White House again delays decision on new Agent Orange diseases; is decision delayed for "late 2020" election impact?

Comment: To me, this decision, promised since the Obama administration and repeatedly promised by the Trump VA, seems timed to the election. Mulvaney seems to have even raised the bar for coverage. Previously, VA acted when Institute of Medicine studies revealed a statistical impact for Agent Orange on a disease: Mulvaney now demands "compelling evidence" for VA to act. Or...to avoid acting at all? And why wait until the election?

The clear problem is his term compelling = conclusive, convincing, decisive, effective, forceful, persuasive, satisfying, strong." That's a new, much higher standard. Science and medicine will find it almost impossible to establish "compelling" proof. Very few other exposures have "compelling" evidence for diseases. Tobacco, asbestos, radiation, perhaps only exposures like these fall into that category. The original 1991 laws for Agent Orange exposures forced VA to act when IOM showed an increase for the statistical odds of a disease. Mulvaney wants more. Very, very much more.

by Patricia Kime,

The day President Donald Trump signed a funding bill including a provision ordering VA to announce its plans to add four conditions to the list of Agent Orange-linked diseases within 30 days, VA Secretary Robert Wilkie said the decision wasn’t likely to come until at least “late 2020.”

In a letter to Sen. Jon Tester, D-Montana, dated Dec. 20 and obtained by Military Times, Wilkie said he would not make a decision until the results of two long-awaited studies are submitted to or published in scientific journals.

In March, VA officials told members of Congress that the decision would be announced within 90 days.

Then Wilkie said he was just awaiting the results of the studies — the Vietnam Era Health Retrospective Observational Study, or VE-HEROES, and the Vietnam Era Mortality Study — expected in 2019.

But the requirement that the results be analyzed, peer-reviewed and in the publication pipeline could add months to the process. VE-HEROES results are currently “being analyzed,” while data from the mortality study is “expected to be available for peer review and publication in late 2020,” Wilkie wrote in the letter.

It’s unclear whether VA plans to comply with the new law that requires it to announce its plans on a decision within the 30-day requirement.

For the 83,000 veterans with one of three conditions under consideration, including bladder cancer, Parkinson’s-like symptoms or hypothyroidism, as well as an unknown number of Vietnam veterans with high blood pressure, the wait continues.

Review: Our two goals for C-123 Veterans' Agent Orange Benefits

Simple. A mostly successful seven-year effort. Many folks chipped in funds to help and I never wrote thank-you cards. That is because all I did was work and the contributors know it and know their help was vital.

GOAL ONE. VA designation of C-123 veterans as "presumptively exposed" to Agent Orange, thus entitling us to VA medical care and other benefits.
STATUS: MET ON JUNE 19 2015

GOAL TWO: Get our VA disability claims honored from the earliest date submitted, if earlier than what VA limits for retroactivity (June 19 2015 at the earliest.) This is because many C-123 vets had claims in prior to that date, but were met with the then-automatic VA denial. And VA did deny...100% of all our claims were refused.

STATUS: ONLY VERY PARTLY MET

At least the VA barrier to our retroactive claims has been broken down a little. A handful of C-123 vets had claims approved via BVA appeals (Paul Bailey, Dick Matte) but VA has been firm in limiting retroactive claims to June 19 2015 and no earlier. It has to do with Reservists not being entitled to disability benefits unless disabled during the Reserve duty.

For some, this has cost tens of thousands in anticipated, but denied, "catch-up" checks. An example: a claim submitted in 2007 but denied at the time, then honored by VA once its C-123 rule was published on June 19 2015. If the vet was due a 100% disability rating, that's eight years of compensation VA won't pay...about $200,000 lost by the vet because of VA's limit of retroactivity set at June 2015.

The good news: at least one claim has been awarded retroactive Agent Orange benefits from the date submitted (in this case, March 2011. On the vet's appeal the BVA determined that C-123 exposure itself was a disabling injury that would date from "back in the day" while flying the Provider. That decision meant the affected Reservist satisfied the law's requirements regarding a disabling injury to trigger statutory veteran status, and the claim was honored back to the date the vet first filed for Agent Orange disabilities. That was a lot of money, with thanks due to the National Veterans Legal Services Project and their cooperating pro bono attorneys!

