VA DECEPTIONS USED TO DENY C-123 AGENT ORANGE CLAIMS, 2011-2015

   Every C-123 Agent Orange claim ever submitted was denied until June 2015, but still, VA insisted it had no blanket denial policy. How else are ten years of 100% denials described? With instructions like the examples below, there clearly was an official blanket denial policy. This denied Due Process, misled Congress when it tried to help us, ignored VAM21-1MR and provisions of US statutes and Federal Regulations. It was deceptive and an amazing abuse of discretion.

    Look at the following list of promises of case-by-case consideration. All of them, however earnestly offered, are shown to be false in the memo authored by VBA's Agent Orange expert, Mr. James Sampsel. He wrote, "If we were to adopt a case-by-case plan, an additional problem would be how to determine whether a particular post-Vietnam C-123 crew member was flying stateside on a former Ranch Hand aircraft." 

    See the point? He's discussing VA adopting a case-by-case plan, making it clear VA never had one! Why? Because VBA wanted to avoid the "slippery slope" his memo warned of.

VA has the means to punish veterans making false claims, but veterans have nothing except outrage to deal with VA's abuse of discretion and false promises.

      – FALSE VA PROMISES OF PROPER C-123 CLAIMS  –

"Scouts' Honor?"

• "All claims are considered on a case-by-case basis." – former Secretary Shinseki

• "All claims considered on case-by-case basis." – Under Secretary Hickey

• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel

• "All claims are considered on a case-by-case basis." – VA Deputy Chief Consultant Post-Deployment Health

• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26, 2012, May 23, 2014

• "Makes a case-by-case determination..." – VA Office of General Counsel

• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee

• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page

• "These claims will be decided on a “case-by-case basis" – VA Agent Orange consultant

• "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service

    • "Claims are evaluated on a case-by-case basis." – VA Public Affairs

   – FALSE EXCUSES VA CITED TO DENY C-123 CLAIMS –

"I cannot tell a lie!...except about C-123s"

     VBA informed regional offices how to deny all claims, and when ROs asked CS for they were told how to deny C-123 claims (VBA and VHA leaders made similar statements.)
     Every one of these was eventually shown to be in error, yet VA has never made right the harm done affected veterans.

•  "Therefore, there was no exposure"

• "We have to draw the line somewhere" 

•  "VA has an overwhelming preponderance of evidence against exposure"

• "Comp Svc has never had a policy of supporting such "remote" or  "secondary" AO exposure"

•  “VHA has already informed CS that no C-123 exposure claims will be approved because there was no exposure” (Mr. Tom Murphy to Wes Carter and Major Marlene Wentworth, NC USAF on 28 Feb 2013, in his office)

•   "No amount of proof from whatever source will permit a C-123 claim approval. Because we've already determined there was no exposure." (Dr. Mike Peterson VHA to Wes Carter and Mr. Brooks Tucker [Senator Burr's staff] at Senate Hart Building meeting, May 2012)

•  "TCDD in post-Vietnam C-123s cannot be absorbed by the human body in any significant amounts and there is no scientific evidence for long-term health effects from such 'exposure' "

•   "Preponderance of scientific evidence does not support TCDD “exposure” in post-Vietnam aircraft and VA laws and policy do not generally support service connection on this basis"

•   "VHA and independent scientists have stated that this solidified TCDD could not be absorbed by the human body and could not cause long-term health effects"

•   "There is no legal basis for providing this disability benefit and insufficient scientific evidence to establish long-term health effects from any such 'remote' exposure"

•  "VA does not recognize such 'secondary' or 'remote' exposure to Agent Orange"

•  "VA regulations do not allow us to concede exposure to herbicides for Veteran's who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals"

•  "Evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional

•  "No 'presumption' or 'acknowledgment' of exposure to AO based on indirect, secondary, or remote contact with aircraft or equipment previously used in Vietnam"

• "The majority of scientists on record, including those with VHA, state that any solidified TCDD in post-Vietnam aircraft is not active in the environment and cannot biologically enter the human body in any significant amount; therefore no TCDD 'exposure' "

•  "VHA's medical expertise on lack of evidence for long-term health effects speculative evidence for "high levels" of exposure from his supporters (CDC/ATSDR, NIH, USPHS, NIEHS, Committee of Concerned Scientists & Physicians) who are not qualified to provide the medical nexus"

•  "The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially zero.

