Attn: C-123 vets with Agent Orange claims before June 18, 2015

Read the old VVA press release below! In early 2015 the President of the Vietnam Veterans of America, John Rowan, insisted VA treat C-123 aircrews and maintainers as VETERANS with full Agent Orange disability benefits. But the best VA would do is cover claims from June 18 2015 forward, not back to date filed. A partial but welcome victory.

Now we finally have two possible approaches to fix that and recover what is due. That's why I've been trying to get the name, telephone and SSAN of everyone who filed claims for Agent Orange illnesses prior to June 2015. VVA is helping by putting the word out on their web site. WE NEED YOUR HELP TO HELP YOU: CONTACT WES CARTER IF YOU'RE ONE OF THESE VETS, and get the word to our crewmates to do the same. A major law firm is providing pro bono help to us.

The lawyers are doing this for free, just as they did the C-123 claim settled on October 12 that awarded our comrade over four years of his 100% disability the VA owed...you can do the math!! (P.S.: $2,950 x 48 = $141,000.)

Spread the word, please. All I need is the name, year the first claim was filed, email and phone, and Social Security or VA claim number.

YOU CAN DO THIS – it wraps up six years of my hard work on your behalf and I want to do something else with my life!

VBA claims expert offers gracious apology for dismissive remarks about Agent Orange as "all hype and hysteria."

ACDC Minutes, June 20-21, 2017 

From the VA Advisory Committee on Disability Compensation:

"Chairman Martin reminded attendees that any opinions expressed at the meeting were solely those of the individuals providing them, and did not necessarily reflect the position of ACDC, VA, or the federal government. He read a letter from Jim Sampsel, who briefed the Committee at its March meeting on Agent Orange-related issues, and whose remarks were published in the media. Mr. Sampsel expressed regret over raising the issue of hypertension and recognized the debate on related legal, scientific, and factual issues. He apologized for any negative effects his presentation may have had on the Committee or its mission. Several members praised Mr. Sampsel for his long-time dedication to Veterans’ issues. The Chairman said the Committee welcomed frank and open discussion."

My Public Comments to the Committee:

"Wes Carter spoke on behalf of VVA, the C-123 Veterans Association, and the United Veterans of Colorado. He objected to Mr. Sampsel’s presentation on Agent Orange at ACDC’s March meeting, which he felt had dismissed legitimate concerns over Agent Orange exposure as hype and hysteria. The presentation failed to mention that several institutions, including the Centers for Disease Control and Prevention (CDC), had concluded that Agent Orange exposure was harmful. The CDC had informed VA that someone (having flown former Agent Orange C-123s) exposed to Agent Orange was 200 times more likely to have cancer.** see correction  
Mr. Carter also objected to being mentioned and having his medical situation discussed in Mr. Sampsel’s presentation. Mr. Sampsel had noted Mr. Carter’s 100 percent disability rating, and commented that he guessed that was not enough. Mr. Carter responded that it should not be enough* and that he deserved acknowledgment that his cancer was due to Agent Orange exposure. 
Mr. Carter was disturbed that Mr. Sampsel validated the claims of a consultant VA had paid $600,000 to oppose him at an Institute of Medicine hearing. This consultant had previously referred to Mr. Carter and similarly situated Veterans as trash haulers and freeloaders, and had taken a contemporary photograph of a C-123 airplane and passed it off as a 1971 picture which he represented as evidence for why VA should keep its hospital doors locked to C-123 Veterans. 
Mr. Carter added that a group of Veterans’ organizations had written a letter protesting VA’s reliance on the consultant, and that ProPublica and Stars and Stripes had written articles criticizing Mr. Sampsel’s conclusions. 
Mr. Goldsmith asked if statements found to be untrue should be stricken from the record. 
Dr. Vvedenskaya said that ACDC’s meetings were open to the public and that any comments made became part of the public record.  Dr. Jones argued that it was contrary to ACDC’s charter to refer to individual Veterans by name at Committee meetings; if a presenter violated that policy, the Committee should make it clear that such remarks were inappropriate. Dr. Granger agreed that personal health information was private and should not be shared in a public forum without the individual’s consent. Chairman Martin thanked Mr. Carter for his comments and his service."

My correction to the ACDC minutes:

1.* I never have had or expressed objection to my VA 100% disability rating being "enough," but only to Mr. Samplel making that sarcastic suggestion to his colleague.
2. CDC/ATSDR reported to VA and the IOM that C-123 veterans face a 200-fold greater risk of cancers. The minutes incorrectly state that CDC reached that conclusion about all Agent Orange veteran exposures.

NEW ACTING VA BENEFITS UNDERSECRETARY SAYS AGENT ORANGE IS HARMLESS!

T. Murphy, VA Acting Undersecretary for Benefits

Problems continue to unfold at the Department of Veterans Affairs. The VA has had a series of recent personnel changes, one of them the departure of the man filling the office of Undersecretary for Veterans Benefits.

