[T]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006)
Showing posts with label patches. Show all posts
Showing posts with label patches. Show all posts
15 January 2024
18 January 2019
Vietnam War Agent Orange Spray Ops Approved 57 Years Ago Today
After a period of testing, on this day in 1962, President John F. Kennedy gave final approval to “Operation Ranch Hand” — a massive UC-123K effort to defoliate the forests of Vietnam, Cambodia and Laos with an herbicide known as Agent Orange.
It involved the spraying of an estimated 20 million gallons of powerful herbicides over rural South Vietnam to deprive Viet Cong insurgents aligned with the communist government in Hanoi of food and vegetation trail cover. To a lesser extent, areas of Cambodia and Laos were also sprayed. The U.S. Air Force flew nearly 20,000 UC-123K sorties from 1961 to 1971.
During the decade of spraying, more than 5 million acres of forest and 500,000 acres of crops were heavily damaged or destroyed. Some one-fifth of South Vietnam’s forests were sprayed at least once — at up to 50 times the concentration that would be deployed for normal agricultural use.
Kennedy insisted on approving individual spray runs until November 1962, when the president authorized Military Assistance Command, Vietnam and the U.S. ambassador to South Vietnam to approve them.
Previously, top administration officials had debated whether to allow the destruction of crops, at the risk of violating the Geneva Protocol, which the United States had signed in 1925. However, Dean Rusk, the secretary of State, had told Kennedy on Nov. 24, 1961, that "[t]he use of defoliant does not violate any rule of international law concerning the conduct of chemical warfare and is an accepted tactic of war. Precedent has been established by the British during the emergency in Malaya in their use of aircraft for destroying crops by chemical spraying.”
In early 1964, members of The Federation of American Scientists began to object to the use of defoliants. The American Association for the Advancement of Science passed a resolution in 1966 calling for a field investigation of the Vietnamese herbicide program. In 1967, 17 Nobel laureates and 5,000 other scientists signed a petition asking for the immediate end to the use of herbicides in Vietnam. The administration ignored it.
The spraying program led some 3 million Vietnamese to suffer health problems caused by exposure to Agent Orange, including a million birth defects. Additionally, the toll on members of the U.S. military who handled the chemicals or were deployed in and around the targeted drop zone areas during the war caused another 2.8 million personnel and their offspring to suffer from its long-term affect — chiefly various cancerous conditions. Post-Vietnam C-123 veterans were also affected but granted disability benefits only after June 19, 2015.
While Operation Ranch Hand ended in 1971, its impact is still being felt today. The Veterans Administration recognizes a long list of diseases associated with exposure to Agent Orange. Vietnam War and C-123 veterans who were exposed and suffer from one of these conditions receive automatic presumptions of a service linkage, making them eligible for treatment at government expense, without the need to positively prove that such connections exist.
SOURCE: “This Day in Presidential History,” by Paul Brandus (2018)
06 January 2018
USAF C-123 Report: We're going to set the record straight in 2018
Nearly five years ago the US Air Force School of Aerospace Medicine (USAFSAM) at Wright-Patterson AFB released their study of the post-Vietnam C-123 transports previously used for spraying Agent Orange. The planes were used for a decade after the
Vietnam War and had never been decontaminated of the military herbicides they dispersed. The study was ordered by the Air Force when C-123 veterans complained of likely Agent Orange exposure.
The study was flawed, and tainted with command interference obvious when compared to the 38-page draft report the scientists themselves submitted. The study seemed torn between political and scientific goals, rather than science alone as would be proper. Veterans were concerned about their health but the report assured them the planes were unlikely to have been contaminated enough to cause medical issues typically associated with Agent Orange exposure.
The Air Force declined to inform aircrews of the twice-proven C-123 contamination, insisting it "would only cause undue distress and provide limited benefit." Message: we'd already been poisoned, and knowing about the poison wouldn't help us very much.
This blog began on March 14, 2011, a year before the USAFSAM report was released, and we've earned a seven-year track record of honesty and accurate interpretations of USAF and VA source data. Seven years ago, we said the Air Force and the VA were both wrong about our exposures.
By January 2015, we were proven right and they were proven wrong when the definitive Institute of Medicine report "Post-Vietnam Dioxin Exposure in Agent Orange-Contam-inated C-123 Aircraft" was submitted to the Secretary of Veterans Affairs. They were wrong, but only the veterans involved paid any penalty for errors because for six years, VA refused these vets all medical care and other benefits.
Two of those six years, 2012 to 2014, are tied to the tainted USAFSAM report and how the VA misused it. For these years VA refused all medical care, compensation, family assistance...everything needed by disabled veterans, citing the USAFSAM report as justification for VA locking its hospital doors to C-123 veterans.
Today, we begin our challenge of the USAFSAM report, together with an exposure of the damage done when VA relied on the report to cancel their own 2012 promise for referral of the C-123 question to the Institute of Medicine.
The goal now is to have the Air Force either withdraw their C-123 report ("UC-123 Agent Orange Exposure Assessment, Post-Vietnam [972-1982]) or, more probable, annotate it in some way to describe its errors and shortfalls. It should not be allowed to stand, as it has for five years, as the official Air Force conclusion about C-123 veterans and our exposures. It fouls the scientific record and offends the veterans it mistreated.
Now a clarification as we move forward. We will deal with three reports:
1. The 2012 USAFSAM C-123 Report (done)
2. The 2012 VA-promised referral to the Institute of Medicine (promised, cancelled)
3. The 2015 Institute of Medicine report, ordered by the VA (done)
The study was flawed, and tainted with command interference obvious when compared to the 38-page draft report the scientists themselves submitted. The study seemed torn between political and scientific goals, rather than science alone as would be proper. Veterans were concerned about their health but the report assured them the planes were unlikely to have been contaminated enough to cause medical issues typically associated with Agent Orange exposure.