•  “C-123 vets are 'Trash-haulers. Freeloaders looking for a tax-free dollar. I have no respect.'"

• "The potential for exposure to TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially nonexistent. As a result, there is no scientific basis for VA to establish the  presumption of Agent Orange exposure among this group of Veterans."

• “The overwhelming preponderance of evidence is against such exposures, including a VHA website specifically stating such exposure could not have occurred” 

•  “Please tell veteran. "We are unable to verify or document that aircrew members were exposed to Agent Orange, resulting from Agent Orange residue or dioxin-contaminated aircraft or aircraft parts. Although residual TCDD. the toxic substance in Agent Orange, may be detected in C-123 aircraft by sophisticated laboratory techniques many years after its use, the Office of Public Health concluded that the existing scientific studies and reports support a low probability that TCDD was biologically available in these aircraft. “Therefore, the potential for exposure to TCDD from flying or working in contaminated C-123 aircraft years after the Vietnam War is unlikely to have occurred at levels that could affect health."

• “Veteran failed to prove his airplanes were the ones used in Vietnam

• “There is (no) evidence of exposure to herbicides during military service.”

•  "The C-123 veterans are not currently eligible for compensation"

•  "There was no exposure. (Consultant representing VA at June 2014 IOM C-123 hearing)

• "Current scientific review indicates that any residual herbicide in the post-Vietnam C-123s cannot be absorbed by the human body or cause long-term health effects."

•  "VA laws and policies related to Agent Orange exposure, whether presumptive or based on fact-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide"*


• "TCDD is believed to persist in the metallic (or painted) environment with the lack of direct sunlight; however, its exposure risk is low due to lack of bioavailability and possible routes of exposure."

• "Therefore, it can be concluded that crews who worked on C-123 aircraft after they were used in the Vietnam War were not at risk of developing TCDD/Agent Orange-related health effects"

• "The scientific evidence available to establish a medical nexus in these cases is limited and the VA Office of Public Health has provided a medical opinion that it is insufficient to establish the required nexus. While your letter**focuses on the issue of potential dioxin exposure, it does not offer an opinion on the medical nexus issue nor does it address the potential for long-term health effects or disabilities resulting from service on the post-Vietnam C-123 aircraft."

    –––––––––––––––––––––––––––––––––––––––––––––––

* Liquid Agent Orange only? A novel concept, but an outrageous one in toxicology. Agent Orange and its contaminant TCDD are deadly as a liquid, gas, solid or anything in between. The IOM concluded that, despite VA's "liquid" slight-of-hand. C-123 veterans were exposed via dermal, inhalation and ingestion routes of exposure.
** Mr. Murphy references the letter to Secretary Hickey from the Committee of Concerned Scientists and Physicians, which sought to satisfy the legal and scientific requirements for veterans' Agent Orange benefits per 38 USC and the VA's three eligibility statements in the Federal Register, i.e. exposure alone.

    ––––––––––––––––––––––––––––––––––––––––––––––––

• Here is VA's first position statement from April 2011 addressing C-123 exposure inquiries. 

• The first point is correct: at that time, only Vietnam veterans had "presumptive exposure." The law was that other claimants would have to prove exposure on a fact-proven basis as we proceeded to do.

• The next four VA points were either disproved by the IOM or, with the third point, clearly CUE.

VA Awards First C-123 Agent Orange Claim to Ed Kosakoski

Great News!

Retired LtCol Ed Kosakoski, former commander of the 74th Aeromedical Evacuation Squadron, Westover AFB MA, was awarded service connection for his Agent Orange exposure and resultant prostate cancer. The VA's action was taken yesterday, July 17 and retroactive to June 19. 

