VA "Experts" Screw Up Chief Ernest Henley's C-123 Agent Orange Exposure Claim

SNAFU.  Or perhaps FUBAR.  Pick whatever term you'd like to use, the fact is that VA's claims officer and, later, a Decision Review Officer both torpedoed Chief Master Sergeant Ernest Hensley's Agent Orange disability claim and appeal first submitted five years ago. Chief Henley got his DRO decision this month and was shocked to read that every Agent Orange issue was denied!

How could this be? VA approved C-123 veterans like him for presumptive exposure last June, so how could his claim be denied in January with the issue seemingly resolved already by VA?

Answer: either the VA staffers were magnificently ignorant of VA's widely promoted C-123 veterans' program, or they deliberately took action to ruin his claim. Truthfully, it feels like the latter because a VA Decision Review Officer is, in VA's words, "a senior technical expert and has jurisdiction (the authority to hear and decide) of any appeal." In other words, the go-to expert.

But the DRO expert working Ernest's claim really fouled it up! Note also that his claim had all the facts which LtCol Paul Bailey's C-123 claim was approved with back in 2013 on a fact-proven basis! Fortunately, the St Paul VA C-123 team has stepped in to make right Ernest's claim. They, too, cannot understand VA's numerous errors.

 Here are the four areas the DRO torpedoed his claim, quoted from the decision itself:

1. Service connection for ischemic heart disease due to Agent Orange exposure.

You contend that your current ischemic heart disease is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your private treatment records fail to show this condition began within a year of separation from active duty, so service connection on a presumptive basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink However, this document falls to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

 • Service connection for iseheinie heart disease due to Agent Orange exposure is denied.

2. Service connection for prostate cancer due to Agent Orange exposure.

You contend that your current prostate cancer is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for prostate cancer due to Agent Orange exposure is denied.

3. Service connection for melanoma cancer due to agent orange exposure.

You contend that your have melanoma cancer and that it is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied.

Your personnel records do not shows you served in Vietnam during the Vietnam War era, nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. 

However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm. Service connection for melanoma cancer due to agent orange exposure is denied.

The content of the veteran's claims file as of-the date of this Statement of the Case (SOC) is incorporated herein, by reference. The records in this case have been reviewed and the issues considered under the provisions of VCAA (Public Law 106-475). All indicated development has been undertaken and all reasonable efforts to assist you in pursuing your claim have been exhausted. The evidence of record is sufficient to render a sound merits decision. It is the determination of the Decision Review Officer that the evidence of record does not support any change in the previous determination which is confirmed and continued. This decision is based on a de novo review of the evidence contained in the claims record without deference to the prior determination under authority of 38 CFR 32600. 

The doctrine of reasonable doubt is not for consideration because the preponderance of the evidence is unfavorable. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your private treatment records fail to show this condition began within a year of separation from active duty, so service connection on a presumptive basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. 

Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crew member was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for ischemic heart disease due to Agent Orange exposure is denied.

 4. Service connection for prostate cancer due to Agent Orange exposure.

You contend that your current prostate cancer is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crew member was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for prostate cancer due to Agent Orange exposure is denied.

OUR RESPONSE TO VA'S C-123 CLAIMS PROCESSING CENTER, ST PAUL, MN:

(Re: 317/VSC/APPEALS/KKB)
The C-123 Veterans Association recognizes the determination with which this Veteran’s disability claim was denied by the Newman Veterans Affairs DRO. In each of the areas of the denial and of the appeal, the VA was in error.

Veteran Henley was an experienced Veteran of the 731st TAS C-123 squadron stationed at Westover Air Force Base. The Veterans Affairs has noted throughout its website and other documents that the 731st Tactical Airlift Squadron and associated maintenance and aeromedical squadrons were approved for presumption of Agent Orange exposure.

I join his other crewmates in confirming Veteran Henley was a crew chief on C-123 tail number 362 (Patches) and was subjected to exposure via frequent, regular, professional and hands-on duties aboard our former Agent Orange aircraft.

Via an interim final rule published by the Secretary of Veterans Affairs on June 19 2015 provided that Veterans of C-123 squadrons stationed at Westover Air Force Base, Rickenbacker Air Force Base, and Pittsburgh Air Force Reserve Station are all granted presumptive service connection.

