How VA Obstructed C-123 Agent Orange Claims, 2007-2015

Maybe it was foolish, or maybe too naïve of us to expect that once we had Agent Orange (AO) contamination proof of our C-123s, we would give it to VA and approval of our disability claims would quickly follow.

That foolish expectation of approved claims died a sudden death! As soon VA heard our first inquiries their barriers went up. VHA’s Dr. Terry Walters told the Associated Press, “We have to draw the line somewhere.” This was in addition to VA ignoring its duties under VCAA and the VA’s regulation VAM21-1MR

Those “lines” she spoke of were all firmly set against our claims. VA kept adding to their list of objections to our claims. VA denied every C-123 claim, all while claiming a “case-by-case” evaluation. The Institute of Medicine C-123 report finally moved the VA to do right by us in June 2015!

Let’s look at the many twists and turns VA put us through, the baseless barriers created to block our claims. It only took a small handful of VA opponents …Compensation & Pension in VBA plus Post-Deployment Health in VHA…maybe seven folks at VA who believed it their mission to refuse our claims. 

In the end, only one VA objection threw at us had any merit: they said, as reservists, we weren’t “veterans” and thus weren’t covered for exposure benefits. This point we're still debating in the courts.

VA issued their interim final rule to provide that veteran status and presumptive eligibility in June 2015. That rule finally protected our vets with Agent Orange-recognized illnesses.

VA’s Long List of empty excuses to block our Agent Orange claims:

1. No Agent Orange on C-123s
2. No medical nexus between C-123 residues and our illnesses
3. VA only considers exposure if to liquid Agent Orange, not dust or solid
4. Exposure threat based on only one airplane (“Patches.”)
5. VA studies show insignificant harm to Vietnam Agent Orange spray crews from Agent Orange, so the less-exposed C-123 crews have no basis for claims.
 6. C-123s may have been AO contaminated but was in a form harmless to crews, requiring special chemicals and hard scrubbing to dislodge.
7. No Joint Services Records Research Center exposure event confirmation
Not statutory veterans.
8. VA regulations prohibit acknowledging C-123 exposure claims.
9. VA does not acknowledge C-123 exposures.
10. Post-Deployment redefined “exposure” in a unique way, requiring proof of “bioavailability” of the toxin to acknowledge exposure. They said,  “Exposure = contamination + bioavailability.” “No proof of bioavailability = no exposure.”
11. VBA Compensation and Pension claimed, “most scientists” disagreed with C-123 exposures (“Most” meant Dow, Monsanto, VHA Post-Deployment Health) Opposing them were CDC/ATSDR, NIH, USPHS, NIEHS, Concerned Scientists & Physicians.
12. Post-deployment health already decided veterans were not exposed
13. VA is unable to document which airplanes contaminated & which veterans flew
14. C-123 reservists aren’t veterans (for the period flying C-123s, 1972-1982.)
15. In addition to typical wait of one-two years to decide a claim and five more before a BVA decision, VA opted to not work C-123 claims until IOM report even after JSRRC exposure verifications in 2013 and 2014.
16. Then-Secretary Shinseki “felt non-Vietnam claims shouldn’t be approved.”
17. VA misled Senate Veterans Affairs Committee with error-laden C-123 “Fact Sheets”
18. VBA paid a consultant $600,000 to “investigate allegations” of Agent Orange exposure; that consultant wrote vets claiming Agent Orange exposure were “trash-haulers, freeloaders” for whom he “had no respect.”
19. VHA told Associated Press “a line had to be drawn somewhere” on C-123 Agent Orange claims
20. Per Compensation & Pension Service, VHA had already decided no C-123 vets were exposed and no amount of proof would permit claims to be approved.

…and many more. We had to argue or disprove every one of these and were denied the claims assistance assured us in its Federal Register announcement about non-Vietnam Agent Orange exposures. Their biggest deception:

"VA will assist a veteran in obtaining any relevant information related to a claim for exposure to herbicide agents."
(Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008)

HEY VA: Your “Assist” Never happened!

THREE MORE BROKEN VA PROMISES

Reservists Suffering Exposure Injuries Not Eligible for VA Medical Care, Insists VA Official on March 6, 2017!

In his December 2016 and March 2017 presentations to the VA's Advisory Committee on Disability Compensation (ACDC,) Mr. James Sampsel clarified the VA prohibition on reservists and National Guardsmen receiving VA medical care or any other disability benefits for exposure incidents causing illnesses or injuries.

"As to whether somebody actually got exposed to Agent Orange, that's a different matter. There's a presumption of exposure for Vietnam veterans. It goes back to the Agent Orange Act of 1991. That is codified at 38 United States Code 1116."

"We have presumptions for certain groups and, then, we have individual case-by-case-acknowledgments." C-123 veterans know from four years' experience that his promised case-by-case evaluations only meant four years of blanket denials – 100% – and his instruction to ROs' that VA would not "acknowledge" any C-123 disability claims.

"Reservists do not qualify under VA law for Agent Orange long-term benefits," he assured the committee.  "That's a statutory thing. If you're a reservist, any disability you get has to occur, be directly related to your period of active duty or training, because that's what their service is called. 

Under VA law, that doesn't count for some disability that occurs 20 years later, 30 years later." 

 Or even two weeks, as I learned in 2015 from VA Office of General Counsel. No protection at all for exposure injuries wth delayed onset of symptoms.

The general topic at ACDC was Agent Orange exposure but the same VA answer applies to other biohazard exposures. Reserves and guard are on their own when an on-duty exposure of any sort (toxins, bugs, smoke,  POL, whatever – known or unknown) leads to a subsequent illness after release from duty. For any VA protection, the exposure injury must be evident before taking off the uniform.