So, as a problem topped with another problem, in comes Mr. Thomas Murphy (himself a veteran, moving up from his Director, Compensation and Pension in less than a year to become Acting Undersecretary for Veterans Benefits. 

Mr. Murphy is a hard worker, and came to his earlier position at Compensation and Pension in 2010 where he oversaw VA's entire program for reviewing veterans' disability claims for approval or disapproval. His business background was at Home Depot.

Why is Mr. Murphy a problem? Because his six years at Compensation and Pension are fairly judged to be a relative failure in serving America's veterans. We'll focus here on two of these failures.

First, his determination and success in "holding the line" against Agent Orange claims. The two most visible groups he's fought on this are the Blue Water Navy Veterans and the C-123 Veterans Association.

In 2012 Mr. Murphy wrote his denial of a C-123 veteran's Agent Orange exposure claims after the Portland VARO said they wanted to approve...Mr. Murphy put a stop to that! "In conclusion, there is no conclusive evidence that TCDD exposure causes any adverse health effects." He wrote that to dismiss expert input from the CDC  confirming the veteran's exposure.

TCDD, the toxin in Agent Orange, is recognized by science to be the most toxic of the toxins, and definitely causes "adverse health effects." VA itself (but not Mr. Murphy) understands that it is a highly toxic substance. Likewise, NIH, EPA, WHO, NIEHS, US PHS and other health authorities understand TCDD ain't good for you.

His was no mere typo. Mr. Murphy's three-page denial blocked compensation and medical benefits to a veteran C-123 aviator. Four years later, VA itself conceded that veteran and other C-123 vets actually had been exposed to Agent Orange and could receive benefits.

At least, those who survived that long despite Mr. Murphy's policy of blanket denial by VA all C-123 claims would receive benefits.

Of course, Mr. Murphy assured veterans and legislators that VA had no such policy of blanket denials and instead promised to review all C-123 claims on a "case-by-case basis" – he just never bothered mentioning his assurance actually meant VA's case-by-case denial of every single claim submitted by every single veteran who flew the C-123.

Mr. Murphy must have been determined to deny this C-123 vet's claim. He rejected input confirming the vet's exposure not only from the CDC, but also from the National Institute of Environmental Health Services, the NIH, and numerous university-based scientists and physicians all supporting the vet's claim.

His denial opinion was read back to him, and he merely said he couldn't be familiar with everything leaving 1800 G Street over his signature. He hasn't made any correction to his 2012 statement, even with the last four years of confirmation of C-123 exposures.

In conference with C-123 veterans and his own staff, Mr. Murphy firmly explained that Veterans Benefits Administration had already determined none of the C-123 veterans were ever exposed, and no amount of proof from scientists or government agencies would raise the claim to VA's "as likely as not" threshold. All claims would be denied, he said.

But, of course, only after his "case by case" evaluation and automatic denial! It took four years and the Institute of Medicine study to get VA to begin permitting benefits for surviving C-123 vets. While that may have been a disappointing shift from the blanket denial policy VA still pretended not to exist, at least the department drew satisfaction in the money saved by blocking medical care and benefits for so many years.

A note: if Mr. Murphy's 2012 claim denial letter was written by a staffer for his approval, the staffer was most likely Mr. James Sampsel, manager of VBA's Agent Orange desk and liaison to the Joint Services Records Research Center (JSRRC) in DOD. Mr. Sampsel was also the staffer who drafted Secretary Shinseki's error-laden letter and deceptive C-123 Fact Sheet.

Mr. Sampsel, a Vietnam veteran himself, made his own perspective quite clear in a related email to Mr. Murphy. Mr. Sampsel determined that "the real problem" in denying C-123 veterans' claims is the amount of evidence confirming those exposures.

Get it? VA's "real problem" is that the veterans' proofs must be ignored by VA so as to deny the C-123 exposure claims. Mr. Sampsel, labeling CDC, NIH, US Public Health Service as "the real problem" in his email to Mr. Murphy, insisted VA had "an overwhelming preponderance of evidence" against the vets. He cited input from the VA consultant and VA's own web site, pretending that VA putting their policy statement online was "overwhelming evidence" sufficient to ignore the other federal agencies and dozens of independent scientists and physicians establishing the veterans' exposure injuries.

No legally required "benefit of the doubt" was even to be permitted. No contrary evidence was acceptable to VBA, Mr. Murphy or Mr. Sampsel...their policy overrode every regulation, law, Federal Register statements and assurances to Congress. Their anti-veteran preference overrode everything.

Even the DoD had tried to tell Mr. Sampsel it had credible evidence from many sources supporting the veterans. Mr. Sampsel, in response to DoD, put blinders on and was improperly very highly selective about what evidence it would acknowledge – if evidence supported C-123 claims it was immediately ruled unacceptable. As for VA and its campaign against C-123 claims, Mr. Sampsel would not request a JSRRC finding or permit one to be issued on C-123 veterans (note: this violates procedures described in VA's own regulation VAM21-1MR, as well as the Veterans Claims Assistance Act.) He then refused to acknowledge any JSRRC input he had not first requested...thus, no requests = no JSRRC confirmation = denied claim.

