How VBA Staffers Mistreated C-123 Vets for Four Years

C-123 veterans were, quite simply, abused from the first Agent Orange claims submitted right up to the present day, and we continue to be screwed until something is done regarding retroactive disability compensation. Know this: Most of the abuse was by certain staff in both VHA and VBA working hard, and quite successfully, preventing our exposure claims from being honored.

From Secretary Shinseki right on down the line of VA leaders, the promise to us and our Congressional representatives was repeatedly, "no blanket denial, and a case-by-case evaluation of claims." Specifically, the Secretary wrote (in his letter to Senator Burr, originally drafted by VBA's Agent Orange desk:)

"VA evaluates such claims on a case-by-case basis to determine if the available evidence supports service connection on a facts-found basis." "Accordingly, VA does not have a 'blanket policy' for denying such claims."

Secretary Shinseki even provided his official departmental C-123 fact sheet to the Senate Veterans Affairs Committee repeating that promise of fair treatment. This was in response to Senator Burr's letter asking...

"All of this suggests that VA may essentially have a blanket policy of denying any claims based on alleged exposure to dioxin while serving aboard the C-123 planes, regardless of the weight of information submitted in a particular case. 

With that in mind, I ask you to ensure that any disability claims from the veterans who operated these C-123s will not be pre-judged as lacking merit but, rather, will be considered based on the facts of each particular case."

The Secretary offered Senator Burr important general assurances of proper treatment of C-123 claims. Yet from the VBA decisions on our claims, we saw 100% denials by VA.

We saw the real VA policy repeatedly used to doom every single C-123 veteran's claim as repeated in most denied claims:

"Every attempt was made to verify your exposure to herbicides. Although you submitted numerous amounts of evidence to support your claim, VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides used after the Vietnam war while flying in aircraft used to spray those chemicals." 

The deception must be clear to all: Secretary Shinseki promised even-handed case-by-case C-123 claims, and denied any VA blanket policy against those claims. But VA then proceeded to refuse 100% of the claims, stating VA has regulations forbidding such claims.

It stayed this way for four and a half years. VA promising in every breath that C-123 claims were processed fairly and by the law, yet always refusing every one of them and not bothering to mention their universal denial to the legislators.

Further, remember VA's statement about "regulations do not allow..." Turns out there never was any such regulation. Never existed, and VA acknowledged recently it was often repeated but in error.

LtCol Paul Bailey, combat veteran of the 82nd
Airborne at age 18. He had 34 years of enlisted
and commissioned Army & Air Force service.

There's more abuse. In Paul Bailey's 2013 Agent Orange denial, he submitted 49 pieces of substantiating evidence. VA is required to respond to each piece of evidence, but here they simply wrote that his lay statement wasn't adequate to prove his case.

Ignored completely were all other items of evidence. This included statements from aircraft commanders, squadron commanders, fellow veterans, university schools of public health, VA physicians, professors of medicine, toxicologists, toxicology tests on Bailey's aircraft, Air Force records, medical treatment records, CDC Agency for Toxic Substance and Disease Registry findings, National Institute of Health findings and more. All ignored without comment.

There is no correlation to VA's statement on the denial that "every attempt was made to verify your exposure." Rather, the facts make a lie of that statement because not only was no effort made to verify exposure but instead, a blind eye was turned to more than enough evidence to have granted service connection. Actually, VA did exactly that six months later when, under political and public pressure, VA Manchester NH reconsidered the case and granted the claim even though the raters in Manchester worked against headquarters' resistance.

The veteran had already entered hospice then with his final battle with cancer. A few weeks later, Paul Bailey was dead, ending our fifty years of friendship and service together.

There's even more to the abuse heaped on C-123 vets. Along with Major Marlene Wentworth, I met with VBA's Mr Tom Murphy, Director of Compensation and Pension. There, in front of his staff, Mr. Murphy explained how no amount of proof from whatever source would permit a C-123 claim to reach VA's "as likely to as not" threshold for approval.

He referred me to Dr. Terry Walters in VHA's Post Deployment Public Health Section, and in my subsequent phone call with her, she who explained that we were simply never exposed. She went further, detailing how exposure equals contamination field (such as Agent Orange) plus bioavailability...the ability of a toxin to enter the body and cause harm. Dr. Walters felt our "exposures" during ten years aboard former Agent Orange spray aircraft didn't satisfy her definition and therefore, we weren't exposed and our claims baseless. (Interesting how none of this reached Secretary Shinseki for his letter and fact sheet to Senator Burr!)