Staffers for Under Secretary for Benefits Allison Hickey notified his family of the good news. Ed's claim happened to be the first to be processed under the VA's interim final rule ordered by Secretary McDonald for post-Vietnam C-123 veterans, with the St. Paul VARO assigned to process all C-123 claims.

A pharmacist in civilian life, Ed's military service began in the Army, rising to Master Sergeant before earning his Air Force commission and transfer to the Air Force Reserve. As a squadron commander he took special interest in helping his senior airmen earn their commissions, and so many did his unit developed a reputation as "Colonel K's OCS." He is married to retired active duty LtCol Ingrid Kosakoski.

Good job, VA!

VA Secretary McDonald Orders Medical Care for C-123 Veterans!

Exercising his great authority on April 14, VA Secretary Bob McDonald ordered Veterans Benefits Administration and Veterans Health Administration to provide VA medical care to eligible C-123 veterans!

It is a victory for the Department of Veterans Affairs, with key players who've stood up for us also victorious: Allison Hickey, Linda Schwartz, the Secretary and others. VA succeeded in its mission with Secretary McDonald's message, and now those VA hospital doors are unlocked at last.

Good job, VA! While we have absolutely no idea how his orders will be implemented nor how long VHA expects to delay to get itself organized, this is wonderful news and shows the leadership we'd been hoping for.

Stars & Stripes 15 Mar 2015: "VA C-123 Decision Delayed"

Pretty alarming, after the Senate Veterans Affairs Committee budget hearing and subsequent VA statements regarding upcoming announcements. We'll just have to keep faith.

VA Announces Another C-123 Announcement Delay

Reported today in the Pittsburgh Gazette:

By Torsten Ove / Pittsburgh Post-Gazette

A Department of Veterans Affairs announcement regarding new Agent Orange benefits for Air Force reservists who flew on C-123 transport planes in Pittsburgh and elsewhere has been delayed again until next week. (note: a subsequent email from VA further delayed the announcement and stated that no date has been set.)

The announcement by Allison Hickey, undersecretary of benefits for the VA, was supposed to be last week and then was moved to this week, but it's been pushed back once more because the details are still being worked out, a VA spokesperson said. A fleet of the giant C-123s was used in Vietnam to spray Agent Orange defoliant.

After the war, the Air Force removed their spray tanks removed and supposedly decontaminated the planes before returning them to duty in the U.S. at the 911th air base here and two other bases in Massachusetts and Ohio.

Some 2,100 crew members, flight nurses and mechanics who flew on the C-123s or serviced them from 1972 to 1982 have long suspected that the planes remained contaminated with dioxin, the toxic chemical in Agent Orange, and that their medical problems are the result of exposure. They say they should be eligible for the same Agent Orange benefits that all veterans who served on the ground in Vietnam receive, but the VA has denied most of their claims over the years.

A recent report by the Institute of Medicine, however, concluded that C-123 reservists were probably exposed to dioxin.

The VA is expected to announce that Agent Orange benefits will now be extended to all C-123 veterans who are eligible.

American Legion Magazine Reports on C-123 Agent Orange Saga

The American Legion was the first service organization to stand with us in advocating Agent Orange benefits for our exposed C-123 veterans. Introduced to us by Columbia's Dr. Jeanne Stellman, Legion executives presented and the membership approved a resolution calling on the VA to recognize our toxin exposures.

Support from America's largest veterans organization is something that certainly got attention and respect from the Air Force and VA.

Continuing their focus on our C-123 issue, this month's Legion magazine carries an article by author Tom Philpott on page 19. Like the American Legion, Philpott is very familiar with C-123 issues, having begun his coverage of us in 2011 when we began our efforts. His coverage of the January 9 2015 report from the Institute of Medicine was very comprehensive, and carried through Gannett's chain.

Philpott has been covering military issues longer than most veterans served...over thirty years as a journalist, including his tour in the Coast Guard.

This month, he surprised us with his full page report in the Legion: we had no idea it was in the works. He certainly surprised me with his kind words, which are much appreciated as we anticipate wrapping up these four years of arduous work.

