Senators Threaten VA Confirmations Unless C-123 Exposure Issues Resolved!

Two Democratic senators are holding up a confirmation vote on President Barack Obama's nominee for Veterans Affairs' top health post, citing the department's delay in extending disability benefits to Air Force reservists possibly exposed to Agent Orange.

Sens. Sherrod Brown of Ohio and Ron Wyden of Oregon said Thursday they will block a vote on Dr. David Shulkin's nomination in the full Senate until the Department of Veterans Affairs provides a fuller update on its efforts to help roughly 1,500 to 2,100 reservists who served from 1972 to 1982 at military bases in Ohio, Pennsylvania and Massachusetts.

Brown, Wyden and five other senators requested such feedback in a letter to the VA in April, with no adequate response to date, they said.

Any senator can anonymously place a hold on a nominee for any reason, preventing a vote.

"These veterans have waited too long to receive the health care and disability benefits they deserve," Brown told The Associated Press. "Dr. Shulkin is extremely qualified, but we can't move forward to confirm an undersecretary for health at the VA until this pressing veterans' health issue is addressed."

The VA did not immediately respond Thursday morning to a request for comment.

The department has been mulling a plan to grant a presumption of Agent Orange exposure to reservists who flew or worked on C-123 aircraft, many of which contained residue from the herbicide in the years after the Vietnam War. Such a move would give them easier access to disability benefits.

Since at least 2012, the VA has denied that the reservists could have been exposed to dioxin from dried Agent Orange, but it agreed to reexamine the issue after an Institute of Medicine report in January concluded many reservists were exposed and suffered higher health risks.

If confirmed, Shulkin, president of the Morristown Medical Center in New Jersey, would fill a key VA undersecretary position, managing a healthcare system responsible for 9 million military veterans in more than 1,700 facilities. His task would include working to improve wait times for medical care following last year's scandal involving long waits at the Phoenix VA medical center.

Dr. Carolyn Clancy, who had been appointed an assistant deputy undersecretary, has been serving as interim undersecretary for health. The previous undersecretary, Dr. Robert Petzel, stepped down in May 2014 in the wake of the Phoenix scandal.

Shulkin's nomination is awaiting final confirmation after a Senate panel approved it Tuesday by voice vote.

Board of Veterans Appeals Okay'd C-123 Reservist's "Veteran" Status in 2007 Decisions

The Board of Veterans Appeals and VA Office of General Counsel both agreed on something before April 16. Until then, VA rules, OGC opinions (38 U.S.C. § 1110 or 1131.  VAOPGCPREC 4-2002, 69 Fed. Reg. 25176 (2004)) the law were read to permit Reservists exposed to a hazard to be considered injured at that moment, even though a disease might not evidence itself immediately but rather after the Reservist's period of AD is over...such as PTSD or immunization illnesses.

Most C-123 veterans and our legislators, as well as Yale School of Law, are aware by now that the VA Office of General Counsel waited until just about the last minute to "discover" their newfound position that Reservists must be in or otherwise earn "veteran" status per the various statutes, for VA to permit Agent Orange medical care and other benefits. Until this point, OGC had disputed only the exposure claims made by veterans and VA's supposed freedom to redefine the term "exposure" to its own needs. Losing that battle, OGC switched to Plan B, The Veteran Status. Question to OGC: Does this show VA's pro-veteran, non-adversarial, "benefit of the doubt" VA justice?

This new and completely vacuous argument, disputed by VA's own earlier decisions which are legally binding but simply ignored, has managed to sidetrack any VA action from April 16 until today, and still no firm resolution in sight. We do know that VA has submitted language for their rule about us to the White House Office of Management and Budget, but it has sat there since May 12 with no action and not even an abstract to suggest what its scope will be.

None of this was necessary.  The Vietnam Veterans of America, Yale Law and Senate sources hammered at the VA about their earlier decisions, because Office of General Counsel decisions are binding on the VA, and that exposure illnesses convey veteran status at the exposure event, not the moment of diagnosis. VA OGC disagreed but has no basis for their disagreement. Still, with legislation being too drawn out, a rule seems the veterans' best hope for now.

