Clear & Unmistakable Errors (CUE) Taint VA's C-123 Claims Processing

CLEAR AND UNMISTAKABLE ERROR (CUE)

CUE has been committed on numerous occasions by the Department of Veterans Affairs in processing C-123 claims. We'll point out some CUEs of major significance.

CUE means that a veteran’s claim has been mishandled or unjustly processed to the point that the errors are so apparent and so prejudicial that the injustice is plain for all to see. 

VA commits CUE frequently and resists admitting it. The BVA and CAVC don't often recognize it either. VA's standards to acknowledge its own CUE are very high.

But their C-123 CUE record is both obvious and terrible. Let's look at some of their most painful examples of CUE violations all flowing from a single incident – and there are dozens more we don't have time to detail here.

The Incident: March 2013 receipt by Veterans Benefits Administration Agent Orange Desk of an email from Mr. Dominic Baldini, Chief, DOD Joint Services Records Research Center (JSRRC), confirming C-123 veterans' Agent Orange exposures. VBA did nothing with the JSRRC report, which came to light only in May 2015 through Federal court-supervised Freedom of Information Act releases by the VA.

Further, the JSRRC began issuing individual veterans' C-123 exposure confirmations in May 2014, none of which have been acted on by the VA, which instead ordered all C-123 claims "postponed" as they remained until June 2015. Thus, VBA improperly ordered claims to be denied, forbidding medical care and other benefits for two years after the first JSRRC confirmation and one year after the second JSRRC confirmation.

1. VA abused C-123 veterans rights to Due Process by denying claims and withholding compensation ("property") when VBA received, but failed to reveal, Department of Defense Joint Services Records Research Center (JSRRC) confirmation in March 2013 of our Agent Orange exposures. That confirmation was backed up with HQ Air Force Reserve Command tail number records of our former Operation Ranch Hand aircraft, with CDC confirmation of the harm caused by our exposures, and by the original and subsequent Air Force tests in 1979, 1994, 1996, 1977, 2000 and 2009. 

2. The same misstep regarding the March 2013 JSRRC confirmation had another CUE. VA's own regulation VAM21-1MR, requires that VA provide such information to claimants but VBA failed to do so. Federal courts have ruled the VA regulation to have the force of law, and VA's violation of its regulation was a clear and obviously prejudicial error.

3. VA is required by the Veterans Claims Assistance Act (VCAA) to provide all available government, as well as readily available non-government, records helpful to a veteran's claim. VA failed to do that with C-123 vets when they withheld the JSRRC exposure information.

4. Very specifically, 38 C.F.R. § 3.156(c) provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back. No C-123 veteran whose claim was denied was permitted this protection. The March 2013 JSRRC confirmation (from DoD, "the relevant service department") had no VBA reaction, which should have been to permit all denied claims to be reconsidered. Instead, VA took no action at all, other than to dispute the JSRRC input, and not reveal it to veterans.

A single example of VA action, tied to four or more Clear and Unmistakeable Errors. A perfect example of how VBA fought off C-123 veterans' claims for four years, regardless of the merit of our arguments...merit finally confirmed by VA but only after the January 2015 release of the Institute of Medicine C-123 Agent Orange report.

No veteran such be the subject of such determined VBA CUE, but over 2100 men and women were abused by staffers in VA determined to block any and all C-123 claims. CUE didn't seem to deter them at all. 

Not a problem, at least from the VA's perspective. We paid the price for their erroneous and unconstitutional actions. 

C-123 Historical Record: 731st aircraft w/prior Ranch Hand history

Thanks to the Air Force Reserve Command and the Air Force Historical Research Agency, we now have a more complete record of those aircraft assigned to the 731st with previous use in Operation Ranch Hand. This is only for five aircraft, and the remaining five we still have to pin down, for instance, #362.

