The Origins of the Agent Orange Act of 1991

On February 6, 1991, President George H. W. Bush signed the Agent Orange Act of 1991. This act was the first piece of legislation to officially establish a group of presumptive conditions for Vietnam Veterans exposed to herbicides, meaning that Veterans with non-Hodgkin’s lymphoma, soft tissue sarcomas, and chloracne could now receive medical benefits from the Veterans Administration (VA) as a result of their service in Vietnam. 

This legislation was applauded by Veterans groups, government officials, and the general public. Yet, it was rooted in over a decade of fierce debate, VA institutional resistance, and confusion over the long-term health effects of Agent Orange and dioxin exposure.

Agent Orange was the most common of the so-called Rainbow Herbicides used during Operation Ranch Hand in the Vietnam War. It was made up of a 50:50 mixture of 2,4-D and 2,4,5-T, the latter of which contained a contaminant known as TCDD, a type of dioxin or organic pollutant. The herbicide was remarkably effective at clearing jungle foliage and depriving Viet Cong forces of both cover and workable farmland. Operation Ranch Hand lasted from 1962 until 1971. 

By the time the Air Force ceased these herbicide spraying missions, Agent Orange alone accounted for 11.22 million of the over 18 million gallons of herbicide sprayed in Southeast Asia. Many Veterans still recall being sprayed with Agent Orange but were instead "treated" with malathion, sprayed from C-123 Tail Number 362 for insect control. Planes spraying for insect control had the green paint removed as the malathion would foul the surfaces.

By the late 1970s, the public was seriously questioning the health effects of dioxin exposure. Many Veterans claimed (and VA totally denied) Agent Orange or other herbicides were behind their chronic fatigue, vision loss, numbness, cancer, birth defects in their children, and a myriad of other health concerns. VA began receiving medical claims from Veterans alleging dioxin exposure at least as early as 1977, but, as media coverage on the issue grew, so did the number of claims. At the time, only chloracne, a rare skin condition, had been scientifically linked to dioxin exposure. If Veterans claimed that contact with herbicides was the cause for any other illnesses, VA ultimately denied all their medical claims "due to the lack of scientific evidence."

However, VA did take some baby steps to address the issue, mostly because of Veteran pressure, some press coverage, and a determined Veteran's advocate named Maude DeVictor. In 1978, VA established an internal Agent Orange Registry and began conducting in-depth medical examinations for Veterans claiming they were exposed to Agent Orange. They also assigned “environmental health physicians” at each of their medical centers who were specifically tasked with gathering information related to chemical exposures. In 1979, they established the VA Advisory Committee on Health-Related Effects of Herbicides, and in the early 1980s, they also created the Agent Orange Projects Office, the Chloracne Task Force, the Data Analysis Task Force, and the Agent Orange Research and Education Office, each of which were tasked with studying various aspects of Agent Orange exposure among Veterans.

Under Congressional pressure, VA also launched multiple weak-kneed outreach efforts related to dioxin exposure. The Agent Orange Bulletin was launched in December 1980 and provided updates on Agent Orange activities for VA medical center staff. For Veterans themselves, VA released a 30-minute videotape titled Agent Orange: A Search for Answers, as well as pamphlet titled “Worried About Agent Orange?” which was distributed to all Veterans during their Agent Orange medical examinations. Both the videotape and pamphlet emphasized the fact that chloracne remained the only known medical condition directly attributable to herbicide exposure. 

In November 1982, VA also introduced the Agent Orange Review, a recurring newsletter meant to keep Veterans up to date on the latest developments on Agent Orange research and policies. Even so, official VA policy still called for physicians in VA medical centers to refrain from prematurely attributing a Veteran’s ill-health to Agent Orange exposure until more concrete evidence proving association became available: VA physicians were prohibited from offering opinions on Agent Orange-suspected illnesses.

Multiple agencies, including VA, began publishing the results of dioxin-related studies throughout the 1980s. Most of these initial studies maintained that there was no link between dioxin exposure and long-term health problems, although it was difficult to prove which had Veterans had been exposed while in the service. In 1990, however, studies by the CDC and VA’s Advisory Committee on Health-Related Effects of Herbicides determined that non-Hodgkin’s lymphoma and soft tissue sarcomas among Vietnam Veterans were “at least as likely as not” connected to herbicide exposure. 

VA’s secretary at the time, Edward J. Derwinski, was especially invested in the Agent Orange issue. The day after each of these studies were released, he classified each respective illness as service-connected for Vietnam Veterans. These classifications officially became law with the Agent Orange Act of 1991.

Upon the passage of the bill, Derwinski noted that “VA has [always had] one overriding goal in this area: providing, as best we can, the truth for our Vietnam Veterans about the effects of exposure to Agent Orange. Because, in our opinion, that is the goal of this fine legislation, we are pleased to offer our support.” Derwinki’s “open mind” on the Agent Orange debate was lauded by the public and members of Congress alike. Representative Thomas Daschle, who had previously been critical of VA efforts concerning herbicide exposure, commented that Derwinki’s “willingness to listen to Veterans, to reexamine the scientific evidence, and to give Veterans the benefit of the doubt has been crucial to the effort to redefine the federal government’s response to the Agent Orange problem.”