The Air Force declined to inform aircrews of the twice-proven C-123 contamination, insisting it "would only cause undue distress and provide limited benefit." Message: we'd already been poisoned, and knowing about the poison wouldn't help us very much.
This blog began on March 14, 2011, a year before the USAFSAM report was released, and we've earned a seven-year track record of honesty and accurate interpretations of USAF and VA source data. Seven years ago, we said the Air Force and the VA were both wrong about our exposures.
By January 2015, we were proven right and they were proven wrong when the definitive Institute of Medicine report "Post-Vietnam Dioxin Exposure in Agent Orange-Contam-inated C-123 Aircraft" was submitted to the Secretary of Veterans Affairs. They were wrong, but only the veterans involved paid any penalty for errors because for six years, VA refused these vets all medical care and other benefits.
Two of those six years, 2012 to 2014, are tied to the tainted USAFSAM report and how the VA misused it. For these years VA refused all medical care, compensation, family assistance...everything needed by disabled veterans, citing the USAFSAM report as justification for VA locking its hospital doors to C-123 veterans.
Today, we begin our challenge of the USAFSAM report, together with an exposure of the damage done when VA relied on the report to cancel their own 2012 promise for referral of the C-123 question to the Institute of Medicine.
The goal now is to have the Air Force either withdraw their C-123 report ("UC-123 Agent Orange Exposure Assessment, Post-Vietnam [972-1982]) or, more probable, annotate it in some way to describe its errors and shortfalls. It should not be allowed to stand, as it has for five years, as the official Air Force conclusion about C-123 veterans and our exposures. It fouls the scientific record and offends the veterans it mistreated.
Now a clarification as we move forward. We will deal with three reports:
1. The 2012 USAFSAM C-123 Report (done)
2. The 2012 VA-promised referral to the Institute of Medicine (promised, cancelled)
3. The 2015 Institute of Medicine report, ordered by the VA (done)
13 October 2016
Patches & the IOM C-123 Agent Orange Report
Visiting the USAF Museum, Wright-Patterson AFB and home of "Patches," our Agent Orange-contaminated C-123.
To all post-Vietnam C-123 Veterans: if you haven't already, contact VA and arrange your Agent Orange Registry physical. This is a free comprehensive exam looking for any possible Agent Orange exposure medical issues and it is vital whether you have any such illnesses or not. The first friend I talk into having the physical was found to have a life-threatening heart problem, and the physical perhaps saved his life. Call VA now!
I'm holding the report from the Institute of Medicine/National Academy of Sciences that convinced the VA our aircraft had been contaminated, we were exposed to Agent Orange, and we were harmed greatly by that exposure. Behind me is Patches, now decontaminated, of course. CDC actually notified VA that Patches and our other aircraft were too contaminated to be flown in American airspace, and the crews all should have been wearing full hazmat!
To all post-Vietnam C-123 Veterans: if you haven't already, contact VA and arrange your Agent Orange Registry physical. This is a free comprehensive exam looking for any possible Agent Orange exposure medical issues and it is vital whether you have any such illnesses or not. The first friend I talk into having the physical was found to have a life-threatening heart problem, and the physical perhaps saved his life. Call VA now!
I'm holding the report from the Institute of Medicine/National Academy of Sciences that convinced the VA our aircraft had been contaminated, we were exposed to Agent Orange, and we were harmed greatly by that exposure. Behind me is Patches, now decontaminated, of course. CDC actually notified VA that Patches and our other aircraft were too contaminated to be flown in American airspace, and the crews all should have been wearing full hazmat!
The report summary can be downloaded free at https://www.google.com/url…
The archives at the museum revealed the evidence of testing back in 1979 and 1994 and 1996, and the evidence that USAF bioenvironmental scientists concluded the airplane was "heavily contaminated with dioxin on all test surfaces, STILL after its last spray missions in 1968 during the Vietnam War.
We started flying Patches in 1972 and were exposed to the Agent Orange residue for the next decade. Although the CDC informed VA and USAF that the aircrews and maintainers had been exposed, officials at VA continued to insist otherwise and stated VA had "an overwhelming preponderance of evidence" against any harm being done.
In 2014 it became clear, based on the IOM study and the report I'm holding, that VA's position was based solely on its policy decision to block additional Agent Orange claims like ours. Policy, not science. Policy, not law.
The US Senate agreed. Under leadership from Senator Burr of North Carolina and Senator Merkley of Oregon the Senate blocked all VA confirmations until the C-123 issue was resolved. The national commander of the VFW testified to Congress that that full benefits for C-123 vets must be authorized, All six major veterans organizations insisted VA act, with the Vietnam Veterans of America leading their joint efforts.
The media was behind us all the way. The first press coverage was in early 2011 in the Air Force Times where reporter Patricia Kime detailed our USAF Inspector General complaint wherein the service was asked, but refused, to notify our veterans of their potential exposures. Subsequent articles appeared in the Washington Post, Springfield Republican, American Legion Magazine, the Oregonian, Associated Press, CBS News, Pittsburgh Gazette, NPR All Things Considered, Boston Globe, Air Force Magazine, plus Military.Com and other Internet outlets. Air Force Times and the Springfield Republican both ran editorials insisting VA act in our behalf.
In 2009 Dr. Alvin Young, VA's principal consultant on Agent Orange, had strongly recommended to the USAF the immediate destruction of all C-123s stored in a hazardous material quarantine section of Davis-Mothan Air Force Base because, among other reasons, our already exposed air crews and maintenance veterans might approach the VA seeking care for Agent Orange illnesses. Destruction of the aircraft would help prevent such claims, especially, as it was pointed out, if the aircraft disappeared without public attention. Preventing claims seems to of been awfully important to the VA and so many others. It seemed so important to Dr. Young because in 2011 he denigrated us as "trash haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman." The VA certainly found the right voice to help it oppose our claims – VA had found a man who holds us in contempt to help VA avoid treating our illnesses.