The list shows the association of the 74th AES with the 731st and thus explains how aircraft assigned to the 731st are also flown by the 74th. It also shows the list of aircraft used for Ranch Hand, and AFHRA's archival reconstruction of where those C-123s went after Vietnam and came to be assigned to the 731st.

The VA and Joint Services Records Research Center have insisted on this information to connect Form 5s and flight orders with duty aboard contaminated airplanes. They demand much more along other subjects, but this should tie up the historical questions raised by VA and their insistence that proof be on official military paperwork. While VA will certainly dream up more and more excuses to block our claims, at least this eliminates one of those blocks!

Our thanks to the archivists who worked so hard on this, especially Mr. Barry Spink at AFHRA.

C-123 Veterans 5th Submission to JSRRC

As we promised JSRRC during our conversation this morning, the C-123 veterans' collection of official  USAF, GSA, EPA, NIH, CDC/ATSDR and other government agency documentation establishing our aircraft contamination and exposure to veterans therein was submitted, along with 17MB of specific data...much more data exists to prove the point, but in an effort to respond to Mr. Baldini's request only a representative document was included to address each of the JSRRC questions.

---our letter to JSRRC-----

Dear Mr. Baldini,

Thank you again for your wake-up call this morning…nice to know we are on your list. Our little group of veterans is grateful for the opportunity to detail our issues before the JSRRC.

The fundamentals of our issue are simple. The C-123 aircraft we flew included many ships which previously sprayed Agent Orange in Vietnam. These airplanes remained contaminated through their destruction as toxic waste in 2010. The airplanes’ contamination resulted in exposure to dioxin (TCDD) of the aircrews, maintenance and aerial port personnel assigned to them.

In an earlier conversation with you, we discussed the fact that a wing’s flying squadrons had assigned to them their own crews, and attached to them for flying duties were other wing personnel such as flight surgeons, flying crew chiefs, aeromedical evacuation crews – these personnel would show formal assignment to their units with attachment to the flying squadron for flying duties. If this needs clarification please contact any Air Force unit. We need JSRRC not to contest a situation where, perhaps, a flight surgeon assigned to the 439^th Tactical Hospital, will also claim to be attached to the 731^st TAS for flying duties and thus part of the population we address. Let the veteran’s own official documentation, such as flight orders, address that peculiarity.

As to an individual veteran’s claims, we can leave it to the individual to establish duties with the aircraft using flight orders, Form 5s, or other documentation. Our concern here is to make clear that the aircraft were contaminated and the veterans exposed, in order that JSRRC might more completely advise the VA when queried.

The first element of the issue is the history of the C-123 aircraft which were used for Ranch Hand. In general, this is established by the 2011 report from Ms. Betty Kennedy[1], AFRC/HO who explained “The C-123 aircraft in the 731^st TAS fleet had been used to dispense chemical defoliants over Southeast Asia during the Vietnam War.” Further details of specific aircraft are provided by the AMARC list of C-123 aircraft tested and eventually destroyed and other commonly available lists of C-123 aircraft that flew in Vietnam.[2]

The second element is to establish the contamination by military herbicides of C-123 aircraft flown in Vietnam and also flown by post-Vietnam squadrons. Only one aircraft had extensive documentation of such testing, Tail #362, and detailed in two toxicological exams performed by the USAF Armstrong Labs in 1979[3] and 1994[4].

Both tests confirmed “military herbicides” with the 1994 test characterizing the airplane as “heavily contaminated on all test surfaces” utilizing standard test techniques. It confirmed contamination by dioxin, but dioxin was not tested for in the 1979 test. The aircraft was subsequently decontaminated to permit restoration.

This aircraft is identified in the HA AFRC/HO report as assigned to the 731^st TAS during the period 1972-1982. Six to eleven other former spray aircraft were also assigned.