Despite the Veteran’s documentation, his claim was not forwarded to St. Paul regional Veterans Affairs office for processing of C-123 claims as provided by VBA. We are amazed that this denial recognized the Veteran’s C-123 duties however but ignored that VA six months earlier recognized the C-123s as contaminated by Agent Orange. Please see the attached Veterans Affairs documentation. Further, in violation of VAM21-1, the rating officer failed to submit Chief Henley's facts to the Joint Services Records Research Center which would have substantiated the exposure claim immediately. Finally, the American Legion, which advanced the C-123 issue at the highest levels, failed here to properly support the Veteran’s claim with their claims rep's numerous mistakes trying to help Earney.

The Institute of Medicine study and report (NAS #18848) published on January 9, 2015 and accepted by the VA on that date provided recognition of these Veterans’ exposure and medical injury. The IOM report also faulted the Air Force report of 2012 for its failure in scientific and mathematical errors.  Scientists involved in publishing that original report, who opted to refuse to sign it, subsequently published in Environmental Research a more detailed study of the C-123 Agent Orange contamination.

On page 36 of the Statement of the Case, the Veteran is wrongly assured that the VA “applied the benefit of the doubt and liberally and sympathetically reviewed all the submissions in writing from the Veteran as well as all evidence of record.” Rather, the DRO failed to even consider the VA’s own regulations, findings, and documentation. This decision seems to be an effort to deliberately deny the benefits due him by ignoring with profound determination all VA evidence and findings that support his claim.  NONE of the hundreds of C-123 Agent Orange supporting documents in VA's possession was provided to Chief Henley, in clear violation of the Veterans Claims Assistance Act.

"Never-Ending VA Appeals Process Hurts All Vets" -Yes, but appeals are for VA's errors, not veterans' greed!

Claims at VA Regional Claims Office

By Francis Rose, from Government Executive, December 2015. (Veteran's response at bottom)

One of the deepest questions philosophers have considered over the centuries is the sometimes conflict between the rights and needs of society, and the rights and needs of each individual member of that society.
The latest point in the debate over fixing the Veterans Affairs Department is a microcosm of that debate.

The claims backlog the Veterans Benefits Administration has been dealing with for years is finally below 100,000, according to numbers from late summer. The agency promoted the backlog reduction then as a sign that its management strategy was working, in contrast to scandals inside the agency’s other main branch, the Veterans Health Administration. The timing was unfortunate, though; whatever good publicity the VBA, and its then-leader Alison Hickey, might have gotten out of the news was obliterated by the scandal surrounding two employees who received enormous relocation benefits after engineering jobs for themselves outside Washington, displacing other VA officials who held those jobs.

Those numbers look different, though, in light of a Los Angeles Times article on the backlog. Given what the Times reports, it seems unlikely the agency will ever be able to make it go away. The biggest holdup to making the backlog disappear is the most politically unpalatable element of the claims process to do something about.

The biggest roadblock, the Times story makes it seem, is the veterans themselves.

The major reason the backlog doesn’t shrink any faster, the way the story tells it, is that vets submit appeals over and over again when they get outcomes they don’t agree with, hoping against hope for a different outcome. The article tells the story of one vet who did indeed get a different outcome after many tries. He’s still in the system, though – now trying to get retroactive benefits.

The reason he and the other vets do so? Because they can.

“Unlike U.S. civil courts, the appeals system has no mechanism to prevent endless challenges,” the Times’ Alan Zarembo writes. “Veterans can keep their claims alive either by appealing or by restarting the process from scratch by submitting new evidence: service records, medical reports or witness statements.”

The logistics of the backlog is complicated, and has lots of qualifications. The 100,000 number VA celebrated in August was for initial claims applications that were 125 days old. Since that number was well over half a million when the agency declared war on it two years ago, the progress looks real.

The news isn’t all good, though. The Times reports while the claims backlog has shrunk, the appeals backlog – vets who don’t like the response they get from VA and ask to have it reviewed – has climbed from 167,412 in September 2005 to 425,480 in October 2015.

“VA officials say there are two possible solutions to the bottleneck,” Zarembo writes. Those are “money to hire more lawyers, judges and other staff to process appeals, or a rewrite of the law by Congress.” In essence, the VA has pushed the backlog from claims to appeals by applying its resources to claims. It appears to be playing Whac-A-Mole with the claims/appeals process; one goes down, the other pops up.

Since more money for more staff isn’t likely, a rewrite of laws seems more possible. And that is where the philosophical question of the needs of the many versus the needs of the individual comes in. Cutting the number of appeals vets can file would make sense from a purely logistical perspective. Some vets appeal dozens of times – or more – and never win. Is infinity the right number of allowable appeals? Probably not. Is one the right number of allowable appeals? Probably not. But where in between those two is the right number? And how does Congress make that decision, as it will inevitably have to do?