Mr. Murphy thanked Mr. Sampsel for his input.

Mr. Murphy's thanks were for Mr. Sampsel's success in denying all such claims for another three years. It wasn't until the Institute of Medicine's C-123 report was published that VA finally acknowledged the aircraft contamination and the aircrew's exposure.

Just as the CDC had said back in 2012, when more of the vets were still alive.

Vietnam Veterans of America Comment to VA on C-123 Interim Final Rule

VVA's president Mr. John Rowan issued this statement today strongly challenging VA's proposed interim final rule restricting C-123 Agent Orange benefits. The concern of all veterans is on VA's failure to respect retroactive compensation based on date of claim submission.

VA: C-123 Veterans' Service Connection – NOW!

The C-123 Veterans association is joined by other service organizations in calling on Secretary McDonald to recognize our aircrew and maintainers' Agent Orange presumptive service connection. 

It has been long enough.

Proposal to Dissolve C-123 Veterans Association

The Last Bag Drag.
Time to file the voucher and head home.
Mission complete.

If things go through this week as VA has indicated, our reason for existence draws to a close. We told VA we'd been exposed to Agent Orange, and at long last the VA will begin treating our Agent Orange illnesses and providing the full range of care and benefits due us.

So there is nothing remaining that is unique to us. We've argued our case and won, and now the proposal for all to consider is simply dissolving our casual association, and inviting all members to affiliate with the Vietnam Veterans of America.

VVA is organized to meet our needs. Their service officers understand the VA and Agent Orange issues, and we share with VVA members the full range of veterans concerns. In particular, we have an abiding concern for veterans of all toxic exposures, something the VVA will fight for on our behalf and with our small number of airmen added to their ranks.

We'd thought of an aviation-focused chapter, but VVA's structure makes that impractical. Because we're spread all across the nation we can't enjoy the fellowship of other veterans unless allied with VVA and other service organizations such as VFW, DAV and the Legion.

Because of some continuing issues such as FOIA suits and Yale's representation of us on important cases, we will continue as an entity until these things are resolved. I'll also continue to blog as the mood strikes me...I've come to enjoy this as something of a focused journal

A note: of all the service organizations, while a couple like PVA and DAV mentioned us occasionally in their publications, our cause was championed by the VVA and the American Legion.

To both, we say "thank you, brothers."

NASDVA Asked to Inform VSOs & Veterans About C-123 Developments

We again have asked the National Association of State Directors of Veterans Affairs to inform C-123 veterans and their survivors of developing eligibility news coming from the VA.

Over the four years of our effort to get VA itself to assist our veterans, NASDA has never responded to inquires or requests and we hope the recent IOM report and VA's reassuring comments since 9 Jan 2015 will help enlist their experts. Even earlier assistance from then-president Dr Linda Schwartz, Connecticut's Commissioner of Veterans Affairs, brought only silence.

We face a tremendous sea-change. VSOs, claims officers, attorneys, veterans themselves and all the web sites and printed literature will have to be inclusive of C-123 veterans' eligibility. Those details, once fleshed out by the VA, need to get in place immediately.

(1/31/2016: actually, we never heard a single word from NASDVA)

VA & C-123 Veterans: "A Bellwether Moment" for Secretary McDonald (Navy Times Editorial)

Editorial: A bellwether VA moment

2:27 p.m. EST January 23, 2015

Bob McDonald must turn around VA.

New Veterans Affairs Secretary Bob McDonald has the Herculean task of trying to right his scandal-­plagued department, a mighty challenge forcefully defied by institutional resistance to change and a bureaucratic belief that its core mission is to serve the best interests of the government rather than those of the men and women who served the country in uniform.

VA's latest success in embarrassing itself involves the Air Force's fleet of C­-123 aircraft that sprayed the toxic defoliant Agent Orange on the jungles of Southeast Asia in the Vietnam War.

After the war, the planes were scrubbed down and kept in service, with 1,500 to 2,100 troops flying on them before they were retired for good in 1982. Many of those troops are now sick with cancer and other illnesses that they've long claimed were caused by toxic residue lingering in those C­-123 airframes.

That charge was backed up in 2012 in a government report. In customary fashion, VA's response was complete denial. Now, a new scientific review has come to the same conclusion as the earlier report — "with confidence." It's the latest in decades of VA health controversies: depleted uranium, burn pits, tainted anthrax vaccine, and more. 

In the pointed words of Rick Weidman of Vietnam Veterans of America, VA's standard approach to veterans' environmental health issues is "delay, deny, wait 'til they die."

McDonald somehow must turn around this massive, calcified outfit that still lacks vision, accountability, and, most importantly, trust among many of the

veterans it was created to serve.

VA officials promise to respond to the newest C-­123 report. That response will go a long way toward determining whether McDonald can effect the changes so badly overdue at VA.

Air Force AGAIN Refuses to Designate C-123s as Agent Orange Sites

Received December 6, 2014 from the USAF General Counsel. This is their third refusal to acknowledge the issue. VA has said only AF or DOD can designate DOD sites as Agent Orange sites. AF here says that's a VA responsibility.