Still, neither Derwinki nor the VA moved on Agent Orange benefits until Congress shoved the 1991 Agent Orange Act down the VA's throat.

While many of the questions surrounding Agent Orange remained, the Agent Orange Act of 1991 was a turning point in providing Vietnam Veterans with needed care, and over the following decades, VA classified over a dozen additional conditions as presumptive for Veterans who were exposed to herbicides.

"Hype and hysteria" insisted VBA Agent Orange "expert," Mr. James Sampsel

In March 2017 VBA's Agent Orange point-person and "subject matter expert" James Sampsel flatly dismissed the hazards of Agent Orange exposure. 

Hoping to help block further expansion of disability benefits due veterans sickened by exposure to the toxin, Sampsel insisted to the VA Advisory Committee on Disability Compensation (ACDC) that Agent Orange is all "hype and hysteria." "Hardly anybody" disagrees with him, Sampsel told the committee.

Perhaps VBA "experts" like Sampsel should ground themselves better in the history of the issue. Not only had CDC, US Public Health Service, EPA, the National Toxicology Program. WHA, National Institute of Environmental Health Sciences and virtually every other authority already condemned Agent Orange, but so had DOD and the VA itself.

But Sampsel instead seeks counsel from his favorite consultant, Dr. Al Young. Also, from Young's clients Dow and Monsanto, and from Young's associates such as retired Professor Mike Newton at Oregon, who wanted to use "gifts" of many barrels of Agent Orange from Young, spraying Oregon's forests to aid in timber harvesting.* 

Speaking to the March ACDC, Sampsel summarized their contrary input as his "overwhelming preponderance of evidence" in dismissing all other experts, including CDC and USPHS. Using that phrase, he refused VA medical care for sickened veterans.

The Vietnam veterans' 1988 lawsuit against the herbicide manufacturers brought out this same push-back by the chemical industry years earlier and was quickly dismissed by VA's own leadership. Here, the issue referenced was the 1985 decision to include soft tissue sarcomas to the list of recognized AO ailments:

"The U.S. Department of Veteran Affairs based its recent decision to compensate and treat military veterans for soft tissue sarcomas not on any scientific basis, they say, but only "to put the affair to rest by compensat­ing the veterans." The fact is, however, that the action by Veterans Secretary Derwinski was based on: (1). the recommendation of his specially-appointed science advisory panel that has been convened for more than a decade of study; (2). a investigative report by his special assistant, Retired Admiral Elmo Zumwalt, Jr., who had ordered much of the Agent Orange applica­tion during the Vietnam War and who reported to Secre­tary Derwinski that there had been widespread fraud perpetrated in government and industry human studies in order to avoid compensating veterans; and (3). the report of a blue ribbon panel of independent experts that exposure to TCDD could be plausibly linked to a cancer".

(Note: VA is now considering adding more illnesses to the list of recognized Agent Orange problems.)

*...from: Proving Grounds: Militarized Landscapes, Weapons Testing, and the Environmental Impact of U.S. Bases, about Dr. Al Young helping spray Agent Orange in Oregon:

More famous quotes from VA's favorite Agent Orange "expert," Dr. Alvin Young

Having spent two full careers (even more) specializing in Agent Orange issues, Dr, Al Young has plenty of simply amazing quotes attributed to him.

Amazing, that is, only in revealing how much harm was done to exposed veterans.

His twenty-year USAF career as a scientist mostly focused on weaponizing Agent Orange, followed by attempting to explain away its dangers as its use was suspended in 1971. While at Brooks AFB in 1979, Young told the media that dioxins (the toxin in Agent Orange) released into the environment seem to be "much less hazardous than lab tests suggest."

The USAF later loaned him to the VA where he was under Dr. Shepard first head of their Environmental Medicine section (Agent Orange Projects Office,) and responsible for fending off the early wave of Vietnam vets' exposure claims. That's right – the same guy who weaponized Agent Orange was given a desk at VA and told to block exposure claims.

He led the VA's fight for years, but Congress grew frustrated at their obstructionist foot-dragging and passed the 1991Agent Orange Act to settle the issue. 

Retirement from the Air Force brought Young out of the VA to the White House. His duty: director of the Office of Technology Assessment. He coordinated the evaluation/policy of the effects of Agent Orange on Vietnam veterans, and general issues involving Agent Orange affecting various other federal agencies.

One of his 1983 statements was that he didn't think dioxin constituted a national problem, but it might pose a problem in specific parts of the country. Yeah, "might." A year later he contradicted himself when testifying before a Congressional committee, saying, "I think it definitely is (harmful.) I think the data certainly harmful to humans. One of his most frequent quotes: "We just don't know." In 1984 he was quoted in Toxicity Material News saying, "Dioxin poses no health problems."