Everyone in politics today wants to “support the vets.” Certainly doing anything that appears to harm veterans individually is a ticket to political trouble; I can hear the negative ads in my head already.

But endless appeals inevitably mean endless backlogs. And the person who can make the political argument that some limit – however big or small it turns out to be – will help vets collectively, will make a huge difference for the rest of the vets waiting in line for their cases to be decided.

A Veteran's Response:

Ms. Rose's essay basically blames veterans for gaming the VA system via the appeals process. "Why do they do it," she asks. "Because they can."

I say, because we must! I can only understand VA's appeals process from my own perspective, and part of that is VA's claims process as well....they cannot be separated.

Veterans currently face an average of 315 days for an initial claim to be processed. In 2012, the Board of Veterans Appeals (BVA) overturned 28.9% of the denials issued for compensation claims, and errors were found in another 46% of appealed claims. These claims were sent back to the original VA Regional Office for an additional review.

Tom Murphy, VBA’s director of compensation services, agreed that initial accuracy has a significant role in keeping down the backlog of both repeated claims and appeals. “If you’re having quality issues, it takes longer to work a case the second or third time than it takes to get it right the first time,” 

An appeal is submitted when a veteran claims VA errored on his/her claim. A claim is an initial application for benefits – medical care as well as compensation, Yes, I agree some of my brothers and sisters do submit an inappropriate number of claims, as also appeal with faint justification VA's inappropriate VA's decisions on the claims.

But: Claims are more typically for illnesses and injuries the veteran legitimately believes tied to military service. Appeals more typically are for errors the veteran believes (correctly or not) VA made in deciding the claim. Appeals mount up because of errors made by the Veterans Benefits Administration (VBA) in evaluating claims and also because veterans and their advocates (veterans service officers from VFW, DAV, etc.) themselves made errors in preparing claims. There are many other reasons, and certainly gaming the system is one of them, but the system's errors are basically to blame.

First among them is the remand procedure. Remands are where the Board of Veterans Appeals finds mistakes by VA in processed the claim. A remand vindicates the veteran but does nothing to resolve the claim, instead squeezing it back into the workload of the regional claims staff. The VA makes mistakes on more than 50%  of all claims it processes, most of which are never appealed.

• First Solution: Better quality initial claims decisions
• Second Solution: Faster preparation by regional offices of appealed claims for forwarding to BVA
• Third Solution: BVA must be given authority to resolve an issue without a useless remand!
• Fourth Solution: Regional offices should be given reconsideration authority when VA errors are noted while preparing appealed claims before forwarding to BVA
• Fifth Solution: VA should impose a token $10 filing fee for subsequent appeals...a vet's very first appeal is free but a $5 threshold is imposed thereafter for all appeals
• Sixth Solution: Some common sense. For instance, once the C-123 issue was resolved for post-Vietnam veterans, BVA began remanding claims with airplane details but completely outside the scope (by years, location, other facts) of the C-123 Agent Orange issue

Why a failed appeals process, choking on nearly a million frustrated claims?

1. An evolving medical situation, or age, presenting additional illnesses or injuries requiring new claims
2. VA decisions which only partially address issues claimed, leaving particulars to be appealed
3. VA's evolving rules. For instance, C-123 veterans were for years denied all benefits but ground rules changed and permitted claims and appeals
4. The veteran learns from the denied claim what proofs or arguments should have been made in the initial application, and either appeals or repeats the claim with new and material evidence
5. VA's errors in deciding claims
6. VA regional offices taking years to prepare an appealed denied claim before forwarding to the BVA; BVA actually decides appeals rather quickly once received, but the majority of the years a veteran must wait for an appeal is wasted at the regional office waiting for the claim to be readied for the BVA
7. VA has an inadequate system for veterans to request reconsideration of denied claims, and veterans too often leap to an appeal rather than a faster reconsideration process
8. VA permits no input from a vet's own VA physician in support of a disability claim or appeal, yet VA staffs the BVA with medical experts to help oppose appeals. Similarly, VA staffs the BVA with attorneys to argue against veterans' claims. An appeal is thus an uphill battle for a veteran with VA bringing in big guns to oppose a claim...and leaving an incentive to appeal
9. VA's regional office Decision Review Officer (DRO) program is overburdened by its DROs working claims and not appeals
10. One need a veteran continues with claims and appeals even after 100% service connection is granted is to address Combat Related Special Compensation requirements
11. Sometimes a veteran believes strongly an important issue is unresolved even with a 100% service connected decision on a separate issue, and seeks VA acknowledgement. Awards for 100% service connection should include language to encompass all remaining but unresolved issues under the one decision
12. Veterans service organizations should exercise judgement in supporting veterans' appeals, rather than rubber-stamping them past all reason; at some point VSOs should decline to represent a veteran any further
13. Legislation is needed to help address a failed appeals system