This redefinition by VHA of a fundamental term in toxicology was deemed "unscientific" by the director of the National Toxicology Program. The redefinition even differed from the CDC Agency for Toxic Substances and Disease Registry standard list of terms, and contrasted with Dorland's Illustrated Medical Dictionary, VA's usual text for scientific and medical definitions.

Still, however unusual or unscientific, Dr. Walter's redefinition served VHA's purpose – keeping C-123 claims denied until June 19 2015. Only in December 2015 did we learn from VA's answers to Senator Gardner's questions that their redefinition of exposure in VHA was the personal creation of Dr. Terra Irons, only a year or so out of Chapel Hill. No peer review, no acceptance by VA outside VHA Public Health, no nothing...just Dr. Irons. A key concept in science redefined just to keep C-123 veterans from VA treatment of C-123 Agent Orange illnesses.

Why? Because the law, and several restatements of VA's duties to exposed veterans detailed how VA would provide the full range of medical care and compensation to all vets who'd been exposed to Agent Orange. So to VHA, wanting badly to prevent C-123 claims, it became important to prevent acknowledgement of any exposure by us to Agent Orange.

So they simply changed the ground rules, redefined exposure, and as if by magic, we weren't exposed. At least, not until the January 9 2015 release by the Institute of Medicine of their C-123 Agent Orange exposure report. And that's when science finally overcame VHA individuals' attitudes and staff policies – because C-123 veterans indeed had been exposed. It was effective, but as illogical as redefining green as blue.

We were poorly treated by VA for many years. They let our crewmates sicken and die without VA medical care and other benefits due each of us. Even today, players in VA still work hard to prevent retroactive compensation due us as it is due all other veterans once disability claims are finally resolved.

It seems to take the intervention of the Secretary to make things right for us, and for so many other groups of veterans like our Camp Lejeune brothers and sisters.

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.

A Vet's Daughter Writes The C-123 Veterans Association

"I guess God put you here, pouring your heart and soul into this for others in need. Thank you for all your hard work."

Her father had both Army and Air Force service. He was a combat veteran before he could vote, and flew hundreds of hours in "Patches."  He died in 2013, and was my best friend, Lieutenant Colonel Paul Bailey.

C-123 & Agent Orange: Stars & Stripes 15 Aug 201

UC-123K flyer wins Agent Orange claim
by Tom Philpott, 15 Aug 2013

After a two-year battle with the Air Force and Department of Veterans Affairs, a group of ailing Air Force Reserve aviators has won a bittersweet victory: VA acknowledgment that one of their own likely is gravely ill due to post-Vietnam War exposure to toxic residue on UC-123K Provider aircraft, which were used as herbicide “spray birds” during the war.

Lt. Col Paul Bailey of the White Mountains, N.H., a cancer patient in hospice care, received notice this month that the VA had approved his disability claim, citing a “preponderance of evidence” suggesting exposure to herbicides, including Agent Orange, on C-123s he flew on missions after the war.

The decision is important because, for the first time, a VA regional office is recognizing that a C-123 crewmember was exposed to herbicides and should be compensated for ailments the VA presumes are linked to Agent Orange. Former C-123 veterans who previously won VA compensation did so on appeal after the VA had denied their initial claims.  That meant payment delays in compensation and access to VA care for up to two years, said retired Maj. Wesley T. Carter, of McMinnville, Ore.

Carter, a retired reserve aviator and C-123 veteran himself, has led an intensive fight against bureaucratic resistance on behalf of his fellow crewmen since 2011.  That year, as we reported at the time, he filed a complaint to the Air Force inspector general that health officials knew since 1996 of contamination aboard aircraft flown by reserve squadrons until 1982, and failed to warn them of the health risks.

Carter learned the government had stopped a contract to sell C-123s because of dioxin contamination and that the Air Force struggled over how to dispose of the aircraft.  Even burying them could contaminate the ground.  In 2010, the last of the aircraft were quietly torn apart and melted down for disposal.

Reacting to Bailey’s award, Carter, who is rated 100-disabled from cancer and heart disease, said he felt “immense satisfaction and gratitude.  But I'm tired and ill.  Why did we have to work so hard to get our VA care?  As sick or injured veterans, our focus needed to be on our medical needs and our families, not on years of struggle with the VA.”