The VA's own Board of Veterans Appeals decided a case for one of our Westover - Hanscom C-123 veterans back in 2007, Citation #0734812, involving the same everything...time frame, airplanes, duties, bases, veteran vs. reservist, exposure...everything parallel to all the claims denied ever since, except today C-123 veterans have even more proof in the IOM report, the JSRRC confirmations and other federal agencies findings.. The BVA judge justly decided:

    "The service and museum records document the
veteran's reserve service in 1972 and 1973, the presence of
that C-123 at Hanscom in 1972 and 1973, the use of that C-123
in spraying defoliant in Vietnam, and service of that
airplane in Vietnam in 1972.  Overall, the evidence
reasonably supports the veteran's account of herbicide
exposure.  The Board will concede that the veteran was
exposed to an herbicide during service. 

    The Board accepts that the veteran was exposed to an
herbicide during service.  The veteran was diagnosed with
type 2 diabetes after service.  The Board presumes that the
veteran's diabetes is service connected, and grants his
claim. 

    As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 

    In this case, the Board is granting in full the benefit sought on appeal.  

    Therefore, the Board need not provide further notification or
assistance to the veteran.  The Board also does not need to
discuss further VA's compliance with the laws and regulations
involving notification and the development of evidence."

US Senators – Do I have the RIGHT to demand their assistance?

Yes, of course, if we consider the Constitutional guarantee of freedom of speech and the many ways such as print, video, websites in which that freedom can be exercised. There is nobody who would challenge me for expressing myself, given the understood exception of unlawful extremes.

What I mean is, do I have the RIGHT to demand their assistance in a way beyond the mere exercise of that freedom? Do they have to listen? Do they have to decide whether to respond or can they simply ignore me as they would any other pest?

No – they can't ignore a citizen's voice, although they do. They have to listen, although they often won't. They must respond but seldom do. I still maintain, however, it's their job to listen, their job to care and their oath of office to oblige them to these chores. Below I've listed reasons senators are obliged to listen, and in a perfect world, or in a world where the senator had to account for the resolution of each citizen's complaint...they would listen. Of course, I must emphasize the greater likelihood of them actually listening if good manners are used to conduct a civil discourse!

First reason Senators have to listen to my demands:

I spent the majority of my military career flying aeromedical evacuation. Most of it was years of training for the few days of live medevac missions in an aircraft carrying my fellow soldiers out of harm's way. 

If at any moment in my twenty-six years of service I had failed to do my duty, or failed to correct flaws or errors or mistakes, others could have suffered. 

Neither the Air Force nor our legislators would tolerate any failure on my part which could result in failure of the aeromedical evacuation mission. Too much was at stake, and still is in today's medevac. 

One can imagine the angry roar from the Hill if anybody in the aeromedical evacuation mission simply opted not to do their duty, and allowed patients to suffer and die. Every senator and congressman with patients from their states whom I'd allowed to suffer would be screaming for my head and demanding the most severe penalties under UCMJ. 

Our legislators demand that people like me, people who've taken the military oath to serve and obey, will do so to the best of our abilities and to the point of death if necessary. 

It stands to reason that if they demand that and more of me because I accepted the obligation to serve and obey, and accepted an office in which I was confirmed by the Senate,  I have no less a right to demand they fulfill the duties of their own oaths of office.

Second reason Senators have to listen to my demands:

I got sick doing my duty. The science is no longer in question, having been affirmed by the Institute of Medicine report to Secretary McDonald. The law is clear. 

But still VA refuses to care for men and women like me who flew these airplanes. 

Today I'm old and ill and unable by myself to move the VA to action. I've wasted four of the last years of my life in pursuit of what VA should have offered from Day One. I seek no new legislation, but rather pressure by the Senate on the VA for Secretary McDonald to act. 

Forty-one years have passed since my first flights aboard the former Agent Orange spray airplanes. Twenty-one years have passed since the Air Force identified the heavy TCDD contamination in Patches. Four years have passed since the Air Force Surgeon General elected not to inform our C-123 veterans of our Agent Orange exposures "to prevent undue distress" (his actual words!) And just before his decision the USAF quietly destroyed all remaining C-123s as toxic waste.

