C-123 Vets join in ProPublica's Freedom of Information suit against VA

Yesterday, C-123 Vets joined in ProPublica's Freedom of Information suit against VA.

ProPublica, winner of three Pulitzer prizes for its solid public interest investigative journalism, and the Virginian Pilot newspaper have conducted almost two years of an intensive Agent Orange investigation, with several articles focused on C-123 veterans' experiences. They sought information from the government but in response, the Department of Veterans Affairs has failed to honor the public's right to access information through our media for nearly two years.

The reporters have already uncovered a great deal of information about veterans' health and our children's health. Their rights under the Freedom of Information Act have been ignored for almost two years. The publisher and ProPublica's reporters have been forced to file suit in the US District Court of Washington for VA's failure to respect the law.

Yesterday, our C-123 Veterans Association joined in this suit. We believe the information sought about Agent Orange, about the VA contractors who opposed our own claims, and about VA personnel who obstructed our claims all needs to be made public. Our contribution to the suit specifically included justification for an immediate temporary injunction ordering the VA to comply or justify their refusal.

It's disappointing to have to waste money and time just to access information that the government stores that is otherwise publicly available and not classified or confidential. Too often, but particularly with the VA, federal agencies simply opt not to cooperate because FOIA requesters have a little recourse other than an initial request and an expensive lawsuit if that request is dishonored.

Two years ago, that was our experience. Paul Bailey and I had waited years for our Freedom of Information Act to be honored. But after some limited release, the VA simply didn't bother with anything else requested. Paul had even passed away while the VA stalled.

We had to go to court. Over $50,000 in legal fees later, the Department of Justice in representing the VA agreed to provide the materials requested. 

Finally.

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

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

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

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

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

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

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

VA & USAF Defy FOIA – VA & AF Hide Data & Threaten IOM Study

An Institute of Medicine investigation of C-123 Agent Orange issues will begin June 16 – but with essential, unclassified VA and USAF data withheld. Although directly relevant to the assignment given IOM by the Department of Veterans Affairs, the committee will not have vital information for their studies. Without all available C-123 information made available to the IOM, their committee report will be fatally flawed, and the affected veterans harmed.

Both VA and AF have relevant, unclassified information about this 60-year old airplane and its Agent Orange history. This information has been improperly refused release to the public in defiance of Freedom of Information Act. Complete and valid requests go back over a year in each case, but they have been ignored.

In stark defiance of the Freedom of Information Act, it is clear that both Departments prefer at least some documents demanded by the veterans not to be released and available to the IOM. Although relief has been sought through the US District Court of Washington D.C. to force release of the materials, there is no possibility of court action before the June 16 workshop. 

This leaves the IOM C-123 committee tackling their VA assignment but with VA withholding information, years of its own investigations, all specifically relevant to the issue at hand. 

The June 18 IOM C-123 project is only the third such study on a unique population since the Vietnam War. Veterans who flew these airplanes which the AF tested as "heavily contaminated" claim their exposure to Agent Orange residues. Since becoming aware of the C-123 toxicity, and also responding to the C-123 veterans' inquiries, both AF and VA have completed studies, exchanged correspondence and conducted meetings and conferences. 

This extensive background of materials has been demanded under their rights expressed in the Freedom of Information Act. The materials are particularly relevant to the IOM investigation because VA has used it for years as justification for denying all C-123 veterans' exposure claims.

Both VA and AF have refused compliance with their own regulations requiring prompt release of non-sensitive materials such as the veterans' seek. The President of the United States has described FOIA as a fundamental American right, as have the courts. But neither VA nor the USAF seem to have been impressed.

According to the USAF FOIA web page:

"The principles of government openness and accountability underlying the FOIA are inherent in the democratic ideal: "The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."

The Air Force, and the Department of Veterans Affairs, have determined that the democratic ideal can be best realized by their disregard of the FOIA and the rights of veteran citizens.

Can't IOM or other interested parties contact AF and VA for prompt release of the FOIA materials without any unnecessary court action? 

IOM, Irvine, CA   (16 Jan 2013)

If such vital information is withheld from the veterans and the IOM with the resultant incomplete report so vital to the veterans' health, it must be known to senior leadership of both Departments as well as the public.  