The problem: VA cites the DOD list of bases and ships which were potential Agent Orange exposure sites as proof in related disability claims. Whether or not a base, ship or airplane is labeled by DOD as a contaminated site affects whether VA will recognize the veteran's claim.

In the case of C-123s, their absence from the DOD list is cited by VA as "proof" we weren't exposed. VA says if the airplanes were contaminated, they'd be on the DOD list. As can be seen in the letter below, AF is making every effort to avoid any modification of the Al Young-produced list DOD provided the VA in 2006...despite the reams of documentation calling for just such a recognition.

Agent Orange Town Hall Meeting – Fort Collins CO December 5

VA Fires Gulf War Advisory Committee Leadership

James Binns, former Gulf War Advisory Chair

Despite strenuous objections from Gulf War Advisory Committee members whose terms were continuing, VA Secretary Bob McDonald bowed to recommendations from VHA's Post Deployment Health to replace current chairman James Binns of Phoenix. Binns and his departing colleagues had sought reappointment to continue their investigation of Gulf War issues, which they feel VA has failed to address.

Binns and his committee have been thorns in the side of the Department of Veterans Affairs for years. Binns points to the Institute of Medicine study on Gulf War vets as strongly suggestive of Gulf War illnesses being some misunderstood combination of toxic threats, immunizations, smoke and genetics...but VA has fought tooth and nail to prevent any presumption of service connection for the illnesses GIs have developed.

Rick Weidman of Vietnam Veterans of America and leaders of the other major service organizations have gone straight to the top on this, and Congress has listened. Rick and his allies have asked that the President realize veterans have lost faith in the VA, and want the Gulf War Advisory Committee to report to Congress, rather than the VA. This may involve Constitutional issues, however, regarding the separation of powers.

To be clear: every voice that matters was behind Binns and his colleagues continuing in their service except Post Deployment Health, Veterans Heatlh Administration.

Recently, Under Secretary Allison Hickey drew criticism for her direct approach to the IOM committee to suggest rephrasing their reports' terminology. Usually, VA influence over the committee, which is decisive enough, extends to whether to fund a study in the first place, whether to cancel it (as was done with the failed 2012 promise for an IOM C-123 report,) how to phrase the assignment to the committee, and what documents to release to best "guide" the committee to VA's desired conclusion. Then finally, whether or not to impliment the IOM's suggestions.

Weidman's VVA, DAV, VFW, American Legion and the other veterans service organizations feel the problem calls for the Gulf War Advisory Committee to report to Congress from now on.

That's the only approach, given the staff agenda's in Post Deployment Health and their determination to prevent veterans' claims. Veterans grow curious as to what marching orders they've been given...or gave themselves.

We'll see how just how tightly controlled Secretary McDonald is by VHA in his selection of replacement Gulf War Committee members, and whether those members will represent science, or Post Deployment Health.

Veterans who've been well-served by Post Deployment Health's excellent War Illness and Injury Study Center (as has been this writer) point out that it is an exceptional service which VA should be proud of, and which veterans greatly appreciate. But the Post Deployment Health record on exposures and related disability claims is overwhelmingly disappointing and a disservice to the Nation.

Thanks to the Arizona Republic which has led the nation in coverage of the 2014 scandals, and which hasn't been afraid to offer suggestions as well. A serious contender for a Pulitzer, we hope.

News Coverage of C-123 Issues – Just Published

This week saw two articles about our C-123 veterans' long journey towards VA recognition of our Agent Orange claims. The National Journal covered us on October 8 lending their great influcence in the DC area with the article repeated in other publications including Government Executive.

The second was an interview in Portland, Oregon, of Dr. Fred Berman. Berman co-authored the February Environmental Research article,  “Post­-Vietnam Military Herbicide Exposures in UC­123 Agent Orange Spray Aircraft.” I found this the most interesting, because the writer interviewing Dr. Berman "promoted" this major to an Air Force General.

Forgive me if I take a few days to savor this before offering a correction.

DOD Agency Confirms C-123 Vets' Agent Orange Exposures

Development: Beginning May 2014, the Army's Joint Services Records Research Center (JSRRC) began submitting official confirmation of C-123 veterans' Agent Orange exposure evidence to the Department of Veterans Affairs. This is a big deal...this should be a game-changer.

That is, if the VBA will permit claims adjudicators to follow VA's own regulations per VA 21-1MR.

Up to now, JSRRC responded to VA inquiries about aircrew and maintenance veterans with an inconclusive, "no records found to substantiate veteran's exposure claim." VA's manual "has the force of law," according to the Court of Appeals for Veterans Claims. JSRRC's military archivists in Fort Belvoir, Virginia research official documentation to help confirm or deny PTSD and exposure situations for all services except the US Marines...including C-123 post-Vietnam claims. JSRRC's empty response satisfied VBA's objective of preventing C-123 veterans' claims. The JSRRC answer, since May, has not been empty any longer...it is instead the final YES answer veterans were seeking!