2014 brought Dr. Young before the Institute of Medicine C-123 Agent Orange exposure committee. There we saw a great number of his truly interesting statements:
1. First, telling the IOM he wasn't representing the VA. In fact, he was still operating under his $25,000 per month consulting contract to support VA's resistance to Agent Orange claims.
2. Next, asked why the C-123s were destroyed if not contaminated, he said it was because USAF needed the storage space and the planes were unsaleable. Young skipped revealing the key point about how in 2009 he'd repeatedly recommended their destruction because of Agent Orange, and because we vets might apply for exposure benefits for our illnesses. 
3. What was he thinking?? Dr. Young presented IOM a set of photos of C-123 #664 supposedly taken by the Air Force in 1971, saying they showed the superb restoration and decontamination after Vietnam. His photos were indeed of #664, but were taken in 2004 by the Pennsylvania-based Air Heritage Museum who did the restoration themselves. Young simply lifted the photos right from the museum's web site.
4. Dr. Young stressed to the committee that no Agent Orange spray missions were done with the ramp doors open. But –  just two weeks later the Sunday Boston Globe had a front-page photo of a Ranch Hand C-123 doing exactly that in Vietnam.

But for most of us, our all-time favorite Al Young quote came in 2011: C-123 vets "are hoping they can cash in on  tax-free money" and are "trash-haulers." C-123 vets are "concocting exposure stories about Agent Orange hoping that some Congressional member will feel sorry for them." He concluded, "I have no respect for such free loaders. If not freeloading, what is their motive?"

Great thoughts fron Young, who between 2012-2014 profited from his no-bid sole-source $600,000 contract with VA to help block our claims.

Dr. Al Young – paid 55 foot tall stack of $100 bills to block C-123 Agent Orange claims!

Dr. Al Young. Famed Agent Orange apologist. Opposed to C-123 Agent Orange disability claims.

He was paid $600,000 on his most recent VA contract for opposing Agent Orange claims...and he's made millions altogether from VA and DoD...and from Dow and Monsanto. He's doing a contract now for the US Army Public Health Command, even though the Institute of Medicine concluded his input was "conjecture, nor evidence-based." But maybe the Army hasn't heard?

But the question plagued me..."What does $600,000 look like?" I've never seen so much cash. 

So, I checked the internet. A $600,000 stack of $100 bills makes a 55.47 foot tall stack. Used bills are thicker with wrinkles, and would be about 59 feet.

ProPublica Seeks Federal Court Order for Release of VA Agent Orange Files

by Robin Fields
ProPublica and the Virginian-Pilot filed a lawsuit today in federal court against the U.S. Department of Veterans Affairs, accusing the agency of stonewalling requests for documents under the Freedom of Information Act.

The lawsuit, ProPublica’s second against the VA in two months, seeks a preliminary injunction compelling the government to immediately release correspondence about Agent Orange, an herbicide used to kill vegetation during the Vietnam War, including documents sent to and received by Dr. David Shulkin, the VA’s undersecretary for health. Shulkin has been nominated to be VA secretary by President-elect Donald Trump.

ProPublica and the Pilot have been reporting about Agent Orange for 18 months, documenting ongoing effects on veterans and their families. The FOIA requests at issue in today’s lawsuit date back to May and September 2015.

As the news organizations have reported, the VA faces a number of imminent decisions about whether to cover certain groups of veterans who claim they were exposed to Agent Orange, as well as certain diseases that research has shown to be linked to the chemical mixture.

Exhibits attached to the lawsuits show how the FOIA requests submitted by the news organizations were subjected to one delay after another. ProPublica and the Pilot sought help from the VA’s Office of General Counsel, the agency’s chief information officer, as well as the Office of Government Information Services, also known as the FOIA ombudsman. Those efforts were not met with success.

“Repeated pleas to the VA to process two FOIA requests, which now have been pending for 618 days and 506 days, respectively, have been utterly disregarded. Indeed, ProPublica and The Virginian-Pilot have done everything short of turning cartwheels in front of VA’s headquarters to draw attention to these requests,” the legal memorandum in support of a preliminary injunction said.

Agent Orange – Its Legacy Endures

Posted: December 9, 2016
Norman Stockwell



Forty years ago, on December 10, 1976, the United Nations General Assembly passed the “Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques” by a vote of 96 to 8. It was the first time the international body had addressed the issue of the use of defoliants in military conflicts. Article One of the document broadly states: “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”

Agent Orange was one of a series of chemical defoliants used by the U.S. military in the war in Vietnam. From 1962 to 1971, over 20 million gallons of herbicides were sprayed on jungle and agricultural land in Vietnam and the surrounding countries of Laos and Cambodia. The spraying was ostensibly to eliminate foliage providing cover for enemy troops. It was called Operation Ranch Hand. Reaching its peak between 1967-69, Operation Ranch Hand sprayed toxic chemicals over more than one fifth of all the forests in what was then South Vietnam.