VA Hid DOD Confirmation of C-123 Veterans' Exposures for Two Years – concealed evidence vital to veterans' Agent Orange claims

VBA Agent Orange Desk Policy??

VA HID VITAL DEPARTMENT OF DEFENSE OFFICIAL CONFIRMATION OF AGENT ORANGE EXPOSURE EVIDENCE FROM C-123 VETERANS. (click for full source file of this report)

VBA's Agent Orange desk hid evidence from the Board of Veterans Appeals and US Court of Appeals for Veterans Claims! The personnel involved (staffers in the Veterans Benefits Administration) violated every trust a veteran is asked to have with the Department of Veterans Affairs. VA let valid C-123 veterans' claims be denied by withholding official DOD information which would have established service connection. VA thus insured through this arbitrary and capricious abuse of authority that all our claims were denied.

Revealed in VA emails and other correspondence released last week under the Freedom of Information Act are proofs of the intensity and creativity, as well as total disregard for veterans' rights, with which VA's Agent Orange desk in Veterans Benefits Administration fought all C-123 veterans' Agent Orange exposure claims.

This was done not as matter of law, nor even VA's own regulations, but because of the personal policy preferences of a few individual staffers.

"Quick...hide the Agent Orange evidence!"

VA's operations manual VAM21-1MR states that VA will ask DOD's Joint Services Records Research Center (JSRRC) to verify non-Vietnam War veterans' Agent Orange exposures. Vietnam War veterans are considered by law to have been exposed, but veterans exposed elsewhere have the assertions investigated by JSRRC. And JSRRC affirmed the C-123 exposures.

VA has had all this proof from JSRRC for over two years (March 13 2013 and perhaps earlier from veteran-submitted documents which VA ignored.) The agency never revealed anything to its regional claims adjudicators, Decision Review Officers, veterans, veterans service organizations, or VA's Board of Veterans Appeals where denied claims are reconsidered. 

Once the C-123 issue arose, VA was overly selective about what evidence it would accept from JSRRC, insisting it had to be contemporary military material only. In effect, VA was cherrypicking evidence from what JSRRC provided, accepting anything against the veterans, refusing anything helping the veterans. 

After VHA informed VBA of its position against honoring any C-123 veterans' claims, VHA Public Health staffers put out a web page (click...pre-2015 page) insisting their review of "all available scientific information" (actually, cherrypicked information to prove their own point) was against the exposure claims. VA then cited their own web page as proof in subsequent claims and BVA decisions. "It's true because we say it is, and the proof is that we said it." Simply put, this was policy-driven (non)scientific deception.

VA's web pages were false, and were finally modified to a more neutral tone on March 15, 2015. The Institute of Medicine confirmed the veterans' Agent Orange exposure and harmful effects on January 9, 2015 in its report to Secretary McDonald. VHA and BVA opposition to C-123 veterans' claims since 2011 was wrong. The dozens of reports from the CDC/ATSDR, NIH, universities, physicians and USPHS all were ignored or disputed by VA, but in the end VA was proven wrong.

Many federal agencies (including the deputy director and two successive directors of the CDC/ATSDR) and independent scientists had provided expert federal agency input to JSRRC hoping to get it to VA for proper evaluation of C-123 veterans' claims. To ignore these proofs, VA insisted to JSRRC the materials that only DOD materials offered were acceptable: No input from other federal agencies, universities, state governments or scientific associations would be acceptable to VA. 

We thought that senseless barrier had been resolved when two US Public Health Service physicians informed JSRRC...and USPHS commissioned corps physicians are military officers by statute. One was Rear Admiral Robin Ikeda (MD, USPHS) at that time Acting Director CDC/ATSDR. Another was Captain Aubrey Miller (MD USPHS) assigned to the NIH/National Institute of Environmental Health Sciences.