In 2013 Dr. Young was in the middle of his unique VA two year $600,000 no-bid sole source Agent Orange consulting contract. He urged Mr. James Sampsel at the VA Agent Orange desk to "hold the line" (his words) against our claims. For his part, Mr. Sampsel informed his VA colleagues and supervisors that all proof confirming our exposure submitted to VA by independent scientific authorities and other federal agencies (CDC, DOD, USPHS, NIH) was merely the real "problem" for VA – proof Mr. Sampsel and others in VBA would ignore despite VA regulation VAM21-1MR and despite the Veterans Claims Assistance Act.
Dr. Terry Walters at the VHA Post-Deployment Health Section, told the Associated Press that a line had to be drawn against our claims. Hold the line, indeed!
For too many years the VA "held their line" and denied every single claim submitted by our veterans of the post-Vietnam C-123 spray aircraft. While being paid by VA Dr. Young testified before the Institute of Medicine C-123 committee against our exposure claims. He even attacked the IOM report after its publication in January 2015 using arguments similar to ones used earlier when Dow and Monsanto sponsored him. But the committee saw through that. The committee also criticized VA and USAF for routinely dismissing, ignoring or minimizing proof of veterans' exposures
In June 2015, the Institute of Medicine report I'm holding in the photo was acted upon by Secretary McDonald. He brought truth, science, law, and compassion into the process at last. The 2100 of us who volunteered to serve our country by flying and maintaining our aircraft willingly accepted the hazards of aviation service and now are acknowledged to have also endured hazardous toxin exposures for which the VA will now care.
The US Senate agreed. Under leadership from Senator Burr of North Carolina and Senator Merkley of Oregon the Senate blocked all VA confirmations until the C-123 issue was resolved. The national commander of the VFW testified to Congress that that full benefits for C-123 vets must be authorized, All six major veterans organizations insisted VA act, with the Vietnam Veterans of America leading their joint efforts.
The media was behind us all the way. The first press coverage was in early 2011 in the Air Force Times where reporter Patricia Kime detailed our USAF Inspector General complaint wherein the service was asked, but refused, to notify our veterans of their potential exposures. Subsequent articles appeared in the Washington Post, Springfield Republican, American Legion Magazine, the Oregonian, Associated Press, CBS News, Pittsburgh Gazette, NPR All Things Considered, Boston Globe, Air Force Magazine, plus Military.Com and other Internet outlets. Air Force Times and the Springfield Republican both ran editorials insisting VA act in our behalf.
In 2009 Dr. Alvin Young, VA's principal consultant on Agent Orange, had strongly recommended to the USAF the immediate destruction of all C-123s stored in a hazardous material quarantine section of Davis-Mothan Air Force Base because, among other reasons, our already exposed air crews and maintenance veterans might approach the VA seeking care for Agent Orange illnesses. Destruction of the aircraft would help prevent such claims, especially, as it was pointed out, if the aircraft disappeared without public attention. Preventing claims seems to of been awfully important to the VA and so many others. It seemed so important to Dr. Young because in 2011 he denigrated us as "trash haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman." The VA certainly found the right voice to help it oppose our claims – VA had found a man who holds us in contempt to help VA avoid treating our illnesses.
In 2013 Dr. Young was in the middle of his unique VA two year $600,000 no-bid sole source Agent Orange consulting contract. He urged Mr. James Sampsel at the VA Agent Orange desk to "hold the line" (his words) against our claims. For his part, Mr. Sampsel informed his VA colleagues and supervisors that all proof confirming our exposure submitted to VA by independent scientific authorities and other federal agencies (CDC, DOD, USPHS, NIH) was merely the real "problem" for VA – proof Mr. Sampsel and others in VBA would ignore despite VA regulation VAM21-1MR and despite the Veterans Claims Assistance Act.
Dr. Terry Walters at the VHA Post-Deployment Health Section, told the Associated Press that a line had to be drawn against our claims. Hold the line, indeed!
For too many years the VA "held their line" and denied every single claim submitted by our veterans of the post-Vietnam C-123 spray aircraft. While being paid by VA Dr. Young testified before the Institute of Medicine C-123 committee against our exposure claims. He even attacked the IOM report after its publication in January 2015 using arguments similar to ones used earlier when Dow and Monsanto sponsored him. But the committee saw through that. The committee also criticized VA and USAF for routinely dismissing, ignoring or minimizing proof of veterans' exposures
In June 2015, the Institute of Medicine report I'm holding in the photo was acted upon by Secretary McDonald. He brought truth, science, law, and compassion into the process at last. The 2100 of us who volunteered to serve our country by flying and maintaining our aircraft willingly accepted the hazards of aviation service and now are acknowledged to have also endured hazardous toxin exposures for which the VA will now care.
As VA Secretary McDonald said to me at the White House, "We won." He meant "We" the veterans and "We" the VA, No longer adversaries.
Let's not let this happen again to other veterans facing toxic exposures.
Let's not let this happen again to other veterans facing toxic exposures.
24 January 2016
Did USAF Decide to Save Money But Sacrifice Aircrews? Seems like it!
When C-23K Tail #362 ("Patches") was decontaminated at the USAF Museum, the cost for the commercial HAZMAT contractor was $60,000. A substantial sum!Air Force paid that $60,000 because of everyone's overwhelming desire to keep the historical Patches in the Museum. The Air Force did not decontaminate any other C-123s. Faced with a potential $3.4 billion EPA illegal HAZMAT storage fine, in 2009 the Air Force opted to decontaminate by shredding and smelting all remaining aircraft at Davis-Monthan's Boneyard, turning them into aluminum blocks for the auto industry.
• Question:
Since the Air Force knew the Agent Orange spray history of the ten or twelve former UC-123K spray birds as well as the results of the Conway report in 1979 (same year the Air Force Health Study began on Operation Ranch Hand veterans) why weren't all the airplanes properly decontaminated to protect aircrews and maintainers?