Of the 2.7 million U.S. troops who served in Vietnam, more than 39,000 have filed claims with the Veteran’s Administration (VA) for Agent Orange related health issues and, according to the Vietnamese government, more than 4 million of its citizens were victims of the spraying. The VA acknowledges more than 14 forms of cancer and other nerve and heart diseases to be directly associated with Agent Orange exposure. Birth defects in children of those exposed carry the toxic legacy forward into the next generation on both sides.

The Progressive first covered concerns over the toxic effects of Agent Orange in a May 1973 column noting: “…two Harvard scientists reported that a chemical defoliant widely used by the United States in South Vietnam during the recent unpleasantness has contaminated that nation's food chain. The scientists—chemist Robert Baugham and geneticist Matthew Meselson, who have made previous ecological surveys of Indochina—found the chemical, dioxin, in shrimp and five species of fish taken from various waters in South Vietnam. Dioxin, an ingredient of the defoliant known as Agent Orange, was present in amounts known to cause disease, genetic damage, and death in animals. The effect on humans has not yet been determined, but we are likely to find out before too long.”

It was exactly four years later in June 1977, that Maude DeVictor, an employee at the VA in Chicago first began to document the cases of cancer clustered in veterans who had been exposed to Agent Orange. A June 1978 article in The Progressive by Michael Uhl and Tod Ensign told her story: “Maude DeVictor works behind a cold, steel gray desk in the Benefits Section of the Veterans Administration regional office in Chicago. She is not your average paper shuffler. In recent months, Maude DeVictor has joined the select ranks of whistle blowers — those heroic individuals who discover an outrage and, in defiance of bureaucracy or suppression, bring it to public notice. The outrage Maude DeVictor discovered was the shocking effect of dioxin poisoning on American veterans who came into contact with the herbicides that were used to defoliate more than five million acres of the Vietnamese countryside between 1962 and 1970. Her efforts have not only focused attention on the plight of these latest victims of the Vietnam war, but have also raised new warnings against the domestic hazards posed by the herbicides.”

VA failure in its "duty to assist" veterans claims, particularly with C-123 Agent Orange

Guest article follows: 
My own experience with the VA duty to assist gathering evidence to support veterans' claim was quite painful. For verification of Agent Orange claims the VA turns to the Department of Defense Joint Services Records Research Center (JSRRC) for confirmation of exposures outside Vietnam. Despite the fact that JSRRC serves as the VA research authority, for years VA succeeded in blocking JSRRC input vital to confirm our exposures aboard C-123s. Fortunately, in 2013 VA was provided proof which was made more substantial in 2014 by the JSRRC.

FACT: VA would not accept the JSRRC input, even though it is required to per the VA Adjudication Manual M 21 – 1MR.
FACT: JSRRC was willing to submit the confirmation to VA and Mr. Sampsel but what is required to wait for his request which he never issued, even with my requests.

FACT: even though JSRRC confirmation eventually reached the VA, VA failed to act on it in violation of its own regulations, because individuals at VA were determined to, in the words of its consultant Dr. Alvin Young, "hold the line" against our disability claims. This was on their personal prejudice and their office unofficial personal policy of blocking our claims.

When I first learned that the JSRRC did not have all the material it needed about our aircraft, I had it sent to them by the Air Force Office of Historical Records Research, by the CDC, by the US Public Health Service, by the National Institute of Environmental Health Sciences, by medical schools and schools of public health all across the country. I visited the director of the JSRRC, Mr. Dominic Baldini (a Coast Guard veteran) and was impressed by his desire to serve the needs of America's veterans. That is, if VA would allow him to do so.

The JSRRC is in Fort Belvoir Virginia and I wanted to get there so badly I had to take my wheelchair four miles from the bus drop off point to his office where I was warmly received by Mr. Baldini and his staff. And four wheelchair miles back to my bus after that meeting. 

The VA contact for the JSRRC was Mr. James Sampsel who ran the VA Agent Orange desk, and it was his responsibility to liaise between the two agencies. The problem was Mr. Sampsel kept telling the JSRRC he would not accept input about our exposures for a variety of reasons cited in different ways over the years.

When Mr. Sampsel said he would not accept scientist or physician input except from military officers, we had it provided by commissioned officers of the US Public Health Service who are considered by law serving military officers, including Rear Admiral R. Ikeda MD USPHS. Repeatedly, Mr. Sampsel agreed to internal VA authorities that our veterans proof was persuasive (by law that should have settled things in our favor) yet he failed permit permit himself to be moved, contrary to the pro-veteran responsibility he had.

Then Mr. Sampsel wouldn't accept input because he hadn't specifically requested it from the JSRRC. And he wouldn't, for years. Another method Mr. Sampsel used to block JSRRC confirmation of our exposures was to insist only federal government documentation would suffice. This is despite VA Adjudication Manual 21 – 1MR stating JSRRC is responsible for gathering evidence from all the federal government agencies. Regardless, in his zeal to block C-123 veterans' claims, Mr. Sampsel apparently decided the CDC, USPHS, NIEHS and other federal sources would not suffice because they too directly confirmed the veterans exposures and abused his intent to deny VA medical care and compensation.