Example: an Air Guard unit flies a humanitarian mission to West Africa and the crew returns to CONUS and goes back to civilian status. Two weeks later they develop Ebola. VA will refuse them medical care and deny their families survivors' benefits as well.

Why? Because VA only cares for veterans. It may care about all of us, but it only permits care for veterans meeting statutory definitions.

Guard and Reserve time usually don't convey statutory veteran status so because the law clearly states "veteran," the time of exposure is not a time during which the person isn't serving as a veteran, no benefits. One might have qualified as a veteran before or after the exposure but that might permit only medical care, not disability compensation or family benefits. 

There's an easy fix for this: the military service involved can issue a simple line-of-duty determination when an exposure event occurs. Only the exposure is specified, and it may or may not lead to subsequent illness. VA respects the LOD for the exposure event and should an illness develop in the normal course of the exposure, statutory veteran status is established: 

LOD (as proof of exposure) + illness ("more likely than not" diagnosis as caused by exposure)
= veteran status necessary for benefits.

Why would the military want to go along with this? Because they recognize that line of duty regulations serve largely to protect the veterans benefits due a servicemember. Also, the pure and simple justice of caring for servicemembers exposed on duty who otherwise are left to bear the burden of the environmental hazards they encountered. 

There is no "freebie" in this, but rather only the government properly caring for those injured in service whose exposure injuries are manifested only in the course of time after exposure.

In the Air Force line-of-duty regulation (AFR 36-2910) key items stand out:
1. "The Secretary of the Air Force, or his or her designee, may revise any determination made under this instruction." 
2.  "An LOD determination protects the interests of both the member and the United States Government"
3. "Veteran Benefits. The Department of Veterans Affairs (VA) may use a member’s official military records, including any LOD determinations when determining veteran benefits (38 U.S.C.)
4. "ARC only. After release from active duty or IDT, members have 180 days to ensure any illness, injury or disease that was incurred or aggravated while in a duty status is reported for LOD determination consideration." "The only avenue for addressing previously unreported illness, injury or disease is through the VA." Medical determinations relating to the etiology and onset of a disease or condition may constitute clear and unmistakable evidence when supported by the weight of medical literature."

How can we make this happen to protect reserve and air guard personnel? Have the Secretary of Veterans Affairs give the Secretary of Defense a phone call. 

Let the two of them duke it out. Until then reservists volunteering for duty where a bioenvironmental hazard might exist must consider the medical and financial consequences when the VA abandons you. Get sick, or even die, and the VA says, "You're on your own."

Whatever happens, just don't let Compensation and Pension Service wade in to do what they do best: Deny Claims!

Note: 38 CFR § 3.301 "Line of duty and misconduct."
("a)Line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs."
ANSWERS:
1. Were our exposures in the line of duty? Yes.
2. Was there misconduct, drugs or alcohol? No.

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.

Finally Heard from VA – HURRAH

Good work, VA!

Yesterday I received a call from a VA service officer to discuss my Agent Orange claim. First submitted in 2011, it was personally denied by Mr. Tom Murphy's comment that TCDD (the toxin in Agent Orange) hasn't been shown to be harmful to humans. Mr. Murphy wrote that CDC, EPA, NIH, DOD, the National Toxicology Program, US Public Health Service, and the dozens of independent scientists and physicians confirming our exposures were all unqualified to confirm C-123 veterans' exposures.

Mr. Murphy insisted he was right, and the scientists and government agencies, including the Department of Defense, were wrong. In his office on February 28 2013, Mr. Murphy explained the issue had already been decided by VA's Post Deployment Public Health group in Veterans Health Administration and that no C-123 claims were to be approved. None. That's apparently what VA leaders meant by "every C-123 claim evaluated on a case-by-case basis" when the Senate accused them of a C-123 blanket denial policy. Clearly, VA had a universal blanket denial of C-123 claims, however VA chose to describe their 100% denial record.

Mr. Murphy's insistence that Agent Orange was harmless, later referred to by VA officials as "an unfortunate phrasing," doomed the claim despite reams of medical and scientific justification which first led the Portland VARO to recommend approval. Apparently VBA's Agent Orange Desk was the originator of the Murphy opinion, and for years that staffer wrote that VA had "an overwhelming preponderance of evidence against C-123 claims...not because there was any such evidence but because he felt the claims must be prevented. Actually, the overwhelming preponderance of evidence was, as the Institute of Medicine concluded, C-123 veterans were exposed and were harmed.

My claim for Agent Orange benefits per the 1991 Agent Orange Act to address Agent Orange illnesses caused by Agent Orange exposure was denied because Mr. Murphy wrote that Agent Orange is harmless. A great surprise to science and medicine which consider TCDD a potent human carcinogen.

So, too, does the CDC. They wrote VA that C-123 veterans were exposed to Agent Orange at 182-times safety threshold, and face a 200-fold greater cancer risk. Mr. Murphy wrote that CDC was not qualified to comment, nor were any other scientists qualified to comment. On February 28 2913 he explained to me that VA had already determined none of the C-123 claims were to be approved. Regardless of the amount of evidence from whatever source, every claim was to be denied because VHA Post Deployment Health had already decided the issue. Mr. Murphy expressly stated that no amount of evidence would suffice...the decision was already made to deny every C-123 claim.

Compensation and Pension ordered my claim denied. They didn't use those exact words...they just said it couldn't be approved. Seems like the same thing to me. Then VA insisted to everyone that each claim "was carefully evaluated on a case-by-case basis" before it was automatically denied.

