Army Vet Wins VA Agent Orange Claim, Cites 10 Days At a Post Where AO Was Once Used

This Army vet's claim was denied at first, so he appealed and the Board of Veterans Appeals soon granted his service connection. Read...he said he was TDY to Fort Gordon where Agent Orange was once used to control undergrowth. Ten days. Without any IOM study, or CDC/ATSDR finding...just his own recollection of duty 41 years earlier!

But VA said our ten years aboard C-123s confirmed by the AF and IOM to be contaminated is insufficient evidence to award our claims. Further, the Army vet was a Reservist and BVA found no problem at all providing him statutory veteran status because his ten day of alleged exposure constituted an injury by being on post at Fort Gordon.

This is so much different from how C-123 veterans were treated. VA Office of General Counsel raised the formal veteran status challenge at the last minute and ignored their own precedential opinions as well as a firm list of similar BVA and CAVC decisions.

(http://www.va.gov/vetapp12/Files5/1235937.txt)

Based on the evidence from DoD and the VHA medical
expert's opinion, the Board finds that the
preponderance of the evidence is in favor of finding
that the Veteran was exposed to herbicides (including
Agent Orange and Agent Blue) while serving on ADT at
Fort Gordon, Georgia, from July 24, 1967 to August 4,
1967, which constitutes an injury (see e.g.,
VAOPGCPREC 08-2001).  The Board further finds that,
based on the VHA medical expert's opinion, the
preponderance of the evidence is in favor of finding
that the Veteran's type II diabetes mellitus diagnosed in February 2008 is related to his exposure to herbicides in 1967. Consequently, the Board finds hat the evidence establishes that the Veteran incurred bodily injury due to his exposure to herbicides while on ADT in 1967 and that such bodily injury is the etiology of his current type II diabetes mellitus.  Accordingly, for the purposes of granting service connection for type II diabetes mellitus,the Board finds that veteran status is established for the period of ADT from July 24, 1967 to August 4, 1967, and that the Veteran has type II diabetes mellitus as a result of injury incurred during such service.Forthese reasons, the Board finds that service connection for type II diabetes mellitus is warranted, and theVeteran's appeal is granted. 

The big difference between the lucky Army guy and us? He didn't have VBA Office of Public Health against him like we did.

He didn't have OPH redefining the word "exposure" to prevent exposure claims. He didn't have JSRRC input ignored in violation of VAM21-1MR and VCAA. He didn't have false promises of "case-by-case" claim consideration that only resulted in 100% denial of every single veteran's claim.
He didn't have the VA OGC determined to keep Air Force Reservists from the same protections awarded this Army Reservist.

Wing Commander Assured Aircrews Patches Was Safe (1979)

Statement of Brigadier General Don Haugen, Commander, 439th Airlift Wing:

"As far as aircraft safety is concerned, although there is never a warranty, the C-123 is as safe as humanly possible."(BG Don Haugen, October 1979)

     General Haugen's reassurance came in 1979 one month after inspectors from Air Force Armstrong Labs reported residue on C-123K # 362 (Patches) of military herbicides, including Agent Orange and Agent Blue, left from their Vietnam War spray operations. 

     The general was told the airplanes were safe. The general told us the airplanes were safe. But the airplanes were not safe, and now the aircrews are blocked from exposure benefits we'd have received if USAF mistakes had been uncovered earlier. When the 1979 tests were done, no science existed to detect the deadly TCDD contaminant which was the real problem.

     The 1979 test was ordered when aircrews and maintenance staff submitted safety complaints addressing Patch's stench. The scientists concluded that Patches should be scrubbed out with Dawn detergent and air fresheners used to mask the stench. Of course, Dawn detergent did nothing to help and neither did the many years crews spent trying to scrape out the residue.

     Fifteen years later, USAF Armstrong Labs again inspected Patches, determining her to be "heavily contaminated with dioxin on all test surfaces, and "a danger to public health." Patches received a $60,000 HAZMAT decontamination and its toxicity was reduced to about 10% of the original contamination, judged safe for "occasional entry."

     Conclusion: without the decontamination, Patches certainly wasn't "as safe as humanly possible" but instead remained a source of our Agent Orange exposures. The 1994 $60,000 decontamination should have been done BEFORE we started flying Patches, not fifteen years AFTER she was retired. (In 2012-2014 the VA spent $600,000 for its consultant to oppose C-123 claims at the IOM, more than enough to have decontaminated each of the aircraft at the very first!)     
     It wasn't until January 2015 that the Institute of Medicine determined that C-123 veterans had been exposed to harmful amounts of Agent Orange while flying Patches, and that veterans' benefits were appropriate. IOM concluded that the 2012 Air Force study of C-123 Agent Orange exposure were scientifically and mathematically flawed: the Air Force (incorrectly) reported the C-123s weren't hazardous and that veterans benefits would be inappropriate.