Further, although JSRRC and VA are to consider any credible source of scientific and medical information regarding a veteran's exposure, Mr. Baldini was forbidden by Mr. Sampsel to submit evidence from dozens of university medical schools and schools of public health as well as the independent experts VA itself had utilized for such studies. Amazingly, Mr. Sampsel's department even refused to accept input from toxicologists and other scientists from CDC and other federal agencies by stating only physician input would be accepted. This was a blatant abuse of rulings from the US Ninth Circuit Court but was also quite amusing because VA itself frequently used PhD experts whereever appropriate including veterans claims.

By 2013 the JSRRC and poor  Mr. Baldini had suffered enough grief for me about this that they simply force-fed confirmation of my exposure to Mr. Baldini by sending him an email. This didn't seem to help much because Mr. Sampsel simply refused to act on it. The issue finally was resolved only by Secretary McDonald and his interim final rule published in June 2015.

But Mr. Sampsel can still claim victory because he personally blocked 2100 C-123 veterans claims for four years and locked us out of VA hospitals and denied us compensation for our injuries and illnesses. His great respect for his friend Dr. Young have much to do with his motivation and his shouting throughout the VA for many years that he had "an overwhelming preponderance of evidence" against our claims – evidence consisting only of the VA webpage saying so, plus his preference for input from Dr. Young rather than the CDC, US Public Health Service and dozens of other federal, state, and scientific authorities supporting our claims. He wrote that EVERY proof of our exposure was his "real problem."

In the end the Institute of medicine study clearly established our exposure injuries but it was only a partial victory against the clear victory Mr. Sampsel enjoyed in keeping us from the VA hospital for four years. Contrary to law, his department was anti-claimant, adversarial, and obstructionist. He succeeded in "holding the line" against our claims as recommended by his favored consultant, Dr. Al Young.

CONCLUSION: VA hurt us through intrinsic and extrinsic ethical failures, none of which remain addressed today.

================================================================
Guest Article
==========================================================================

By Kevin Courtney November 22, 2016 Updated: November 22, 2016 10:06pm

The Navy’s Blue Angels performed jaw-dropping maneuvers and inspired our next generation’s service members during San Francisco’s Fleet Week last month. Unfortunately, those future sailors and Marines might end up like today’s veterans, suffering from a failing U.S. Department of Veterans Affairs. Thanksgiving is a great opportunity to reflect on how we can best serve our veterans and their families.

Veterans’ benefits claims may go undecided for more than a year, an unimaginably difficult year for those who haven’t experienced it. Our newly elected government leaders should address how the VA can better care for our veterans.

Today, the VA has a duty to assist veterans in preparing their claims by getting complete and relevant records from any federal agency. Congress created this “duty to assist” by passing the Veterans Claims Assistance Act in 2000. Under this standard, the VA must “make reasonable efforts to assist the claimant.” But what happens when a reasonable effort falls short of accurate or complete records? Deciding a claim based on inferior records likely requires an appeal, and the veteran will consequently suffer unnecessary financial and emotional stress.

The U.S. Supreme Court believes the VA should be a “pro claimant” and “non-adversarial” department when deciding claims because it is the sole agency responsible for providing federal benefits to veterans and their families. And there are two features built into the VA’s claim process to help veterans: first is the lack of a statute of limitations for bringing disability claims. A statute of limitations is usually the maximum amount of time after an event a veteran can bring his legal claim. The second feature is the VA’s more liberal burden of proof, which should allow it to decide in the veteran’s favor when the evidence supporting his claim is only 50/50. But are VA employees following these standards?

Congress has increased the VA’s budget every year over the past decade, so insufficient funding is not a reason why the VA fails to be “pro claimant.” While VA executives continue to receive performance bonuses, veterans are left waiting for help. It is important for President-elect Donald Trump’s secretary of veterans affairs to change the ethos found within the VA, improve its efficiency and ingrain compassion in employees. There are thousands of dedicated, caring VA employees, but some require a reminder that behind every claim is a veteran who honorably served this country. And they need the VA’s help before it’s too late.

Twenty veterans commit suicide every day in our country. If the VA streamlined its system, then some of these veterans might get the timely help they need.

The VA has an obligation to realize its mission: “To fulfill President Lincoln’s promise ‘To care for him who shall have borne the battle, and for his widow, and his orphan’ by serving and honoring the men and women who are America’s veterans.”

This Thanksgiving holiday, consider the benefits you enjoy thanks to a veteran. Then consider how you want the VA to treat our veterans.

Kevin M. Courtney is a student judge advocate for the U.S. Marine Corps and a second-year law student at UC Berkeley Hastings College of the Law. When the VA denied his claim for his father’s service-connected death, he spent the next four years trying to understand how the bureaucratic system functioned — or failed to function.

Guest article follows: my own experience with the VA duty to help gather evidence to support

veterans' claim was quite painful. For verification of Agent Orange claims the VA turns to the Department of Defense Joint Services Records Research Center (JSRRC) for confirmation of exposures outside Vietnam. Despite the fact that JSRRC serves as the VA research authority, for years VA succeeded in blocking JSRRC input vital to confirm our exposures aboard C-123s to the VA.