VA's Secretary Hickey was also visited by the Director National Institute of Environmental Health Sciences who discussed the science and veterans' exposure proofs. 

Mountains of legitimate, persuasive, and expert input, but VBA and its Agent Orange desk ignored it all.

Players: 

•at JSRRC, Mr. Dominic Baldini, Chief

• at VA, Manager, Agent Orange Desk, Veterans Benefits Administration

Documents:

• 2013 email between JSRRC and VBA's Agent Orange desk; JSRRC's chief provides confirmation documents adequate to approve claims. VA never acts on these and over years permits claims to be denied without providing them in fulfillment of VA's duty to assist every veteran's claim.

• JSRRC response on a C-123 veteran's exposure assertion; happens to be mine because I have no access to any others due to privacy protections. 

VA's VAM21-1MR states that VA will inquire at JSRRC for a veteran's exposure to be substantiated. It says nothing about whether VA must act on that but implies it. Nothing is said about VA not acting, however that clearly violates VA's statutory obligation to assist the veteran. 

For years, VBA callously permitted sick C-123 vets' claims to be denied, and their appeals to the BVA denied, without providing these readily available and affirming JSRRC materials which would have been so decisive in any fair forum. Amazing that DOD ad  "yes" but VA still chose to interpret that as the "no" VBA's Agent Orange desk prefered.

VBA repeatedly (2011 through late 2014) advised regional offices and VA personnel everywhere that there was no basis for VA to "concede" C-123 veterans' Agent Orange exposure. Because the Agent Orange desk refused to "concede" the veteran's exposure, that amounts to directions to regional offices to deny the claims, and many simply wrote, as on the Paul Bailey initial denial, "VA regulations forbid..." 

With Senate inquiries heating up the issue, VA later admitted it has no such regulation and no "blanket policy" against C-123 claims. Even today, VBA insists C-123 claims are handled on a case-by-case basis, yet on a case-by-case basis every single one is denied. Still, it certainly sounds like a blanket denial of all claims!

We ask our fellow citizens and legislators to remember that despite all the controversy and VA-pushback, C-123 veterans were eventually proven correct by the IOM C-123 report. VA was shown to be in scientific and procedural error in opposing reasonable claims. VA all this JSRRC and other federal agencies' proof in its possession since 2011, yet allowed exposed veterans to sicken and die by hiding the evidence.

VA treatment of veterans' rights

They had all the DOD evidence necessary for the benefit of the doubt, pro-veteran, non-adversarial confirmation of our exposures from 2011 on, but chose to ignore, denigrate or simply hide that evidence to insure their policy of "no C-123 claims will be approved" as per statements by VHA Post Deployment Health. VA used its rules against veterans' interests where desired, but freely ignored the rules when staffers had their anti-veteran personal agendas to pursue. These staffers should re-read opinions by federal courts that emphasis VA's regulation VAM21-1MR has the force of law...adhering to it is a veteran's responsibility and also VA's.

​Related topic:

DOD's Agent Orange contractor produced their 2006 list of Agent Orange storage, transport, manufacture and testing sites outside of Vietnam. DOD was asked by VA to provide this. VA cites it when confirming or denying veterans' claims for exposure in other than the Vietnam "boots on the ground" basis.

As part of his 2012-2014 $600,000 no-bid sole source contract with VBA, the contractor submitted a report, citing himself, which generally concluded no changes were necessary in his 2006 report. Each of his monographs produced under the contract confirmed VA policy, perspectives, opposition to various veterans' claims, etc. None challenged or suggested changes, improvements, nothing.

DOD (Armed Forces Pest Management Board apparently has responsibility) has refused per the AFPMB director to amend this list even with IOM, ATSDR and other proofs of additional sites, yet VA continues to cite it in denying claims and denying appeals at BVA.  (example one)  (example two) Both VA and DOD have refused to update this nine-year-old list.

Any "proof" cited by the government to provide or deny a citizen's rights should be accurate. This DOD list is not accurate and is fatally flawed, yet VA employs it to block claims.

Secretary of Veterans Affairs Sought Reversal of C-123 Veteran's Agent Orange Cancer Disability Decision

The Secretary wasn't pleased.

Sunday morning reading his paper and enjoying his coffee, the VA took another hit on the chin with a critical newspaper article. On Page One.

It had made the Washington Post on August 3 2013. An in-depth report about C-123 veterans and the impossible barriers VA put in front of us when submitting Agent Orange disability claims. The Post's report featured Westover veterans Major Wes Carter and LtCol Paul Bailey in telling the post-Vietnam C-123 Agent Orange exposure saga.

