VA Denies C-123 Crews Agent Orange Claims

from the National Guard Association of the United States, Washington Report

The Department of Veterans Affairs is defending itself against charges that it inappropriately
 denies claims from C-123 crew members who say they were exposed to Agent Orange after
 the Vietnam War.

According to a lengthy article in The Washington Post Sunday, the aircraft used to drop the
defoliant on the jungles of Vietnam from 1962 to 1971 were flown after the war by reserve
component crews, some of whom now claim illnesses they suffer were caused by exposure
to the chemical. Members of the C-123 Veterans Association say they should be eligible for
the same compensation as Vietnam veterans who came in contact with Agent Orange and
now receive compensation for a range of ailments and conditions.

Sen. Jeff Merkley, D-Ore., and Sen. Richard Burr, R-N.C., the ranking Republican on the
Senate Veterans Affairs Committee, have asked the VA’s Office of Inspector General to review
the department’s denial of the airmen’s claims.

“It appears that [the VA] does, in fact, plan to deny any C-123 claims regardless of the
evidence submitted in a particular case,” the lawmakers wrote in a letter.

VA Secretary Eric Shinseki responded to Burr in a letter saying, “VA does not have a ‘blanket
policy’ for denying claims” filed by the C-123 veterans in the National Guard and Reserve.
The Post quoted a VA statement saying claims are reviewed on a case-by-case basis.

The issue is clouded more because the Air Force destroyed most of the airplanes that were
retired in 1982. The newspaper cites Air Force memos that say that 18 C-123s were destroyed
in 2010, in part, because of liability concerns.

- See more at: http://www.ngaus.org/newsroom/news/va-denies-c-123-crews-agent-orange-claims#sthash.syMJtDln.dpuf
note: while we appreciate Secretary Shinseki's assurance of a case-by-case evaluation of C-123 claims, it is impossible not to note that 100% of them are denied, although then approved after waiting years through the VA's Board of Veterans Appeals process. 

This seems more like a policy-driven denial process than a "case-by-case" evaluation.

The simple legal requirement of non-Vietnam War veterans is that they submit proof of exposure to "military herbicides" such as Agent Orange. Our warplanes were contaminated...indeed, according to the Air Force, "heavily contaminated on all test surfaces."

The C-123 veterans have submitted that proof, provided them by the Air Force. The proof has been substantiated by the CDC, EPA, NIH, US Public Health Service and several university schools of medicine and schools of public health.

VA Denies Another C-123 Veteran Agent Orange Claim

Honoring its promise made us on February 28, 2013, the director of VA's Compensation Services (C&P) completed denial of my own C-123 Agent Orange service connection claim today. This completes C&P's 25 September 2012 advisory opinion provided the Portland VARO in which he directed opinions from toxicology scientists be disregarded because they weren't physicians.

The same advisory opinion also detailed the VA's one paragraph summary of the official finding of Dr. Tom Sinks, Deputy Director of the CDC/Agency for Toxic Substances and Disease Registry. Deliberately and evasively avoiding mention of Dr. Sinks' actual finding which stated "I believe that aircrew operating in this, and similar, environments were exposed to TCDD," C&P appends a sentence to that summary in a manner implying Sinks meant something altogether different: added was "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects" - a conclusion completely opposite Dr. Sinks' finding! VA also conveniently ignored (ignored to better deny the claims!) the ATSDR finding that C-123 veterans now face a 200 times greater cancer risk, thanks to exposure aboard the contaminated airplanes. 

This unscientific and prejudicial editing of another federal agency's finding was discussed in person with C&P's director and his staff on February 28 at his offices, but without comment, modification, retraction, denial or anything...other than his statement that he can't be personally familiar with every piece of VA correspondence over his signature. I understand, but I did bring it to his attention (without response) in November 2012, before it was used to deny my VA claim. While selectively applied to C-123 veterans, thank God VA does not apply that mistake about TCDD to other Agent Orange-exposed veterans.

Agent Orange, and its toxic component TCDD, are generally thought to be somewhat harmful, and considered a human carcinogen and one of the most toxic toxins on the planet. The VA, paying billions in Agent Orange veterans benefits, might consider applying the above paragraph in reconsideration of all those expenses if, indeed, there is no evidence of TCDD being harmful. VA might wish, however, to first run the issue past the Congress, the veterans organizations, the courts, the Institute of Medicine and their own executives. Perhaps...the statement of TCDD being harmless is applicable only in the instance of denying C-123 veterans our claims.

Completely ignored in today's denial of my exposure claim are expert findings in my favor provided by the University of Texas Medical School (Dr. Arnold Schecter), the EPA, the NIH, Dr. Jeanne Stellman, Dr. Fred Bowman (Oregon Health Sciences University Toxicology Department) and other highly esteemed scientists. Ignored completely are the numerous juried scientific articles establishing the TCDD contamination of the C-123, the bioavailability of that TCDD, the routes of exposure as having been dermal, inhalation and ingestion, and dozens of other proofs. Best dealt with by the VA by ignoring them as opposed to acknowledging the fact of the matter...C-123 veterans were indeed exposed to Agent Orange.

