Review: Our two goals for C-123 Veterans' Agent Orange Benefits

Simple. A mostly successful seven-year effort. Many folks chipped in funds to help and I never wrote thank-you cards. That is because all I did was work and the contributors know it and know their help was vital.

GOAL ONE. VA designation of C-123 veterans as "presumptively exposed" to Agent Orange, thus entitling us to VA medical care and other benefits.
STATUS: MET ON JUNE 19 2015

GOAL TWO: Get our VA disability claims honored from the earliest date submitted, if earlier than what VA limits for retroactivity (June 19 2015 at the earliest.) This is because many C-123 vets had claims in prior to that date, but were met with the then-automatic VA denial. And VA did deny...100% of all our claims were refused.

STATUS: ONLY VERY PARTLY MET

At least the VA barrier to our retroactive claims has been broken down a little. A handful of C-123 vets had claims approved via BVA appeals (Paul Bailey, Dick Matte) but VA has been firm in limiting retroactive claims to June 19 2015 and no earlier. It has to do with Reservists not being entitled to disability benefits unless disabled during the Reserve duty.

For some, this has cost tens of thousands in anticipated, but denied, "catch-up" checks. An example: a claim submitted in 2007 but denied at the time, then honored by VA once its C-123 rule was published on June 19 2015. If the vet was due a 100% disability rating, that's eight years of compensation VA won't pay...about $200,000 lost by the vet because of VA's limit of retroactivity set at June 2015.

The good news: at least one claim has been awarded retroactive Agent Orange benefits from the date submitted (in this case, March 2011. On the vet's appeal the BVA determined that C-123 exposure itself was a disabling injury that would date from "back in the day" while flying the Provider. That decision meant the affected Reservist satisfied the law's requirements regarding a disabling injury to trigger statutory veteran status, and the claim was honored back to the date the vet first filed for Agent Orange disabilities. That was a lot of money, with thanks due to the National Veterans Legal Services Project and their cooperating pro bono attorneys!

This C-123 Veteran's Agent Orange Essays: Five Years of Honest writing

Honesty and accuracy throughout. Right there is the distinction between VA and us. They mislead, manipulated, prevaricated. VA "Lacked candor."

That is how I characterize our long effort to earn VA benefits. It took 1515 days before VA approved my Agent Orange exposure claim for cancers and heart disease. I was already 100% service-connected disabled from the Gulf War and medically retired, so my Agent Orange illnesses became the “poster-child” C-123 Veterans Association test case. VA rules wouldn’t let me manage anyone else’s claim so I focused on mine and Paul Bailey’s...his claim was purely Agent Orange issues, and we wanted just this little variety in two amazingly identical claims.*

The objective: Work one case through the VA system, do the research, get scientific and government support, resolve problems and make all our eligible aircrews and maintenance folks (or survivors) able to submit VA disability claims for fair consideration. We did not seek “presumptive eligibility,” although that advantageous status was eventually granted by Secretary McDonald on June 18, 2015.

For 1515 days, I wrote. It sometimes felt like both day and night, I wrote. With no budget to do much else, I wrote. The blog alone eventually ran to seven volumes. I wrote and wrote and wrote. When I wasn't writing I did research for the next piece I'd write.

A website, a daily blog. Briefs, letters, proposals, VA 41-2138 statements, PowerPoint presentations, handouts, essays, press releases, YouTube videos, general correspondence. I kept writing. I wrote things like these essays and other papers.

Today is has been 2220 days since starting this campaign and I look back on complete honesty, consistently accurate writing. Nearly everything I wrote is still available to evaluate. I wrote expecting to be challenged; perhaps even in court so I tried very hard for accuracy. I certainly was an assertive advocate and that was wholly proper.

What wasn't at all proper was 1515 days of VA push-back. VA was antagonistic, unfair and not completely accurate in their resistance...sometimes plain deceptive. In the end, though, it didn’t seem to matter how much material I uncovered, nor how smart I was digging out and honestly writing about the truth, the only thing that mattered was VA denying us for four years, dismissing all the facts by insisting VA had an unspecified “overwhelming preponderance of evidence” against us, based on their imaginary “scientific study.”

How VBA Staffers Mistreated C-123 Vets for Four Years

C-123 veterans were, quite simply, abused from the first Agent Orange claims submitted right up to the present day, and we continue to be screwed until something is done regarding retroactive disability compensation. Know this: Most of the abuse was by certain staff in both VHA and VBA working hard, and quite successfully, preventing our exposure claims from being honored.

From Secretary Shinseki right on down the line of VA leaders, the promise to us and our Congressional representatives was repeatedly, "no blanket denial, and a case-by-case evaluation of claims." Specifically, the Secretary wrote (in his letter to Senator Burr, originally drafted by VBA's Agent Orange desk:)

"VA evaluates such claims on a case-by-case basis to determine if the available evidence supports service connection on a facts-found basis." "Accordingly, VA does not have a 'blanket policy' for denying such claims."

Secretary Shinseki even provided his official departmental C-123 fact sheet to the Senate Veterans Affairs Committee repeating that promise of fair treatment. This was in response to Senator Burr's letter asking...

"All of this suggests that VA may essentially have a blanket policy of denying any claims based on alleged exposure to dioxin while serving aboard the C-123 planes, regardless of the weight of information submitted in a particular case. 

With that in mind, I ask you to ensure that any disability claims from the veterans who operated these C-123s will not be pre-judged as lacking merit but, rather, will be considered based on the facts of each particular case."

The Secretary offered Senator Burr important general assurances of proper treatment of C-123 claims. Yet from the VBA decisions on our claims, we saw 100% denials by VA.