• Answers:
1. Innocence and ignorance: In the '70s, there was growing concern about Agent Orange but little solid knowledge available to decision makers. Tests for deadly TCDD weren't even available in 1979 for the Conway report. Net result of the '79 test: (1) aircrew safety was assured (wrongly) and (2) aircrews were actually told the Air Force Material Command to continue scraping residue from nooks and crannies in the airplane, and to use air freshener to mask the nauseating stench, and scrub the C-123s with Dawn detergent. These steps all proved completely useless, as proven by the 1994 toxicological inspection of Patches that found it still "heavily contaminated with dioxin on all test surfaces" and "a danger to public health."
2. The end-of-life for the C-123 fleet was fast coming, and the Air Force was extremely hesitant to invest $60,000 for the couple years of remaining use of the transports.
3. Records vaguely suggest 24 UC-123K former Agent Orange spray birds were still in use by three squadrons. At $60,000 each, decontamination would cost the Air Force $1,400,000, plus it would take the airplanes out of service for an uncertain time.
4. The Big Reason*: if the Air Force moved to decontaminate the C-123s, it would be an announcement to the aircrews and maintainers that they'd already been exposed to deadly dioxin for several years. The illnesses and deaths of veterans between 1972 and whatever date a decontamination might occur would instantly have an association with Agent Orange exposure and veterans would apply to VA for disability benefits.
• Pound Wise-Penny Foolish!
Initially, the Air Force "saved" $1,400,000 by skipping the necessary decontamination of its C-123s. However, the June 2015 Interim Final Rule for C-123 veterans is estimated by the White House Office of Manpower and Budget to cost over $47,000,000 plus medical care. So the decision was a big money loser.
Worse, many of the two thousand men and women who volunteered to fly these aircraft now suffer the illnesses associated with long-term Agent Orange exposure. Although VA now might provide medical care and compensation, that is not worth cancers, heart disease, ALS, diabetes, soft tissue sarcoma and the other recognized Agent Orange illnesses.
* The Big Reason: a little background to prove the point:
In 2009 the Air Force was in turmoil about what to do with the toxic C-123s, known throughout the service as "the Agent Orange airplanes." The DOD consultant emphasized the potential for exposed veterans learning about their exposures and turning to the VA for earned benefits. Apparently this was something the Air Force felt best avoided, principally by destroying the surplus C-123s with as little visibility as possible.
Seeking Air Staff approval for the destruction, Air Force officials repeated the consultant's cautions, and as a result veterans did not learn for several years about the exposures they experienced in the 1972-1986 timeframe:
The consultant is the same person named by Newsday (May 1 1985) who recommended all further testing on Agent Orange be discontinued:
(from 505ACSS Position Paper, Mr. Buddy Boor, 5 Aug 2009)
"White House scientist Alvin L. Young, a toxicologist, recommends that no further research on dioxin should be funded, "because research has failed to show it causes cancer or birth defects in humans."Thankfully, his attempt to stop research on Agent Orange and its toxic component dioxin was not accepted, and over time a much fuller appreciation of the harm caused by Agent Orange developed.
22 January 2016
Aircrews abandoned, "hung out to dry" for decades of USAF mistakes & deceptions
A couple days ago I blogged about General Haugen's statement that C-123s are "as safe as humanly possible."
Events proved that the airplanes certainly weren't safe. A month before General Haugen's words, the USAF Armstrong Labs had identified military herbicide residue on Patches. Crews had complained about the stench being a safety concern, making crew and passengers alike nauseated.
Thus far, the Air Force has taken no steps to protect the veterans who flew the C-123s and were exposed to harmful amounts of Agent Orange. Even when asked to generate Line of Duty determinations for sick veterans, AF refused. C-123 veterans have been "hung out to dry" by AF leaders refusing to make right its decades of errors.
Key points:
• Veterans followed chain of command, reported issues, obeyed orders, volunteered to fly and maintain the former Agent Orange spray planes
• Air Force generals, scientists and other leadership denied contamination, denied exposures, suppressed information, destroyed airplanes with a concern to prevent veterans' claims, abused FOIA requests, produced flawed C-123 reports cited by VA to block veterans' claims
Conclusion:
The Air Force failed to protect its airmen while we were flying the C-123 (1972-1986.) Today, even with VA, CDC and Institute of Medicine confirmation of our exposure injuries, USAF does nothing to protect us or make right its decades of errors.
All the mistakes and deceptions with C-123 contamination were by the Air Force, not the aircrews. We were officially assured our airplanes were safe but they were toxic. USAF indifference has left us to shoulder the burden of USAF mistakes and deceptions. They even refuse Line of Duty determinations covering our exposures.