GAO Criticizes DOD's Agent Orange Site Report

The Government Accountability Office has released its critical report entitled AGENT ORANGE: Actions Needed to Improve Accuracy and Communication of Information on Testing and Storage Locations."

Key point: Both VA and DOD have for decades relied on a fatally-flawed list prepared for DOD by Dr. Al Young, AKA "Dr. Orange." VA has employed his reports principally to deny veterans claiming exposure to Agent Orange. That's right...our famed nemesis has once again been found inadequate in the work he's done, while making millions from VA and DOD writing about this stuff. For years, VA adjudicators, the Board of Veterans Appeals and the US Court of Appeals for Veterans Claims have wrongly denied claims from veterans who claim exposure in locations or situations not listed in Young's report. C-123 vets were also denied for years, but won our presumptive exposure ruling in June 2015...despite Young's ceaseless efforts against us.

The GAO reported it plainly: VA seized on Young's incomplete report to refuse medical care and other benefits to veterans claiming Agent Orange cancers, ALS, diabetes, heart disease and other ailments. And Young's report, along with lots of other material gathered by VA, was fatally flawed.

At the Veterans Benefits Administration "Agent Orange Desk" run by Mr. James Sampsel, (who himself officially stated that veterans' Agent Orange disabilities is only "hype and hysteria.") VA had its boiler-plate denial ready to shoot down each and every claim of Agent Orange exposure outside Vietnam, It is important to grasp the great reliance placed by VA on Young's work, and the equal fact that Young has consistently argued against the various foundations for veterans' Agent Orange claims. His 2006 report on Agent Orange sites is but one example of VA's obstruction that led to the GAO report.

Even if discouraged vets opted to appeal Sampsel's use of the Young report to oppose claims, the Board of Appeals for Veterans Claims (BVA) also relied on Young to prevent exposure claims. For example, read this November 2014 BVA denial:

"In fact, Dr. Young's report, which provides the most complete data available on this subject, expressly found that there was there were no documents or records to validate the use of Agent Orange in Okinawa. In this case, the Board finds the exhaustive searches and related findings conducted by the various agencies/entities outlined above, to be far more probative than the Veteran's baseless assertions that he was exposed to Agent Orange/herbicides in Okinawa. Notably, the Veteran has not submitted any medical reports/literature or other evidence to support his claim of exposure, or that otherwise contradict the above findings."

And this:

"Upon review of the Alvin L. Young Collection on Agent Orange, which is part of the National Agricultural Library, the Department of Agriculture was unable to find any reference to the military use of any herbicidal agents, including Agents Orange and Blue, at Fort Jackson during the moving party's period of service. The motion for reversal or revision of the May 3, 2011 Board decision finding that the moving party was not entitled to service connection for diabetes mellitus, type 2, claimed as due to exposure to herbicides, is denied." 

Young's "expertise" on the Agent Orange topic was frequently cited in BVA denials:

"The RO associated with the record a February 2014 report entitled "Investigation into the Environmental Fate of TCDD/Dioxin" that listed Dr. Alvin L. Young as the primary author (the "February 2014 Report"). According to the attached biography, Dr. Young completed his PhD in herbicide physiology and environmental toxicology in 1968, and since then, has amassed more than 300 publications in the scientific literature, including five books on issues related to Agent Orange and/or dioxin. "

But neither the regional office claims adjudicators, nor the BVA, or even the US Court of Appeals for Veterans Claims bother to report the full story about Young, his 2006 report, or relationship to Sampsel. The Young-VA-Agent Orange story includes many revealing points:

1. Young's work supports VA positions disputing Agent Orange exposure and harmful effects
2. Young famously wrote that Agent-Orange-exposed vets were"trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman. I have no respect."
3. Even Young agrees his 2006 report was inadequate, however he didn't do this until he sought yet another VA contract to update it. In other words, his report was okay unless he could make more money
4. As for money, Young agreed he's made "millions" writing reports for the VA and DOD. He also got a $600,000 no-bid-sole source contract mostly directed against C-123 veterans' claims
5. Even while under VA contract at $26,000/month, Young wrongly insisted he wasn't representing VA when he appeared before the National Academy of Medicine to oppose C-123 claims while also failing to reveal his contract and close coordination with VA for input to the Academy. Fortunately, the Academy found that his work, and other from VA and DOD, has been found to be incomplete and also it wrongly minimized veterans' harmful AO exposure risks