Thus, because VA21-MR directs claims adjudicators to inquire with JSRRC to get an official thumbs-up or thumbs-down on Provider aircrews and maintainers, the recent JSRRC action means the final hurdle should have been resolved.

Problem: VA regional offices are postponing decisions on C-123 claims, for some reason waiting for the Institute of Medicine C-123 report to come out. We can only hope that repeated official promises, detailed earlier on this blog,  of "case by case" evaluations continuing are honored.

Action:  We think its time for Post Deployment Health to set aside that department's agenda and follow the law, VA 21-1MR, the US Constitution, and the many Federal Register statements that all veterans establishing proof of Agent Orange (herbicide, military herbicide, call it whatever) will have recognized Agent Orange illnesses cared for.

Let us into the hospital, please.

Found: Third Federal Register Statement from VA "Assuring" C-123 Exposure Rights

One of the pivotal changes in VA policy towards Vietnam Veterans was the 2008 Haas Decision. The proposed rule changes announced in the Federal Register for Hass also included another statement from VA addressing non-Vietnam exposures. Previously, VA had made the same statement on 8 May 2001 (page 23166) and VA was to make one also on 31 August 2010, each time along with fundamental changes in VA Agent Orange ruled. We say deceptive because VA then disregarded their obligations.

But each time there was no change in non-Vietnam exposures: any veteran with proof of Agent Orange exposure was to be treated with the same presumptive service connection as a Vietnam War "boot on the ground" veteran. So we should think the commitment, thrice-stated along with treatment of major changes in other VA Agent Orange issues, would be clear enough to all.

But no. Even after three repetitions, three assurances to Congress and the public that no further legislation was needed to insure VA would protect non-Vietnam War exposed veterans, VA has opted to reinvent the singular word "exposure," the core of each of these three Federal Register promises, to prevent any exposure claims.

The veterans were not exposed, according to the 2012 redefinition of exposure by the VA. "Exposure = contamination field + bioavailability." No bioavailability means no exposure claim approval, VA's basic goal regarding C-123 exposures.

And while we can establish our Agent Orange C-123 contamination, we cannot prove bioavailability these many decades later. We might have been able to do so back in 1982, but not decades later. Besides, VA forbids that test in the Agent Orange Registry exam, so the net result is they say we were not exposed and won't give us the test to determine exposure, so they conclude we weren't exposed. Weird, but their objective is to prevent claims so that's what they do.

Other parts of this Federal Register posting address Blue Water Sailors seeking Agent Orange exposure benefits. VA informs Congress that (from 16 Apr 2008, page 20569)

This action would not result in a finding or presumption that veterans who served on ships were not exposed to herbicides; it would merely clarify that such veterans are not automatically presumed to have been exposed and that the issue of exposure must be resolved on a case-by-case basis to the same extent as most other factual issues involved in claims for VA benefits.

This is the source for VA's insertion in C-123 claims that we are to be considered on a case by case basis, with examination of the factual issues. But in fact, that restriction to a case by case basis is mentioned only in context for claims of ship-board exposures, and does not relate to C-123 exposure situations. Thus, C-123 claims can be considered as a general situation, not requiring each claim's individual scrutiny past fundamental facts of veterans' honorable service, veteran's recognized Agent Orange disease, and veteran's proven exposure. 

In other words...presumptive service connection.

Here's the language protecting non-Vietnam herbicide exposures, so familiar to us after three years of quoting it to VA authorities and three years of frustration as VA ignores their own rules:

Veterans could establish service connection for herbicide-related
conditions by submission of evidence establishing exposure to
herbicides during service, just as they always could. If a veteran is
eligible for that presumption, then, as a result, VA will not further
scrutinize that veteran's claim on the issue of exposure.

We also note that a veteran who does not meet the requirements of
Sec. 3.307(a)(6)(iii) for application of the presumption of service
connection based on service in Vietnam may establish direct service
connection under Sec. 3.307(a)(6) and Sec. 3.309(e) based on
herbicide exposure if the veteran can establish that he or she was
actually exposed to herbicides in service. Section 3.307(a)(6)(iii)
only defines when the presumption of exposure to herbicide agents will apply. Additionally, as part of its duty to assist, VA will assist a claimant in obtaining any relevant evidence related to a claim forexposure to herbicide agents.

But VA cheats A lot. They deny exposure using their unique redefinition of exposure, they prevent tests for exposure, they wait forty years to address this issue in any way, they give IOM a charge which has nothing to do with the law's singular requirement of proof of exposure for presumptive service connection. And they, icing on the cake, they deny claims on the basis that no harm has been shown to be caused by exposure to TCDD, the toxin in Agent Orange.

In countless Federal Register postings, in hundreds of Board of Veterans Appeals citations, in CAVC citations, the standard language used is, "Agent Orange is carcinogenic, a fact that VA does not dispute."

But they do dispute it. They stop it into the ground and bury that acknowledgement by actually ordering claims for Agent Orange exposure denied because TCDD (the toxin in Agent Orange) "hasn't been shown to cause adverse effects."