     General Haugen was a wonderful man. I had the privilege of working for him for years, but even this general officer was misled by faulty science and an institution dedicated to denial of such problems.

VA Announces C-123 Institute of Medicine Exposure Study

VA has posted a revision of the C-123 exposures page, which now includes a brief statement of the recent referral of the issue to the Institute of Medicine. Results expected late 2014.

The affected veterans appreciate the concern of the public and the Department of Veterans Affairs in submitting the issue to the Institute of Medicine. We feel, however, the issue is well-addressed in both legal and scientific proofs available to the VA today.

The inevitable delay in fairly considering C-123 veterans' claims which this IOM project involves means eligible veterans will continue to be denied VA medical care. This delay, perhaps as much as two more years, takes from us two years we don't have left to wait for such a decision to gain access to vital medical care.

It has been two years since VA broke their promise of the C-123 IOM project we'd agreed to, and now two more years are proposed mostly as a means of saving money by refusing medical care. That's wrong.

We're eligible now. But regardless, VA denies all claims now, on orders from Compensation and Pension.

Is it not a reasonable interim position that well-qualified C-123 claims be permitted approval? VA could ask for proof of service, proof of diagnosis of an Agent Orange-presumptive illness, and proof of duty aboard a known former Agent Orange spray aircraft such as # 362 (Patches) or one of the other Ranch Hand warplanes.

In our situation of exposure outside Vietnam, VA21-1MR requires VAROs to inquire of C&P as well as JSRRC. Rather than any evaluation at this point, C&P then responds to every referral by ordering denials, and VA has controlled how JSRRC can respond and upon what evidence JSRRC summaries can be based. Post Deployment Health and Compensation and Pension are able to explain better.

We believe that eventually somebody in authority will walk into General Hickey or General Shinseki's office and tell them what's actually being done to the C-123 veterans. The law reads exposure, the rules read exposure, the proofs from science and other federal agencies confirm both exposure and medical impact, but it seems orders still blast out of Washington to "deny, deny, deny. Invent whatever reason, but deny." Once leaders realize, as does the Senate Veterans Affairs Committee, that VA procedures are improper, things can change.

Until then, we'll continue to see each and every one of our perfectly valid exposure claims denied on the preferences of a few staffers.

Update: C-123 Agent Orange Exposure

The Army's Public Health Command has been asked to review the April Air Force C-123 Agent Orange report, in particular because of the Air Force disregard for the Army's TG312 publication. Elsewhere, we have been contacted by an independent, university-based toxicologist who is reviewing both the AF and the VA reports which he has already labeled "unscientific". Rumors are that a peer-reviewed article is coming - unlike the AF and VA reports which were internal papers without outside critical review (which they haven't survived!)
Here is an interesting question: the Air Force report dismisses the Army TG312 findings, mentioning that the Army meant TG312 for office workers, yet in that report (Chapter One, Page One), the Army states:

"Although this TG focuses on office worker exposures, the general method used to develop an exposure assessment may be adapted for other exposure scenarios by adjusting exposure fact."

Destruction of Toxic C-123, April 2010

Can you see the problem? Can you see what happens when reports are written with a pre-determined outcome and the researchers cherry-pick materials to reach that pre-determined conclusion? Both the VA and the AF needed to insure C-123 veterans were prevented from successful service-connected claims, and their reports were generated with the objective in mind. OSD must be proud!

Regarding our effort to get justice from the VA, here is where we can use some help:

Michael Turner, Ohio

1. Ohio's Congressional delegation (especially Rep. Mike Turner) should be informed re: the actions of USAFSAM's unscientific report. If the aircraft were indeed safe, why did the AF Museum spend over $50,000 to decontaminate an aircraft (Patches) which didn't need decontamination, and why did the AF spend $120,000 to quarantine the C-123s in Davis-Monthan's Boneyard. And why did the AF destroy the aircraft in 2010 if not contaminated? Answer: the planes were indeed contaminated per many tests, and only veterans' claims for service connection resulted in a political decision that we haven't been exposed!