So yesterday was wonderful. I had a good conversation with an expert claims worker and now I feel encouraged that after more than four years, my claim seems to be moving along. VA is also looking over my appeals, so perhaps those won't have to wait more years in the BVA queue.

"VA Must Get It Right Next Time" – Springfield Republican Editorial

(Editorial June 20, 2015, The Springfield Republican)

"The men and women who serve their country with military service should never have to plead, beg or lobby for their benefits.

The Department of Veterans Affairs must run efficiently and according to law, but in this case, it emerged as the adversary of the veterans, not their representatives. This, too, cannot be. 

The veterans won a long fight they should not have had to wage. The VA got it right in the end. Its next mission is to get it right in the beginning."

Now, we need an investigative reporter to tell "the rest of the story."

IOM C-123 Report Makes Its Way Into Board of Veterans Appeals Decisions

IOM C-123 Report to VA

In January the Institute of Medicine C-123 Committee report was submitted to the Secretary of Veterans Affairs, and as we can see below, it now is being referenced by the Board of Veterans Appeals, veterans' advocates and board attorneys.

This is something I hadn't thought about...but I"m very glad that other veterans might find the IOM results, or any other part of our work these past four years, useful in their application for benefits.

Another thing I hadn't anticipated: This appeal was from a Vietnam-era Thailand AF veteran, so its interesting that somebody besides our own 2100 men and women post-Vietnam aircrew would benefit from the IOM report before any of us!

IOM C-123 Report cited in May BVA decision

VBA's Inter-VA Deceptions?

There is a years-long paperwork trail of apparent VBA deceptions trashing C-123 veterans and our Agent Orange claims.  Here's just one example, written in April 2013 to other members of the VBA staff. (Note: six weeks after the gentleman received the JSRRC email confirmation of our exposures.)

The writer, manager of the Compensation & Pension Service Agent Orange Desk (VAVBAWAS/CO/211/AGENTORANGE [Agent Orange Mailbox]) provides some details about VA's policy of denying  C-123 veterans' Agent Orange exposure claims. He defends VA's position with generally accurate statements, but the deception arises from what he fails to report and how he characterizes points he makes. He wrote about Senator Burr's (R-NC) letter to SECVA:

 "Burr is supporting Wes Carter, who has obtained statements from several scientist stating that the post-Vietnam C-123 crews were “exposed” to AO TCDD. Carter also has an equivocating letter from ATSDR indicating “exposure” may have occurred but long term health effects are unknown. On the other hand, CS has scientific statements from Dr. Alvin Young and unsolicited statements from two other toxicologists refuting “exposure” and Carter’s supporters. 

Burr is arguing that VBA should consider the evidence to be pro and con and provide the benefit of doubt to these Veterans. Burr has adopted our language of “case-by-case’ determinations and does not want CS to have a definite stance against Carter and the other post-Vietnam crew members. His letter asks how we will implement this case-by-case plan."

The single largest deception above is referencing scientists supporting the veterans' exposure and those who opposed it. After mentioning that several scientists stated C-123 veterans were exposed, he then details arguments from Dr. Alvin Young and unsolicited statements from two other toxicologists refuting "exposure and Carter's (my) supporters. It is disappointing that none of the recipients of this email did anything to correct it or inquire further about us.

To make his point more effective although not more accurate, the writer opted to leave off the fact that Carter's supporters included the CDC, NIH, USPHS, EPA, dozens of scientists and physicians and university researchers. He pointedly did not reference the March 12 2013 confirmation of C-123 exposures issued by the DOD/JSRRC to the writer six weeks earlier.  That DOD evidence was so substantial, and so pivotal to VA's published requirements in VAM21-1MR to confirm Agent Orange exposures, that the writer and VA withheld it from veterans altogether.

At the least, the writer should have stated that VA was faced with significant opposition to its position opposing C-123 veterans' claims. This is especially clear with the January 9n2015 Institute of Medicine report to Secretary McDonald which disputed the VA's position and stated, "with confidence," the C-123 veterans were indeed exposed despite the VA policy of disputing any such claims.

Understandably, the writer wished to persuade and inform his colleagues. There was a complete failure because his colleagues learned not a whit about overwhelming evidence in conflict with VA's position.It is not easy to understand is why he felt it best done by withholding significant facts if in disagreement with VA policy.

Not at all easy to understand is how any action by this writer or his section at Compensation and Pension can be described as non-adversarial, when this memo and others from his desk clearly clearly are policy-driven overrides of any facts supporting veterans' exposure claims.

Official Records: VA Deception & Error Denying C-123 Exposure Claims

VA Deceptions & Errors Blocked C-123 Veterans’ Valid Exposure Claims (CLICK for this report)

"Oops...my bad. I apologize!"

These polite words, essential in any civil discourse, are words you'll never hear from the Department of Veterans Affairs, especially if you are a C-123 post-Vietnam veteran. About 2100 men and women veterans who flew and maintained Air Force C-123 transports between 1972 and 1986 became VA's targets. Targets in which eight years of veterans' valid disability claims were fought with VA skill, VA determination, VA funding and at times, deceptions. 

Here's our longest and most detailed blog entry in four years, detailing VA actions and inactions against C-123 veterans.

VA was proved wrong on every one of their attacks with the January 8 2015 Institute of Medicine C-123 Committee confirmation of C-123 vvaneterans' Agent Orange exposures to the Secretary of Veterans Affairs.  IOM proved VA wrong on eight years blocking medical care and other benefits rightly due C-123 veterans.

Although disappointed, a few VA staffers in Veterans Health Administration (Public Health-Post Deployment Health) and Veterans Benefits Administration (Compensation & Pension Service) take professional pride in blocking C-123 claims as long as they did. Even though VA was wrong. (note: I think highly of Post Deployment Health's War Illness and Injury Study Center; I was a grateful patient at their Palo Alto clinic this week last year.)