Other C-123 aircraft assigned to the 731^st were not tested for contamination until many years later, after long years of storage at Davis-Monthan AFB AZ, and all still reported between trace and low levels of dioxin contamination.[5] All were quarantined in HAZMAT storage in 1997.[6] Testing was accomplished many times between the 1982 date most entered AMARC storage and their 2010 destruction, with either trace or low levels of contamination remaining on about half of the aircraft. 42% of the C-123 aircraft remaining in USAF inventory in 1982, upon their retirement, were Ranch Hand aircraft.

The remaining issue is actual exposure to “military herbicides.” No mention is made in law nor C.F.R.s regarding the amount of exposure, the duration of exposure, the type of exposure, nor any other qualification…only the word “exposure.” In every other instance, the US Government has treated contamination issues to have also been exposure issues, but in this instance the VA has merely allowed that some contamination might have remained on the airplanes but that no exposure could have occurred. Again, there is no qualification in the law regarding how much contamination. VA seems fixated on the "years after their service" before the planes were tested, and "sophisticated testing" - yet only standard tests were performed, nothing special required.

When VA promulgated its herbicide presumption in 2001, the issue of herbicide exposure outside Vietnam was also addressed.  66 Fed. Reg. 23166 (May 8, 2001).  VA explained if a veteran did not serve in Vietnam but was exposed to an herbicide agent defined in 38 C.F.R. §3.307(a)(6) during active military service and has a disease on the list of presumptive service connection (which includes diabetes mellitus type II and ischemic heart disease), VA will presume that the disease is due to the exposure of herbicides.  See 66 Fed. Reg. 23166; 38 C.F.R. §3.309(e).[7]

When asked, an executive of the EPA reminded me of the simple definition, both scientific and generic, of “exposure” which is “the contact between a chemical or biological agent and the outer boundary of an organism.” Thus, we prove our claim to exposure…our skin came into contact with what even the VA suggests is “dry dioxin” and thus led to contamination. Experts other than the VA, experts who do not have a mindset to automatically deny veterans’ claims, dispute the VA’s literature review which led to the VA opting to refuse service connection and decry it as “unscientific.”

Mr. Baldini, the veterans of the C-123 Veterans Association have done as asked of us this morning: we have identified official government documents detailing our C-123 aircraft fleet’s Vietnam service. We have identified official government documents detailing the contamination of the C-123 fleet, based on the only aircraft extensively tested over a long period of time and which remains existent at the USAF Museum, while nearly all others were destroyed as toxic waste. And finally, we have identified numerous government documents from a variety of federal agencies that confirm specifically that C-123 veterans were exposed to military herbicides aboard the contaminated C-123 fleet. Not detailed here are numerous independent scientific opinions submitted to JSRRC earlier from reputable institutions such as Columbia University and University of Texas Medical School reaching the same conclusion.

I trust we have fulfilled your assignment given me this morning. The many gigabytes of official USAF, EPA, CDC, NIH and GSA information in the DVDs submitted to you last month and in print since 2011 go into this with even far greater detail, with numerous additional supporting official documents all reaching the same conclusion. Many of these experts are members of the National Academy of Sciences, Institute of Medicine, well-qualified to address this issue even though not perhaps part of your examining of the issue. Still, you can see there is a general agreement in science and medicine regarding our claims.

If JSRRC for some reason, despite these official documents and the others submitted to you over the years, remains unconvinced that the VA should be informed that our veterans were exposed aboard the contaminated C-123 aircraft, I can only suggest you contact the following federal or state officials, each of whom has already provided their agency’s conclusion in confirmation of our exposure claims:

a.     Dr. Linda Birnbaum, Director, National Toxicology Program and Director, National Institute of Environmental Health Sciences “According to the narrative [the 1979 & 1994 USAF tests], exposure is assumed based on wipe-tests demonstrating high dioxin concentrations in the C-123K’s.”[8]

b.     Dr. Tom Sinks, Deputy Director, CDC/Agency for Toxic Substances and Disease Registry “I believe aircrews operating in this, and similar, environments were exposed to TCDD.”[9]

c.     Dr. Fred Berman, Director Toxicology Program. Oregon Health Sciences University (State of Oregon), “It is my professional opinion that Major Wesley Carter (and likely, other aircrew veterans who flew these aircraft in the same time period) was exposed to harmful levels of dioxin the course of his aircrew duties.”[10]

I cannot imagine if there was this volume of evidence that somehow existed to argue against our claim, how we could possibly persuade. That’s not the situation however. Instead, we submit gigabytes of confirming evidence. Official government historical record and agency opinions and qualified independent expert opinion…and lots of it.