2. We need more universities where we have our veterans (Harvard, BU, Northeastern, Amherst, Wellesley, Tufts, Dartmouth, Indiana, Carnegie-Mellon) to come on board (some already have) with challenges to the AF/VA reports - they need to decry such unscientific activities. We need our veterans (that means YOU!) to sit in front of the university experts and solicit more support - even their professional opinions in letter form are terrific support

3. We need results of our veterans' medical exams in which physicians, after examining the veteran and the medical record, find Agent Orange exposure "as likely to as not" to have caused the illness

4. We need the American Legion to seek influential experts from Johns Hopkins, NIH, Bethesda, or Howard to review the AF/VA reports

5. We need the American Legion and Vietnam Veterans of America to FOIA the entire AF background on their C-123 report or to seek it as a courtesy from USAFSAM & Colonel Benjamin, in keeping with DOD5400.7-R_AFMAN 33-302 which encourages release of information without the need to involve FOIA

6. We need Senator Patty Murray (WA), Chair of the Senate Veterans Committee, to be as involved as Senator Burr, the ranking member - they together have endorsed the Blue Water Navy so supporting us is possible. Can VVA and American Legion approach her or her staffer?

 7. We need support from the Army Aviation and Marine Corps Aviation Associations, but we won't get it is we can't get the Air Force Association behind us. Can American Legion and VVA help there?

8. We need professional societies such as the Society of Toxicology to weigh in; SOT was "sucker-punched" when T. Irons and W. Dick (VA Public Health) presented their poster display summarizing the VA's report

9. VA and AF have both constructed an argument new to toxicology - for the first time and contrary to earlier IOM reports, a suggestion is made that contamination does not result in exposure. They have dismissed inhalation as an exposure route without scientific justification. They have dismissed ingestion as an exposure route without scientific justification. And finally, by constructing a hypothesis of "dry dioxin transfer", they dismiss the dermal route of exposure. There is no science behind the VA's hypothesis that crews couldn't have been exposed via the dermal route aboard this "heavily contaminated' airplane which was "a danger to public health" (according to AF toxicologists)

10. We need the IOM back on board regarding the VA's proposed special project investigating the C-123 contamination - VA's promised Statement of Work should be submitted and publicly discussed

11. ideas?

Where is the Promised USAF C-123 Report?

The USAF School of Aerospace Medicine at Wright-Patterson AFB began their examination of the C-123 Agent Orange contamination and aircrew exposure in November. We were told of an expected release in April, yet here we are, nearly at the end of the month, with no report on the horizon.

What's happening? What role, if any, is the VA playing in the Air Force report? So far as I know, none of the aircrew, maintenance or aerial port personnel have been contacted about their expert input - why not?

In the October teleconference with VA officials, we were told that if the AF reported the C-123s to have exposed the aircrews to TCDD, the VA would accept that decision. Is the VA now working to make sure the AF releases an "approved" finding?

What We Need for VA Agent Orange Service Connection

VA leadership, in particular Dr. Michael Peterson, shot at nearly every claim we advanced during last Friday's teleconference. The VA experts have in addition actually suggested three ways they'd consider our C-123 Agent Orange claims:

 1. if the Air Force scientists who conducted the tests in 1994, 1996, 1997, 1998, 2000 or 2009 would step forward and state it is likely that aircrews were exposed to dioxin during our 1972-1982 duties aboard the aircraft or 

2.if scientific interpretation could be offered explaining the exposure to the aircrews from the dioxin on surfaces in the aircraft, or from the dust therein, or 

3.the Air Force should inform the VA that it is "more likely than not" that aircrews were exposed to dioxin during the timeframe of our service aboard specifically-identified Agent Orange spray aircraft

 Dr. Fred Berman, head of the Toxicology Department at Oregon Health Sciences University (and a pilot!) has already made that conclusion. So has Dr. Jeannie Stellman of Columbia University's School of Public Health. Thank goodness for these "wingmen" in this effort, and God Bless them!


Our group of C-123 flyers has scattered to nearly every state in the country. Your state has a state university and nearly every one of those universities has an associated medical and/or veterinary medicine school...with experts who can interpret the test data we've gathered from the Air Force, and help advance reasonable justification for our having been exposed.


Our country is rich with private universities such as Harvard, Dartmouth, Yale, Tufts, Princeton, Rutgers, Emory, Vanderbilt, Stanford, Carnegie-Mellon, MIT, Boston University, Northeastern, Northwestern, and so many others. Universities full of experts able to analyze the Air Force C-123 test results and explain with the prestige of their institutions behind them, in writing addressed to the Secretary of the Air Force and the Secretary of Veterans Affairs, that the dioxin which contaminated our C-123s "more likely than not" exposed the aircrews.