FACT: VA would not accept the JSRRC input, even though it is required to at the VA Adjudication Manual M 21 – 1MR. 

FACT: even though JSRRC confirmation eventually reached the VA, VA failed to act on it in violation of its own regulations, because individuals at VA were determined to, in the words of its consultant Dr. Alvin Young, "hold the line" against our disability claims. This was on their personal prejudice and their office unofficial personal policy of blocking our claims.

When I first learned that the JSRRC did not have all the material it needed about our aircraft, I had it sent to them by the Air Force Office of Historical Records Research, by the CDC, by the US Public Health Service, by the National Institute of Environmental Health Sciences, by medical schools and schools of public health all across the country. I visited the director of the JSRRC, Mr. Dominic Baldini (a Coast Guard veteran) and was impressed by his desire to serve the needs of America's veterans. That is, if VA would allow him to do so.

The JSRRC is in Fort Belvoir Virginia and I wanted to get there so badly I had to take my wheelchair four miles from the bus drop off point to his office where I was warmly received by Mr. Baldini and his staff. And four miles back to my bus after that meeting.

The VA contact for the JSRRC was Mr. James Samsel who ran the VA Agent Orange desk, and it was his responsibility to liaise between the two agencies. The problem was Mr. Sampsel kept telling the JSRRC it would not accept input about our exposures for a variety of reasons cited in different ways over the years.

When Mr. Sampsel said he would not accept scientist or physician input except for military officers, we had it provided by commissioned officers of the US Public Health Service who are considered by law serving military officers.

Then Mr. Sampsel wouldn't accept input because he hadn't specifically requested it from the JSRRC. Another method Mr. Sampsel used to block JSRRC confirmation of our exposures was to insist only federal government documentation would suffice. This is despite VA Adjudication Manual 21 – 1MR stating JSRRC is responsible for gathering evidence from all the federal government agencies. In his zeal to block C-123 veterans' claims, Mr. Sampsel apparently decided the CDC, US PHS, NIESH and other Federal sources would not suffice because they too directly confirmed the veterans exposures and abused his intent to deny VA medical care and compensation.

By 2013 the JSRRC and Mr. Baldini had had enough grief for me about this that they simply force-fed confirmation of my exposure to Mr. Baldini by sending him an email. This didn't seem to help much because Mr. Samsel simply refused to act on it and the issue finally was resolved only by Secretary McDonald and his interim final rule published in June 2015.

But Mr. Sampsel should still claim victory because he personally blocked 2100 C-123 veterans claims for four years and blocked us out of VA hospitals and denied us compensation for our injuries and illnesses. His great respect for his friend Dr. Young have much to do with his motivation and his shouting throughout the VA for many years that he had "an overwhelming preponderance of evidence" against our claims – evidence consisting only of the VA webpage saying so, plus his preference for input from Dr. Young rather than the CDC, US Public Health Service and all the other authorities supporting our claims.

In the end the Institute of medicine study clearly established our exposure injuries but it was only a partial victory against the clear victory Mr. Sampsel enjoyed in keeping us from the VA hospital for four years. Contrary to law, his department was anti-claimant, adversarial, and obstructionist. He succeeded in "holding the line" against our claims as recommended by his favored consultant, Dr. Al Young.

CONCLUSION: VA hurt us through intrinsic and extrinsic ethical failures, none of which remain addressed today.

----------------------------------------------------------

By Kevin Courtney November 22, 2016 Updated: November 22, 2016 10:06pm

The Navy’s Blue Angels performed jaw-dropping maneuvers and inspired our next generation’s service members during San Francisco’s Fleet Week last month. Unfortunately, those future sailors and Marines might end up like today’s veterans, suffering from a failing U.S. Department of Veterans Affairs. Thanksgiving is a great opportunity to reflect on how we can best serve our veterans and their families.

Veterans’ benefits claims may go undecided for more than a year, an unimaginably difficult year for those who haven’t experienced it. Our newly elected government leaders should address how the VA can better care for our veterans.

Today, the VA has a duty to assist veterans in preparing their claims by getting complete and relevant records from any federal agency. Congress created this “duty to assist” by passing the Veterans Claims Assistance Act in 2000. Under this standard, the VA must “make reasonable efforts to assist the claimant.” But what happens when a reasonable effort falls short of accurate or complete records? Deciding a claim based on inferior records likely requires an appeal, and the veteran will consequently suffer unnecessary financial and emotional stress.

The U.S. Supreme Court believes the VA should be a “pro claimant” and “non-adversarial” department when deciding claims because it is the sole agency responsible for providing federal benefits to veterans and their families. And there are two features built into the VA’s claim process to help veterans: first is the lack of a statute of limitations for bringing disability claims. A statute of limitations is usually the maximum amount of time after an event a veteran can bring his legal claim. The second feature is the VA’s more liberal burden of proof, which should allow it to decide in the veteran’s favor when the evidence supporting his claim is only 50/50. But are VA employees following these standards?