Perhaps there's a misunderstanding here. Is VA stating that carcinogenic is not harmful? It seems bad to be exposed to something which causes cancer, as does Agent Orange. That's not harmful?
Oh, we forget: VA redefined exposure so that we were magically not exposed after all, and today we can pretend, with the VA, that the "heavily contaminated" and "a danger to public health" C-123s we flew for a decade were not harmful, and caused no adverse health effects."

Unfortunately, VA's redefinition doesn't carry much weight with my VA oncologist/urologist who already agreed my Agent Orange exposure was, more likely than not, the source of my prostate cancer.

Another unusual point: always before contamination equals exposure. No qualification necessary as to how much or any other measurement. Why now, this new and illogical standard, being fought to the death (ours, not theirs) by VA staff? Why don't they feel constrained, or even guided, by the law?

National Veterans Groups Challenge VA on C-123 Agent Orange Claims Obstruction

On June 27, using the letter below, all six major veterans organizations firmly challenged the Veterans Administration (VA) for inappropriate use of a particular consulting firm. The firm represented the VA in a June 16 Institute of Medicine (IOM) committee meeting evaluating C-123 Agent Orange exposure issues. Veterans leaders dispute the consultant's findings, and insist the firm was cherry-picked for its known opposition to veterans' exposure claims, which in this case had been expressed by the firm for years. 

Veterans and Agent Orange experts reviewing the statements and documents submitted by the consultant to the IOM on behalf of the VA complain to the Secretary that the input was unscientific and failed to meet VA's published standards for quality, utility, integrity and objectivity of information released by the Department.

This group letter follows publication in the Sunday Boston Globe of a front page feature article about a C-123 veteran, Dick Matte had a heart transplant, lost his left leg in February and is increasingly ill but his Agent Orange exposure claims were denied, just as with all of other C-123 vets. 

Other news impacting the issue was the C-123 Veterans Association release of a "Casualty List" of ten deceased veterans who flew or maintained these former Agent Orange spray transports. All died after being refused VA care...turned away by VA, the veterans had to do their best seeking medical care elsewhere. 

That's not right! In the many ways VA is wrong in preventing exposed veterans' access to VA facilities , we leave it to the department's Inspector General or the Secretary himself to address.

======================================================= 

June 27, 2014

The Honorable Sloan Gibson

Acting Secretary

United States Department of Veterans Affairs

810 Vermont Avenue

Washington, D.C.

Dear Mr. Secretary,

We write to ask that you take immediate steps to reverse the action of the Veterans Health Administration (VHA), Office of Public Health section, in retaining a certain outside consultant firm regarding Agent Orange.

Having this particular consultant represent VA at the June 16 public meeting of the National Academies of Sciences Institute of Medicine (IOM) Committee on the Exposure of C-123 crews to Agent Orange is nothing short of reprehensible. As you move forward in your efforts to reestablish the trust of veterans in VA (including the strong united support of the nation’s veterans service organizations), we caution that employing that particular consulting firm will be seen as an inappropriate, anti-veteran choice.

This consulting firm’s decades-long association with the VA and its consistency of obsolete views over the past 40 years, despite all current scientific knowledge, is not what the public expects, as VA meets its own mandate for release of information:

“VA will ensure and maximize the quality, objectivity, utility, and integrity of information it disseminates to the public.” (http://www.rms.oit.va.gov/information_quality.asp#Release)

We ask that you review this firm’s unique contractual involvement with the VA and make appropriate decisions.

We are alarmed that VA had already assumed a position and that the contractor directly informed the IOM of the VA’s position. He made clear he was offering his input as a scientist to insure the integrity of the scientific record. In fact, as his own support documents submitted to the committee make clear, VA contracted with his firm to produce, and then release to the IOM, his reports, some of which targeted veterans’ claims directly.

Whether from Young or from other personnel in the Office of Public Health (OPH), the use of the term “bioavailability” is now being used to deny claims. This is a term in the development of pharmaceuticals that is used to refer to how much and how fast the active ingredients reach the specific part of the body that one is trying to affect. Of course, this has to be measured in a controlled setting. Air missions almost forty years ago do not lend themselves to such measurement. So this is nothing but junk science. If this were the standard used at the Love Canal, NY, or Times Beach, MO, toxic disasters, then one would judge that all those who died were not even sick, as “bioavailability” could not be measured or proven. This is patent nonsense.

This contractor’s reports, regardless of any possible partially factual accuracy they may convey, do not meet the appropriate standards of VA nor of any other federal, science-focused agency. The contractor’s reports yielded to the VHA/VBA agenda, serving VA rather than science and veterans. These reports could never survive peer review, yet VA selected this person to pressure the IOM into preventing the veterans’ exposure claims.

For four decades, this contractor has tried to obfuscate or hide the truth about the deleterious impact of Agent Orange. In fact, he has been paid to hide the truths regarding the negative health effects of Agent Orange and other phenoxy herbicides and organic phosphates used in Vietnam and elsewhere. 