It should be made known that from a legal basis, budgeting for the IOM C-123 Agent Orange review is potentially wasted money. Not only is there no component of the IOM charge involving the complete legal qualification of the C-123 veterans seeking Agent Orange exposure benefits (detailed in the Yale Law report,) but VA and AF are withholding large amounts of data relevant to the committee's investigation. 

IOM's final report will be flawed by being incomplete, by design...by the calculated defiance of the FOIA, as VA prevents essential documentation from being evaluated by the Institute of Medicine.

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.

Nine Months - USAF Still Ignores Freedom of Information Act

It has been nine months now, since the C-123 Veterans Association submitted a Freedom of Information Act request to officials at Wright-Patterson AFB which was approved September 16, 2012. Nine months, plenty of time for officials to meet their legal requirement to provide the unclassified materials we need and which the law says we're entitled to have. Nine months that the officials in Dayton have failed to meet their responsibilities.

1947 Husdon - same vintage as Fairchild C-123 "Provider"

Requested: everything used by the Air Force School of Aerospace Medicine to complete their May 2012 Consultative Letter addressing C-123 Agent Orange contamination and veteran exposure. Consider carefully...the C-123 first flew in 1947. We're not talking about some exotic, classified, need-to-know black ops project...HEY...this airplane is 65 years old! What could they be worried about with something the same age as the '47 Hudson?

Nine months. Months in which our aircrews, maintenance and aerial port veterans have submitted disability claims to the Department of Veterans Affairs, yet nine months without the ability we need to challenge (or use) materials the Air Force gathered focusing on the C-123 Agent Orange contamination fiasco.

Nine months. Plenty of time for the Air Force to gather materials and release them, especially because

one of the objectives of the USAF Consultative Letter was to place in one location all relevant materials addressing C-123 Agent Orange issues. So everything was unusually easy to gather, the Air Force report having been released in May 2012.

The last word we got when visiting the base FOIA shop was that the base JAG officials were considering how much they'd be able to withhold from release. "Withhold?" Hold back anything related to this 65 year-old airplane, retired into the Davis-Monthan AFB boneyard thirty years ago!

So what could make otherwise good FOIA officers and base officials opt to disregard the law in such a fashion. We can only speculate. Possibilities/wild guesses:
1. obvious errors in the May 2012 Consultative Letter which the USAF wants to cover up
2. improper command influence in the assessment of Agent Orange issues
3. concerns about revelation of errors in judgement once C-123 contamination was made known in 1994 and the Air Force failure to notify affected veterans
4. unknown issues which could be addressed in the documents being requested
5. lack of consensus among report staff
6. something else?

Hard to know what's going on with such an amazingly inept handling of a minor FOIA request, but something's going on at Wright-Pat!  Something is going on, as they try to hide something about this old airplane, which went aloft for its maiden flight in 1947...look at that 1947 Hudson photo above to realize how ridiculous the military is over this issue!

USAF General Deceives US Senate & AF Veterans about Agent Orange Exposure!

In August 2012 the Senate Veterans Affairs Committee sought information from the Secretary of the Air Force about C-123 transport Agent Orange contamination and how the AF had responded to challenges about important details of an official, formal investigation of the issue which resulted in the May 2012 C-123 Post Vietnam Consultative Letter. The USAF responded to the Senate (Senator Burr, Ranking Member) in November 2012 with misleading and deceptive answers in their defense of the Consultative Letter. They implied aircraft were safe in "their present configuration" while in fact, the airplanes were safe only because they'd already been destroyed as toxic waste in 2010 by the AF and their "present configuration" was as aluminum ingots!

USAF was also asked about how its conclusion about C-123 veterans being unexposed differed from other federal agencies which concluded the opposite...that the veterans had been heavily exposed. In their response to Burr, the USAF called the AF views 'consistent" with CDC, an obvious falsehood. "Were exposed" (ATSDR) is not consistent with "exposure unlikely" (USAF). It doesn't take an English major to see the differences!

Finally, AF tests in 1994 labeled the C-123 fleet "heavily contaminated" and "a danger to public health" but the AF C-123 Consultative Letter, released in May 2012, erroneously dismissed that toxic description and in response to the Senate's inquiry, the AF wrote that the cautions and the requirement for HAZMAT protection was meant only for USAF Museum restoration workers - in fact, the toxicologist who completed the C-123 survey in 1994 himself confirmed in 2011 that the HAZMAT protection was for everyone as the interior of the C-123 was, as he first wrote, heavily contaminated. The veterans' point - they flew for a decade without HAZMAT protection and became exposed! If HAZMAT protection was essential for personnel inside them for brief periods in 1994 it was even more essential for crews flying these airplanes for a full decade!