Congress has increased the VA’s budget every year over the past decade, so insufficient funding is not a reason why the VA fails to be “pro claimant.” While VA executives continue to receive performance bonuses, veterans are left waiting for help. It is important for President-elect Donald Trump’s secretary of veterans affairs to change the ethos found within the VA, improve its efficiency and ingrain compassion in employees. There are thousands of dedicated, caring VA employees, but some require a reminder that behind every claim is a veteran who honorably served this country. And they need the VA’s help before it’s too late.

Twenty veterans commit suicide every day in our country. If the VA streamlined its system, then some of these veterans might get the timely help they need.

The VA has an obligation to realize its mission: “To fulfill President Lincoln’s promise ‘To care for him who shall have borne the battle, and for his widow, and his orphan’ by serving and honoring the men and women who are America’s veterans.”

This Thanksgiving holiday, consider the benefits you enjoy thanks to a veteran. Then consider how you want the VA to treat our veterans.

Kevin M. Courtney is a student judge advocate for the U.S. Marine Corps and a second-year law student at UC Hastings College of the Law. When the VA denied his claim for his father’s service-connected death, he spent the next four years trying to understand how the bureaucratic system functioned — or failed to function.

VA Reverses Joe Collins' C-123 Agent Orange Claim Denial – grants full benefits at last

I wrote earlier (4 Oct 2016) about reading a June 2016 Board of Veterans Appeals denial of a vet's appeal that had a lot of C-123 info in it, including the years the unnamed vet served at Hanscom AFB and that he'd worked on the C-123s there. With the help of the Westover "old geezers' network we were able to identify the vet as Joe Collins.

The facts were clear...there was no way the denial would hold up, yet there it was, denied and any correction likely to take years. But the vet, according to the denial, had advancing cancer. It couldn't and shouldn't wait.

It only took a couple of phone calls to VA HQ as well as their St Paul C-123 claims center to start correcting this injustice. Three months passed. Yesterday VA posted the "new and improved" BVA decision about Joe Collins' claim, awarding him full disability and calling its error, "a denial of due process of law."

Whatever. What matters is that Joe and his wife are now protected with the benefits due his Agent Orange illnesses, and the event proves we have to keep looking out for each other, especially our elder brothers and sisters who too often get ignored or mistreated by VA.

Here's the text of the BVA re-decision. It states that new evidence was submitted after Joe's June denial, but that's incorrect. All I did was point out the VA's own magnificent error.

Citation Nr: 1637572

Decision Date: 09/23/16   Archive Date: 09/30/16

DOCKET NO. 15-34 922   )       DATE

On appeal from the

Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lymphocytic leukemia.

2.  Entitlement to service connection for chronic lymphocytic leukemia (CLL).

REPRESENTATION

Veteran represented by: Massachusetts Department of Veterans Services

WITNESS AT HEARING ON APPEAL
The Veteran

ATTORNEY FOR THE BOARD

J. J. Tang, Associate Counsel
INTRODUCTION

The Veteran served on active duty with the United States Navy from April 1946 to April 1948, and on active duty as a member of the United States Navy Reserves from October 1950 to August 1952. It appears that he had an additional period of active duty from August 1959 to August 1962, verified periods of active duty for training from October 28, 1962, to November 28, 1962, and additional active duty for training in 1972 and 1973, with the United States Air Force Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of entitlement to service connection for CLL.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in April 2016. A transcript of his hearing has been associated with the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015).

FINDINGS OF FACT

1.     On June 2, 2016, the Board issued a decision that declined to reopen the previously denied claim for service connection for CLL, and in this decision, the Veteran was denied due process of law.

2.     In a November 2012 Board decision, the Board denied a claim for service connection for CLL, based on the determination that such disability was not incurred in or aggravated by active service.

3.    The Veteran did not appeal the November 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court) and did not file a request for reconsideration of the November 2012 Board decision.

4.    The additional evidence received since the November 2012 Board decision is new and raises a reasonable possibility of substantiating the claim for service connection for CLL.

5.    The Veteran has CLL, the Veteran was exposed to an herbicide agent from C-123 aircraft in the line of duty during a period of active duty for training in the Air Force Reserves during the Vietnam era in 1972 and 1973.

CONCLUSIONS OF LAW

1.   The June 2, 2016 decision of the Board is vacated. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015).

2.   The November 2012 Board decision, which denied entitlement to service connection for CLL, is final. 38 U.S.C.A. § 7104(b) (West 2010); 38 C.F.R. § 20.1100 (2012).

3.   The additional evidence received since the November 2012 rating decision is new and material to the claim for service connection for CLL, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).

4.   The criteria for service connection for CLL are met. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Vacatur of Board Decision

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). On June 2, 2016, the Board issued a decision that declined to reopen the previously denied claim for service connection for CLL, and in this decision, the Veteran was denied due process of law. Accordingly, the June 2, 2016 Board decision addressing the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for CLL, is vacated.