How much additional confirming proof could JSRRC possibly require? How much additional evidence should any veteran be required to research himself to provide to JSRRC and the Department of Veterans Affairs to receive medical care for the hazards of military service long-ago concluded? The airplane was contaminated. We were exposed. We call upon JSRRC to say so.

The VA can make its call on whether we meet their requirements, but they should not do so based on an inaccurate or misinformed JSRRC response.

I trust that JSRRC will consider that the twenty years of official USAF descriptions by staff officers, general officers, heads of agency, GSA, the Air Staff and Judge Advocates General attorneys of these C-123s as “the Agent Orange airplanes” did not change until 2011 with the first C-123 veteran’s Agent Orange exposure claim.

Respectfully,

/s/  Wesley T. Carter, Major, USAF Retired

Air Force Reserve Command Confirms C-123 Agent Orange History

I should have read more carefully the letter from the AFRC historian, Ms. Betty Kennedy, in which she states that the C-123s assigned to the 731st Tactical Airlift Squadron of the 439th Tactical Airlift Wing (later, 439th Airlift Wing) were indeed military herbicide spray airplanes and used as such in Vietnam! (4 Feb note - FOIAs submitted this date for Rickenbacker and Pittsburgh C-123 information).

The end of her first paragraph proves the point for every wing veteran assigned to aircrew, AME, aerial port or maintenance duties on the C-123, saying "The C-123 aircraft in the 731 TAS fleet had been used to disperse chemical defoliants over Southeast Asia during the Vietnam War.

If the Joint Services Records Research Center requires proof to tell the VA we flew contaminated aircraft, here it is! If VA opposes our claim that these were Agent Orange airplanes, they are doing so only because of policies against us, and certainly not for truth, justice...and the American way! Golly, this gets to be fun sometimes, finding out the various proofs only so that the VA can pretend with some Beltway twist of the facts that we weren't exposed. I have to give them their due: they are persistent, bold and creative.

They have to be, in order to twist history, science, law, justice and common sense as they keep insisting we were not exposed to military herbicides aboard a contaminated airplane!

Air Force Reserve Command Identifies C-123 Assignments

In 2011 the Director Historical Services HQ Air Force Reserve Command was asked to document the assignment of C-123 aircraft to various squadrons during the 1972-1982 timeframe, following their use in Vietnam. These experts worked hard digging up 30 year-old data and admit it might be incomplete, but for what it is worth...and that's a lot!...here is their report. Just click HERE to download.

The document's importance lies in the comparison of aircraft named here and in the various Form 5s, flight orders and other sources with the lists of known spray aircraft. That lets us prove that each unit, Rickenbacker, Westover and Pittsburgh, flew contaminated airplanes, and not just Patches. We then can turn to the Army's Joint Services Records Research Center and update their files so as to then flow proper supporting information back to the Veterans Affairs!

https://docs.google.com/file/d/0B1uIYOBKcN_6V25zWExFVU01MWM/edit

And THANKS to the guys who sent in flight documents today...especially those from Rickenbacker. Keep them coming as we need to document every single AFRES and ANG C-123.