In possible violation of ethics, VA’s contractor failed to disclose his 2009 recommendation to destroy the stored, toxic C-123’s, which was acted on in 2010. He had advised the Air Force, in numerous memoranda, that unless the planes were destroyed, veterans might apply for presumptive service connection because of their exposures. He then congratulated the Air Force for carrying out the destruction in a manner “below the radar.” His opposition to C-123 veterans is anything but “below the radar.” 

The contractor made numerous apparent misrepresentations during his June 16 presentation before the IOM, the most egregious of which was his use of photos of a reconditioned C-123, taken from a civilian owner’s website showing what the plane looks like today after the owner had rebuilt it. The consultant used these photos in an attempt to illustrate the 1972 results of Tail #664 and the other C-123s, claiming them to have been thoroughly refurbished after Vietnam. Actually, the photos he “borrowed” show modern cockpit modifications. The cargo deck photo shows equipment used today by the civilian owner for attending airshows. Certainly, these were not photos of modifications performed in 1972, as his report detailed. Of particular concern is the contractor’s use of the borrowed photos to challenge other scientists’ work, and we are troubled by such apparent deceptions aimed at these veterans.

While we would always rather focus on policies than personnel, in the case of this contractor, personnel is policy. On behalf of our nation’s veterans, we have an obligation to share with you the contractor’s record of positions, quite contrary to VA’s stated position, regarding the deleterious effects of one of the most toxic chemicals ever produced. The consultant’s record regarding Agent Orange is antithetical to good science on toxic exposures. Of grave concern are both his employment and the VA’s use of his “expertise” to construct obstacles to the delivery of care to veterans suffering from the very real toxic wounds afflicting our members and their families.

We welcome the opportunity to meet with you to discuss this contractor and other major problems of vital interest to our members.

Sincerely,

PETER S. GAYTAN

Executive Director

The American Legion

STEWART M. HICKEY

National Executive Director

AMVETS (American Veterans)

GARRY J. AUGUSTINE

Executive Director

Washington Headquarters

DAV (Disabled American Veterans)

Homer S. Townsend, Jr.        

Executive Director

Paralyzed Veterans of America                                 

ROBERT E. WALLACE

Executive Director VFW

Washington Office

RICHARD F. WEIDMAN

Executive Director,

Policy & Government Affairs

Vietnam Veterans of America (VVA)

DOD Inspector General Immediately Refuses Any Action on C-123 IG Complaint

Acting with unusual speed, but with their usual refusal to get involved, the Department of Defense (DOD) Inspector General Hotline denied the C-123 Veterans Association request for an investigation into the DOD-maintained Agent Orange exposure site list. Typically, investigations of this type can take a month or more but two days was all DOD needed to throw the issue back at the C-123 veterans, unresolved.

By simply stating that there was no reason to proceed, DOD closed out the complaint, despite reams of documents already submitted to the official responsible for the list, Air Force Lieutenant General Judith Fedder. General Fedder earlier denied the veterans' request when put directly to her, insisting there was not enough medical evidence to justify such a decision on her part. The veterans pointed out that the issue is not one of medical impact of the lingering Agent Orange, but the simple historical fact of their contamination.

Both DOD and the Department of Veterans Affairs have resisted acting on veterans' requests for action on the issue of C-123 contamination, despite confirmation of exposure provided by the CDC, National Institutes of Health and the US Public Health Service, and numerous universities and medical schools.

VA has arranged a review of the medical issues involved in the C-123 contamination, a study conducted by the Institute of Medicine, presently meeting in committee in Washington DC. Today's speaker before the committee's public session is Mr. Rick Weidman, Legislative Director for the Vietnam Veterans of America, which has threatened court action if resolution of the veterans' concerns is not forthcoming.

C-123 Veterans Announce Agent Orange Town Hall Meetings

Partnering with the Vietnam Veterans of America. representatives of the C-123 Veterans Association

are now available to present the popular Agent Orange Town Hall meetings throughout the United States. Addressing the full range of Agent Orange concerns and benefits, our Association presents an additional element of exposure topics, including a bit more scientific focus on routes of exposure.


The meetings, free to the public and with light refreshments provided, will also include the latest VA's War Injuries and Illness Study Center, where their poly-exposure expertise has been so important to veterans, especially those with multiple war exposures.

The Agent Orange Town Hall meetings have been organized for nearly two years under the auspices of the Vietnam Veterans of America, the objective being to acquaint veterans and the public with the lingering issues of this Vietnam-war era military herbicide which still causes such grief to America's veterans, as well as allies from South Korea, Australia and the former Republic of South Vietnam.

VVA's web site posts announcements of these talks, presented by many affiliated veterans' organizations in each of the fifty states, and which have proven so popular. The VVA site also posts meeting materials for organizers, and links to vital materials from the Department of Veterans Affairs and the VVA itself, especially the informative VVA Guide to Agent Orange Self Help.