VA was wrong about the airplane exposures, but only C-123 veterans and their survivors paid and continue to pay the full price for VA errors and deceptions. VA staffers shrug their shoulders and carry on, unapologetic, unpunished, attitudes unchanged. 

Veterans have learned there is no catch-up for health damaged in years of VA refusing medical care, locking its hospital doors when C-123 vets sought entry but were refused.

In a perfect world of VA and veterans, both sides would be celebrating a mutual victory of eligible veterans finally welcomed into the VA embrace for medical care and other vital benefits. In a perfect world, one in which VA staffers more closely embrace, rather than abuse, VA's own mission statement, this would have been our mutual goal from the beginning and the struggle would have been years shorter. And we could have focused on our families and our medical concerns instead of wasting too many of our remaining years doing what the VA should have done for us at the beginning.

Of course, in the very best of perfect worlds where there's a pro-veteran VA, there'd have been no struggle because VA should have simultaneously discovered the problem and implemented a solution. Veterans should never have to go through what we've endured. VA should never have been an opponent but rather, our own impassioned advocate! That sea-change that would require VA staff embracing their own mission statement. 

VA's document trail, read in light of the affirming IOM C-123 report, makes that so clear. Years of VA articles, reports and presentations are proven wrong. On March 17 2015, Secretary McDonald signed a memorandum acknowledging the IOM report's recommendations.

Key point: Veterans were correct. VA was wrong.

One has to think that if all this were laid out in a federal court case, the judge would ask VA, "Aren't you charged under the law with 'Integrity, Commitment, Advocacy, Respect, and Excellence?'"

VA would answer the department saved some disability funds by keeping money from veterans and widows or widowers who earned and need it, and kept appointment lines shorter by keeping C-123 veterans out of VA hospitals. Hardly an acceptable answer nor one the public would embrace. It is, truthful answer.

Let's look at these VA barriers to veterans' claims. There are many document errors, and careful reading lets most stand out. Some are especially deceptive or benefit from explanation. There are dozens of such documents recently released under VA-opposed Freedom of Information Act requests, but this report will examine only a handful. As time allows, more will be examined and added. So, from the worst down:

1. "Veteran failed to prove his C-123 airplanes were the ones used in Vietnam for spraying Agent Orange." (BVA denial of C-123 exposure appeal, filed 2007 and denied 2011.)

We see here VA's failure to assist the veteran in gathering necessary military information to support a claim. LtCol Tim Olmsted's exposure claim was denied with the statement above, yet in 2011 it only took a telephone inquiry to HQ Air Force Reserve Command to confirm all the tail numbers and then compare to the Air Force list of former Agent Orange spray C-123s. A parallel inquiry to the Air Force Historical Records Agency got a response by email in two days. Comparing the list of C-123s assigned to Olmsted's unit showed him flying hundreds of hours in contaminated aircraft. 

So why didn't VA do its duty? Because it would have meant helping a disabled veteran and the decision was already made by Veterans Health Administration that no such claims were to be honored. Still today we don't know why Tim Olmsted's claim wasn't better supported by the Disabled American Veterans but in any case, VA had the duty to obtain these easily-located records which would have proved Tim's claim before his death.

In 2015, Mrs. Olmsted was assured by VA of the proper reconsideration of Tim's claim, a full ten years after its wrongful and deceitful denial.

2. "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects." (Compensation & Pension Service advisory opinion, 2012)

VA Headquarters directed a C-123 veteran's claim be denied, citing many reasons but pretending TCDD is harmless stands out. Elsewhere in VA where physicians and scientists have a voice, TCDD is considered a potent human carcinogen. WHO, EPA, NIH, CDC, US Public Health Service...the opinion is universal that TCDD is harmful, and here Compensation & Pension (C&P) merely pretended otherwise and doomed the claim.

By asserting that TCDD, the toxic part of Agent Orange, is harmless, one can see the intensity with which VA opposed C-123 exposure claims when reading the entire paragraph which summarized the CDC confirmation of the exposures. CDC concluded the veterans had a 182-times greater exposure than military limits, and had a 200-fold greater cancer risk than screening values. Pretty bad – instead here's how C&P characterized (clearly, mischaracterized) CDC:*

The same advisory opinion refused to accept input from any non-physician scientists, including the Director, CDC/Agency for Toxic Substances and Disease Registry (ATSDR.) This violates a ruling by the 8th US District Court regarding scientists' input in federal cases. 

It is quite revealing of VA attitudes, and the intensity C&P had in opposing the claim. CDC said vets were exposed, but VA summarized the CDC finding by saying vets weren't' exposed. That's deceptive. The claim was denied in 2012 and remains in appeal, facing more years of delay.

3. Fact Sheet Regarding Processing of Disability Based on Agent Orange Exposure Aboard C-123 Aircraft Outside the Republic of Vietnam." (VA response to Senator Burr, June 2013)

Drafted for the Secretary by VBA's Agent Orange desk and in response to Senator Burr's formal inquiry, Secretary Shinseki's letter included a formal "fact sheet" upon which VA laid out is objection to C-123 claims.

But those objections were false. The link for Number 3 includes an analysis of the fact sheet, with the most significant of 24 VA errors including:

• Fact sheet claimed "several scientists" came forward unsolicited and supported the VA. In fact, there were only three and each was paid either by VA or Dow and Monsanto. In opposition, dozens unpaid of physicians and scientists laid out the facts behind the veterans' exposure. Joining this "Committee of Concerned Scientists and Physicians" were other federal agencies (CDC, NIH, EPA, USPHS,) and renowned Agent Orange researchers such as Dr. Arnold Schecter at University of Texas Medical School.