Duties to Notify and Assist

Because the Board is reopening the previously denied claim for service connection for CLL and granting the claim on the merits, discussion concerning compliance with the duties to notify and assist is not necessary.

Application to Reopen the Claim for Service Connection

Even if a prior decision becomes final, a claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (applying to claims to reopen that are filed after August 29, 2001). Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide a medical examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In a November 2012 Board decision, the Board denied a claim for service connection for CLL, based on the determination that such disability was not incurred in or aggravated by active service. After the Veteran was notified of the adverse decision, the Veteran did not appeal the November 2012 Board decision to the Court, nor did he file a request for reconsideration of the November 2012 Board decision. Therefore, the Board decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7104(b) (West 2010); 38 C.F.R. § 20.1100 (2012).

At the time of the November 2012 Board decision, the evidence of record included the Veteran's service records, post-service treatment records, and the Veteran's statements. Such evidence showed a diagnosis of CLL, that the Veteran served as an Air Reserve Technician (ART) from 1970 to 1973, and that the Veteran's service as an ART was during a period of active duty for training in the Air Force Reserves at Hanscom Air Force Base.

The additional evidence presented since the November 2012 rating decision includes the Veteran's written statements describing his work as an ART during active duty for training in the Air Force Reserves at Hanscom Air Force Base. The Veteran also submitted annual statements of Reserves credits for 1972 and 1973, in which the Veteran is shown to have had credits for days of active duty for training service during these years. The credibility of the Veteran's statements is presumed for the purposes of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that tends to indicate that the Veteran may have been exposed to an herbicide agent regularly and repeatedly in the line of duty during a period of active duty for training during the requisite time period in the Vietnam era was absent at the time of the November 2012 rating decision, and this evidence, in conjunction with the newly revised regulation pertaining to herbicide exposure for Air Force Reserves crewmen, raises a reasonable possibility of substantiating the claim. Thus, the Board finds that new and material evidence has been submitted. The claim for service connection for CLL is reopened. The merits of the claim for service connection are discussed below.

Service Connection

A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).

"Active military, naval or air service" includes periods of active duty for training (ACDUTRA) during which a disease or injury was incurred or aggravated in the line of duty. See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6; see also Biggins v. Derwinski, 1 Vet. App. 474 (1991).

Generally, to establish entitlement to service connection, the claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran has been diagnosed with CLL, per the medical evidence of record. Thus, the present disability is shown.

The Veteran contends that his CLL is the result of exposure to an herbicide agent during active service. The Veteran contends that he was working as an ART at Hanscom Air Force Base from 1970 to 1973, and as discussed above, his Reserves credits records confirm periods of ACDUTRA in 1972 and 1973. The Veteran reports that he worked on C-123 aircraft that had been used to spray an herbicide agent in Vietnam. In a January 2009 statement, the Veteran reported that though he was not actually removing tanks and equipment from the aircraft, he was around the aircraft on a daily basis. In September 2009, the Veteran submitted a statement from a fellow ART that reported that over a period of several weeks, he and the Veteran physically checked on the status and decontamination of a C-123 aircraft that had arrived at the base for decontamination. The Veteran also testified at the April 2016 Board hearing regarding his specific duties as an ART on the C-123's, including taking floor boards out of the airplanes and doing maintenance inside and outside the airplanes. The Board finds that the Veteran's statements describing his duties as an ART during ACDUTRA and the Veteran's fellow ART's statements regarding their duties as ARTs are credible.

Newly revised 38 C.F.R. § 3.307(a)(6)(v) states, "An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph,'regularly and repeatedly operated, maintained, or served onboard C-123 aircraft' means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service."

In light of the recent revised regulation, and given the credible statements as to the nature and duration of the Veteran's duties as an ART working with C-123 aircraft during these aforementioned periods of ACDUTRA, the Board finds that the Veteran regularly and repeatedly maintained C-123 aircraft during the Vietnam Era as a crewmember of an Air Force Reserve Squadron. Thus, under 38 C.F.R. § 3.307(a)(6)(v), exposure to an herbicide agent in the line of duty during ACDUTRA is shown.

CLL is included in the list under 38 C.F.R. § 3.309(e). There is a presumption of service connection for a Veteran who was exposed to an herbicide agent during active service and is diagnosed with CLL that manifested to a compensable degree at any time after service, unless there is affirmative evidence to show that the disease is not related to exposure to an herbicide agent. 38 C.F.R.

§ 3.307(a); see 38 C.F.R. § 3.307(d).

Here, the Board has found that exposure to an herbicide agent is shown, and such exposure constitutes an injury for purposes of determining whether the Veteran's CLL was incurred in active air service. Further, the Veteran's CLL is presumed to be service-connected on the basis of his exposure to an herbicide agent during his ACDUTRA service in the Vietnam era. For these reasons, the Board concludes that the Veteran's CLL was presumptively incurred in active air service, and service connection for CLL is granted.

ORDER

The June 2, 2016 decision of the Board is vacated.

Because new and material evidence has been received, the claim for service connection for CLL is reopened.

Entitlement to service connection for CLL is granted