BACKGROUND:
A. Lets look at what the veterans did:
1. reported a safety concern resulting in the 1979 Conway Report on Patches; the report identified toxins but dismissed exposure concerns
2. worked for years trying to clean residue from the former UC-123K birds
3. accepted the General's assurances, continued to volunteer to continue flying Patches and the others
4. over the years, developed Agent Orange illnesses
5. filed a USAF IG complaint when inquiries were unsuccessful; when the IG complaint was denied filed a similar DOD IG complaint which was ignored
6. gathered scientific information, presented to scientists at USAF School of Aerospace Medicine
7. gathered scientific information from CDC, NIH, US Public Health Service, universities
8. presented veterans' perspective and C-123 knowledge at Institute of Medicine hearings
9. granted VA service connection for Agent Orange illnesses but denied retroactive compensation
10. EVERY assertion by the C-123 veterans has been backed by solid evidence
B. Lets look at what the AF did:
1. arranged 1979 Conway Report, opted not to decontaminate AFRES former UC-123K spray aircraft
2. in 1979 continued assuring aircrews and maintenance workers the airplanes were safe
3. completed 1994 USAF Armstrong Labs inspection on Patches, reported it "heavily contaminated with dioxin on all test surfaces" and "a danger to public health"
4. Concerned with foreign sales of contaminated C-123s, USAF Office of Environmental Law directed "all information be kept in official channels only"
5. in 1996 decontaminated Patches at $60,000 cost
6. in 2000, concerned with toxin liability, ordered all C-123 sales halted
7. in 2000, reacting to Davis-Monthan AFB worker complaints, ordered all surplus C-123s sealed, quarantined in special HAZMAT storage area; ordered workers to wear full HAZMAT protection
8. in 2009-2010, destroyed all C-123s as toxic waste; special measures to keep process "under the radar" and of low public interest specifically because consultants and staff noted if Reservists learned of exposures they might file VA claims
9. USAF School of Aerospace Medicine began study of C-123 Agent Orange issue after veterans complained through Senate and newspapers; 2012 report dismissed aircraft contamination and veterans' exposures
10. USAF Surgeon General declined notifying C-123 veterans of potential exposures, stating it would "cause undue distress"
11. USAF declined adding UC-123s to VA or DOD lists of Agent Orange testing, storage, transport sites
12. USAF declined FOIA requests, forcing veterans' lawsuit in US District Court Washington DC in which AF was ordered to comply and pay veterans' legal fees
13.USAF did not respond or comment when Institute of Medicine faulted the 2012 report as scientifically and mathematically in error
14. When Congressional leaders requested USAF Line of Duty determinations for aircrews' exposures, only response from the USAF Congressional Liaison Office was to find loopholes in AFI 36-2910 to block the requested protection. AF pointed to the 180-day limit on Reserve Component complaints of injury, insisting LODs couldn't be done after that. AF failed to note that aircrews did indeed officially complain of the toxins in 1976, 1977, 1978 and 1979, but the AF had dismissed the complaints even though scientists identified military herbicide residue (Conway, 1979.)
P.S.: Air Force, you can't have it both ways. The Air Force cannot waste these last several decades
fighting us, insisting to us and to the VA that we were never exposed and our airplanes never contaminated, only now that the facts are set straight to insist it must stand silent on the issue of veterans' benefits and can do nothing to set right the situation.
Air Force took on itself an active mission of arguing against C-123 veterans' on our exposure assertions. Now that the CDC and the Institute of Medicine have set straight the scientific and medical facts, it is anti-veteran and disingenuous for the AF to state that only VA can deal with the veterans.
.
There are many steps the Air Force can take to help its veteran airmen:
1. Acknowledge that the USAFSAM C-123 report has been challenged by the CDC and IOM. We don't expect AF to disown their report but it cannot be left to stand as the Air Force's last word on C-123 contamination.
2. Publish something like VA's C-123 Fact Sheet, addressing contamination and aircrew exposures. AF history must have some documentation on this controversy.
3. Include the recent events in the USAF Museum C-123 display
4. Recommend that the Armed Forces Pest Management Branch include former Operation Ranch Hand UC-123K tail numbers in the DOD list of Agent Orange testing, storage and preparation sites.
5. Use Afterburner to inform C-123 veterans of the VA Agent Orange benefits
6. On request from affected veterans, conduct Line of Duty determinations to consider whether or not C-123 veterans were exposed. An LOD helps reinforce a veteran's claim when processed by the VA because the VA must concede military documentation as decisive.
VA has insisted the C-123 crews were not qualified per statute as "veterans" during our C-123 exposures and uses their Interim Final Rule to provide that veteran status. Actually, such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.
Events proved that the airplanes certainly weren't safe. A month before General Haugen's words, the USAF Armstrong Labs had identified military herbicide residue on Patches. Crews had complained about the stench being a safety concern, making crew and passengers alike nauseated.
 |
| C-123 Vets |
Key points:
• Veterans followed chain of command, reported issues, obeyed orders, volunteered to fly and maintain the former Agent Orange spray planes
• Air Force generals, scientists and other leadership denied contamination, denied exposures, suppressed information, destroyed airplanes with a concern to prevent veterans' claims, abused FOIA requests, produced flawed C-123 reports cited by VA to block veterans' claims
Conclusion:
The Air Force failed to protect its airmen while we were flying the C-123 (1972-1986.) Today, even with VA, CDC and Institute of Medicine confirmation of our exposure injuries, USAF does nothing to protect us or make right its decades of errors.
All the mistakes and deceptions with C-123 contamination were by the Air Force, not the aircrews. We were officially assured our airplanes were safe but they were toxic. USAF indifference has left us to shoulder the burden of USAF mistakes and deceptions. They even refuse Line of Duty determinations covering our exposures.