Further, the only juried article investigating the post-Vietnam Agent Orange C-123 exposures concluded that the veterans were exposed, and dismissed VA's twisted revision of the term "exposed."

• Fact sheet claimed contamination was found in only one C-123 (Patches.) In fact, many different tests were done and in one, 14 of 17 aircraft were contaminated with dioxin. Another test of four of the quarantined C-123s identified two which were contaminated and two which weren't. The expensive testing of the rest of the fleet was halted without examination of the others, and the results mischaracterized as "only two of all the C-123s were found to be contaminated" without mention that only four were tested and the two uncontaminated airplanes were known to have never been in Vietnam. In 2010 all the aircraft were destroyed as toxic waste at the recommendation of the VA/USAF Agent Orange consultant. A huge motivator for USAF action was the threatened $3.4 billion dollar EPA fine for illegal HAZMAT storage of the quarantined C-123 aircraft at Davis-Monthan.

In 2011 USAF informed VA that all prior testing had been done with concern only for contemporary museum worker exposures, not to consider prior aircrew exposures, and even in the last comprehensive tests (1996) fourteen of seventeen aircraft were too contaminated to permit worker entry without full HAZMAT protection. This is a quarter century after the last spraying of Agent Orange. IOM concluded dioxin levels were higher in the earlier years than when tested in the '90s. The scientists who completed the 1994 original testing also concluded the airplanes too toxic for anyone to enter without HAZMAT, and confirmed this in 2011.

Assisting in the Air Force's 2011-2012 study, Post Deployment Health provided a set of documents prepared by Dr. Al Young which argued against all harmful Agent Orange exposures, despite assurances to the Senate that each agency was to be independent in their C-123 assessments.

• Fact sheet claimed VA had conducted a "scientific investigation" of the C-123 exposure issue. To date, VA has been unable to locate that investigation to comply with a federal court-supervised Freedom of Information Act lawsuit. The investigation actually consisted of VHA's Post Deployment Health unit simply picking literature which argued against exposure, and disregarding all literature which argued for the veterans' claims. They did no research...no science...merely a literature survey with the objective of dismissing everything not supporting the VA's predetermined objective. From the Agent Orange desk:

Most deceptive, over a four year period VA disregarded expert input from directors of the CDC/Agency for Toxic Substances and Disease Registry that directly confirmed exposures. Post Deployment Health has maintained since the first inquiries in 2011 that no possibility existed of harmful exposure. The only "investigation" was deciding how best to oppose veterans and then posting the VA web pages. All input from veterans, outside physicians, scientists, federal agencies, and university researchers was deemed "unreliable input." 

• Fact sheet failed to mention that in March 2013, the DOD Joint Services Records Research Center (JSRRC) had officially confirmed to the staffer writing the Secretary's Fact Sheet that ample evidence existed at DOD for VA to provide regional offices to confirm C-123 claims. JSRRC even forwarded copies of evidence. 

This JSRRC response satisfied VA's own regulation VAM21-1MR for official confirmation of exposure (M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10[n]) but instead lay carefully hidden in the Agent Orange desk's files until forced into the open by court-supervised FOIA compliance. Repeat...the staffer in charge of the VBA Agent Orange desk, who wrote Secretary Shinseki's error-laden June response to Senator Burr, withheld the fact that DOD had confirmed the exposure three months before. Between March 2013 and today VA still has not acknowledged receipt of JSRRC exposure confirmations.

4. Each claim considered on a "case by case" basis.

This is VA's standard position on claims about exposure in situations not covered by statutes, rules, regulations or presumptions about exposures. Veterans have responded that VA has a blanket policy refusing all C-123 claims and the "case by case" evaluation doesn't exist. Indeed, VA's defense is empty because VA has officially informed its regional offices that no basis exists to honor C-123 claims. So, "case by case" evaluation meets "no basis exists to honor claims" with the result being 100% of all C-123 claims have been denied. Here's how C&P's Agent Orange desk drafted General Hickey's letter to Oregon's Governor:

"There is no conclusive evidence that shows all post-Vietnam C-123 aircraft contained TCDD, that the solidified TCDD found in some of the planes is able to be absorbed into the body, or that solidified TCDD can lead to adverse long-term health effects. Therefore, exposure to tactical herbicides for crewmembers that served aboard post-Vietnam C-123 aircraft cannot be conceded."

"Case by case" statements in VA's web pages should in honor be followed with "and then blanket denial of each claim." If exposure can't be "conceded," VA has clearly ordered automatic denial of each claim.

Every single one of them denied, but on VBA's flawed "case by case" basis and by ignoring DOD JSRRC exposure confirmation.

Seems like "blanket denial" is the only proper description of how VA processes all C-123 claims and denials.

And what evidence was VA telling the Governor wasn't conclusive? CDC findings. NIH findings. US Public Health Service findings. Air Force test reports. Dozens of unpaid independent scientists and physicians. University researchers. VA physicians. And the DOD Joint Services Records Research Center. VA must have set their rule book (VAM2-1MR) aside, because veterans' evidence need not be "conclusive" but "as likely to as not" for the threshold of equipoise to be reached and a claim approved. By demanding "conclusive evidence" VA was raising the bar, illegally, and just for C-123 claims. By law (but not by VA if they can avoid it) every benefit of the doubt must be resolved in favor of the veteran's claim.

Which brings up Point #5.

5. “Overwhelming preponderance of evidence….