So you need to get involved! You need to gather our set of Agent Orange documents, and start walking the halls of your local university to find these experts. There will be a wonderful Dr. Berman or Dr. Stellman-type person you can find who will help. From what I've seen since April, so many academicians are willing to help...we just have to find them.


From the Air Force, we need organizations like NCOA, AFA, MOAA, ROA and the Association of Military Surgeons of the United States to contact the Chief of Staff of the Air Force to advance our cause. We need the Air Force to task the School of Aerospace Medicine to look over the data and report whether there is a reasonable interpretation of it to allow our VA claims to go forward. 


I feel the military and the General Services Administration already stated the C-123s were the source of our dioxin exposure. Report after report, from 1994 on, details the testing and label the aircraft "heavily contaminated," "extremely dangerous, extremely hazardous, extremely contaminated" and "a risk to public health." The problem is these reports didn't detail that our physical contact with the contaminated surfaces in the C-123 should be considered "exposure" for the VA's purposes.

Our complaint to VA Congressional Liaison Office re: Misleading Senator Burr

The VA's Congressional Liaison Office is the interface between that Department and both Houses of Congress. They recently sent representatives to meet with the staff of North Carolina's Senator Burr, ranking member of the Senate Veterans Affairs Committee. Unfortunately, these folks totally twisted facts and figures in their effort to insure veterans who flew and maintain the C-123K are kept from receiving Agent Orange exposure benefits. C-123 veterans' position is that there is a preponderance of evidence confirming our dioxin exposure, certainly well past any threshold the VA might have in affording us the benefit of the doubt. Thus this letter to the CLO Assistant Director: (Oct 26 note--we've been corrected in that it was NOT the CLO meeting with Sen. Burr's staff but rather other VA officials. The CLO has, however, very kindly arranged a teleconference with their experts so we may learn more. Thanks, Carter and Adam!)
-------

12 October 2011

Mr. Adam Anicich
Assistant Director
Congressional Liaison Service
United States Department of Veterans Affairs
189 Russell – Senate Office Building
Washington, DC 20510

Dear Mr. Anicich,

Members of your staff recently discussed with Senator Burr’s staff the Agent Orange contamination of airplanes my Air Force squadron flew between 1972-1982. This plane was the C-123K, used for spraying Agent Orange in Vietnam until 1971. Our crewmembers’ concern is that the aircraft remained contaminated with dioxin after the war and exposed us to the typical Agent Orange presumptive illnesses.

The VA having denied all claims from our veterans on this issue, I asked my Senator and his staff to evaluate the materials explaining our position and to bring them to the VA’s attention. Your staff responded, in a meeting with Mr. Brooks Tucker, with information I believe was misleading and structured not to be truthful but rather to deny any Agent Orange contamination, constructing whatever argument that might be necessary, however inaccurate. I acknowledge that the details provided Senator Burr by your staff may have originated from the Air Force but the VA has adequate expertise in this subject to have more correctly informed the Senator.

In particular, I object to your representatives characterizing the Agent Orange contamination of the C-123K, saying:

“The scientific analyses of the dioxin TCDD in Agent Orange indicates that it has a very short lifespan once it dries or binds on a surface like metal. In VA’s opinion, it is highly unlikely that TCDD would remain present in a harmful form for a duration of time that would allow it to be persistently present on metal surfaces for years after it dried on that surface. 

Given the lack of testing done on the C-123s in the years following the Vietnam War, it is impossible to determine if TCDD was present in a harmful state during the years you and others were flying and maintaining those aircraft. VA views the Air Force actions relative to the clean-up of Patches and the decision to not sell mothballed C-123s as indicators of an overly cautious mindset within Air Force legal circles that desired to avoid any potential for liability if the aircraft were placed in a museum or sold to a private entity.”

What the heck does a 2000 decision not to sell contaminated C-123 airplanes, already tested as positive for dioxin and labeled by the experts as “heavily contaminated, extremely dangerous, extremely hazardous, extremely contaminated” have to do with our exposure back in 1972-1982 when we flew them? It would have aided us to know of the contamination back during our duty days, but times were more innocent then regarding dioxin. But not now…the airplanes have been repeatedly and expertly tested past any court’s requirement of proof of having been contaminated with dioxin. Multiple expert sources have established that the aircrews aboard them for hundreds and thousands of hours were exposed. 