And it wasn't just a report. It was the front page Sunday edition, plus all of page 14 in the front section. That much coverage isn't mere presentation of the facts, but an editorial statement of the seriousness with which a publisher views the issue. And this was the Washington Post! The paper than can bring down presidents...and has.

Unknown to reporter Steve Vogel, who'd investigated the problem for months, the Manchester Veterans Affairs Regional Office at about the same time had reviewed Paul Bailey's initially denied claim with a "Decision Review Officer," an optional step in appealing denied claims.

Manchester assigned a highly experienced senior claims adjudicator who considered Paul's claim with fresh eyes, and that rater saw all the proof needed to award Paul his disability claim, backdated a couple years, on August 4 2013.

Paul's claim review was moved forward a bit in the VA queue due to the fact his illness was terminal. The rater later explained the Agent Orange exposure claim was awarded on the basis of fact-proven exposure aboard Patches, proof of which Paul provided in the form of flight orders, USAF Form 5s, and sworn testimony by numerous other veterans including mine as his flight examiner. Paul had been a flight instructor with the 74th Aeromedical Evacuation Squadron before his 1980 commission and transfer to Aerial Port duties.

Amazing! And Vogel and the Post immediately rushed to publish another report on August 8 2013 about Paul Bailey receiving the only C-123 disability award without processing through the several-year appeal process at the Board of Appeals for a decision by a Veterans Law Judge. Although all C-123 claims reaching BVA had been awarded the veterans, all such claims were (and continue to be) initially denied and the veteran forced into a three, sometimes four year wait for a BVA review.

But not Paul, to the great joy of his family and friends, and the satisfaction of so many legislators and fellow veterans who'd pulled hard for this fine man. Paul had received his "big brown envelope" as veterans term the VA materials mailed announcing an award. It was news his family needed...days before Paul entered hospice

I know this. He opened his envelope and called me with tears in his voice, this veteran of 33-years service with the 82nd Airborne and the Air Force, both enlisted and commissioned duty, and my best friend for forty years.

That joy wasn't the kind of emotion flowing from VA headquarters in Washington when Secretary Shinseki read the Post.

VA records released this week now reveal the Secretary's attempts to get Bailey's disability award reversed. I must say, this was a blow to my heart. For years we'd thought the bad actors in levels between us and the Secretary were at fault, feeding General Shinseki poor staff work and fulfilling their own anti-veteran bias.

But here was the Secretary of Veterans Affairs himself telling his executives that Bailey's award should be reversed, perhaps on some suggestion of error on VA's part. "Heads up," came the warning. In the newly-released memos, VA's Western Area Director, Mr. Willy Clark recounts to VA's Director of Compensation and Pension the Secretary's demand for an explanation how it happened.

Fortunately for Paul...and now, his survivors...the political impact of such folly was quickly pointed out. The Manchester authorities explained the solid justification for their decision, however even that was twisted. Veterans Benefits Administration staffers wrote that Paul's decision was highly questionable because of "only two days aboard Patches." This phrase went through many memos and emails. But it was false. Two days?

That was a single set of order for a two day cross-country mission. To cite that, VA had to overlook hundreds of other documents which also placed Paul as a qualified C-123 crewman, and later, flight instructor. This was an effort by VA staffers to trivialize a veterans' proofs, which they did by carefully selecting one sheet and ignoring stacks of others.

Paul flew former Agent Orange C-123s for many years, beginning in 1974. Year after year, he performed crew duties, moving ahead to C-123 flight instructor, and flying until 1980 when he changed duties. Six years. Hundreds of C-123 hours officially documented in Air Force Form 5s submitted with his exposure claim. The specific tail numbers of Paul's Agent Orange C-123s was confirmed by the USAF Historical Records Agency.

Amazing. A C-123 flight instructor but described by VA officials as having but two days aboard the C-123, who pushed to have his claim reversed. A highly qualified and Air Force certified C-123 flight instructor but VA memos say he had two days aboard the airplanes he trained others in. Where did VA think they were taking this except to trash a veteran's well-founded claim.

I am a historian. Reading the memos about Paul and the way the Secretary reacted, I thought of the American Colonial Congress reaching out to King George one more time, trusting their sovereign would do the right thing if only he knew the facts, and believing to the end that their troubles were due not to him, but the bureaucrats between them.