As described by the focal point in VA for such claims, VBA's Agent Orange desk used this language to dismiss any and all merit to C-123 claims. An "overwhelming preponderance of evidence" against a veteran's claim for Agent Orange certainly spelled defeat for the vet. But it was a deception – there was no such "preponderance," much less any "overwhelming" one.

In fact, it was the reverse, with veterans' evidence being truly overwhelming but sneered at by VA. Reading it aloud even now, it sounds like a VA must have had a tidal wave of facts and proofs to outweigh anything the veteran submits to substantiate a disability claim, rendering the claim completely without merit.

That "overwhelming preponderance" catch phrase is one that stands out...shouts out most persuasively as it was meant to in reading hundreds of documents forced from VA's records via court action enforcing several Freedom of Information Act requests. VA initially denied access to these records, then tried to deny access by overcharging thousands of dollars, and then simply refused to release everything.

"Overwhelming" prejudice would be a more correct label of VA's approach to C-123 claims. Deliberate decision to prevent medical care would be another label. Disregard for VA's mission is a proper assessment. Failure to perform the duties of their office also works.

C-123 Veterans Association's FOIA suit in the US District Court of Washington DC which prompted some cooperation. Over the past several months VA has given veterans' attorneys at least some of the materials sought.

"Overwhelming preponderance of evidence" is a coined phrase running through many of these FOIA documents. Apparently the phrase was created by VBA's Agent Orange desk, and used by VA's Post Deployment Health Section in Veterans Health Administration as well as throughout VBA. It referred to, and summarized the conclusion of VA's facts against C-123 veterans' evidence about Agent Orange contamination and exposure.

But there was no such tidal wave of VA evidence. Rather, there was an "overwhelming preponderance of evidence" confirming C-123 veterans' arguments, all ignored by VA. Rather than permit evidence submitted by C-123 veterans to be fairly evaluated, Post Deployment Health trivialized it into insignificance against VA's evidence, using that characterization to assure senior VA leaders that C-123 veterans were completely in error and must be opposed.

What was Post Deployment Health referring to with their phrase "overwhelming preponderance of evidence?"
• A letter from a Dow-sponsored scientist
• A letter from a Monsanto-sponsored scientist
• A VA contractor who had earlier denigrated C-123 veterans and who tailored reports to VA policy
• VA's own web pages, cited as their own authority, and which referenced only materials fitted to VA policy
• An inconclusive USAF report, later determined to have relied on poor math and misleading references to reach its conclusions

Statements were made by VA staff to Senator Burr's staff that C-123 claims would not be approved. The Associated Press was told by VA's Dr. Terry Walters, "We have to draw the line somewhere." Her line was drawn by denying every single C-123 disability claim. VBA summarized it with, "VHA has taken a definite position that post-Vietnam exposure in these aircraft is not sufficient to cause long-term health effects." 

Ignored here was the CDC conclusion that C-123 crews experienced a 200-fold greater cancer risk...which seems a long term health effect. VA's Agent Orange desk seems to have decided to leave that fact out of its email on June 8 2012 to Jeannie Viveiros. Clearly, VBA's overwhelming preponderance of evidence works best by leaving out all contrary facts and figures. No need to confuse a reader with relevant truths.

VA even cited non-existant "scientific studies" by VA Public Health that turn out to be a handful of staffers summarizing cherry-picked literature to fit their pre-determined policy of blocking all claims. Even the Secretary of Veterans Affairs tried to reverse the only C-123 veteran's award ever permitted by VA, looking for CUE as a basis even though every single requirement in VAM21-1MRM21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n) was met, and continues to be met, by all such claims.

"Overwhelming preponderance" was used and reused throughout VA to the point the entire agency was convinced that C-123 claims were to be denied. The phrase became its own proof, cited to refuse veterans vital medical and other benefits.

BVA repeats "overwhelming preponderance of proof" against C-123 claims and other herbicide claims.  However, the same evidence convinced the Institute of Medicine that the veterans were indeed exposed. The phrase implies a judicial or scientific weighing of pros and cons to the issue and the undoubted certainty that no truth existed at all to challenge VA's pretended "overwhelming preponderance of proof."

In fact, there being no preponderance at all, there was certainly no overwhelming amount of it. Having decided to block all C-123 veterans claims,VA staffers imply coined the phrase as they dismissed every piece of evidence not in accord with the Agent Orange desk policy.

"Overwhelming preponderance of proof "implies a scientific weighing of pros and cons about the issue and an undoubted certainty that no truth existed at all.  But there was no assessment of pro versus con to challenge VA's "overwhelming preponderance of proof." There was merely the invention of the phrase to justify denying veterans medical care and other benefits.

6. "Exposure = contamination field + bioavailability:"

This was Veterans Health Administration's (Post Deployment Health) unsuccessful effort to change the fundamental definition of the standard toxicological term "exposure" to prevent any veterans' exposure claims...setting up a definition few or none could qualify for excepting immediate chemical-type injuries or burns. 

VA redefined exposure to fit its needs, and introduced its deceptive new perspective at the Society of Toxicology conference in 2012. Thereafter, VA insisted that if veterans exposed to harmful toxins, chemicals, or biohazards could not specifically prove that the exposure led to subsequent illness, no exposure had taken place. Exposures such as Agent Orange, which manifest in illness decades later, were impossible to prove to VA's satisfaction. Agent Orange claims were denied wherever VA was not compelled by law, even though permitted by law, to approve. Every C-123 judgement call was anti-veteran.