BACKGROUND:
A. Lets look at what the veterans did:
1. reported a safety concern resulting in the 1979 Conway Report on Patches; the report identified toxins but dismissed exposure concerns
2. worked for years trying to clean residue from the former UC-123K birds
3. accepted the General's assurances, continued to volunteer to continue flying Patches and the others
4. over the years, developed Agent Orange illnesses
5. filed a USAF IG complaint when inquiries were unsuccessful; when the IG complaint was denied filed a similar DOD IG complaint which was ignored
6. gathered scientific information, presented to scientists at USAF School of Aerospace Medicine
7. gathered scientific information from CDC, NIH, US Public Health Service, universities
8. presented veterans' perspective and C-123 knowledge at Institute of Medicine hearings
9. granted VA service connection for Agent Orange illnesses but denied retroactive compensation
10. EVERY assertion by the C-123 veterans has been backed by solid evidence
B. Lets look at what the AF did:
 |
| USAF C-123 Policy |
1. arranged 1979 Conway Report, opted not to decontaminate AFRES former UC-123K spray aircraft
2. in 1979 continued assuring aircrews and maintenance workers the airplanes were safe
3. completed 1994 USAF Armstrong Labs inspection on Patches, reported it "heavily contaminated with dioxin on all test surfaces" and "a danger to public health"
4. Concerned with foreign sales of contaminated C-123s, USAF Office of Environmental Law directed "all information be kept in official channels only"
5. in 1996 decontaminated Patches at $60,000 cost
6. in 2000, concerned with toxin liability, ordered all C-123 sales halted
7. in 2000, reacting to Davis-Monthan AFB worker complaints, ordered all surplus C-123s sealed, quarantined in special HAZMAT storage area; ordered workers to wear full HAZMAT protection
8. in 2009-2010, destroyed all C-123s as toxic waste; special measures to keep process "under the radar" and of low public interest specifically because consultants and staff noted if Reservists learned of exposures they might file VA claims
9. USAF School of Aerospace Medicine began study of C-123 Agent Orange issue after veterans complained through Senate and newspapers; 2012 report dismissed aircraft contamination and veterans' exposures
10. USAF Surgeon General declined notifying C-123 veterans of potential exposures, stating it would "cause undue distress"
11. USAF declined adding UC-123s to VA or DOD lists of Agent Orange testing, storage, transport sites
12. USAF declined FOIA requests, forcing veterans' lawsuit in US District Court Washington DC in which AF was ordered to comply and pay veterans' legal fees
13.USAF did not respond or comment when Institute of Medicine faulted the 2012 report as scientifically and mathematically in error
14. When Congressional leaders requested USAF Line of Duty determinations for aircrews' exposures, only response from the USAF Congressional Liaison Office was to find loopholes in AFI 36-2910 to block the requested protection. AF pointed to the 180-day limit on Reserve Component complaints of injury, insisting LODs couldn't be done after that. AF failed to note that aircrews did indeed officially complain of the toxins in 1976, 1977, 1978 and 1979, but the AF had dismissed the complaints even though scientists identified military herbicide residue (Conway, 1979.)
 |
| USAF actions against C-123 Vets |
fighting us, insisting to us and to the VA that we were never exposed and our airplanes never contaminated, only now that the facts are set straight to insist it must stand silent on the issue of veterans' benefits and can do nothing to set right the situation.
Air Force took on itself an active mission of arguing against C-123 veterans' on our exposure assertions. Now that the CDC and the Institute of Medicine have set straight the scientific and medical facts, it is anti-veteran and disingenuous for the AF to state that only VA can deal with the veterans.
.
There are many steps the Air Force can take to help its veteran airmen:
1. Acknowledge that the USAFSAM C-123 report has been challenged by the CDC and IOM. We don't expect AF to disown their report but it cannot be left to stand as the Air Force's last word on C-123 contamination.
2. Publish something like VA's C-123 Fact Sheet, addressing contamination and aircrew exposures. AF history must have some documentation on this controversy.
3. Include the recent events in the USAF Museum C-123 display
4. Recommend that the Armed Forces Pest Management Branch include former Operation Ranch Hand UC-123K tail numbers in the DOD list of Agent Orange testing, storage and preparation sites.
5. Use Afterburner to inform C-123 veterans of the VA Agent Orange benefits
6. On request from affected veterans, conduct Line of Duty determinations to consider whether or not C-123 veterans were exposed. An LOD helps reinforce a veteran's claim when processed by the VA because the VA must concede military documentation as decisive.
VA has insisted the C-123 crews were not qualified per statute as "veterans" during our C-123 exposures and uses their Interim Final Rule to provide that veteran status. Actually, such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.
20 January 2016
Wing Commander Assured Aircrews Patches Was Safe (1979)
"As far as aircraft safety is concerned, although there is never a warranty, the C-123 is as safe as humanly possible."(BG Don Haugen, October 1979)
General
Haugen's reassurance came in 1979 one month after inspectors from Air Force Armstrong Labs reported residue on C-123K # 362
(Patches) of military
herbicides, including Agent Orange and Agent Blue, left from their Vietnam War
spray operations.
The general was told the airplanes were safe. The general told us the airplanes were safe. But the airplanes were not safe, and now the aircrews are blocked from exposure benefits we'd have received if USAF mistakes had been uncovered earlier. When the 1979 tests were done, no science existed to detect the deadly TCDD contaminant which was the real problem.
The general was told the airplanes were safe. The general told us the airplanes were safe. But the airplanes were not safe, and now the aircrews are blocked from exposure benefits we'd have received if USAF mistakes had been uncovered earlier. When the 1979 tests were done, no science existed to detect the deadly TCDD contaminant which was the real problem.
The 1979 test was ordered when aircrews
and maintenance staff submitted safety complaints addressing Patch's stench.
The scientists concluded that Patches should be scrubbed out with Dawn
detergent and air fresheners used to mask the stench. Of course, Dawn detergent did
nothing to help and neither did the many years crews spent trying to scrape out the residue.
Fifteen years later, USAF
Armstrong Labs again inspected Patches, determining her to be "heavily
contaminated with dioxin on all test surfaces, and "a danger to public
health." Patches received a $60,000 HAZMAT decontamination and its
toxicity was reduced to about 10% of the original contamination, judged safe
for "occasional entry."
Conclusion: without the decontamination,
Patches certainly wasn't "as safe as humanly possible" but instead remained a
source of our Agent Orange exposures. The 1994 $60,000 decontamination should have
been done BEFORE we started flying Patches, not fifteen years AFTER she was retired. (In 2012-2014 the VA spent $600,000 for its consultant to oppose C-123 claims at the IOM, more than enough to have decontaminated each of the aircraft at the very first!)
It wasn't until January 2015 that the Institute of Medicine determined that C-123 veterans had been exposed to harmful amounts of Agent Orange while flying Patches, and that veterans' benefits were appropriate. IOM concluded that the 2012 Air Force study of C-123 Agent Orange exposure were scientifically and mathematically flawed: the Air Force (incorrectly) reported the C-123s weren't hazardous and that veterans benefits would be inappropriate.