I believe the next report from Tom Philpott will announce (to use a naval metaphor) a terrific "sea change" in the way VA has evaluated our disability claims. That will be my favorite Philpott article ever! I can't wait!

VA Now Permits C-123 Veterans Agent Orange Registry Exam!

At first available, then forbidden us, the VA's Agent Orange Registry Exam is now available to C-123 veterans! This is a terrific step for VA to take and important to us. The exam is one of our first requests to the VA, and here it is!

The first notice I had of this is the Manchester NH VA Medical Center's web page, published on February 11. Manchester is dear to all of us because they are the ones who bravely reviewed Paul Bailey's denied claim, and awarded it to him a month before his death. They stood up to the system and read their rules and regulations fairly.

The exam itself doesn't qualify a veteran for Agent Orange benefits. However, it is a comprehensive exam by practitioners who know what to look for, and I strongly encourage everyone concerned about their exposures to complete the exam.

How? Call your nearest VA medical center and ask for the Agent Orange exam people. Here's the text from the Manchester VA web page...wonderful to see it in print!

VA Asks Our Positive Attitude Going Forward – Makes Good Sense!

We have a list of very serious concerns that's been given to the highest levels of the Department of Veterans Affairs, and they have executives there working hard to set right the C-123 Agent Orange exposure mess. It will be less of a mess if we work together. VA is on it!

This is a result of VA pushing for and funding the recent C-123 IOM report, and a result of their embrace of the report's recommendations. It is also a result of four years which veterans spent advocating for justice. 

That long effort and the very serious impact of the delay in VA permitting us medical care leaves us anxious.

Word today from VA senior leadership: "We are aggressively working the issue."

Just what VA does to flesh out the IOM recommendations remains to be seen. Their committee, under Dr. Ralph Erickson, is reported (as above) to be hard at work getting their (OUR!) program in place. We've talked and exchanged emails, but nothing is actually revealed of their plans, worries, timing, scope of coverage...nothing explained yet. They're careful discussing anything they can't deliver.

Let's give them the time to do this without unnecessary carping or pushing through proxies.

The particulars of the problems we've placed at the VA's doorstep can be resolved in the near future, without any further urging on our part. "OBE," as the VA puts it – overcome by events.

We ask that the VA decision on Agent Orange benefits be quick

and comprehensive, and our views are there already for VA's consideration. If they want more input we're ready at any time. 

For the most part, VA has always done the best with what its been given. What they're given now is a big chore...pinning down all the AFSCs involved in hands-on support and flying the C-123 fleet between 1972-1982.

Our view is that present rules and regulations, if followed properly, already cover C-123 veterans. No new law, regulation, or announcement in the Federal Register is needed: that's already been done multiple times and need not be repeated with the sole effect of wasting months.

We must expect that the attitude of the committee members is supposed to be more "how to include" rather than "how to minimize" coverage of affected veterans. The IOM report was six weeks ago, and we'll remain concerned about whether VA can bring the necessary changes into action sooner rather than later. One more month would be a good goal.

They've asked, so let's show we can partner with them even if the only role they ask for us is quiet and patient anticipation...for now.

 We are asked to place our faith in General Hickey VBA, in Dr. Erickson in VHA and in their teams – so let's do it and let our gripes about the small stuff "OBE." 

Time to rely on their leadership...they've offered it to us.

NASDVA Asked to Inform VSOs & Veterans About C-123 Developments

We again have asked the National Association of State Directors of Veterans Affairs to inform C-123 veterans and their survivors of developing eligibility news coming from the VA.

Over the four years of our effort to get VA itself to assist our veterans, NASDA has never responded to inquires or requests and we hope the recent IOM report and VA's reassuring comments since 9 Jan 2015 will help enlist their experts. Even earlier assistance from then-president Dr Linda Schwartz, Connecticut's Commissioner of Veterans Affairs, brought only silence.

We face a tremendous sea-change. VSOs, claims officers, attorneys, veterans themselves and all the web sites and printed literature will have to be inclusive of C-123 veterans' eligibility. Those details, once fleshed out by the VA, need to get in place immediately.

(1/31/2016: actually, we never heard a single word from NASDVA)