Town Hall Meetings are pointedly non-political...information about Agent Orange and its impact on America's veterans and
their families is the only agenda item. And that information is changing all the time, with new perspectives from the VA, the medical community and veterans themselves.

The C-123 Veterans Association anticipates its next Town Hall Meeting to be July 19 in Cheyenne, Wyoming, in partnership with the city's three Veterans of Foreign Wars posts, and with input from the Wyoming Veterans Commission and the Cheyenne Veterans Affairs Medical Center (note: participation by other agencies such as the VA does not imply their sponsorship or content approval, but only their wish to help inform their veterans and answer questions on any topic of interest.)

Other organizations wishing to conduct Town Hall Meetings under the sponsorship of the Vietnam Veterans of America are asked to coordinate with the VVA through Mokie Porter in the national office. 1-800-882-1316 ext. 146 (mporter@vva.org) For information about the C-123 Veterans Association Town Hall Meeting, please contact W. Carter at wes@c123cancer.org

Insuring an Adequate VA Compensation & Pension Exam

The First Question to Ask in a C&P Examination

By Lauren Kologe, Vietnam Veterans of America

When a veteran files a claim for disability compensation or pension benefits, the Veterans Administration (VA) is often required to provide a medical exam to confirm the veteran’s eligibility for benefits and to determine the appropriate disability rating.  This is known as a C&P exam (Compensation & Pension).  The first question the veteran should ask the doctor is, “have you had a chance to review my claim file?”  If the answer is no, the veteran should ask the doctor to first review the claim file. The veteran should only proceed with the exam after the doctor has reviewed all the information the veteran has submitted and VA has received regarding the claim (the claim file or c-file).

The same is true when the veteran asks his or her own doctor to provide an opinion on the claim.  The doctor must review the veteran’s entire claims file, state that he or she has read it, and comment on the veteran’s military and medical history contained in the file so that it is apparent the doctor has actually reviewed the records.

If you, the veteran, had an examination that was short, cursory, or one in which the doctor asked questions that he or she should have known from reviewing your records, you will want to obtain a copy of the C&P exam from VA.  You are entitled to one free copy under the Privacy Act.  If the doctor did not state that he or she read your claim file, and misstated or left out relevant facts contained in the claim file, you will want to point that out to VA, and you will want to ask for a new examination.  VA is required by the “duty to assist the veteran” to provide examinations that fully consider the veteran’s medical and military history.

This is supported in many cases by the Court of Appeals for Veterans Claims, Federal Circuit, VA law (Title 38 of the United States Code), and VA regulations (Title 38 of the Code of Federal Regulations).

Fulfillment of the duty to assist “includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Green v. Derwinski, 1 Vet App. 121, 123-24 (1991); See also, 38 U.S.C. § 5103A(d). 

In the case Bielby v. Brown, 7 Vet.App. 260, 268 (1994), an examiner failed to read the claim file, and the Court held that an independent medical examiner’s opinion is without evidentiary value where he failed to review the veteran’s record, and thus had no basis of fact or data upon which to render an expert opinion.

Even if the C&P examiner states that he or she has read the claims file, if there are obvious errors or inconsistencies in the reporting of those facts, the medical opinion is not adequate.  The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).

The VA’s regulations require that a report of a disability examination must be adequate for rating purposes in order for it to be justifiably relied upon by a rating authority in order to evaluate a veteran’s disability.  38 C.F.R. § 4.2. 

Moreover, an examiner’s assessment of the disability in the exam report must be based on an assessment of the disability, both currently and historically, that is factually accurate.  Id.

Some of the items in a veterans’ claim file may be other medical opinions and treatment records.  The Court of Appeals for Veterans’ Claims has remanded several claims where the Board failed to discuss and weigh the credibility of favorable evidence.  See, Cathell v. Brown, 8 Vet.App. 539 (1996) (BVA ignored reports of treating physician and another psychologist without adequate explanation).  See also, Cropper v. Brown, 6 Vet.App. 450 (1994) (BVA failed to address all evidence of record including probative value of veteran’s psychiatric examination).

In Gabrielson v. Brown, the Court determined that a medical opinion that the VA intends to use to deny a claim must discuss the positive evidence, or major positive factors, in favor of the claim.  See 7 Vet. App. 36, 40 (1994).  Conversely, the Court stated that the Board may not adopt a doctor’s opinion as the basis for its denial of benefits when the doctor’s opinion failed to discuss all the positive evidence in support of the veteran’s claim.  See id.

If you have been denied a claim for disability benefits based on an exam (whether VA or private) that did not consider your military and medical history, please contact a Veterans Service Officer near you to explore options for appealing or re-filing a claim.  You can find a VVA representative near you by using our search tool at: https://benefitsforum.org/Rep.aspx.  You can also find a listing of all persons accredited to represent Veterans in VA claims by using VA’s search page at:http://www.va.gov/ogc/apps/accreditation/index.asp.  VSO representatives prepare claims at no cost to the veteran.  Attorneys or agents may charge for representation on appeals. 

Lauren Kologe is the Deputy Director of the Veterans Benefits Program at VVA.