We saw the real VA policy repeatedly used to doom every single C-123 veteran's claim as repeated in most denied claims:

"Every attempt was made to verify your exposure to herbicides. Although you submitted numerous amounts of evidence to support your claim, VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides used after the Vietnam war while flying in aircraft used to spray those chemicals." 

The deception must be clear to all: Secretary Shinseki promised even-handed case-by-case C-123 claims, and denied any VA blanket policy against those claims. But VA then proceeded to refuse 100% of the claims, stating VA has regulations forbidding such claims.

It stayed this way for four and a half years. VA promising in every breath that C-123 claims were processed fairly and by the law, yet always refusing every one of them and not bothering to mention their universal denial to the legislators.

Further, remember VA's statement about "regulations do not allow..." Turns out there never was any such regulation. Never existed, and VA acknowledged recently it was often repeated but in error.

LtCol Paul Bailey, combat veteran of the 82nd
Airborne at age 18. He had 34 years of enlisted
and commissioned Army & Air Force service.

There's more abuse. In Paul Bailey's 2013 Agent Orange denial, he submitted 49 pieces of substantiating evidence. VA is required to respond to each piece of evidence, but here they simply wrote that his lay statement wasn't adequate to prove his case.

Ignored completely were all other items of evidence. This included statements from aircraft commanders, squadron commanders, fellow veterans, university schools of public health, VA physicians, professors of medicine, toxicologists, toxicology tests on Bailey's aircraft, Air Force records, medical treatment records, CDC Agency for Toxic Substance and Disease Registry findings, National Institute of Health findings and more. All ignored without comment.

There is no correlation to VA's statement on the denial that "every attempt was made to verify your exposure." Rather, the facts make a lie of that statement because not only was no effort made to verify exposure but instead, a blind eye was turned to more than enough evidence to have granted service connection. Actually, VA did exactly that six months later when, under political and public pressure, VA Manchester NH reconsidered the case and granted the claim even though the raters in Manchester worked against headquarters' resistance.

The veteran had already entered hospice then with his final battle with cancer. A few weeks later, Paul Bailey was dead, ending our fifty years of friendship and service together.

There's even more to the abuse heaped on C-123 vets. Along with Major Marlene Wentworth, I met with VBA's Mr Tom Murphy, Director of Compensation and Pension. There, in front of his staff, Mr. Murphy explained how no amount of proof from whatever source would permit a C-123 claim to reach VA's "as likely to as not" threshold for approval.

He referred me to Dr. Terry Walters in VHA's Post Deployment Public Health Section, and in my subsequent phone call with her, she who explained that we were simply never exposed. She went further, detailing how exposure equals contamination field (such as Agent Orange) plus bioavailability...the ability of a toxin to enter the body and cause harm. Dr. Walters felt our "exposures" during ten years aboard former Agent Orange spray aircraft didn't satisfy her definition and therefore, we weren't exposed and our claims baseless. (Interesting how none of this reached Secretary Shinseki for his letter and fact sheet to Senator Burr!)

This redefinition by VHA of a fundamental term in toxicology was deemed "unscientific" by the director of the National Toxicology Program. The redefinition even differed from the CDC Agency for Toxic Substances and Disease Registry standard list of terms, and contrasted with Dorland's Illustrated Medical Dictionary, VA's usual text for scientific and medical definitions.

Still, however unusual or unscientific, Dr. Walter's redefinition served VHA's purpose – keeping C-123 claims denied until June 19 2015. Only in December 2015 did we learn from VA's answers to Senator Gardner's questions that their redefinition of exposure in VHA was the personal creation of Dr. Terra Irons, only a year or so out of Chapel Hill. No peer review, no acceptance by VA outside VHA Public Health, no nothing...just Dr. Irons. A key concept in science redefined just to keep C-123 veterans from VA treatment of C-123 Agent Orange illnesses.

Why? Because the law, and several restatements of VA's duties to exposed veterans detailed how VA would provide the full range of medical care and compensation to all vets who'd been exposed to Agent Orange. So to VHA, wanting badly to prevent C-123 claims, it became important to prevent acknowledgement of any exposure by us to Agent Orange.

So they simply changed the ground rules, redefined exposure, and as if by magic, we weren't exposed. At least, not until the January 9 2015 release by the Institute of Medicine of their C-123 Agent Orange exposure report. And that's when science finally overcame VHA individuals' attitudes and staff policies – because C-123 veterans indeed had been exposed. It was effective, but as illogical as redefining green as blue.

We were poorly treated by VA for many years. They let our crewmates sicken and die without VA medical care and other benefits due each of us. Even today, players in VA still work hard to prevent retroactive compensation due us as it is due all other veterans once disability claims are finally resolved.

It seems to take the intervention of the Secretary to make things right for us, and for so many other groups of veterans like our Camp Lejeune brothers and sisters.

74/439 AES Annual Dinner, Friday Sept 25 in Chicopee

74AES Executive Committee

Steve Caraker and Rosemary Costa have worked their usual magic to organize another great dinner for everyone this Friday evening at the Munich House in Chicopee Center.

Good friends, good food, and I hear they even serve beer. RSVP to Steve.

Hey – I'm coming in hopes of seeing Steve in lederhosen!

C-123 Veterans' Agent Orange – Mission Complete

We're done here!

• In April 2011, C-123 veterans from Westover AFB began pursuit of Agent Orange exposure disability benefits from the Department of Veterans Affairs for toxic injuries resulting from duty aboard the former Operation Ranch Hand spray aircraft between 1972-1986.