It wasn't until January 2015 that the Institute of Medicine determined that C-123 veterans had been exposed to harmful amounts of Agent Orange while flying Patches, and that veterans' benefits were appropriate. IOM concluded that the 2012 Air Force study of C-123 Agent Orange exposure were scientifically and mathematically flawed: the Air Force (incorrectly) reported the C-123s weren't hazardous and that veterans benefits would be inappropriate.
General Haugen was a wonderful man. I had the privilege of working for him for years, but even this general officer was misled by faulty science and an institution dedicated to denial of such problems.
08 January 2016
C-123 Agent Orange Veterans Propose Line of Duty Investigation of Our Exposures (no answer from VA to either proposal)
In hopes that VA continues seeking a process to permit C-123 veterans' retroactive disability compensation, we reached out to VA leaders to restate our arguments. A particularly interesting tactic might be Line of Duty determinations through the Air Force for our exposure injuries to meet statutory requirements for "veteran" status. VA's Interim Final Rule liberalizing rule to grant veteran status wouldn't be necessary, and VA could reconsider its retroactive disability compensation barrier.
Secretary McDonald' said when announcing his C-123 decision, “Opening up eligibility for this deserving group of Air Force veterans and reservists is the right thing to do,” said Secretary McDonald. “We thank the IOM for its thorough review that provided the supporting evidence needed to ensure we can now fully compensate (emphasis added) any former crew member who develops an Agent Orange-related disability."
We say, Keep trying, VA!
Secretary McDonald' said when announcing his C-123 decision, “Opening up eligibility for this deserving group of Air Force veterans and reservists is the right thing to do,” said Secretary McDonald. “We thank the IOM for its thorough review that provided the supporting evidence needed to ensure we can now fully compensate (emphasis added) any former crew member who develops an Agent Orange-related disability." We say, Keep trying, VA!
Our email to VA, January 7, 2016:
If tomorrow VBA must continue denying C-123 veterans' retroactive disability compensation, we respect that endeavor but are disappointed with it.
Our C-123 folks have a different perspective. Mr. Gxxxxx Bxxxxxx is an example of one of your C-123 veterans who has waited over six years for VA to resolve the issues of his prostate cancer and, more recently, leukemia also.
VBA approved his 2009 claim only in June 2015, and his leukemia claim in August 2015, with all retroactive compensation denied, of course. I don't know how the percentages of disability would have been calculated with his prostate cancer, but he is presently at 40%.
Had that percentage held for the six years since VA got his claim, this vet's compensation due would be around $45,000. Compensation he has waited patiently for VA to take care of in its normal course of granting claims back to date received. Like all of us, Bradley was not expecting the negative impact of the Interim Final Rule's liberalizing effect and dismissal of the VA OGC precedential opinions.
What he'd waited for was only partial compensation for his pain and suffering, and only partial compensation for considerable loss of working time from his cancers. There is no compensation for this veteran's reduced life expectancy.
Air Force LOD manual AFI 36-2910 has as its overall philosophy protection of the servicemember's military benefits and eventually, veterans' benefits as well. We're asking Air Force for that philosophy to have full play here. The AFI requires Air Reserve Component members to report exposure and other illnesses and injuries within the regulation's mandatory 180 days, after which only VA would have authority.
Fortunately, this requirement is satisfied because we reported the issue in early 1979 after which the Air Force Armstrong Labs submitted its incomplete Conway Report on one of our squadron's airplanes, C-123K #362 ("Patches") and identified military herbicide residue. Using that data and test date from 1994, CDC ATSDR confirmed to VBA in 2011, we have a 200-fold greater risk of cancer than screening values. Not 2X. 200X. CDC said we should have been flying in full HAZMAT, but that was too late to help anyone.
The VA has a caring philosophy similar to the Air Force, but with specifically, a duty of insuring all the benefits due a veteran are provided, while at the same time taking a pro-veteran, non-adversarial and paternalistic perspective with every benefit of the doubt resting with the veteran. In clearer words, do all that's right by us within the law.
Last week VBA explained why DOD JSRRC confirmation (in 2013 and again in 2014) to the Agent Orange Desk of our exposures was not required to be shared with our veterans and why it did not apply to Reservists per VA 21-1MR and the VCAA. I don't understand their logic about why our being Reservists made it necessary for VBA to hide such official government confirmation of our exposures from us until after the Institute of Medicine C-123 hearings.
I trust that VA can and will (if leadership approves) find a path forward which respects the rules you must operate under as well as the rights and benefits needed by and due C-123 veterans who volunteered for many years to fly these toxic airplanes, and who have already waited decades for your help.
An aside, please: VA has done a wonderful job with St Paul's processing C-123 issues. VA is also doing a great job using many different channels to get the word out to our veterans. Thank you!
Our email to VA, January 4, 2016:
I have
raised the concern about C-123 retroactive disability compensation, presently
blocked by the liberalizing rule per the Interim final Rule. The hope is to
find a compromise for at least a year of retroactive compensation, presently
blocked by the statutory "veteran" issue already much
discussed.
Our
view is that by late 2011 VA had ample government evidence to form "an
overwhelming preponderance of evidence" supporting our claims but instead
insisted it had "an overwhelming preponderance of evidence" against
them. VCAA and VA21-1 should have helped the input from ATSDR, NIH, USPHS and
JSRRC be considered with our claims evaluation on the "case by case"
basis Secretary Shinseki and Under Secretary Hickey assured us was the case.
Instead, resolution was postponed until June 2015.
The few
C-123 grants made prior to June 2015 all received full retroactive disability
compensation (all were granted either by DRO or BVA decisions, none by VARO
actions.)
Months
ago when we met at the Senate Russell building to discuss the C-123 IOM report
prior to publication of the Interim Final Rule, I raised the hypothetical
concern of Ebola exposures and asked whether VA would treat Air National Guard
and Reservists as "veterans" if the disease were to develop two weeks
after their aircraft returned from Africa and the aircrew returned to civilian
life.