The suggestion that bare steel does not retain dioxin contamination over the years does not trump the fact that there were very few bare steel surfaces inside or outside the C-123. Instead, nearly every surface was painted and paint absorbs Agent Orange readily. Although the distillates would evaporate over the years, not the dioxin. And we began service on those airplanes the very year after their last spray missions, and without any decontamination, just broom swept and hosed out. The various fabrics and insulation, tons of it, absorbed Agent Orange. Agent Orange built up in residue in nooks and crannies everywhere, to the point that the depot maintenance experts said the floors and wings would have to be removed to get it all out.

How many tests does it take (and the Air Force did so many of them) to convince the VA that the airplane was contaminated? How many words do I have to type to make the argument perfectly clear? Are the Air Force’s own test results not adequate to move you?

How could the public servants in the Congressional Liaison Office mislead public officials with such intensity and firm dedication in trying to prevent veterans from receiving earned benefits and protections? Can you locate the many toxicologists who tested these airplanes and labeled them “extremely contaminated” so they can help you understand the obvious conflict with the VA’s characterization of the Air Force as having “an overly cautious mindset”? Does anyone, anywhere, use “extremely dangerous”(Air Force words) to mean “overly cautious” (VA characterization of Air Force position)?

Can you locate an ethical person in the VA to explain the Department’s position to me and to the veterans I flew with? We are not presenting a hypothetical situation of water containing dioxin somehow reaching our ship out at sea, but instead the PROVEN contamination of an airplane we were ordered to fly for a decade. And made sick thereby.

Respectfully,

 /signed/

Wesley T. Carter, Major, USAF, Retired
Medical Service Corps   http://www.c123kcancer.blogspot.com

Retired Affairs Office - Bulletin Notes our C-123 Agent Orange Issues

Distributed in the 15 September 2011 Issue of RAO Bulletin, with over 85,000 readers!

Patches, at the Air Force Museum following $57,000 dioxin decontamination

0. Agent Orange Stateside Use Update 02: In recent complaints to the Air Force Inspector General, the chief of the Air Force Reserve, the Institute of Medicine and other officials, post- Vietnam War era, Wes Carter and Paul Bailey have cited documents showing that the Air Force knew, at least since 1994, of Agent Orange contamination aboard C-123 Provider aircraft flown at Westover and other bases — but failed to warn personnel of the health risks. Both men are diagnosed with prostate cancer along with many other in their Air Force Reserve former crewmates in the 74th Aeromedical Evacuation Squadron. Carter was stunned when he began checking and found that the first five crewmen he called had prostate cancer or heart disease. The sixth man he tried had died. 
   
   
   Since then, he and Bailey have found dozens more former Westover reservists who are sick – with prostate cancer, diabetes, heart disease, peripheral neuropathy and other illnesses connected to exposure to Agent Orange [AO]. In just a few months, they have compiled a list of close to 40 of their fellow pilots, medical technicians, maintenance workers and flight engineers who are sick or have died of such illnesses, many of them from Connecticut and Massachusetts.
   
   
   Among the documents the veterans cite is a 1994 Air Force report that found one of the airplanes, known as Patches, was ―heavily contaminated‖ with dioxins. Tests on other planes showed similar contamination, records show. In a 2000 legal brief, the General Services Administration argued that the proposed sale of C-123s to a private buyer should be canceled, dubbing the planes extremely hazardous and saying their release would carry the risk of dioxin contamination to the general public.
   
   
   In a 1996 internal memo, an official in the Air Force Office of the Staff Judge Advocate, Directorate of Environmental Law, had expressed similar concerns about the possibly contaminated aircraft being sold to third parties, but said: ―I do not believe we should alert anyone outside of official channels of this potential problem until we fully determine its extent. So far, attempts by Westover reservists to claim veterans‘ benefits linked to Agent Orange exposure on C-123s have been stymied.
   
   
   One of the veterans who tried was Aaron Olmsted of Ellington, CT, a retired Air Force Lieutenant Colonel who flew the C-123. Olmsted, 60, was killed in a plane crash in Pennsylvania in May, four years after he had lost a battle with the Board of Veterans Appeals to prove that he was sick from exposure to Agent Orange. While Olmsted had logged hundreds of hours piloting C-123s at Westover, the veterans‘ appeals board in 2007 rejected his claim that his diabetes mellitus was connected to Agent Orange exposure.