• In January 2012 the CDC informed VA that C-123 post-Vietnam veterans had been exposed to harmful levels of Agent Orange, and that the planes were so contaminated aircrews should have been flying in full HAZMAT protection.

• In March 2013 the DOD Joint Services Records Research Center confirmed C-123 veterans' Agent Orange exposures to VA's Agent Orange desk in Veterans Benefits Administration, which opted to disregard the input despite VAM21-1MR and the Veterans Claims Assistance Act.

• In August 2013, VA approved via DRO the only C-123 veteran's claim to ever be approved without resort to the Board of Veterans Appeals (LtCol Paul Bailey.) Every C-123 claim before and since has been denied, all with VA insisting it considered each "on a case-by-case basis"without mentioning that VA HQ ordered every C-123 claim denied

• In January 2015 the Institute of Medicine, acting under contract from the VA, issued its report to Secretary Bob McDonald confirming the C-123 veterans' exposure and likely toxic injuries.

• In June 2015 the Secretary issued his interim final rule acknowledging the IOM's conclusions, and provided formal veteran status to C-123 veterans with diagnosed Agent Orange-related illnesses, with benefits to date from June 19 2015 forward, but blocking retroactive compensation and other benefits otherwise due claims in process before the interim final rule. The first C-123 veteran's disability claim under this scheme was processed within sixteen days (LtCol Ed Kosakoski.)

• In August 2015 the Secretary of Veterans Affairs announced a compromise of a one-year retroactive disability compensation scheme. This concluded all issues of concern to the C-123 Veterans Association. [NOTE: BIG MISTAKE. A FEW DAYS LATER VA STAFFERS EMAILED US. VA "MEANT TO SAY" NO TO RETROACTIVE PAY.]

Mission Complete. 

• We accomplished most objectives, with failures along the way including four years intolerable delay by VA which we were unable to overcome. 

• We must count as failure the suffering and loss of our veterans these last four years.

• The final failure was the inability to persuade VA to award full retroactive disability compensation due veterans with claims submitted before the interim final rule, settling instead for the compromise of one year retroactivity.

This very difficult effort, led only by Westover's veterans with some financial help from other units' members, served all the men and women who flew C-123s at Westover, Rickenbacker and Pittsburgh as well as scattered Active Duty units and airmen. We did the best we would, we achieved more than experts thought possible, and we won a small measure of success when VA agreed to at least a one year retroactive program.

I believe at this point our only work is to assist fellow C-123 veterans with their claims and to serve the needs of veterans in all situations.

Thank you everyone for your support, especially the encouragements and help covering some of the expenses. As Senator Burr said, "this shouldn't have taken this long or been this hard." If I'd known how bad it was going to be when I first worried about this mess back in 2011, which was when I picked up the phone to call Paul Bailey and see how he was doing, I'd never have gotten started! I wish Paul was still here to see how things resolved for our crewmates.

Today the Dean of the School of Law at Yale said we were "fierce, strategic and unrelenting." We shouldn't have had to be – no veteran should have to self-advocate or waste years of medical retirement struggling to get VA to do its job. Four years ago VA should have called us with some reasonable solution to this horrible problem. They didn't call. Instead they fought us every step of the way. 

Our duty is to make certain no other veteran faces VA alone.

God Bless America.

C-123 Agent Orange exposure claim awarded – here are the details

In November the Boston VA Regional Office held a Decision Review Officer hearing for a C-123 veteran from Westover AFB, MA. The claim was decided in his favor for all Agent Orange-recognized illnesses, and a copy of the VA' decision is posted HERE.

Yale School of Law deserves great credit for this victory, and thanks are due them and the many vets who personally appeared to give evidence for this veteran. It probably didn't hurt that the veteran's story was carried as a front page story in the Sunday edition of the Boston Globe.

Key point: The VA conceded the veterans' Agent Orange exposure at Westover AFB, where his squadron flew the former Agent Orange UC-123 aircraft. The decision closely parallels that of LtCol Paul Bailey's 2013 award from the Manchester NH VA Regional Office.

Although both veterans flew the same airplane, the same days, performing the same duties as others who've made claims, these are the only two awards made in favor of the veterans and all other claims have been ordered denied by VA's Compensation and Pension Service. I note that both claims were for men I flew with and trained on the C-123, but my claim and others like mine remain denied.

VA decisions, even those by Decision Review Officers and the Board of Veterans Appeals, have no effect on other claims, regardless of how parallel the situations. Here, one veteran's claim for exposure aboard his C-123  is awarded while another on the same airplane is denied.

Perhaps VA finds no discomfort in contrary situations such as this. I also note that my request for DRO (claim submitted 3/2011, denied 9/2012) was made in 2012 and still has not been acted upon in over two years, while the attached claim requested DRO in March and received the hearing in November of 2014.

Secretary of Veterans Affairs Sought Reversal of C-123 Veteran's Agent Orange Cancer Disability Decision

The Secretary wasn't pleased.

Sunday morning reading his paper and enjoying his coffee, the VA took another hit on the chin with a critical newspaper article. On Page One.

It had made the Washington Post on August 3 2013. An in-depth report about C-123 veterans and the impossible barriers VA put in front of us when submitting Agent Orange disability claims. The Post's report featured Westover veterans Major Wes Carter and LtCol Paul Bailey in telling the post-Vietnam C-123 Agent Orange exposure saga.

And it wasn't just a report. It was the front page Sunday edition, plus all of page 14 in the front section. That much coverage isn't mere presentation of the facts, but an editorial statement of the seriousness with which a publisher views the issue. And this was the Washington Post! The paper than can bring down presidents...and has.

