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

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

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

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

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

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

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

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

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

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

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

HEY VA: Your “Assist” Never happened!

VA Ethical Failures: C-123 veterans' experiences with the VA claims system (free booklet)

VA Ethical Decay by Wesley Carter (click to download free copy -APPLE VERSION)

...A Case Study of Unethical VA Actions: Agent Orange Claims by C-123 Veterans 2007-2015

CLICK to download from Apple iTunes

Description:

C-123 veterans flew these former Agent Orange spray aircraft after the Vietnam War. The aircraft remained contaminated but in a long series of ethical shortfalls, the VA refused to acknowledge claims in the period 2007-2015.

Unethically, VA staff insisted they had imaginary “overwhelming preponderance of evidence against exposure claims, denying 100% of all claims while insisting VA also had no “blanket policy” against veterans’ applications. VA paid its favored consultant $600,000 in a unique no-bid, sole source contract to help block veterans’ claims.

VA staff violated regulation VAM21-1MR and the Veterans Claims Assistance Act, ignored exposure confirmation from CDC, US Public Health Service and dozens of other authorities, citing instead the VA website as the paramount authority. VA mislead elected representatives.

In January 2015 the Institute of Medicine confirmed crew exposures. in June 2015 VA finally began honoring disability claims but blocked all retroactive compensation normally provided once claims finished adjudication. Ethical failures were in advocacy, privacy, scientific accuracy, fairness, excellence, and respect.

Had VA adhered to their established value system, scandals like Phoenix and the abuse of C-123 exposure claims could have avoided to the benefit of all veterans and the Nation.

Going forward, VA needs to adhere to “I Care” values, and develop a measurement system for job performance in ethical values.

Publisher The C-123 Veterans Association

VA ESTIMATE OF C-123 VETERANS' AGENT ORANGE DISABILITY COMPENSATION? $46,000,000

 $46,000,000

The biggest part of the battle was behind us. Finally, the Institute of Medicine had completed their two year study by a distinguished group of scientists and physicians, and agreed with us that we have been exposed to Agent Orange and harmed by that toxin. Their report was submitted to the Secretary of Veterans Affairs on January 9, 2015.

The IOM had a public hearing to announce their conclusions, and I attended to represent both active-duty and Reserve post-Vietnam C-123 veterans. Several attorneys from the law firm that represented us accompanied me. Observers were there from the US Air Force, the Senate, CDC, the press and the VA. 

Finally, I was to meet Assistant Secretary Linda Schwartz, a medically retired Air Force flight nurse who’d flown with us on occasion "back in the day" and is herself a C-123 veteran. Four years earlier I’d met her on the Internet in her capacity as Connecticut’s Commissioner of Veterans Affairs. She immediately offered the first of many critical suggestions on the conduct of our contest with the US Department of Veterans Affairs.

We’d won. No longer could the VA insist on its imaginary “overwhelming preponderance of evidence” against our disability claims. That evidence had been shown to be a total pretense, a policy sham advanced by the VBA Agent Orange desk and the VHA Post-Deployment Public Health Section. Both of these VA functions had been policy-driven to oppose our claims and this marks their defeat. In addition, the US Air Force School of Aerospace Medicine C-123 report released in 2012 was shown to be both scientifically and medically flawed (Lurker, 2014.) The IOM accused both the VA and the military of deliberately ignoring, disputing or minimizing all proofs of our exposure to prevent our claims.

It was quite a ground-breaking moment. Never before had a single group of veterans successfully argued its case and established the facts surrounding their Agent Orange exposure.  Before, as well as after us, VA always successfully argued against other veterans' claims. We’d won, but as Senator Richard Burr (R-NC),  ranking member of the Senate Veterans Affairs Committee, said in his own press release, “it shouldn’t have taken this long or been this hard.”

It remained for VA to finally decide whether and how to implement the conclusions of the IOM. This was a process we were unfamiliar with and one that took VA Secretary McDonald six months to complete and publish in the Federal Register.

Because of requirements built into the 1991 Agent Orange Act regarding how VA treats IOM conclusions, it was likely that VA would acknowledge our exposures. A working group was formed within the department and it submitted its recommendations to the Secretary.