VA & Army Seek C-123 Source Documents

In his letter to The C-123 Veterans Association dated 4 December 2012, the Director of the Army's Joint Services Records Research Center defended his agency's responses to inquiries about C-123 issues from the Veterans Administration. [CLICK HERE for our response, mailed 31 Jan 2013]

Director Dominic Baldini explained that when JSRRC is asked to provide information about  veteran's service they consult unit histories to form their response. Baldini further explained "it is not the JSRRC's mission to conduct scientific studies or research of this nature or comprehensive scientific literature or documentation reviews." He does, however, promise "if during the course of unit records reviews in individual claims, the JSRRC finds information, however indicative, to any degree, of AO exposure to C-123 air crew members, we would immediately notify our VA contacts."

This is reassuring. What is not reassuring, however, is the fact that twice our Association has provided just those essential source documents to the JSRRC! Of course, because concerns about Agent Orange were not known in the 1972-1982 timeframe when unit histories would have made mention of the issue, we had to turn to other official documents. We provided flight orders showing tail numbers of aircraft, AFMC records from Davis-Monthan detailing which aircraft were known to be spray aircraft, reports from other federal agencies such as the CDC/ATSDR stating that C-123 aircrews were exposed! How much more could Mr. Bonomi demand?

Further, I am confused about how JSRRC could have ignored the initial, 1979 testing on Patches, so clearly documented at both AMC and USAFSAM. The additional testing at The Air Force Museum further substantiated the contamination, and that report was overlooked also. As was all the documentation from Hill AFB and Davis-Monthan.

Confusing.

Conclusion: Get them even more data. Get it from our members, from the 439th and other units which flew the post-Vietnam C-123 fleet, and get it from HQ AFRC. To do this well, I need EVERYONE's collection of official documents, such as flight orders, Form 5s and anything showing tail numbers and units to which the airplanes were assigned. Now, if you can...pretty please?

Otherwise, JSRRC will happily continue to screw every single C-123 claim we submit to the VA!

VA Teleconference re: C-123 & Agent Orange

Conference with VA Officials Held 1100 Hrs 27 Oct

We had our conference with the VA's Environmental Health and Benefits Administration folks today, and boy, I got handed my head on a plate.


But most graciously! Thanks to Brooks Tucker, Sen. Burr's staffer and Mr. Carter Moore from the VA's Congressional Liaison Office, Dr. Michael Peterson, Chief of the VA's Environmental Health and reps from the Veterans Benefits Office, supported by many of their very knowledgeable professionals, discussed the wide range of C-123 Agent Orange issues. Bottom line: they feel we have no basis for argument.


For over an hour these folks explained the finer details of dioxin exposure and answered, with grace and patience, my layman's questions. It was great to learn that Dr. Peterson is a retired AF 06, Brooks and Carter are combat veterans, and another physician on Peterson's staff is herself a "tanker doc"...former AF flight surgeon.


Dr. Peterson noted that I'd developed the same type cancer as my father and that familial history plays a role, meaning medical issues. I interjected that indeed it does...I have our family history of five generations of military service, of being warriors, and that I am more proud of that than worried about familial medical trends. 


Are these nice folks against us? No, they are not. However, not a single suggestion was made about how we can get help, other than to go back to the Air Force. The references to "gray area" seemed always to mean not that the benefit of the doubt would rest with the veteran but instead, the VA.


Are they going to help us? No, they are not. They will create every obstacle possible to prevent our claims, having promised "We cannot permit C-123 claims." Not unless convinced of new scientific evidence, or in response to new laws, or in response to the Air Force stating that our aircraft were contaminated with dioxin when we flew and that we were contaminated thereby. Again, not a single suggestion of how anything can be interpreted in support of our position. Their mission yesterday was to oppose us, not support us.


As followers of our blog know, we point to the 1994 AF study of Patches which reports 100 of the swipe samples positive for dioxin, and describes Patches as "heavily contaminated." VHA dismisses that with an explanation that samples were taken using solvents, and the hazmat precautions recommended were because restoration personnel were likely to be grinding metal and doing other dust-creating activities. 