Unknown to reporter Steve Vogel, who'd investigated the problem for months, the Manchester Veterans Affairs Regional Office at about the same time had reviewed Paul Bailey's initially denied claim with a "Decision Review Officer," an optional step in appealing denied claims.

Manchester assigned a highly experienced senior claims adjudicator who considered Paul's claim with fresh eyes, and that rater saw all the proof needed to award Paul his disability claim, backdated a couple years, on August 4 2013.

Paul's claim review was moved forward a bit in the VA queue due to the fact his illness was terminal. The rater later explained the Agent Orange exposure claim was awarded on the basis of fact-proven exposure aboard Patches, proof of which Paul provided in the form of flight orders, USAF Form 5s, and sworn testimony by numerous other veterans including mine as his flight examiner. Paul had been a flight instructor with the 74th Aeromedical Evacuation Squadron before his 1980 commission and transfer to Aerial Port duties.

Amazing! And Vogel and the Post immediately rushed to publish another report on August 8 2013 about Paul Bailey receiving the only C-123 disability award without processing through the several-year appeal process at the Board of Appeals for a decision by a Veterans Law Judge. Although all C-123 claims reaching BVA had been awarded the veterans, all such claims were (and continue to be) initially denied and the veteran forced into a three, sometimes four year wait for a BVA review.

But not Paul, to the great joy of his family and friends, and the satisfaction of so many legislators and fellow veterans who'd pulled hard for this fine man. Paul had received his "big brown envelope" as veterans term the VA materials mailed announcing an award. It was news his family needed...days before Paul entered hospice

I know this. He opened his envelope and called me with tears in his voice, this veteran of 33-years service with the 82nd Airborne and the Air Force, both enlisted and commissioned duty, and my best friend for forty years.

That joy wasn't the kind of emotion flowing from VA headquarters in Washington when Secretary Shinseki read the Post.

VA records released this week now reveal the Secretary's attempts to get Bailey's disability award reversed. I must say, this was a blow to my heart. For years we'd thought the bad actors in levels between us and the Secretary were at fault, feeding General Shinseki poor staff work and fulfilling their own anti-veteran bias.

But here was the Secretary of Veterans Affairs himself telling his executives that Bailey's award should be reversed, perhaps on some suggestion of error on VA's part. "Heads up," came the warning. In the newly-released memos, VA's Western Area Director, Mr. Willy Clark recounts to VA's Director of Compensation and Pension the Secretary's demand for an explanation how it happened.

Fortunately for Paul...and now, his survivors...the political impact of such folly was quickly pointed out. The Manchester authorities explained the solid justification for their decision, however even that was twisted. Veterans Benefits Administration staffers wrote that Paul's decision was highly questionable because of "only two days aboard Patches." This phrase went through many memos and emails. But it was false. Two days?

That was a single set of order for a two day cross-country mission. To cite that, VA had to overlook hundreds of other documents which also placed Paul as a qualified C-123 crewman, and later, flight instructor. This was an effort by VA staffers to trivialize a veterans' proofs, which they did by carefully selecting one sheet and ignoring stacks of others.

Paul flew former Agent Orange C-123s for many years, beginning in 1974. Year after year, he performed crew duties, moving ahead to C-123 flight instructor, and flying until 1980 when he changed duties. Six years. Hundreds of C-123 hours officially documented in Air Force Form 5s submitted with his exposure claim. The specific tail numbers of Paul's Agent Orange C-123s was confirmed by the USAF Historical Records Agency.

Amazing. A C-123 flight instructor but described by VA officials as having but two days aboard the C-123, who pushed to have his claim reversed. A highly qualified and Air Force certified C-123 flight instructor but VA memos say he had two days aboard the airplanes he trained others in. Where did VA think they were taking this except to trash a veteran's well-founded claim.

I am a historian. Reading the memos about Paul and the way the Secretary reacted, I thought of the American Colonial Congress reaching out to King George one more time, trusting their sovereign would do the right thing if only he knew the facts, and believing to the end that their troubles were due not to him, but the bureaucrats between them.

I felt such trust in General Shinseki. My trust was misplaced. Thank God the Secretary didn't, or perhaps couldn't, trash Paul Bailey's well-deserved Agent Orange disability award . But he tried.

He tried to hurt Paul. He would have but for the political consequences pointed out to him by others.

The Republican: C-123 Editorial 2/4/2015

The Republican again published an editorial demanding action on C-123 veterans' Agent Orange claims. Among these vets, of course, are aircrews, aeromedical folks, maintenance and aerial port....those with hands-on with the C-123s any time between 1972-1982.

We're grateful to the Republic for noting our plight and covering it with accuracy and compassion.

The press has done its job.

May we hope for similar concern and effective action from Massachusetts legislators on behalf of the C-123 veterans, most of whom live in the Commonwealth? Perhaps...something a bit more forceful than a simple letter sent to the VA so long ago? Perhaps a phone call to VHA to explain firmly that veterans need and deserve their care and benefits now, not months from now.

Current VA regulations already cover these veterans. All that's happened is science has informed the VA that C-123 veterans were exposed to Agent Orange, and VA's regulations describe the proper course of action and no new legislation, regulation or Federal Register comment are necessary.

Springfield (MA) The Republican: Major C-123 News Article by Reporter Jeanette DeForge

Today's The Republican (Springfield, Massachusetts) carries a major article addressing the C-123 exposure situation and VA's tepid reaction to the definitive Institute of Medicine report issued on January 9, 2015.

The Republican, and reporter Jeanette DeForge, have carried news about this situation for four years, since C-123 veterans first filed a formal Inspector General complaint through the United States Air Force. That IG complaint was denied, as were all the veterans' complaints and requests for inquiries with the Department of Veterans Affairs, between 2011 and 2015.