My advice to every vet whose claim was denied citing Young's report: appeal based on the now-established fact that the 2006 Young report has been found flawed.

official photo from AFPMB newsletter

Back to the GAO report itself. One key finding was that DOD, sponsor of Young's 2006 report, agreed that the report was flawed but couldn't identify any process to improve it. I'm reminded of my frequent requests to both DOD and VA to help add C-123 spray aircraft to the list, but each agency refused. DOD said it was VA's duty, VA said they simply used what DOD provided and couldn't change anything. My letters to the Armed Forces Pest Management Board, where Young has lectured, were met with refusals to get involved. Interestingly, even though Young has (or had) contracts with the AFPMB as recently as 2017, nothing about him is found in AFPMB files. Guess they don't read their own official newsletter–––––––––––––––––––––––––––––––––>

My 2013 letters to LtGen Judith Fedder, DCS/Logistics, Installations & Mission Support, were similarly rebuffed. She answered,

Very disappointing. Especially so, reading in the November 2018 GAO report that DOD finally has agreed.

Below: The GAO report's six key conclusions:

The Secretary of Defense should ensure that the Under Secretary of 

Defense for Acquisition and Sustainment assigns responsibility for 

ensuring that DOD’s list of locations where Agent Orange or its 

components were tested and stored is as complete and accurate as 

available records allow. (Recommendation 1) 

The Secretary of Defense should ensure that the Under Secretary of
 Defense for Acquisition and Sustainment develops a process for
updating the revised list as new information becomes available.
(Recommendation 2)  

The Secretary of Defense, in collaboration with the Secretary of Veterans 

Affairs, should develop clear and transparent criteria for what constitutes 

a location that should be included on the list of testing and storage 

locations. (Recommendation 3) 

The Secretary of Veterans Affairs, in collaboration with the Secretary of 

Defense, should develop clear and transparent criteria for what 

constitutes a location that should be included on the list of testing and 

storage locations. (Recommendation 4)

The Secretary of Defense, in collaboration with the Secretary of Veterans 

Affairs, should develop a formal process for coordinating on how best to 

communicate information to veterans and the public regarding where 

Agent Orange was known to have been present outside of Vietnam. 

(Recommendation 5)

The Secretary of Veterans Affairs, in collaboration with the Secretary of 

Defense, should develop a formal process for coordinating on how best to 

communicate information to veterans and the public regarding where 

Agent Orange was known to have been present outside of Vietnam. 

(Recommendation 6)

A Quarter Century of VA Disability Claims: 25 years of hard lessons

A brief narrative of interest to others dealing with environmental hazards and the VA

Looking back, if I’d known how long and how hard a VA disability claim was going to be, I can’t say whether I’d have the resolve to see it through. I served in the Army and Air Force for 26 years. Only this month...October 2017...have I received VA’s final adjudication of disability claims I began submitting in 1992. Finally, 26 years after hanging up my flight suit the last time, VA seems to have finished addressing my cancers, spinal cord injuries, 21 operations, heart attacks, Agent Orange exposures plus life’s` miscellaneous little ailments, boo-boos and maladies.

First lesson: thank goodness my family and I, unlike so very many veterans, didn’t find ourselves dependent on the VA for medical care and income because that help wouldn’t materialize for many years. My Air Force disability board and retirement as a major was completed in what now seems light speed only a year after leaving Bethesda Naval Hospital in 1992 following the Gulf War. We were also blessed with ample pre-war civilian retirement and investments...we were so lucky compared to young troops disabled before having a chance to establish themselves financially. My lesson has been awareness of how financially precarious sudden military injuries leave a family. It is a bleak picture.

The rest of the lessons:

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

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

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

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

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

      – FALSE VA PROMISES OF PROPER C-123 CLAIMS  –

"Scouts' Honor?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

•  "Therefore, there was no exposure"

• "We have to draw the line somewhere" 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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