VA was immediately challenged, not just by C-123 veterans. The CDC/Agency for Toxic Substances and other federal agencies, toxicologists, and physicians complained immediately. The government already had established definitions of medical and scientific terms and VA did as well...all quite different and actually correct. To everyone, including VA scientists and physicians but not Post Deployment Health, "exposure = contact between the outer boundary of an organism and a chemical." Even the VA's oft-cited reference in claims and federal court cases, Dorlands' Illustrated Medical Dictionary, defines exposure in the proper way, not the Post Deployment Health creation

C-123 veterans were invited by the Society of Toxicology to present our different perspective at their 2014 conference in Phoenix. We were sponsored by Dr. Linda Birnbaum, Director National Institute of Environmental Health Sciences. She, too, differed with the VA's exposure definition, saying it was unscientific and she'd never heard of anything like it in her career. At SOT 2014, the veterans challenged not only VA's 2012 exposure redefinition but also VA's ethical failures.

7. "C-123 veterans were perhaps exposed, but their exposure was secondary, remote and they weren't harmed."

The law, and VA's own assurances to Congress as to interpretation of the law covering exposures, makes VA's #6 irrelevant. Since the 1991 Agent Orange Act, veterans no longer have to prove the medical nexus of Agent Orange-associated illnesses. Veterans from Vietnam simply prove their "boots on the ground" duty, and others who are exposed simply prove the exposure event. Three times VA assured Congress and veterans via the Federal Register that non-Vietnam exposures would result in VA treating those veterans the same as Vietnam veterans.

But VA hasn't budged on this side-step, at least, not until the IOM report in January 2015. Despite the law and VA's promises to Congress, Post Deployment Health ruled that C-123 veterans' exposures didn't qualify under their unique exposure redefinition and even if the vets were exposed, there was no perfect way to prove medical nexus of the illnesses (to resolve this impossible hurdle Congress passed the 1991 Agent Orange Act, but VA skipped past that inconvenient truth.) Their training briefings still stand as instructions to regional claims adjustors to refuse C-123 claims.

8. DOD's Joint Services Records Research Center confirmed C-123 veterans' exposure to VA, but that proof was withheld from veterans, Board of Veterans Appeals and Court of Appeals for Veterans Claims.

JSRRC first confirmed C-123 veterans' exposure to Agent Orange to VBA's Agent Orange desk in March 2013, but VA withheld this pivotal document until early 2015, allowing claims to be denied citing no JSRRC confirmation, and allowing BVA claims to proceed without this vital proof, specified in VA's own regulation VAM21-1MR. JSRRC confirmation was rephrased and resent to VA inquires beginning in early 2014. However, because the JSRRC information confirmed C-123 vets' exposures, it was unacceptable to VA's Agent Orange desk.

9. VA promised in 2012 to order an Institute of Medicine C-123 study. It restarted the process in 2013, the report concluded late December 2014 and was submitted to the Secretary January 5 2015.

It broke that 2012 promise soon after.When VA finally did order the study it heavily funded and advocated a negative conclusion advanced by VA's proxy, generally the same arguments which VA had maintained since 2011.

Its delay cost veterans two years of coverage, as the IOM conclusion in 2015 had little material not available in 2012. This brought about predictable financial hardship, physical suffering and perhaps deaths of veterans refused VA medical care in the interim.

VA finally ordered the C-123 study in 2013, started it in 2014, and received report in January 2015. But the deck was stacked against the veterans: VA carefully worded the "charge" to the IOM...the questions VA wanted answered. Ignored was the single important point under the law...were the veterans exposed or not?

C-123 veterans beseeched the committee to exercise its independence and seek answers which would actually address the issue. On June 16 2014, both the C-123 veterans' chairman and the VA spokesperson presented to the IOM committee, as did invited scientists with expertise in the field.

10. Without VA objection, the VA contractor/spokesperson failed to mention his no-bid sole-source $600,000 contract with the VA in which a series of Agent Orange monographs were written and joined his larger body of work prepared for the VA, Air Force, Department of Agriculture and others. The subject with most attention was C-123 exposures, and the consultant/spokesperson not only covered the issue in general but as materials surfaced to support the veterarrbuns' claims, he prepared head-on challenges as needed while VA tried to guide the committee's decisions.

Destroying all integrity and potential merit of the monographs, the consultant sought VA approval of materials to insure they complied with VA policy. This was instead of generating factual reports free of his client's expectations and goals...which were to prevent C-123 claims.

VA failed to stand aside. VA failed to permit IOM to reach conclusions without tampering with the process. Spending $600,000 insured VA would out-resource the veterans, who had nothing and spent nothing except for travel from personal funds. Everything and everyone arguing in support of the C-123 veterans' exposure was unpaid, and everyone disputing the veterans was paid either by VA, Dow or Monsanto. 

In accord with protocol for such scientific presentations, the Dow and Monsanto experts honestly revealed their funding. The VA spokesperson/consultant did not. Neither did he reveal his earlier role with the Air Force in which he insisted in 2009 that the C-123 fleet be destroyed as toxic waste, nor why he was insisting to the committee that all C-123s were uncontaminated. He did not mention that in 2011 he denigrated C-123 war veterans as "trash-haulers, freeloaders looking for a tax-free dollar."

This was not the expert, objective scientific perspective required when weighing whether or not to refuse VA medical care to the veterans subjected to his vitriol. 

The consultant's use of photographs showing the IOM what he claimed to be a 1972 restoration/decontamination of an Agent Orange spray C-123 proved instead to be simply clipboarded from the private owner's web site, showing his own airplane's 1996 restoration work. The consultant's insistence that no C-123s sprayed Agent Orange with their ramp door open was disproved six days later when the Boston Globe featured a front-page photo of exactly that. 

Finally, when asked by the IOM committee why the C-123s were destroyed as toxic waste when the consultant was insisting they'd been decontaminated or were never contaminated in the first place, the consultant responded "it was because they were obsolete" - he skipped the the fact he himself recommended destruction as toxic waste in his series of three "decision memoranda" to Air Force officials in 2009.