VA Exposure Expert

The question of "exposure" is pivotal. The VA utilized its own special in-house extra-legal (even though the issue has already been adjudicated and resolved, and VHA is not free to redefine such things and VBA isn't supposed to approach veterans claims with a VBA predetermination for denial) definition of exposure, being in effect "no C-123 exposure is ever going to be acknowledged." Science, however, more correctly defines exposure as "the contact between a chemical or biological agent and the outer boundary of an organism." Quite simple, and according to the NIH adequate to establish that C-123 veterans were exposed to Agent Orange to the complete satisfaction of the law. 

Typical C-123 Veteran

The law? Forgettaboutit! The Agent Orange Act of 1991 and subsequent modifications, in particular the May 2001 VA promulgation of Title 38 (as detailed in the Federal Register) clearly spell out that VA will treat veterans exposed to Agent Orange outside the Vietnam "Boots on the Ground" group the same as the Vietnam veterans, and without having to establish medical nexus. Thus, given (1) our doctors' proof of Agent Orange-presumptive illnesses, and (2) the Air Force proof of the C-123 Agent Orange contamination, the only way for the VA to shoot down our claims is to (3) deny exposure. Deny, deny, deny.

Today, the VA Compensation Services locked on and fired, just as they promised they would for any C-123 veteran hoping to establish service connection for Agent Orange exposure.

Next step? Board of Veterans Appeals, at least, for any of our members surviving to present their claims after the typical five year waiting period which follows the two years wasted thus far.

VA & USAF Ignore Leading Agent Orange Expert on C-123 Exposure!

Hard to believe! Both the VA and the USAF opted to completely ignore the expert testimony of Dr. Jeanne Stellman, Professor Emerita at Columbia University's Mailman School of Public Health. Why...because it was her firm, expert opinion that our C-123 aircrews definitely were exposed to the deadly TCDD contaminants in Agent Orange when we flew those airplanes 1972-1982. She had to be ignored for the USAF and VA to reach contrary decisions...unless she was ignored her opinion would be emphatic

Professor Stellman

Why is it of concern? Because Dr. Stellman is the "go-to" expert who was relied on by the National Academies in their previous investigations...if her world-renowned expertise was so respected and authoritative in the IOM 2003 and other official reports, what is the excuse used by the VA and the USAF in ignoring her detailed explanation of our exposure aboard the C-123?

Answer: It is the only way to prevent our veterans gaining service-connection and recognition for our exposure. If the authorities were to fairly evaluate Professor Stellman's findings their barrier against allowing us to receive VA medical care disappears!

Background: Because of continuing uncertainty about the long-term health effects of the sprayed herbicides on Vietnam veterans, Congress passed the Agent Orange Act of 1991. The legislation directed the Secretary of Veterans Affairs to request the IOM to perform a comprehensive evaluation of scientific and medical information regarding the health effects of exposure to Agent Orange and other herbicides used in Vietnam. Congress had grown tired of the VA's posturing and delaying tactics, so legislation was passed to get them moving.

The IOM formed their Committee on Agent Orange. That committee of medical and scientific experts searched for the most outstanding scientific advice and quickly identified Professor Jeanne Stellman as their trusted  researcher to make appropriate findings and recommendations. In the Committee's 2003 report, Professor Stellman detailed the problems with dioxin, the means of exposure and the best ways to perform epidemiological studies to advance understanding of that toxin's impact on veterans.

Conclusion: So you cannot avoid seeing the conundrum. Stellman...expert enough for Congress. Stellman...expert enough for the Institute on Medicine. Stellman...expert enough for the Committee on Agent Orange. Stellman...one of the top two or three published scientists in this field. But magically...only in Stellman's finding that our aircrews were exposed does her expertise seem to fall short of the threshold necessary for the VA to accept our exposure to have been"as likely to as not". Further, it is impossible to ignore the VA's broken promise, made in our face-to-face meeting with their representatives (VA Public Health) hosted by Senator Burr (NC) in which the issue of our exposure was to be put to the IOM as a special project.

Ever-eager to prevent even a single veteran's access to essential medical care for Agent Orange illnesses, the VA leaped on the Air Force's faulty C-123 literature review, in which the AF said they were unable to reach a definite conclusion about exposure, so the VA took that piece of confused and twisted double-talk to use against us and canceled their promised IOM study. That move was to keep IOM from turning to their trusted expert, Dr. Stellman, who had already voiced her opinion about our exposure in her pivotal 2011 letter.

So let's look at a balance sheet of evidence regarding C-123 aircrew dioxin exposure: On the left, those who weigh in on our having been exposed, and on the right. those who weigh in on an opinion that we haven't been exposed. Judge for yourself! And consider why the opponents of our claim for AO exposure are so dedicated to saving money by preventing access to medical care, and not to fairly considering our situation!