But The Republican carried the story. The Republican saw the kernel of truth, and story after story, editorial after editorial, Deforge revealed the details of an intricate legal, historical, aeronautical, military and medical puzzle the veterans from Westover AFB, Rickenbacker ANGB and Pittsburgh IAP found themselves struggling through.

DeForge is due our thanks...not for her favoritism or special treatment, but because she and her publisher faithfully played their roles in fulfilling the Constitution's expectations of journalists, in its First Amendment guarantees of freedom of the press.

Thank God for that freedom, for The Republican, and for Jeanette DeForge.  They make wearing our flight suits for these past decades worth it all.

AGENT ORANGE
• Westover Reservists exposed to Agent Orange, federal officials rule after 4-year battle
• Support grows for Westover veterans who served in planes contaminated by Agent Orange, but VA scandal stymies efforts
• Editorial: U.S. government needs to own responsibility for Agent Orange exposure at Westover as it does for radiation exposure at Chapman Valve
• Editorial: U.S. government's treatment unconscionable of Westover veterans exposed to Agent Orange
• Westover Air Reserve veterans exposed to Agent Orange file complaint with Department of Defense

VA Changes Their Web Pages About C-123 Agent Orange – VERY CAUTIOUS & RESERVED

Our elation over last Friday's release of the Institute of Medicine C-123 report is tempered somewhat today.

We see that VA has modified their web pages touching on C-123 veterans' issues, but used very cautious language without any suggestion of acceptance of the affirmation contained in the Institute of Medicine findings released last Friday. VA simply says the IOM report is out and they've assembled subject matter experts to consider it.

Consider it? Not accept and implement it? This is a worry. Is VA seeking ways to negatively interpret the findings or to avoid presumptive service connection? Or poke holes in it to prevent any meaningful recognition of exposure?

The VA web pages cite references, but pointedly avoid including the many which affirm our veterans' exposure (Porter, CDC, ATSDR, etc.) The IOM report itself isn't included as a reference. On the other hand, we're glad that VA did react and post web page changes...they're doing something, we just don't know the details yet.

Let's hope for the best from VA! We want to work with VA. Time is of the essence here, given our ages and illnesses. We've already paid a terrible price because the IOM has shown we were exposed from 1972 on, and many of us had illnesses during these years that can be associated with that exposure. For instance, I had surgery in 1978 to sever nerves in my thigh to stop a severe burning pain we now know could have been Agent Orange-associated peripheral neuropathy.

These four years since we've had to work against...not with...Veterans Benefits Administration and Veterans Health Administration on this concern. At this point, we should finally be on the same page.

We want to wrap up this burdensome struggle and turn to our health concerns and our families! This was not a battle we should have had to fight for ourselves, but instead a situation where VA should have turned to us, offering their care based on science and facts in hand since 2008 and even earlier.

I hope we don't have a Camp Lejeune situation where VA takes a couple years getting machinery in place to administer our situation. After all, there is no legislation needed, the VA has multiple Federal Register announcements covering this very situation, and the "veteran status" of the crews is covered in USC whether flying as ART, AD, UTA, AFTP or even points-only status.

This last weekend the C-123 Veterans Association and the VA reached out to each other to cooperate – lets hope for that cooperation and for prompt acceptance of our veterans' claims per VA M21-1MR. As I read it, we'll have to provide proof of duty aboard C-123s at some point between 1972-1982, and evidence of an Agent Orange-recognized illness. We have JSRRC confirmation available as well!

We found a hero last year in the VA when Paul Bailey's exposure claim was approved by a Manchester New Hampshire DRO. VA was right then, even though the DRO decision was made without the recent IOM report, the moral and scientific validation was still in place. We need a hero again in the VA to get the ball rolling, notify the VAROs that these claims can be approved with proper evidence, and get our folks into the VA medical system.

Some questions:
• Denied claims now awaiting appeals - can these be reconsidered rather than wait out an appeal?
• Current claims "postponed" decisions - can these be released for final evaluation?
• All claims - can we hope for another fast-track? There will be so few it won't burden VA!
• Denied claims past one year appeal date such as Aaron Olmsted's - can they be resubmitted with "new & material evidence?"
• Effective date of awards?
• Can any sort of "provisional" approval be given urgent cases?
• Invite C-123 veterans to the Agent Orange Registry and physical?

To all who've helped, especially the scientists and journalists, God Bless.

Good News from the Institute of Medicine

Initial thoughts: the IOM agreed that Reservists were exposed. Their comment:

It is the Committee's opinion that it is quite plausible that, for some Reservists, the exposures received during their work on C-123s exceeded TCDD guidelines for workers in enclosed settings.

Now to read the report more carefully, and just as important, find out the impact of this on the VA's processing of our veterans' exposure claims.

The briefing starts in a few minutes and I'll update further when possible.

Again...good news!

IOM Report Due January 9 at 11:00 Eastern

Tomorrow we'll know the recommendations made by the Institute of Medicine about our C-123 Agent Orange exposures. We hope for the best when IOM begins their briefing at 11:00 here in Washington, D.C.

A long and painful time has passed since we started our effort in the early spring of 2011, and so many kind people have done right by us.

Whatever IOM recommends, and whatever VA does with that recommendation, our thanks must be expressed for the hard work of the committee and the IOM staff, headed by Dr. Mary Paxton. Also, thanks to those many VA leaders who kept an open mind...and an open heart

Although we hope for the best, and the most comprehensive positive finding, realistically there can only be a compromise. Not on the science or the history of the C-123 exposure story, but on the consensus report selected as the format for this investigation.