I felt such trust in General Shinseki. My trust was misplaced. Thank God the Secretary didn't, or perhaps couldn't, trash Paul Bailey's well-deserved Agent Orange disability award . But he tried.

He tried to hurt Paul. He would have but for the political consequences pointed out to him by others.

VA Changes Their Web Pages About C-123 Agent Orange – VERY CAUTIOUS & RESERVED

Our elation over last Friday's release of the Institute of Medicine C-123 report is tempered somewhat today.

We see that VA has modified their web pages touching on C-123 veterans' issues, but used very cautious language without any suggestion of acceptance of the affirmation contained in the Institute of Medicine findings released last Friday. VA simply says the IOM report is out and they've assembled subject matter experts to consider it.

Consider it? Not accept and implement it? This is a worry. Is VA seeking ways to negatively interpret the findings or to avoid presumptive service connection? Or poke holes in it to prevent any meaningful recognition of exposure?

The VA web pages cite references, but pointedly avoid including the many which affirm our veterans' exposure (Porter, CDC, ATSDR, etc.) The IOM report itself isn't included as a reference. On the other hand, we're glad that VA did react and post web page changes...they're doing something, we just don't know the details yet.

Let's hope for the best from VA! We want to work with VA. Time is of the essence here, given our ages and illnesses. We've already paid a terrible price because the IOM has shown we were exposed from 1972 on, and many of us had illnesses during these years that can be associated with that exposure. For instance, I had surgery in 1978 to sever nerves in my thigh to stop a severe burning pain we now know could have been Agent Orange-associated peripheral neuropathy.

These four years since we've had to work against...not with...Veterans Benefits Administration and Veterans Health Administration on this concern. At this point, we should finally be on the same page.

We want to wrap up this burdensome struggle and turn to our health concerns and our families! This was not a battle we should have had to fight for ourselves, but instead a situation where VA should have turned to us, offering their care based on science and facts in hand since 2008 and even earlier.

I hope we don't have a Camp Lejeune situation where VA takes a couple years getting machinery in place to administer our situation. After all, there is no legislation needed, the VA has multiple Federal Register announcements covering this very situation, and the "veteran status" of the crews is covered in USC whether flying as ART, AD, UTA, AFTP or even points-only status.

This last weekend the C-123 Veterans Association and the VA reached out to each other to cooperate – lets hope for that cooperation and for prompt acceptance of our veterans' claims per VA M21-1MR. As I read it, we'll have to provide proof of duty aboard C-123s at some point between 1972-1982, and evidence of an Agent Orange-recognized illness. We have JSRRC confirmation available as well!

We found a hero last year in the VA when Paul Bailey's exposure claim was approved by a Manchester New Hampshire DRO. VA was right then, even though the DRO decision was made without the recent IOM report, the moral and scientific validation was still in place. We need a hero again in the VA to get the ball rolling, notify the VAROs that these claims can be approved with proper evidence, and get our folks into the VA medical system.

Some questions:
• Denied claims now awaiting appeals - can these be reconsidered rather than wait out an appeal?
• Current claims "postponed" decisions - can these be released for final evaluation?
• All claims - can we hope for another fast-track? There will be so few it won't burden VA!
• Denied claims past one year appeal date such as Aaron Olmsted's - can they be resubmitted with "new & material evidence?"
• Effective date of awards?
• Can any sort of "provisional" approval be given urgent cases?
• Invite C-123 veterans to the Agent Orange Registry and physical?

To all who've helped, especially the scientists and journalists, God Bless.

VA vs. C-123 Veterans Redux

We said it before. It bears a second look.

The VA is firmly determined to prevent, by any means fair or foul, all C-123 veterans from being treated for our Agent Orange illnesses. Cancers, heart disease, diabetes, ALS...none of them will be recognized by  the VA as service-connected.

That is VA's Job One regarding this group of dioxin-exposed vets. We don't know why they formed this perspective but it must be policy-driven and based on some issue regarding the aircraft itself, or the issue of the lingering contamination after Vietnam. VA administrators aren't monsters, and they don't actually wish us dead.

VA authorities (not the care providers, but the administrators in C&P) are, however, absolutely content letting us suffer or die without access to life-saving VA care. Friends, VA benefits aren't merely financial...disabilities recognized by the VA allow pharmacy, rehab, counseling, prosthetics, vision, independent living resources, audiology. dental, preventative medicine and other essential services without which a veteran can quickly become overwhelmed by the basic illness. For instance, dental disease can have an immediate impact on heart disease and can make an otherwise manageable chronic issue life-threatening.