11. VA either mistakenly or deliberately misled the Senate Veterans Affairs Committee 

Other legislators, including Senators Burr and Merkley and Congresswoman Bonamici were deceived when presented this flawed set of VA bullet points:

Each point of the chart is now proven factually false or misleading.  For instance, the fourth point about medical nexus...no Agent Orange exposure claim requires a medical nexus unless it is claiming an illness not recognized by the Secretary as associated with the herbicide. That's the 1991 Agent Orange Act, which VA should be familiar with by now.

It is particularly foul of VA to state that the handful of Post Deployment staff responsible for preparing VA's web pages against C-123 exposures somehow overcome expert input supporting veterans from the CDC, NIH, US Public Health Service and other experts, as well as dozens of independent scientists and physicians. There simply was no "VA scientific data," but instead VA's cherry-picked list of resources which carefully excluded all evidence supporting veterans' claims.

12. DOD Agent Orange testing, manufacture, transport site list.

VA frequently refers to the DOD list while processing Agent Orange non-Vietnam War exposure claims. Generally, it is to deny an herbicide claim. The 2006 DOD list is cited as VA or BVA (click for sample citation) basis of denial when a claimed site is not on the DOD document. Not on the list means VA disputes the veteran's exposure basis. VA's Manual M21-1MR describes how VA has "reviewed" the DOD listing, but that list has been shown by its own author to be incomplete and needing revision. 

The contractor, Dr. Al Young, who is also VA's chief Agent Orange consultant, wrote in his VA-contracted research paper, "Investigation into Sites Where Agent Orange Exposure to Vietnam-Era Veterans Has Been Reported:"

But the problem is that the list was compiled by DOD under a 2006 contract with Battelle in 2006, subcontracted to Dr. Al Young. By lack of action at both VA and DOD, Young's list has had no modifications since its publication. Probably the unintended consequences of admitting the document's questionable accuracy alarm VA. Requests to VA to update their list, supported by official documents about the C-123 fleet, only brought a referral to DOD. The Pentagon, however, refused numerous requests. With assistance from Senate sources, the military unit with responsibility for the list was identified as the Armed Forces Pest Management Board (AFPMB.)

But there, too, requests for DOD to update their list were simply refused at the actual agency, AFPMB. Thus, given the identified inaccuracies in the DOD list, it is improper for regional offices, the Agent Orange desk at VBA, and the Board of Veterans Appeals to permit reference to the list in deciding claims. It is improper to permit lack of evidence (here, any site claimed by the veteran but not included in the DOD site list) to be used as proof of a negative.

13. Postponed C-123 Exposure Disability Claims:

Last year VA regional offices began "postponing" certain C-123 Agent Orange disability claims, citing the need to await the Institute of Medicine report. The IOM report was finally published and accepted by the Secretary on January 8, 2015...but all C-123 claims remain in limbo. We saw one of the first postponements in Master Sergeant Richard Matte's claim at the Boston VARO. Awarding some of the issues in Matte's application, the Decision Review Officer postponed the principal Agent Orange exposure-related claims to await the IOM report. 

My own exposure claim had a similar postponement, citing the IOM report. Again, the IOM report was published over five months ago and is readily available to any VA claims official.

Thus the VA's reservation, their postponement of decisions, seems to have at hand the item specified as justification for withholding final action on these claims. With that proof from IOM, the claims were thought ready to receive final appraisal and award.

But VA has created another, last-minute stall for C-123 claims. The Department of Veterans Affairs is currently challenging C-123 veterans' eligibility for any VA benefits with its newly-developed concept that the aircrews and maintainers aren't veterans. And statutes are clear as to who qualifies under the law for "veteran" status.

So despite the veteran status issue not being a reason C-123 claims were postponed for this last year and more, VA has ordered all such claims postponed again. This is until the veteran issue is resolved, which is likely to be via a rule already in process at the White House Office of Manpower and Budget.

But is this fair and legal? To delay processing a claim to await resolution of one issue, have that issue resolved, but then VA postpone for yet another reason not specified in the VA's first decision? Using one postponement reason after another is a VA claim approval a moving target for veterans?

VA withheld benefits by citing its decision to await the Institute of Medicine C-123 study and its conclusions. Although the IOM report to VA was over five months ago, and Secretary McDonald acknowledged VA compliance with the IOM recommendations on March 17, claims continue to be postponed but for a brand new VA excuse...the "veteran" challenge raised by General Counsel.

If VA has concluded a claim decision but withheld action, or postponed it citing an issue, once that issue is resolved the claim should proceed, and not permit subsequent postponements for issues not specified in the interim decision and related to the original postponement reason. 

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* This opinion denying the claim was read in person on Feb 2013 to Mr. Thomas Murphy, its author. Mr. Murphy, Director of VBA's Compensation and Pension Service, responded that he wasn't familiar with everything leaving VA over his signature. His advisory opinion statement, although contrary to VA's official position on Agent Orange, was allowed to stand and the claim denied. 

Mr. Murphy explained that Post Deployment Health had concluded no C-123 veterans could possibly be exposed and that no amount of evidence from anyone to the contrary would change VA's position. Later, more senior VA executives termed the Murphy opinion language "unfortunate choice of words." 

Clearly, VA SES-equiv. executives who were informed about this shirked their responsibilities to veterans by doing nothing to correct it and allowed the denied claim to remain denied...which was the VA objective, regardless of an "unfortunate choice of words." This compounded the VA's errors immensely by leadership failing to resolve C&P's ethical and administrative errors.