Senate AGAIN Demands VA Action For C-123 Agent Orange Veterans

Following the April 9 conference at the Senate Russell Building to address C-123 Agent Orange veterans' medical and compensation benefits, senior members of the United States Senate repeated their earlier bipartisan demand that VA Secretary McDonald exercise his existing authority and order appropriate action now.

Initially, VA expected to propose legislation using language already agreed-upon by Senate staffers. Just before the conference VA pulled the legislation which had been objected to by the C-123 Veterans Association. The vets faulted VA for having inserted language barring retroactive claims, meaning those whose illnesses manifested over the years and who submitted claims not yet approved would be denied coverage and all claims honored only from March 17 2015 forward.

Actually, the entire idea of legislation was objected to, as everyone except VA realized the Secretary had all the authority needed to act immediately. Legislation would delay yet further any relief for veterans whose illnesses had been evident for years, and has the risk of not being enacted at all.

On April 23, Senators Burr, Merkley, Blumenthal, Brown, Bennet, Warren and Wyden forwarded a joint letter to Secretary McDonald. Outlining in detail the legal basis for Secretarial action versus legislation, the letter requested firm action by the VA within fourteen days. Their letter closely paralleled the scholarly, in-depth analysis authored by Yale University School of Law, the C-123 Veterans' legal advocate.

First C-123 Claim Approved Since IOM Report (9 Jan 2015)

MATTE HAS WON HIS VA CLAIM!

photo: Boston Globe

Great news today: Dick Matte, veteran of the 74th AES and resident of Chicopee, MA, received his VA disability award (via DRO decision) of 80% today! This is simply terrific and reflects well on VA acting to help our most seriously ill vets – ASAP!

Thanks, Boson VARO!

The award was for 80% service connected, not the full 100% requested but sill, wonderful news and the remaining 20%, if it is due him, will be sought via further appeals. Dick was represented by scholars from the Yale Law School Veterans Legal Clinic and supported at the hearing by Yale, Arch Battista and John Harris. What a team!

To all who helped, both in and out of government, THANK YOU!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yale Law Announces C-123 Agent Orange Claims Report

Yale Law School posted their release of the C-123 Exposure Legal Brief on their web site today, making it available to veterans nationwide. Many, many thanks to Yale for this scholarly presentation of our case. We were exposed to Agent Orange. We should be treated for Agent Orange illnesses.

Once again, but its never enough...thanks to Dean Wishnie and his team!

All C-123 vets should get this to whoever is representing your disability claim. If you are managing your own claim, my suggestion is to attach it to a VA-21-4138 with your note as to the importance of this document. Tell the VA simply that Yale Law completed a laborious investigation of the C-123 Agent Orange exposure situation, and concluded that we were exposed. Exposure is the only requirement that a veteran who is not a Vietnam veteran needs to prove. This document, your Form 5s or other proof of duty aboard former spray aircraft, and the other supporting documents you can download from this blog should present a convincing argument.

VA will oppose anyway, having already informed us they have a policy forbidding C-123 claims as per Post Deployment Health and regardless of any law or proofs to the contrary. Having your proofs of exposure, and this legal brief, will at least make the rating official think twice and perhaps risk resisting orders to deny your claim. And having this in your claim will certainly prove telling at the Board of Veterans Appeals.

Yale Law Veterans Legal Clinic Issues C-122 Exposure Brief – Concludes Veterans ARE Eligible for VA Service Connection!

On Saturday, after months of exhaustive research and investigation, Yale University's Veterans Legal Clinic published their brief which concludes C-123 veterans are fully entitled to service connection for Agent Orange-presumptive illnesses. 

Under the supervision of Dean Michael Wishnie, the comprehensive brief was completed by Daniella Rohr, Stephen M. Segal, and Laura Johns. The C-123 Veterans Association offers its heartfelt thanks for this outstanding example of legal scholarship. 

The brief will be posted on Yale's law clinic site, and is available to veterans and their advocates as valuable...perhaps someday decisive...argument for Agent Orange disability claims!

Again, Dean Wishnie, Mr. Segal, Ms. Rohr and Ms. Johns – thanks from all of us C-123 veterans!

Now, what happens next? 