Years have passed, and these were years the Senate should have been exercising its oversight in these matters to protect us airmen. Years have passed, and the only action by the Senate has been two two joint letters to the Secretary of Veterans Affairs and terrific staff support from the teams of Senators Brown, Blumenthal, Wyden, Warren, Merkley, Burr and Bennet. Seven voices among the one hundred, all of whom took an oath which obliged them to protect servicemembers, yet nobody did until Senator Burr's first efforts in 2011. 

The law says we should be eligible for VA medical care and benefits. VA says so also, but hasn't gotten around to doing anything to begin caring for surviving our C-123 veterans.  I became ill in a line-of-duty situation, the facts of which have been confirmed by numerous federal agencies, universities, VA physicians, and independent scientists. VA should act but still they hesitate. Still VA keep its hospital doors locked to us.

Members of the United States Senate, ninety-three of whom continue to stand silent when I call for help, owe me a good listen. It's their job, because I did my job. My claim, and those of the 2100 men and women I served with, is just and reasonable, provided for in law but lacking only the VA's plan for implementation.

Members of the United States Senate, I respectfully demand your consideration of our situation. I respectfully insist you show me and the veterans I represent the same loyalty and excellence in serving us as we served you and our fellow citizens. 

It's only right. At least, I can hope. The Senate owes us at least an evaluation of what VA is putting us through, and hopefully when each senator has seen enough of this mess each of you will join your colleagues in demanding VA action. Thank you.

"PINO" – Senators Who Are Patriots in Name Only?

PINO: "Patriots in name only."

The accusation seems harsh, and honestly, is unjustified when considered in the totality of a Senator's public service.

But it feels at least a bit appropriate when C-123 veterans suffering Agent Orange illnesses turn to the Hill for help with such a fundamental need as our access to VA medical care we've earned. And, which even VA says is due us.

PINO. Only seven of one hundred United States Senators cared enough about us to lend their names, influence and prestige by signing letters to VA Secretary McDonald. Perhaps they've acted in other ways we are unaware of...but why aren't we aware if they've done anything at all?

Our simple problem is we need to gain access to VA medical care. Even though the GAO rates VA medical care as "high risk" we still need it and our other earned benefits. Of course, part of VA's high risk in our case is their fighting us for four years so far, even though the science eventually proved us right.

And still VA fights doing right by us. Trying to minimize the number of C-123 personnel they'll consider. Trying to delay any resolute action by the Secretary as long as possible. Trying to prevent retroactive benefits. Trying to create illogical statutory barriers. Trying to refuse Freedom of Information Act requests.  Trying to prevent access to the VA Agent Orange Registry exam. If VA has been helping in the months since the January 9 2015 Institute of Medicine report, it is being kept very, very quiet.  And very, very delayed.

Senators could help, just as the bipartisan group formed by Senators Bennet, Merkley, Burr, Warren, Blumenthal, Brown and Wyden have done in challenging Secretary McDonald to act.

Only seven voices among one hundred.

Silence by the 93 seems louder than the voice of the seven Senators who've shown care. In fact, we've never heard silence this loud, a silence so comforting to the VA in supporting its actions against us, but a silence of little comfort to us.

PINO. No, not that. No, it just feels and acts and results some little bit like it.

C-123 Veterans Ask, "Where is my Senator's help with our Agent Orange illnesses?"

Saturday, Ohio's C-123 veterans gathered to enjoy the fellowship of each other's company. They also discussed the Agent Orange exposures suffered during the years of flying former Operation Ranch Hand C-123 spray aircraft. They were joined by Dr. Pete Lurker who explained the C-123 contamination studies done by the USAF and the Institute of Medicine.

For fourteen years Ohio's volunteers were subjected to this deadly toxin which the VA has only recently acknowledged. But...VA has done nothing further, nothing to help.

Although VA has accepted the findings of the Institute of Medicine which confirmed both the C-123 contamination and the veterans' exposures, Secretary McDonald of the VA has yet to permit any medical care or other benefits earned by these men and women.

Members of the Senate have spoken up in defense of C-123 veterans. In an effort first led by Senator Burr of North Carolina and Senator Merkley of Oregon, and joined by Senators Warren, Wyden, Bennet, Blumenthal and Brown, the VA has been called to task for its stubborn refusal to care for C-123 veterans' Agent Orange illnesses.