The Bailey claim decision, he said, “signals that regional offices can examine the full range of facts and reach a reasonable conclusion on other exposure cases as Manchester (N.H.) VA Regional Office did.”

To comment, write Military Update, P.O. Box 231111, Centreville, VA, or email milupdate@aol.com or twitter: Tom Philpott @Military_Update

Bailey Wins C-123 Agent Orange Claim! Thanks, VA

Win-Win in New Hampshire!

New Hampshire resident and C-123 veteran LtCol Paul Bailey was informed Monday that his claim for Agent Orange-related illnesses was approved by the Manchester VA after their earlier denial of the application. VA cited a complete package of proof which elevated Bailey's claim above the VA's famous "as likely to as not" threshold for such issues.

While Bailey is likely happier with this decision than VA officials in Washington, all should see it as a win-win outcome. The 1991 Agent Orange Act, and Title 38, and the 8 May 2001 Federal Register are clear enough – veterans like Paul who are exposed to military herbicides are to be treated for illnesses (those recognized by the VA as "Agent Orange presumptives) on the same basis as Vietnam veterans.

Whether veterans like Paul were to actually receive such treatment as per the law was the issue, in this, a contest at which both sides prevailed on Monday. This was two years after his claim was first submitted...and initially rejected in March

Why should VA and their Compensation Services officials be satisfied with their side of this "win?"
Because they found a way to follow the law. To meet the broad requirements of their oath of office. To care for a veteran by finding a path rather than obstructing it.

VA employees and leadership should all be well-pleased with this decision because their beleaguered agency found a way, perhaps through the independent spirit of VA officials in Manchester, to do what's right, as well as what's lawful.

To men and women of honor, that's always a victory.

Bailey Wins C-123 Agent Orange VA Claim–2nd Washington Post Article Aug 8, 2013

VA reverses denial of benefits for veteran in Agent Orange-related case

By Steve Vogel, Updated: Wednesday, August 7, 2013

The Department of Veterans Affairs has reversed its denial of Agent Orange-related disability benefits for an Air Force veteran who flew on potentially contaminated C-123 aircraft after the Vietnam War, a decision advocates describe as the first of its kind for veterans seeking compensation for postwar exposure to the toxic defoliant.

Paul Bailey, a retired Air Force lieutenant colonel who is gravely ill with cancer, received notice Monday that he would receive “a total grant of benefits” for cancer associated with his 1970s-era service in the United States aboard the aircraft, which had been used to spray the toxic defoliant during the war.

“The preponderance of the evidence suggests that you were exposed to herbicide onboard

U.S. Air Force C-123K aircrafts,” said the VA decision, dated July 31. “Reasonable doubt in regards to the exposure to certain herbicide, to include Agent Orange, as the result of occupational hazards onboard C-123K aircrafts is resolved in your favor.”Bailey was featured in a recent Washington Post article about a controversy concerning C-123 aircraft, many of which were destroyed in 2010 by the Air Force. Tests in the 1990s showed that some of the planes might still be contaminated with TCDD dioxin, a carcinogen associated with Agent Orange.

Bailey, 67, who suffers from prostate cancer and metastatic cancer of the pelvis and ribs, said the disability compensation will allow his wife to stay in their New Hampshire home after he dies. “The financial and emotional support this provides is just tremendous,” he said in a telephone interview Wednesday. “It takes a huge burden off me.”

The decision is “pivotal, and hopefully a sea change for VA,” said Wes Carter, a retired Air Force major and friend of Bailey’s who heads the C-123 Veterans Association. The organization contends that postwar crews should be eligible for the same disability compensation for Agent Orange exposure provided to military veterans who served in Vietnam during the war.

Several C-123 veterans in recent years have been granted disability benefits after appealing denials to the Board of Veterans’ Appeals, an administrative tribunal. But Bailey’s case marks “the first time an award has been made short of the BVA,” Carter said.

VA said there is no policy against C-123 claims. The department said in a statement that it does not track whether there have been previous claims granted for C-123 crew members but that the ruling in the Bailey case does not establish a precedent.

“Where cases are not clear cut, reasonable doubt is always decided in the claimant’s favor,” the agency said.

Rick Weidman, executive director for policy and government affairs for the Vietnam Veterans of America, called the decision “fantastic news” and added: “That’s the first case we’ve heard of that’s been successful.”