VA has made it clear over the years that whatever proof is offered, VA will reject without regard as to source, content, accuracy or anything...VA refuses everything we submit to them. Yale's legal brief will be no different, regardless of legal accuracy and merit. Claim are even rejected with Compensation and Pension's Director, insisting that TCDD is harmless.

Remember that, because on 28 Feb 2013 we were officially informed by Post Deployment Health (via our meeting with Compensation and Pension) that no amount of proof from whatever source (university, federal agency, military, medical VA, legal, nothing!) will permit C-123 veterans' claims to be approved...their decision has already been made. 

The Deputy Consultant for VA Post Deployment Health even informed Major T. Redd, US Army Chemical Corps (then a Congressional Military Fellow) that no C-123 veterans' claims will be permitted to be approved...ever. That's from "veteran-friendly, non-adversarial, benefit of the doubt rests with the veteran" Veterans Affairs.

Strange, because for some reason both the Secretary and Under Secretary Hickey have mistakenly said no such blanket policy for denials exists. Still, their blanket policy by any other name is still...a blanket policy! 

VA must have also decided that their descriptions of our eligibility for exposure claims published in the Federal Register (8 May 2001 and 31 Aug 2010) will not be permitted to apply to us. This is because VA has modified the very word "exposure" to insure it can't apply to us.

Consider: Because VA is responsible for administering the various laws dealing with veterans' benefits, VA choses which laws to enforce and which laws VA will ignore. VA will construct interpretations to prevent any interference with the way they want to provide or deny benefits. 

Any flexibility in the law is used by VA against veterans' interests. If flexibility isn't there to use against veterans, VA will invent something in the same way they reinvented the word "exposure."

Yale Law Study: C-123 Exposure Claims Proved Valid!

Dedicated students and faculty at Yale Law, as part of their Veterans Law Clinic, have completed a scholarly and highly detailed review of our C-123 veterans' Agent Orange exposure claims. Conclusion: the C-123 veterans were indeed exposed to military herbicides, and fully meet the law's requirement for service connection for Agent Orange presumptive illnesses.
Their report:

We conclude that existing evidence indicates that C-123 veterans satisfy the legal standard for “actual exposure” to tactical herbicides.  These veterans are thus entitled to presumptive service connection for listed diseases.  Because those veterans who served on C-123 aircraft formerly used to spray Agent Orange and other tactical herbicides can prove actual exposure, by law and regulation they need not demonstrate that they served in the Republic of Vietnam, nor are they required to present evidence bearing on “bioavailability” of herbicides, the duration or magnitude of their exposure, or any other criteria.   

Under existing medical and scientific evidence, service on C-123 aircraft used to spray Agent Orange satisfies the VA’s standard for actual exposure to herbicides. Thus, veterans who served on such aircraft and who have a disease listed as service-connected for exposure to tactical herbicides are entitled to disability benefits on that basis.  In addition, like all veterans, C-123 veterans are eligible to seek benefits even for non-listed diseases, if the veteran can establish a medical nexus between the disease and the herbicide exposure. 

The Yale brief, 15 pages plus four exhibits, details the full scope of C-123 veterans' eligibility for veterans benefits due to exposure to military herbicides. Dismissed with expert legal foundation are VA excuses about "bioavailability," "dried dioxin," "regulations prohibit recognition" and other flimsy excuses the VA has thrown at us for two years.

The brief will be posted for veterans, service officers and veterans' attorneys to use in about a week. It will also be excellent material for supporting "clear and unmistakable errors" named above.

Naturally, the VA will continue to deny claims, even citing as they have done, that TCDD (the toxin in Agent Orange) is harmless. VA will continue to cite anything and everything that comes to mind for their denials, however completely false, illegal or misleading, because with a denial at least they savor the victory of delaying a valid claim for years until BVA action. All that ever happens, regardless of deception at VBA and Post Deployment Health, is a correction many years down the road at the BVA. The VA twisted science, truth and justice to improperly deny C-123 claims will be long-since retired by then.

As Post Deployment Health already informed us when we met in Washington, hosted by Senator Burr's staff, no amount of proof from whatever source will be permitted to qualify a C-123 veteran's claim for Agent Orange exposure, because Post Deployment Health has already decided against us. And as VHA told Major Terry Redd US Army Chemical Corps (then a military legislative fellow) VA will never permit a C-123 claim to succeed.

