evasively avoiding mention of Dr. Sinks' actual finding which stated "I believe that aircrew operating in this, and similar, environments were exposed to TCDD," C&P appends a sentence to that summary in a manner implying Sinks meant something altogether different: added was "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects" - a conclusion completely opposite Dr. Sinks' finding! VA also conveniently ignored (ignored to better deny the claims!) the ATSDR finding that C-123 veterans now face a 200 times greater cancer risk, thanks to exposure aboard the contaminated airplanes. 

This unscientific and prejudicial editing of another federal agency's finding was discussed in person with C&P's director and his staff on February 28 at his offices, but without comment, modification, retraction, denial or anything...other than his statement that he can't be personally familiar with every piece of VA correspondence over his signature. I understand, but I did bring it to his attention (without response) in November 2012, before it was used to deny my VA claim. While selectively applied to C-123 veterans, thank God VA does not apply that mistake about TCDD to other Agent Orange-exposed veterans.

Agent Orange, and its toxic component TCDD, are generally thought to be somewhat harmful, and considered a human carcinogen and one of the most toxic toxins on the planet. The VA, paying billions in Agent Orange veterans benefits, might consider applying the above paragraph in reconsideration of all those expenses if, indeed, there is no evidence of TCDD being harmful. VA might wish, however, to first run the issue past the Congress, the veterans organizations, the courts, the Institute of Medicine and their own executives. Perhaps...the statement of TCDD being harmless is applicable only in the instance of denying C-123 veterans our claims.

Completely ignored in today's denial of my exposure claim are expert findings in my favor provided by the University of Texas Medical School (Dr. Arnold Schecter), the EPA, the NIH, Dr. Jeanne Stellman, Dr. Fred Bowman (Oregon Health Sciences University Toxicology Department) and other highly esteemed scientists. Ignored completely are the numerous juried scientific articles establishing the TCDD contamination of the C-123, the bioavailability of that TCDD, the routes of exposure as having been dermal, inhalation and ingestion, and dozens of other proofs. Best dealt with by the VA by ignoring them as opposed to acknowledging the fact of the matter...C-123 veterans were indeed exposed to Agent Orange.

VA Exposure Expert

The question of "exposure" is pivotal. The VA utilized its own special in-house extra-legal (even though the issue has already been adjudicated and resolved, and VHA is not free to redefine such things and VBA isn't supposed to approach veterans claims with a VBA predetermination for denial) definition of exposure, being in effect "no C-123 exposure is ever going to be acknowledged." Science, however, more correctly defines exposure as "the contact between a chemical or biological agent and the outer boundary of an organism." Quite simple, and according to the NIH adequate to establish that C-123 veterans were exposed to Agent Orange to the complete satisfaction of the law. 

Typical C-123 Veteran

The law? Forgettaboutit! The Agent Orange Act of 1991 and subsequent modifications, in particular the May 2001 VA promulgation of Title 38 (as detailed in the Federal Register) clearly spell out that VA will treat veterans exposed to Agent Orange outside the Vietnam "Boots on the Ground" group the same as the Vietnam veterans, and without having to establish medical nexus. Thus, given (1) our doctors' proof of Agent Orange-presumptive illnesses, and (2) the Air Force proof of the C-123 Agent Orange contamination, the only way for the VA to shoot down our claims is to (3) deny exposure. Deny, deny, deny.

Today, the VA Compensation Services locked on and fired, just as they promised they would for any C-123 veteran hoping to establish service connection for Agent Orange exposure.

Next step? Board of Veterans Appeals, at least, for any of our members surviving to present their claims after the typical five year waiting period which follows the two years wasted thus far.

They Shall Not Pass: VA Official

1918 French Soldier at Verdun

They shall not pass. This, the famous pledge by French military leaders in World War I as they defended the famous fortress city of Verdun from the attacking German army. Over 200,000 lives were lost, but the fortress city held, and eventually France was victorious.

They shall not pass. This, the true meaning of the infamous quotation below made by the Director of the VA Compensation Services, as he dealt with C-123 veterans' Agent Orange exposure claims. In his September rejection of my own VA claim, he challenged science and medicine with his statement:

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

"I don't frickin' believe it" this, the first comment received from an internationally-respected dioxin scientist, reading in shock the director's surprising comment. Believe it, sir. the director wrote his comment in a very formal denial of benefits, addressed to the Portland  (OR) Regional Office of the VA. The director's effort to "correct" countless scientists, physicians, and legislators would seem to be tilting at windmills, but for the fact that the director is the very fellow to make the VA decisions. And I don't frickin' believe it either!

In French, "Ills ne passeront pas/On ne passe pas." They shall not pass. Such determination of French military leadership in 1918 cost the lives of 200,000 troops...a price they were willing to pay. Compensation and Pension seems equally determined with its own "They shall not pass" position prohibiting consideration of C-123 veterans' dioxin exposure claims, but here the suffering this statement costs will be our own...not VA's. 

VA defies the world by denying TCDD is the most toxic of toxins, the most dangerous toxin on earth and a Class 1 carcinogenic. VA's statement tries to prove wrong the collective judgements of medical, scientific, environmental, legal, and legislative leaders. But, however deceptive, this statement stands because, not of its truthfulness but merely because of the director's position. It is yet another nail in our coffin and evidence of the VA's determination to prevent additional veterans turning to it for medical care. They shall not pass!

Not on his watch!