Sen. Richard Burr (N.C.), the ranking Republican on the Veterans’ Affairs Committee, was also pleased with the reversal.

“I hope this is a sign that VA will start to make decisions on these claims based on the weight of information submitted in each case, rather than blanket-denying every claim from C-123 veterans,” he said.

Burr and Sen. Jeff Merkley (D-Ore.) had asked the VA Office of Inspector General to review whether the department is “inappropriately” denying disability compensation to veterans who say they were sickened by postwar contamination. “It appears that [VA] does, in fact, plan to deny any C-123 claims regardless of the evidence submitted in a particular case,” the senators wrote in a June letter requesting the inquiry.

While stationed at Westover Air Force Base in Massachusetts in the 1970s, Bailey often flew the most famous of the C-123s, known as Patches for the holes left by enemy fire. After it was retired to a museum, tests by Air Force toxicologists in 1994 found that Patches was “heavily contaminated” with dioxin.

Bailey’s claim for disability benefits was denied in February by the office in Manchester, N.H., which wrote that “VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals.”

Bailey appealed the denial decision in April, and this reversal is considered to have been very fast.

In a statement Wednesday addressing the VA reversal, Brad Mayes, director of the Manchester office, said “the issues described in Lt. Col. Bailey’s claim illustrate the difficulty VA faces when evaluating whether a particular veteran’s claim of Agent Orange exposure outside of Vietnam has merit. VA considers these issues on an individual basis, along with any other evidence available.”

Burr said he is “concerned that there are other veterans who did not receive this same level of attention to their claims.”

VA's Blanket Policy Forbidding C-123 Veterans' Claims

VA has no blanket policy against C-123 claims.

                    - Secretary Eric Shinseki, letter to US Senate 7 June 2013

                     - blanket claim denial boilerplate language provided by VA HQ to regional offices
                               

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

                        -   from Manchester NH regional office denying a terminally ill vet's claim -

How does the statement "regulations do not permit" equate to the promise of
"no blanket denials?"
They are contradictory statements!

VA deceives the Senate with one statement and then denies 100% of our claims with their other.

VA Selective About Which ATSDR Publications to Accept

VA has informed C-123 veterans that opinions and official

findings from federal government agencies such as the US Public Health Service and CDC/Agency for Toxic Substances and Disease Registry will not be accepted in evaluating our veterans' claims for service connection for the various Agent Orange illnesses. In particular, they will not accept the official finding by the Director of the ATSDR, Dr. Christopher Portier, and the Deputy Director, Dr. Tom Sinks, in which that agency determined C-123 veterans had been exposed to C-123 dioxin.

Yet for some reason, VA respects ATSDR enough to explain on the VA Internet pages various details about Agent Orange and to link to ATSDR data sheets for more focused information. We believe it is appropriate that VA defer to ATSDR expertise, as that agency has statutory responsibility for determining such things. VA, on the other hand, has the responsibility (assumed, but not in the law) of denying such facts to better prevent veterans' disability claims.

Similarly, VA's Public Health has determined the C-123 veterans haven't been exposed to Agent Orange, yet the United States Public Health Service has determined that we have been exposed.

Gee, with every agency in sight agreeing that we've been exposed, and with medical schools and other experts also agreeing, and only VA saying we haven't been exposed...what the heck is going on???

After VA's Compensation Services informed us at our February 28 meeting that no amount of outside expert testimony, findings, proofs of any sort would be able to counter the VA's Health Benefits Administration ruling against our having been exposed, we've obviously stopped trying to get such support...it would be wasting our time and that of the folks from whom we'd be seeking such findings. 

Further, we've seen from the Manchester NH decision where the rating officer simply dismissed EVERYTHING in the veteran's folder under the category he called "unacceptable lay evidence" that nothing will be allowed to be considered unless it agrees with the VA concept that we've not been exposed. You know...lay evidence such as from NIH, CDC, ATSDR, EPA, US Public Health, Columbia University, University of Texas Medical School, Oregon Health Sciences University, etc...that kind of "lay evidence" which the VA says cannot be accepted. VA definition of lay evidence = "Whatever we say it is, plus EVERYTHING which doesn't agree with us regardless of law, science, justice or even mere logic."

There are more "Catch-22" problems here than I can shake a stick at!!