Now the internal machinations began within VA. One of the biggest was to determine how much this was to cost the government.  The White House Office of Management and Budget weighed in with its estimate of $46 million to cover disability compensation. OMB made no estimate of the cost of medical care or survivor benefits each item expected to exceed the cost of disability compensation itself. In 2014, working with the Harvard School of Government, we calculated the total cost to be nearly $250,000,000!

On June 18 2015, I was invited to VA headquarters to hear Secretary McDonald’s decision:

1.   • VA would acknowledge the statutory veteran status per U.S.C. Title 38 of our aircrews, aeromedical evacuation crews and aircraft maintenance technicians, if they had any of the presumptive illnesses associated with Agent Orange. This was legally necessary to permit VA to provide benefits because the law is all specified ”veterans.” Unless activated, Reservists are not considered veterans in the law. The VA decision did not award veteran status to anyone not confirmed to have an Agent Orange illness.

2.    • VA would begin compensation effective June 19, 2015 and would not require claim submitted prior to that date to be resubmitted. Disappointingly, VA also decided against any retroactive compensation. This was disappointing to us because some have had claims in to VA for seven or more years.

3.    • VA would give all claims submitted for the next year and effective date of June 19, 2015 in effect making those claims partially retroactive.

I had always suggested a total number of our C-123 veterans to be about 2100. VA estimates that 25% of the personnel who served in Vietnam now have disability benefits for their exposures. If that same 25% applies to us, it means an average compensation of over $88,000 per veteran. The Harvard estimate of $250 million may yet be correct calculating in survivor benefits and the cost of medical care given our veterans.

That, and the VA medical care plus other benefits were what we had fought for these last four years. One of the most important of these benefits is VA Dependents Indemnity Compensation of $1240/month  for survivors, a benefit particularly important to our veterans who do not have military retirements. Another benefit is “Champ-VA” for families of totally disabled veterans without TriCare. 

We’d won,  and now our objectives became getting the word out to thousands of our folks now scattered throughout the country in the decades after our duty aboard the C-123 transports. We'd won, but were left without the retroactive compensation clearly due us, compensation which was supposed to be based on the date of claim application. That is our remaining objective.

Hanscom AFB C-123 Maintenance Vet Gets Agent Orange Claim Corrected

Problem Solved. I received a message a few minutes ago that Joe Collins' cancer claim, at first denied, was corrected by senior VA leadership.

A few days ago I noticed a decision by the BVA about a veteran claiming C-123 Agent Orange exposure while a mechanic at Hanscom AFB back in the early '1970's – but his claim was denied and his appeal also denied! The vet's name was withheld but we tracked him down though Andy's Old Guys Network...Joe Collins.

VA had lots of text detailing Joe's service as an ART, and explained that such duty didn't convey veteran status for the period of his exposure. The denial also noted his Reserve duty, but still nothing triggered recognition of his benefits per the VA C-123 Interim Final Rule of June 2015. That made all post-Vietnam C-123 aircrews and maintenance folks veterans per the statute if claiming any recognized Agent Orange illnesses.

(Note 23 Sept 2016: VA leadership resolved this thru BVA, and Joe's claim is being expedited! Problem solved, but still a question left unanswered – how could the Boston regional claims office and the Boston BVA have screwed this up so completely?)

Thanks to our community of C-123 veterans, we were able to identify the C-123 vet whose claim was so terribly screwed up. Joe Collins is our guy, and today I had the pleasure of speaking with Joe and his wife.

We got his name and SSAN to authorities in VA to reconsider his claim and June 2016 denial.

Let's hope VA moves on this one: Joe's claim dates from 2007!

C-123 Vet with Defective BVA Decision: Joe Collins

(Note 23 Sept 2016: VA leadership resolved this thru BVA, and Joe's claim is being expedited! Problem solved, but still a question left unanswered – how could the Boston regional claims office and the Boston BVA have screwed this up so completely?)

Thanks to our community of C-123 veterans, we were able to identify the C-123 vet whose claim was so terribly screwed up. Joe Collins is our guy, and today I had the pleasure of speaking with Joe and jhis wife.

We got his name and SSAN to authorities in VA to reconsider his claim and June 2016 denial.

Let's hope VA moves on this one: Joe's claim dates from 2007!