I guess "veteran-friendly" is defined differently at VHA. Because they are responsible for administering the laws, they believe they are free to disregard those very laws until directly ordered by a court to do otherwise. If the law reads "exposure," as it indeed does, VA feels empowered to disregard that by adding qualifiers selected by them to prevent our protection under the very laws VA is charged to enforce.

Still, the Yale brief will empower independent-minded rating officials to do what's right. The Yale brief will better explain VBA's deceptions at BVA hearings, and gives us (eventually) a tremendous advantage in this otherwise unfair contest.

Not being held to the same standards of honor and honesty as are veterans in our claims, VBA will quickly invent whatever flimsy challenges they wish to dismiss the Yale brief, just as VBA sneers at expert input from the Center for Disease Control, the Agency for Toxic Substances and Disease Registry, the EPA, the National Institutes of Environmental Safety and Health, the US Public Health Service, VA physicians, scientists, and dozens of medical schools and schools of public health.

Anything, regardless of legal or scientific merit, not in line with VBA's pretense that C-123 vets weren't exposed is considered useless testimony at the VA.

Again, their view is that live veterans are simply a waste of space.

Yale Law School Veterans' Law Clinic Report: C-123 Veterans Fully Qualified For VA Claims!

Earlier this year, The C-123 Veterans Association was referred by Connecticut's Commissioner of Veterans Affairs, Dr. Linda Schwartz (now with the VA) to the Yale University School of Law, which maintains a veterans law clinic (their "Jerome N. Frank Legal Services Organization") under Dean Michael Wishnie. Dean Wishnie, functioning as the Supervising Attorney, has provided an extremely detailed pro bono analysis of the C-123 exposure issue and has formed an expert opinion as to the eligibility of C-123 veterans for VA Agent Orange claims.

Here is their executive summary, which is expertly supported with a fourteen page brief:

Dear Major Carter,
 On behalf of the C-123 Veterans’ Association, you have asked us to consider whether existing medical and scientific evidence  satisfies the U.S. Department of Veterans’ Affairs (“VA”) legal standard for “actual exposure” to herbicide agents such that veterans who served on C-123 aircraft , which were used to spray Agent Orange and other tactical herbicides in Vietnam, are eligible for presumptive service connection for disability compensation benefits.  We are pleased to provide our legal opinion on this question.
 We conclude that existing evidence indicates that C-123 veterans satisfy the legal standard for “actual exposure” to tactical herbicides.  These veterans are thus entitled to presumptive service connection for listed diseases.  Because those veterans who served on C -123 aircraft can prove actual exposure  [via USAF Form 5s, flight orders, and other military documentation specific to both airplane type and "tail number,'] by law and regulation they need not demonstrate that they served in the Republic of Vietnam, nor are they required to present evidence bearing on “bioavailability” of herbicides, the duration or magnitude of their exposure, or any other criteria.  Under existing scientific and medical evidence, service on C-123 aircraft used to spray Agent Orange satisfies the VA’s standard for actual exposure to herbicides. Thus, veterans who served on such aircraft and who have a disease listed as service-connected for exposure to tactical herbicides are entitled to disability benefits on that basis.  In addition, like all veterans, C-123 veterans are eligible to seek benefits even for non-listed diseases, if the veteran can establish a medical nexus between the disease and the herbicide exposure. 

And here is the brief's conclusion:

Conclusion
 For the reasons stated above, C-123 veterans are entitled to service connection for listed diseases, because the available scientific and lay evidence demonstrates that veterans were “actually exposed” to tactical herbicides.  Veterans also remain eligible to seek benefits for non-listed diseases if the veteran can establish a medical nexus between the disease and the herbicide exposure. 

It is the plan of the Association to make the Yale brief available to all interested veterans. Yale will post it on their web site, and interested attorneys and VSOs can use the brief to hit hard on the legal justification for our exposure claims. Important: the brief can stand alone, but will do better through the initial disability claim if supported by Form 5s, flight orders, and other documentation available from the C-123 Veterans Association web site.

Dean Michael Wishnie

When using the brief, please make no changes, and please credit Dean Wishnie and his dedicated  team of Lora Johns, Daniella Rohr and Stephen Seigel! They were superb and they cared about us!