Stay tuned: I'll post the IOM's conclusions as soon possible.

AME Flight Records Located

Buzz Bocynesky located a very good set of his Form 5 flight records. Because each of the missions he flew was aeromedical evacuation, others from the 74th AES with flight orders can compare their dates to his, and identify specifically which C-123K was flown. This is important as a step to prove that former Agent Orange spray aircraft were flown and by tail number.

Thus, Buzz' records establish his own Agent Orange aircraft, and because most AME kept their flight orders which didn't show tail numbers, comparing flight orders with Form 5 data completes the research. Suggestion: simply make a list of the dates flown, and compare to Buzz's records. The match of your dates and his, for Tail #s. Westover's Agent Orange spray planes included Tails 362, 361, 583, 607, 000 and 586. #635 seems to have been a spray plane as well, but research continues.

The Agent Orange aircraft on Buzz's Form 5s include only Tails #607, 365 and 361. AME without either flight orders for Form 5s can check Steve Caraker's or Paul Bailey's sets for their names – if their orders have show you listed there's your proof for the VA. Most of the Form 5s we have came from John Riley.

A spreadsheet combining what we have is available by clicking here, and we want to add crews and dates to compete the resource.

Thanks, Buzz. Everyone else, please scan your records and forward to me for our data base.

Cliff Turcotte Passes

News received this morning that retired Major Cliff Turcotte, Nurse Corps, 74th AES, has passed
away in Springfield, MA. Cliff and I were enlisted medics together, with him going on to a Flight Nurse commission and me, off to the Medical Service Corps.

A big, tough guy, Cliff loved the hard work he did in the 74th so very much, especially out in the field. He was never one to miss the opportunity to help another, to volunteer, to be the best he could be. A great Navy corpsman, he was a great aeromedical evacuation technician and then a great flight nurse. And a great friend.

Rest in peace, Cliff. God bless.

CDC Report Proves C-123 Agent Orange Exposures (Post-Vietnam)

In June 2014 at the Institute of Medicine C-123 Exposure Hearings, the CDC presented its findings about C-123 veterans' Agent Orange exposures, and they pulled no punches! We were exposed, and our duty aboard the C-123s subjected us to a greatly increased risk of cancer and were also 182 times greater than military limits for dioxin exposure.

These government experts determined that our post-Vietnam aircrew and maintenance workers suffered significant, and harmful, Agent Orange exposures which were probably even higher when we flew the planes, than when the Air Force tested them years after the C-123s were mothballed.

VA has had this information from the CDC since 2012, but just refused to evaluate it. Reviewing the details, VA's Compensation and Pension Service simply dismissed the facts presented as irrelevant to our claims.

For nearly four years now, VA has dismissed everything which possibly argued that we'd been exposed, and even ignores its own regulations to block our claims.

How much proof does it take to reach the "as likely to as not" threshold of the law? Apparently, much, much more than VA should be asking! They ignore the CDC, NIH, EPA, dozens of scientists and physicians (the "Concerned Scientists and Physicians",) National Institute of Environmental Health Sciences, National Toicology Program, US Public Health Service and even the DOD Joint Services Records Research Center.

The JSRRC report is considered "source DOD verification" of veterans' exposures – except with VA's treatment of C-123 claims. Our claims continue to be ordered denied by the VBA's Compensation and Pension Service, regardless of stacks of proof.

Below: Findings: CDC details proofs of C-123 veterans' Agent Orange exposures (from page 4, by Dr. T. Sinks)

CLICK HERE to read entire CDC C-123 Report

C-123 Veterans Agent Orange Exposure: August 2014 Update

The C-123 Veterans Association has updated its summary of our situation thus far, with the next major events being VA's redefinition of exposure through some sort of regulatory process, and the anticipated September Institute of Medicine C-123 report to Secretary McDonald. Included is an updated document list in chronological order and with hyperlinks.

The problem with the C-123 IOM report is that even if the investigators' findings support us, there is still a year or so for the Secretary to take any action. Then, claims will sit around on the VA regional office desks for a year or so, making any solution, however positive, years away.

We don't have those years. VA knows it. Which is why they stall. Every day's delay is money saved for Veterans Health Administration and Veterans Benefits Administration. Every claim denied is big money saved!

Policy rather than law makes for today's VA claims process.

Timeline Added to C-123 Veterans' Document Resources

We have added a very detailed timeline, using Dipity. The scale must be set to 50 years or so to get an overall idea of the timespan, but set to months to get details in busier years so all the date entries can be seen individually

(Our veterans' C-123 Agent Orange Timeline on dipity.com)

The Federal Register: The VA "Exposure" and "Medical Nexus" Scam

The Federal Register is pretty important. It is one of the final "wheels hit the road" elements of a law. When a federal agency such as Social Security or Veterans Affairs promulgates a rule or interpretation of a law, their publication in the Federal Register makes it so. When the VA does it, they either add, change or take away some rule, regulation, portion of laws affecting veterans, or sometimes simply make clear a point of confusion. When VA publishes in the Federal Register, it should mean something important but too often, it means only confusion at their end about how to skate the system.

A Federal Register publication is pretty important. It makes documents it cites admissible in court with evidentiary status. It describes the authority of the agency to do something and how that authority stems from Congress. Because the public can comment when proposed changes are first published in the Federal Register, it is an important part of American participatory democracy – a citizen gets his/her right to address anything being announced, challenge or support.