They were not receptive to our response that solvents were used to gather swipe samples because that was the testing protocol selected by the investigators back in 1994, not receptive to the argument that even our skin has solvents on it to which which dioxin would love to attach, or that dioxin-laden dust would be ingested from the dust constantly created in working the aircraft, in its vibration aloft, hard landings and other workaday causes. 


Dr. Peterson explained, along with VBA, that the VA has to look at PROBABILITY. In big, capital letters. Unlike "boots on the ground" Vietnam veterans and Blue Water Navy vets, both of which groups have their presumptive exposure established by law, we must prove the probability that, not only were the aircraft contaminated, but that we were actually exposed thereby. That there was somehow physical introduction of dioxin into our bodies. A vector.


And that they maintain is a case yet to be made. The VA dismisses the 1994 Weisman-Porter study of Patches, saying it has no specific relevance to our 1972-1982 duty days (tests from the other years were not discussed). 


I kept asking whether or not a veteran is obliged to prove only two points...dioxin contamination and Agent Orange presumptive illness, and I believe their negative answer is built around the big obstacle...probability. Not possibility.


My points offered: multiple AF tests stressing the aircraft being "heavily contaminated, extremely hazardous, extremely dangerous, extremely contaminated" and "a threat to public health". Two authors of four reports the VA provided us stated, yesterday by telephone, that no inference could be drawn one way or the other regarding aircrew exposure 1972-1982, leaving most of the cards on the table being the Air Force's own tests.


It seems to boil down to the Air Force. We'd hoped to have two very knowledgeable experts join the teleconference to explain what they earlier told me was their continuing belief that their tests had relevance to our aircrew exposure years earlier. The two gentlemen did not call in to participate. We were offered the skillful and generous support of Dr. Fred Berman, head of the Toxicology Department of Oregon Health Sciences University who contributed mightily to our position.


Dr. Berman has spent months studying the Air Force reports and written the Secretary of the Air Force that aircrew dioxin exposure aboard the C-123 was "most likely." Not just possible or theoretical, but MOST LIKELY. Columbia University School of Public Health and others concur.


This hour-long conference concluded with an understanding that the next move belongs to the Air Force. Without DOD stating that the crews were aboard dioxin-contaminated aircraft, VA won't budge towards service-connection. Without the Air Force stating that their tests "most likely" indicate the probability of aircrew exposure, the VA sticks with its view that no exposure happened.

So remember, dear readers, that the Air Force (Secretary of the Air Force as well as Surgeon General of the Air Force) has directed us to turn to the VA to get help on our C-123 aircrew dioxin exposure. The VA has told us to turn to the Air Force to get help on our C-123 aircrew dioxin exposure. Catch 22. 


That's right...there's only one catch: Catch 22. The VA would consider allowing us Agent Orange medical care if the AF says we've been exposed. The AF says "Go talk to the VA!"

Yossarian - frustrated C-123 flyer!

When Brooks Tucker asked if the VA and AF were talking, there seemed to have been such conversations. When I asked if the VA would directly solicit an Air Force response, that wasn't of interest. 


If only we'd had the authors of the Patches study on the phone with us. Hopefully, we can ask for their input, then ask the AF to stand behind all the reports that Brooks and the School of Aerospace Medicine have done over the years. I know both of them care and are sincere.

The folks from the VA are extremely experienced at dealing with Agent Orange issues. One gets the feeling they are expert enough to construct a truthful argument one way or the other if they wanted to. They have decades of background, not only in their professions, but in explaining to Congress and veterans the whys and wherefores of dioxin exposure. They can always toss bigger missiles against us.


So we turn back to AFRC/CC General Stenner and the AF Chief of Staff and ask that they not leave our flyers alone in this struggle.  Where's our wingman? 


Air Force, get behind us, ask the report authors to explain the relevance of their studies to aircrew exposure, and simply get VA to designate "boots on the airplane" as adequate presumptive eligibility for our crews!