Ohio's veterans and C-123 vets from every other state besides Oregon ask, "Where is my senator – why isn't any help offered in our struggle with the VA? Are we vets not worthy of our senators' involvement in this bipartisan and bicameral effort?"

Oregon is the only state with both its senators involved. Five states have one of their two senators helping but forty-four states are represented by legislators who've not yet stood with us!

Colorado veterans ask about Senator Gardner (R) and hope he'll help as has Senator Bennet (D.) We ask as well about every other senator not shown below. Why, in particular, is Senator Burr the sole Republican in this worthy cause, in an effort he initiated way back in 2011?

Does consideration of our suffering move Democrats more that it moves Republicans?

The VFW, DAV, American Legion, Air Force Sergeants Association, Paralyzed Veterans Association, Vietnam Veterans of America, C-123 Veterans Association and Reserve Officers Association ask why Secretary McDonald has not yet acted to protect C-123 veterans. VA has known of our Agent Orange exposures for four years or more but the Secretary still forbids any care for their resulting illnesses. Our legislators can ask any of these veterans organizations about the justification and the need to press VA to care.

Please, Senators...invite leaders of the veterans' groups or invite our own C-123 veterans to learn more about this issue. We'd appreciate the opportunity to brief staff (we hear the real work is done there!)

We all ask, why aren't all one hundred members of the United States Senate shown below along with these seven legislative leaders who truly care about America's veterans?

Senate Veterans Affairs Committee Repeats C-123 Support During Under Secretary for Health Administration Confirmation Hearing

At yesterday's confirmation hearing for the next Under Secretary for Health Administration, members of the Senate Veterans Affairs Committee restated their support for C-123 veterans' claims and solicited the nominee's support as well. At the 51:28 minute mark, Senator Blumenthal begins his discussion. Senators Brown and Blumenthal both stressed the importance of the Secretary of Veterans Affairs acting via his own authority rather than postponing any action through his demand for a legislative approach.

Blumenthal: "Nothing will be a test of your effectiveness in this job more than to have that policy (of forbidding C-123 claim approvals) reversed."

Senator Burr (NC) Statement on C-123 Agent Orange Claims

Bipartisan Group of Senators Urge Action from VA for Care & Benefits of C-123 Veterans Exposed to Toxic Agent Orange

WASHINGTON, D.C. – U.S. Senators Richard Burr (R-NC), Jeff Merkley (D-OR), Michael Bennet (D-CO), Richard Blumenthal (D-CT), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), and Ron Wyden (D-OR) wrote to Department of Veterans’ Affairs Secretary Bob McDonald requesting that the department utilize its existing statutory authority to provide care and benefits to veterans exposed to toxic herbicide residue decades ago while they served on aircraft used to spray Agent Orange in Vietnam. 

“Justice for these veterans is long overdue and you have the authority and the ability to finally right this wrong,” the Senators wrote. "For nearly four years, the VA denied these reservists’ exposure to toxic Agent Orange residue in contaminated C-123s. On January 9, 2015, the Institute of Medicine issued a final report… which ‘emphatically' rejected VA’s assertion as to exposure. As a result, we understand you conceded that this group of veterans was, in fact, exposed to toxic Agent Orange herbicide. However, we also understand a question has arisen about whether some of these reserve airmen satisfy the statutory definition of ‘veteran' for purposes of eligibility for VA benefits. We fundamentally disagree and believe VA’s precedential interpretations of the relevant statute and the policy principle and legal precedent of construing statutes in favor of veterans requires VA to find these reservists eligible for benefits. We ask that you stand by those interpretations, which we outline in this letter, and which show that no additional statutory authority is necessary for you to immediately begin providing care and benefits to the C-123 veterans.”

Senate AGAIN Demands VA Action For C-123 Agent Orange Veterans

Following the April 9 conference at the Senate Russell Building to address C-123 Agent Orange veterans' medical and compensation benefits, senior members of the United States Senate repeated their earlier bipartisan demand that VA Secretary McDonald exercise his existing authority and order appropriate action now.