For the concerns of C-123 veterans, the Federal Register is foundational in our right to VA medical care. The VA has at least three times detailed to Congress and the American people how it will treat Agent Orange exposures to post-Vietnam veterans like us. Three times the VA went to the Federal Register to announce fundamental changes in veterans' exposure issues, such as adding diabetes, heart disease or other major changes, and in those very profound changes to the VA system they repeated the key fact:

VA will treat non-Vietnam veterans with proven Agent Orange (military herbicide) exposures the same as Vietnam veterans, with presumptive eligibility for Agent Orange-associated illnesses. There is no burden of providing medical nexus. Veterans claiming Agent Orange benefits for illnesses not recognized by the Secretary as associated with Agent Orange may submit claims but must establish proof positive of exposure and also of medical nexus.

These are very important parts of implementing laws and arranging how agencies and citizens come together on those laws. But these are also postings which VA ignores, by taking the simple step of redefining exposure within the VA to a unique "exposure = contamination + bioavailability."

There VA illegally reintroduces the prohibited test of medical nexus. It is just the same standard as before Congress took it away from them in 1991 when it created the group of presumptive eligibility "boots on the ground". Their standard of proof was boots on the ground, and exposure was assumed. VA when asked about non-Vietnam vets' exposure announced that that same presumptive eligibility applied so long as there was proof of exposure, which was assumed for the Vietnam vets.

So neither group must prove medical nexus:
• Vietnam vets were presumed exposed with their boots on the ground and their exposure was granted
• Non-Vietnam vets were presumed exposed so long as their exposure was proved

But VA games the system once again. Exposure is commonly defined as contact by the skin or eyes (or ingestion or inhalation) of a toxin (of any type). VA in their redefinition (found only in a few Advisory Opinions, Society of Toxicology posters, etc.) puts back into the word "medical nexus" which Congress had taken out in 1991.

They simply change exposure by pretending "bioavailability" is part of the word, because bioavailability is pretty much the same as "medical nexus." It is kind of like mother forbidding chocolate cookies because you eat too many at once, so you switch labels on the box and now you are eating the same cookes labeled Ritz crackers. Mom's gonna catch that deception...but nobody seems to have caught the VA's deception used to order our sick aircrews and maintenance guys out of their hospitals when we seek care for our Agent Orange illnesses.

                                     

Medical nexus is not part of any exposed veterans' claim for Agent Orange illness unless claiming an illness not associated by the Institute of Medicine or the Secretary. Bioavailability is not part of the law nor in medical nexus postings, but is part of VA's 2012 and later definition of exposure.

Why the redefinition of exposure? VA had to "draw the line somewhere" on exposure claims, so Post Deployment Health was charged by Veterans Health Administration with developing some scheme, legal or not (its not) to stop the hordes of sick veterans trying to get into VA hospitals.

Post Deployment Health, Dr. Michael Peterson and staff, did this by grasping the fundamental problem of medical nexus being taken away from VA as a key to let medical nexus back into play against veterans. Simply put – don't call it medical nexus. Call it – exposure. Clever!!!

Exposure is in the law. So VA Office of Public Health can reinsert the medical nexus barrier the law took from them by putting "exposure and "medical nexus" into a linguistic blender so that out comes one word...exposure...meaning both.

With the new exposure, VA returns with a French 75 in their tool belt instead of a mere #2 black pencil for denying claims. No veteran can prove medical nexus of an exposure event decades ago, but just in case, VA prohibits testing for that. VA also prevents C-123 veterans from even taking the Agent Orange Registry exam because they'd already ruled no exposures were possible.

We have seen and will continue to be seen VA challenges to our claims.They will continue to argue we've had no exposure to Agent Orange aboard our C-123s because there can't be any proof in 2013 about exposures in 1972. Actually, there is perfect proof: we were aboard Patches and the other former spray birds, so we were exposed per the definition Congress and the VA in the Federal Register set as a qualifier.

VA says we were not exposed because there can be no test for bioavailability (medical nexus) these decades later, therefore "we were not exposed."

VA's apologists bring in their old Ranch Hand data and compare our heath stats to those vets. Ranch Hand guys seem pretty average in health at their ages. The failure in that logic is that it has nothing to do with the law. The law says if exposed you'll be treated, and it does not say no treatment because the Ranch Hand cohort isn't ill. Ranch Hand info isn't in the law, but VA uses it cleverly to weave the theme that C-123 vets must be denied benefits because Ranch Hand vets seem to be in okay health.

The VA consultant on Agent Orange is beloved by the VA for being able to produce his papers against C-123 exposures under his $300,000 per year contract with the VA and include twists and turns in the history. He always skips the part where in 2009 he, as Consultant to the Office of Secretary of Defense recommended the immediate destruction of the C-123s with no further testing. He reminded base safety officials it would be a safe operation because the dioxin had degraded to insignificant levels after those decades in the desert. He also skips the part where he reminded the Air Force leaders the exposed C-123 veterans might apply for Agent Orange benefits if they learn of the contamination, so he helped craft a press release avoiding words too likely to get attention: Struck from the early draft were words like Agent Orange, dioxin, TCDD, poison, etc, and instead these became "aged Vietnam-era airplanes recycled in an environmentally responsible manner."

VA didn't walk away from this completely unscathed. Other federal agencies responded with their own, more acceptable definitions of exposure. VA was reminded that it does not have regulatory authority in such toxicological issues, yet they continue to use it. The NIH/National Toxicology Program published their definition of exposure to insure it challenged VA head-on, when the Director herself wrote,"In all my years as a toxicologist, I have never heard the term bioavailability as part of the exposure field. Exposure is contact with a chemical (of any type) and the outer boundary of an organism."