VA
answered, "No," as with the C-123 veterans. The "veteran"
issue blocks VA care and benefits for Reservists and Guardsmen and exposure situations.
Researching
this issue further, I contacted the Air Force Reserve Command Surgeon who said
he'd resolve such an issue by generating Line of Duty determinations. AFRC is
where LODs on C-123 veterans would have been initiated. He'd expect VA to respect
an LOD as protection for the airmen. He would consider generating LODs months
or perhaps even a year or so after an event to protect the airmen, although AFI 36-2910 specifies a limit of 180 days for Air Reserve Component servicemembers.
For four years, USAF has taken a completely hands-off position, leaving us to VA's mercy, but perhaps somebody in a blue suit or green bag will be led to do right by us at last.
For four years, USAF has taken a completely hands-off position, leaving us to VA's mercy, but perhaps somebody in a blue suit or green bag will be led to do right by us at last.
Our time frame of 1972-1986 would have to be addressed
with an LOD request through the Air Force Board of Correction of Military
Records (AFBCMR.) While Air Force regs specify a 180 day period to submit an
LOD following an event, Secretary James has complete authority in AFI 36-2910
to waive that constraint and anything else. The Board acts with the Secretary's
authority.
Any
airman can submit an AFBCMR request. In this instance, I ask that VA indicate to AFBCMR acceptance of such
an approach for a representative C-123 vet. Further, I hope that VA can raise
the issue with Secretary James and seek her acceptance.
With
the Secretaries' input with their acceptance of
this approach, the AFBCMR can make its decision based on the history of the
issue, the supporting documentation, the IOM and other reports, JSRRC input and
the flexibility built into AFI 36-2910.
The AFI
specifies:
"An
LOD determination is based upon the onset of the
disease, illness or injury process, not existence of symptoms."(3.4.1.1)
Further:
AFRCI 36-3004
The objective of the Reserve benefit system is to compensate, to
the extent permitted by law, members of AFRC who experience incapacitation or
loss of civilian earnings as a result of an injury, illness, or disease
incurred, re-injured or aggravated in the line of duty, and provide the
required medical and dental care associated with the incapacitation.
It would be better if an LOD can even be considered by the normal Air Force channels for such decisions without the time delay
involved with an AFBCMR appeal.
This
could provide a resolution for the "veteran" issue otherwise dependent
on the liberalizing rule and permit VA to consider claims and appeals submitted
prior to June 19 2015.
Perhaps
technicalities make an LOD approach or any other solution difficult, but we
believe it is reasonable and just, given the facts of the C-123 vets' exposure,
ailments, and difficulties receiving the same benefits as their Active Duty
counterparts and C-123 vets whose claims were approved prior to the Interim
Final Rule.
Please
forgive the inexpert phrasing of my suggestion as my ability to research and
present the issue is quite limited. We count on VA to offer the most
pro-veteran assistance that is permitted.
Please stop finding avenues permitting (not requiring) VA to say "no" and instead, find ways within the law to do what's right for us.
Please stop finding avenues permitting (not requiring) VA to say "no" and instead, find ways within the law to do what's right for us.
28 June 2015
Clear & Unmistakable Errors (CUE) Taint VA's C-123 Claims Processing
CUE
has been committed on numerous occasions by the Department of Veterans Affairs in processing C-123 claims. We'll point out some CUEs of major significance.
CUE means that a veteran’s claim has been mishandled or unjustly processed to
the point that the errors are so apparent and so prejudicial that the injustice
is plain for all to see.
But their C-123 CUE record is both obvious and terrible. Let's look at some of their most painful examples of CUE violations all flowing from a single incident – and there are dozens more we don't have time to detail here.
The Incident: March 2013 receipt by Veterans Benefits Administration Agent Orange Desk of an email from Mr. Dominic Baldini, Chief, DOD Joint Services Records Research Center (JSRRC), confirming C-123 veterans' Agent Orange exposures. VBA did nothing with the JSRRC report, which came to light only in May 2015 through Federal court-supervised Freedom of Information Act releases by the VA.
Further, the JSRRC began issuing individual veterans' C-123 exposure confirmations in May 2014, none of which have been acted on by the VA, which instead ordered all C-123 claims "postponed" as they remained until June 2015. Thus, VBA improperly ordered claims to be denied, forbidding medical care and other benefits for two years after the first JSRRC confirmation and one year after the second JSRRC confirmation.
2. The same misstep regarding the March 2013 JSRRC confirmation had another CUE. VA's own regulation VAM21-1MR, requires that VA provide such information to claimants but VBA failed to do so. Federal courts have ruled the VA regulation to have the force of law, and VA's violation of its regulation was a clear and obviously prejudicial error.
3. VA is required by the Veterans Claims Assistance Act (VCAA) to provide all available government, as well as readily available non-government, records helpful to a veteran's claim. VA failed to do that with C-123 vets when they withheld the JSRRC exposure information.
4. Very specifically, 38 C.F.R. § 3.156(c) provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back. No C-123 veteran whose claim was denied was permitted this protection. The March 2013 JSRRC confirmation (from DoD, "the relevant service department") had no VBA reaction, which should have been to permit all denied claims to be reconsidered. Instead, VA took no action at all, other than to dispute the JSRRC input, and not reveal it to veterans.
A single example of VA action, tied to four or more Clear and Unmistakeable Errors. A perfect example of how VBA fought off C-123 veterans' claims for four years, regardless of the merit of our arguments...merit finally confirmed by VA but only after the January 2015 release of the Institute of Medicine C-123 Agent Orange report.
No veteran such be the subject of such determined VBA CUE, but over 2100 men and women were abused by staffers in VA determined to block any and all C-123 claims. CUE didn't seem to deter them at all.
Not a problem, at least from the VA's perspective. We paid the price for their erroneous and unconstitutional actions.
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