Initially, VA expected to propose legislation using language already agreed-upon by Senate staffers. Just before the conference VA pulled the legislation which had been objected to by the C-123 Veterans Association. The vets faulted VA for having inserted language barring retroactive claims, meaning those whose illnesses manifested over the years and who submitted claims not yet approved would be denied coverage and all claims honored only from March 17 2015 forward.

Actually, the entire idea of legislation was objected to, as everyone except VA realized the Secretary had all the authority needed to act immediately. Legislation would delay yet further any relief for veterans whose illnesses had been evident for years, and has the risk of not being enacted at all.

On April 23, Senators Burr, Merkley, Blumenthal, Brown, Bennet, Warren and Wyden forwarded a joint letter to Secretary McDonald. Outlining in detail the legal basis for Secretarial action versus legislation, the letter requested firm action by the VA within fourteen days. Their letter closely paralleled the scholarly, in-depth analysis authored by Yale University School of Law, the C-123 Veterans' legal advocate.

C-123 Agent Orange Exposure Benefits: NO WORD YET

VA Hospitals & C-123 Veterans

One month ago, Secretary McDonald responded to Senator Brown's question with assurances that VA was to announce its program for treating C-123 veterans' Agent Orange-related illnesses within a week
.

Since then, from the Secretary down to his public affairs staff, different reasons have been floated to explain why VA still hasn't announced its program. And the most recent input from VA to the media is that the C-123 program's announcement has been postponed with no date suggested.

This is a bad, bad deal for us.

Colorado C-123 vets lose this year's Colorado disabled veteran property tax exemption, paying about $1,000 on taxes because VA hasn't finished their claims. Other states' veterans are in much the same situation...state benefits withheld until the VA decides what to do about Agent Orange illnesses.

All states' C-123 veterans are still locked out of VA hospitals, unless they're otherwise eligible for care. We're all senior citizens now, a time in life when diseases ravage us so unrelentingly. Rather than treat our Agent Orange illnesses, VA has us standing outside their hospitals with our fingers stuck to the door bell...not allowed in until their C-123 program is announced and our disability claims can be processed.

VA Now Reporting C-123 Agent Orange Press Announcement Delayed Past Next Week - date uncertain

More news...all confusing!

After telling Senator Brown of Ohio, and the rest of the Senate Veterans Affairs Committee and veterans nationwide that VA would announce its C-123 Agent Orange program by last week, only to learn it was postponed to this week, with word yesterday it had been rescheduled to next week...we have just learned (at 2:51 PM MST) that faxes from VA public affairs have been sent out canceling that announcement also and now no date is even suggested.

What the heck is going on? The C-123 veterans are only a little blip on the VA's big radar screen, not significant by ourselves other than the moral weight of the Secretary's decision. To us as the veterans who want to be VA patients, even another week kept outside VA hospital doors is a painful week.

Delays might be caused by budget conflicts, travel schedules or other reasons, but it is hard to imagine a response given a senator being so casually ignored in its fulfilment. Is the cause something more sinister? 

Did the Blue Water Navy case being dismissed have anything to do here, or maybe the introduction of the Agent Orange Equity Act? 

We're the principal stakeholders, with our health and well-being at risk, yet we've heard nothing from our phone and email inquiries. The media has heard only delay after rescheduled delay, and our legislators say they know nothing.

What the heck is going on?

Air Force Magazine Notes IOM C-123 Report in March Issue

In addition to veterans' letters about Agent Orange published in the March issue of Air Force Magazine, the publishers made note of the Institute of Medicine report on C-123 contaminated aircraft. IOM determined "with confidence"  that USAF Reserve aircrews and maintainers were exposed to Agent Orange in their post-Vietnam flying between 1972-1982.

C-123 Veterans! Secretary McDonald Stated This AM that VA Would Announce Next Week!

Thank you, Mr. Secretary!

Under Secretary Hickey will announce the VA coverage next week. Secretary McDonald answered an inquiry from Ohio's Senator Brown with the promise that Secretary Hickey would do the honors, wrapping up our four year struggle getting to this point.

We owe everything to the kindness of the media, legislators, scientists and other veterans. Thank you!