Bioavailability flows from exposure. There is no requirement for bioavailability as part of exposure, and in many exposure situations after time bioavailability may no longer be proven. There. Bioavailability, or medical nexus, cannot occur without initial exposure. These are separate toxicological events, and Congress has spoken:

Agent Orange exposed veterans will be treated as presumptively exposed for Agent Orange illnesses. That's the law. Now.

VA Inspector General Complaint Submitted by C-123 Veterans Seeking Agent Orange Care

To: VA Inspector General

As this issue concerns the denial, or delay, of benefits to approximately 2100 eligible veterans, this is a national, systemic concern. It has led to death and suffering. I request an acknowledgement from the IG for receipt of this concern.

Challenges to VA ethics and science by veterans' associations, legislators, other federal agencies, and by university experts, were answered in June 2014 by Dow and Monsanto-sponsored letters, and by VA-contracted reports described in the attached VA 21-4138.

The construction of claims delays by unscientifically rephrasing of fundamental terms in toxicology, also challenged by other federal agencies, has left eligible veterans denied VA care and forced to seek medical care elsewhere, with resultant death and suffering. This was done without peer review or regulatory authority.

When faced with juried scientific articles clarifying the veterans' situation, and faced with legal findings from Yale University challenging the VA's improper perspective on "exposure," VA's reaction was to create yet another delay in the form of a study.

By contracting an unnecessary study with the Institute of Medicine, and phrasing

the charge to the IOM in such a way that regardless of the IOM finding, no change in the eligibility of the affected veterans could ensue. The information gathered by the hard work of the IOM is of interest but also mostly available from VA and other federal agencies. The study imposed a delay of many months in resolving veterans' access to VA care, and the request for an interim presumptive eligibility was refused.

Calling together a committee of the Institute of Medicine to evaluate the veterans' degree of medical harm, the VHA then sought to frustrate its own process by advocating in the negative, using outside consultants to present the VA perspective who had personal experiences with the issue, and publicly-expressed disdain for the concerned veterans, and who were thus inappropriate advocates for the VA's position, a position itself inappropriate in opposing C-123 veterans' claims. 

No VA contracts were let to affirm the veterans' claims, only to oppose them. Veterans, as individuals, lacked the funds to sponsor research or investigations to counter VA's well-funded advocacy against them.

VA should seek a path to qualify, not disqualify veterans from receiving VA medical care and benefits. VA most especially must not construct barriers for what the law permits, but here VA has built and reinforced those illogical, unscientific and extra-legal barriers since 2011.

Faced with input from a committee of concerned renowned toxicologists, VBA determined the scientists were not qualified to opine on the issue of exposure and veterans' health. Faced with input to the Joint Services Records Research Center from acknowledged experts, medical schools and other federal agencies including CDC, NIH and the US Public Health Service, VA directed JSRRC not to forward any affirming scientific information or interpretation of original scientific source documents, clearly frustrating the veterans' claims by preventing science from reinforcing their arguments.

The standard of "as likely to as not" and "every benefit of the doubt rests with the veteran" is not observed in this instance. Further, VHA and VBA sought not to qualify these veterans but to obstruct their claims. Although repeated assurances published in the Federal Register made clear to Congress VA's commitment to treat Agent Orange exposures of non-Vietnam veterans the same as veterans of that war and that VA informed Congress that no new legislation was needed to do so, VBA and VHA then unscientifically redefined exposure in a VA-unique manner to prevent exposure claims from C-123 aircrew and maintenance veterans.

Attempts by veterans to address this issue through the Secretary, Under Secretary for Benefits, General Counsel, VBA Director Compensation and Pension Service, Portland VARO supervisor, JSRRC and other authorities were unproductive and over three years have passed with continued abuse of these veterans' earned right to VA medical care. VA thus avoided the cost of their medical care and reduced waiting time for appointments by preventing these veterans from entering VA hospitals.

The issue was well-reported in the press, beginning in 2011. The issue was brought to the attention of the Secretary by Senators and Congressmen. The issue was brought to the attention of the Secretary by concerned scientists and physicians. The issue was brought to the attention of the Under Secretary for Benefits by other federal agencies. The issue was brought to the attention of the VA National Center for Ethics in Health Care. All without solution.

VBA even created an Advisory Opinion denying a veteran's Agent Orange exposure claim with the statement, "In summary, there has been no conclusive evidence that TCDD exposure causes any adverse human health effects." Denying Agent Orange exposure benefits because Agent Orange exposure is harmless is wrong. When read in person to the Director Compensation and Pension (over whose signature the opinion was issued) no correction or explanation was made and the Opinion left to stand in denying the veteran's claim.

Denial of VA medical care has predictable suffering and death. Creating special definitions of exposure to prevent exposure claims is a situation demanding classification as to what kind of wrong.

The C-123 veterans consider that the VA redefinition of exposure to prevent our exposure claims is unethical and borders on the criminal, at least from the perspective of our own pain and suffering, and watching dear comrades die with claims delayed or denied.

Wesley T. Carter, Major USAF Retired

C-123 Veterans Association Statement on VA Resignations

We regret the turmoil recent events have brought the Department of Veterans Affairs and the broader veterans community. Changes like this leave nobody satisfied and everyone on edge, hoping that whatever changes evolve are for the better.

Few of us have dedicated themselves to America's service as well and as long as has General Shinseki. God bless him and his family.

Few of us can imagine the strife ahead for his successor, but all veterans must demand improvement, and support those in leadership positions who show themselves able to being it about.

While the VA's Inspector General has yet more reports to release, there are still issues awaiting their examination. We urge the IG to carefully study exposure issues and the manner in which other federal agencies have tried to bring to the VA challenges to the Department's missteps...and both intrinsic and extrinsic ethical failures resulting in veterans's deaths and continued ill health.