For the third major issue raised by the Committee, the USAF again mislead the Senate with false or misleading answers. Clever wordsmithing is no substitute for honest, clear correspondence between general officers acting on behalf of the Secretary of the Air Force and legislative authorities. 

Other misleading answers to the United States Senate from the Air Force were equally obvious, and unworthy of the two-star officer who signed this report on behalf of the Secretary of the Air Force.

Also harmful was the fact that Veterans Affairs now cites the Air Force Consultative Letter, which the USAF response to Senator Burr defended, in denying veterans benefits for Agent Orange exposure.

An update on our Freedom of Information Act Requests: our FOIA to the VA for information on their position against C-123 veterans' exposure has

been denied effective 11 March 2013. After two years, VA now pretends no information exists in their files regarding C-123 Agent Orange exposure issues. 

Our request to the Air Force School of Aerospace Medicine for information on the 2012 C-123 Agent Orange Consultative Letter hasn't done any better. While approved, and approved without fees, the Air Force has sat on this request at Wright-Patterson AFB for over eight months. Last word was the response was routed to their JAG officers to see how much the AF could keep secret.

The public sends its treasure and its children to the Armed Forces in defense of the Nation. The public demands honest accounting for how that treasure is spent, and how the blood of their children is shed - and cannot abide the military deception in these areas.

VA Resists C-123 Veterans' FOIA for Agent Orange Data

Early last year, LtCol Paul Bailey submitted our formal FOIA (Freedom of Information Act request) to the Veterans Administration, seeking information about how VA officials managed their participation in two meetings with C-123 veterans hosted by Senator Burr's staff in Washington DC. Our request to the Air Force for their materials had been granted earlier. It is our fear that the VA participants approached the question of C-123 dioxin contamination with a mindset of denial, rather than even-handed scientific concern. In went our FOIA as we hoped to learn about how we were treated at the meetings.

Result? $5000 in pushback from the VA as they denied the perfectly valid appeal! To prevent us getting information about ourselves. $5000 to make sure we'd never get it! $5000 to make sure veterans would never learn that VA officials approached our concerns about Agent Orange exposure with a determination not to uncover the truth, but instead to construct any argument necessary to prevent our access to VA medical care and benefits. Our concerns for this FOIA focused on uncovering all the information located by the VA, how they interpreted it, what instructions they gave their officials and whether those instructions were neutral or whether those instructions were to

Government agencies usually can't bury information like this without running up against the FOIA itself, but obviously there are times when the requested information might cause bureaucrats discomfort. This seem to be one of those instances. Solution? Delay. Delay. Delay. Delays then followed by charging prohibitive fees for the information requested! That's the VA solution to keep embarrassing information out of the hands of C-123 veterans.

But we have rights and options, and one was to appeal the VA's pricing and refusal to provide an expedited response. Paul submitted that appeal in May and the GSA took until late November to get around to refusing it..again! They claimed the FOIA law required VA to charge us because only journalistic, educational, and not-for-profit requests can be free. Another free category - information requested is in the public interest and informs the public of how the government operates. VA's Assistant General Counsel Deborah McCallum wrote Paul about her refusal to grant his appeal even though we were fully justified, but she was also required to tell us of a final route for an appeal before going to court: The Office of Government Information Services (OGIS) acts as a final arbiter of our rights to this information - and so we submitted our appeal on behalf of The C-123 Veterans Association on December 24, 2012.

In this last out-of-court appeal, we explained our journalistic presence in the form of blogs, web sites and newsletters, We explained that the public is intensely interested in both Agent Orange and veterans health care. We explained that we have no commercial interest in the requested materials, and that the Air Force honored an identical request, using the same FOIA law and regulations, and that the information is, after all, about US!

 In it, we explained the justification for our FOIA and the reasons its denial were improper. Now...we are waiting once again. The impact: we won't have the data in time for the 15 Jan 2013 briefing we are scheduled to give the Institute of Medicine's Agent Orange committee, but we will have both the VA and the Air Force extensive collections of materials ready to give Congress early in 2013 as we continue our struggle.

So...more waiting, more hoping. Keep the faith!