Their attack on us has six components that we've seen thus far:
1. Prevent release of VA documents about their campaign against C-123 claims
2. Insist, for purpose of claims and despite all science, that Agent Orange exposure is harmless in the case of C-123 veterans
3. Re-define the word "exposure" to prevent C-123 veterans from coverage under Agent Orange laws
4. Reject expert input from other federal agencies not in accord with VA policies against C-123 vets
5. Reject all expert input from universities, medical schools and toxicologists unless in accord with VA policies against C-123 vets
6. Delay claim decisions as long as possible, then deny the claims, then delay again for years via the stalled Decision Review Officer or Board of Veterans Appeals channels; this enables VA to save money via prevention of medical care and be "stuck" only with a financial catch-up check once the claim is approved

Working with your Veterans Service Organization Representative

Many vets have the misunderstanding that the various veterans service organizations (VSO) which represent veterans before the VA are responsible to the "grand design" of a claim for service connection.

While some VSOs may indeed offer that assistance, not all do, as in the case of Oregon's Department of Veterans Affairs. Oregon staffs their counties with state-affiliated, VA-authorized service officers as well as teams in Portland and the state capital, Salem. These officers offer a broad range of advice and interface with community-based services, but in Oregon veterans are responsible for submitting their own claims and creating, from their own resources, a basic strategy.

Oregon's role, as explained to me late last month by their Portland staff, is to focus on strategizing the vet's appeal only once the claim is denied. The service officers are notified by the VA shortly after the award or denial decision is made, and they then swing into action to help a veteran determine the next steps.

For many, the best approach will be a "notice of disagreement" (NOD) or alternately, a request for a local review by a senior VA rating officer not previously involved in the claim, a decision review officer (DRO.) That is the first important level of strategy where the service officer is able to help, because specifics of the claim can make one approach better than another.

After that, that, a vet's principal concern will be the amount of time required simply waiting in line, because appeals or DRO reviews can take years to be heard. When the big day finally rolls around, the service officer will present the VA with the facts of the case, the errors made by the VA, and the justification for an award in the vet's favor.

This entire process, and the inherent threat of years of delay working a denied claim, places a significant value in the veteran's initial claim being as complete, accurate, comprehensive, persuasive and error-free as possible. The veteran must hope for a positive response from the VA rather than a denied claim, wasting years and continuing to be denied VA medical care and other benefits. This means a vet needs to select a VSO carefully, especially if you feel unqualified to manage your own claim prior to the VA denial.

How to best approach this yourself with some hope of success if your VSO isn't set up to mange the initial claim for you? The very first step is to notify the VA in some form of your intent to file. All benefits are based on the date you first inform them of your wish to make a claim...and you can do this with a simple letter listing every possible boo-boo you have, or you can begin the process on-line at their web site.

Then, Attorney Katrina Eagle offers her "Dirty Dozen," thirteen tips of things NOT do do, and that's a great place to start– begin the process by not stepping on any minefields. Next, gather all your papers and have them scanned into digital form, because eventually you'll want to submit a "Fully Developed Claim" which is done on-line. Why? Because the VA processes those fastest, and because in many instances the VA even can back-date benefits a full year to motivate us to us that electronic process.

Next, file a a Freedom of Information Act request with the VA and with your military service to insure you've got all official documents on-hand. This may take months to get completed, so file early in your claims process. Then scan all those documents also, especially your DD214, any Line of Duty determinations, and medical records.

The VA will arrange a physical for you to address your claimed illnesses or injuries, but a faster route is the Disability Benefits Questionnaire (DBQ) which your own physicians' can complete and submit. Your doctors can expand further in a letter, but you and they should be aware of phrases the VA is attuned to. For instance, "may" to the VA means "no" and "more likely to than not" means yes. A physician simply saying your broken back may be due to your airplane crash is dismissed by the VA. A physician saying your broken back "is more likely than not" due to your airplane crash is accepted by the VA (usually) as credible support for your claim. We've noticed that physicians' stating their qualifications, or medical references in their veterans letters are generally more useful to the vets.

Beyond this, one of the veterans' claims self-help books is probably of greater value to a veteran preparing a claim than anything which can be typed here. There are many Internet resources and many, many veterans' web sites offering excellent advice. The point is: Tell the truth, assert your interests firmly, if something hurts (range of motion, etc.) say so instead of toughing it out, and don't quit.