VA's "All Questions Answered" Message Gave Us Wrong C-123 Hotline Number

Here is the correct C-123 Hotline Number:
VA C-123 Hot Line: 1 (800) 749-8387

(thanks, Trish)

VA "Duty to Assist" – Why didn't they?

VA didn't help, but instead insisted for years no evidence existed to support C-123 veterans' Agent Orange exposure claims. VA insisted it had "an overwhelming preponderance of evidence" (a phrase created to encompass the VA policy, rather than weight of evidence) against the veterans' claims.

VBA's duty to assist arises from a variety of sources, including the Due Process Clause in the Fifth Amendment to the US Constitution, the Veterans Claims Assistance Act, and VA's own regulation VAM21-1MR. VBA errs when it fails to consider a M21-1MR provision's possible relevance with respect to VA's compliance with the duty to assist.  See 38 U.S.C. § 7104(a).  But here VBA simply excused itself from compliance with all of these mandates.

Here's the statutory language requiring VA to assist veterans in presenting disability claims:

§21.1032  VA has a duty to assist claimants in obtaining evidence.
(a) VA’s duty to assist begins when VA receives a complete or substantially complete application.
 (1) Except as provided in paragraph (d) of this section, upon receipt of a complete or substantially complete application for educational assistance under subpart C, D, G, H, K, L, or P of this part, VA will:
  (i) Make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and
  (ii) Give the assistance described in paragraphs (b) and (c) of this section to an individual attempting to reopen a finally decided claim.
 (2) VA will not pay any fees a custodian of records may charge to provide the records VA requests.  (Authority: 38 U.S.C. 5103A)
(b) Obtaining records not in the custody of a Federal department or agency. 

VA is specifically charged by VCAA with locating records from other Federal agencies as well as state and municipal governments. But the record shows VA elected not to search for these materials when needed for C-123 veterans' claims. Even when such vital documents for proving veterans' claims were in already in VA's possession, individuals in VA disputed them, failed to provide them to veterans and their attorneys, and failed to inform senior VA leaders of their existence.

But what's a little thing like the US Constitution to VA staffers determined to block C-123 veterans' claims? Well, it is quite a big thing, and such abuse quickly invites questions as is happening now.

What proofs did VA suppress or otherwise abuse?
1. March 2013 Joint Services Records Research Center confirmation of C-123 veterans' exposure per VAM21-1MR, with DOD specifically suggesting use of the confirmation by VA claims officials
2. CDC/Agency for Toxic Substances and Disease Registry confirmation of C-123 veterans' exposures. The deputy director (Dr. Tom Sinks,) the director (Dr. Christopher Portier,) and the interim director (Rear Admiral R. Ikeda MD USPHS) each informed VBA that CDC concluded C-123 veterans were exposed to 182-times military thresholds for dioxin exposure and suffered a 200-fold greater cancer risk. This information was disputed and not provided claimants who didn't already have it. VA also had but failed to act upon input from the National Toxicology Program, the US Public Health Service, the EPA (which concurred with the CDC finding but did not conduct its own investigation,) and multiple state agencies including medical schools, toxicology centers and even VA physician researchers.
3. May 2014 Joint Services Records Research Center began individual confirmation reports on C-123 veterans. Instead of accepting this proof and others as reaching the VA's low threshold of proof required of veterans, VA insisted it would continue with the ongoing IOM study thus delaying eventual claim approvals and blocking VA medical care for over one more year.
4.  Faced with a growing body of evidence submitted by veterans, VA's Director of Compensation and Pension minimized it as "a few items" when the total was over one hundred different proofs from multiple federal agencies, state governments, scientists and physicians. VA then characterized the small body of evidence it had as "an overwhelming preponderance of evidence," principally VA staff, VA web pages, a Dow-sponsored scientist's letter, a Monsanto-sponsored scientist's letter, and own VA's $600,000 no bid sole source Agent Orange consultant who had earlier denigrated the C-123 veterans as "trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman," telling his VA customers to "hold the line" against C-123 veterans' claims.
5. Faced with a large body of veterans' evidence, VA responded with a contract for its consultant to prepare monographs with a principal focus of blocking C-123 exposure claims. The contractor was paid $600,000 on his no-bid sole source contract to obstruct C-123 claims. Veterans sought but were permitted no VA assistance preparing their claims. and were left to their own means.
6. VBA characterized all non-physician scientists as unqualified to comment in support of C-123
veterans' claims, instead citing its own VA non-physician scientists as the only proper authorities. Federal courts have ruled that toxicologists are qualified to comment on medical nexus and excluding their input is an abuse of agency discretion and unfair to claimants.
7. Faced with one veteran's numerous proofs for exposure (the local VA office termed it a "plethora of evidence" but VA minimized the dozens of documents as "a few") VBA Director of Compensation and Pension directed a denial by stating, "In conclusion there is no conclusive evidence of TCDD (the toxin in Agent Orange) causing adverse health effects." VA later termed this "an unfortunate choice of words" but allowed it to serve for denying the claim. VA thus denied the Agent Orange claim under the Agent Orange Act with its response that Agent Orange is harmless.
8. In the years C-123 veterans have sought assistance proving their claims, not a single offer of help or suggestion or assistance in any form has been permitted by VA.
9. VA withheld its internal documents in denial of Freedom of Information Act requests. Ignoring requests for years finally had VA end up in the US District Court of Washington DC, where agreement was reached to finally release most of the materials. This release was minimal before the Institute of Medicine conducted its C-123 committee work, and only began in earnest after the IOM report was concluded and the VA information of less use to the veterans. As VA is specifically charged with helping veterans locate government documents helpful to claims, this specifically abused the veterans' rights to Due Process as well as under the Veterans Claims Assistance Act.
10. Because the issue of exposure was pivotal, VA redefined "exposure" in a unique and unscientific manner differing even from other VA agencies and Federal health and science agencies, as well as in conflict with VA's standard medical dictionary. The new VA definition of exposure would exclude virtually every exposure from VA coverage, such as Ebola.

Finally, veterans should have only had to submit their claims, and not argue against the VA for these past four years. VA should have been and was charged with being the veterans' advocate, handling claims in a paternalistic and pro-veteran manner. Instead, as VA told the Associated Press, "We have to draw the line somewhere," and that "somewhere" was over the bodies of C-123 exposure victims.

Why such push-back against just 2100 men and women C-123 veterans? Because VA had an attitude of no more Agent Orange claims, plus perhaps a prejudice against Reserve Component servicemembers. Certainly, veterans blocked from VA medical care for so many years saved millions in hospital costs and other benefits, and prevented even more veterans from swamping the already-limited VA patient care capacity. VA even managed to block retroactive disability compensation by setting the effective date of its new C-123 regulation as June 19, 2015 rather than the date of claim submission as with other disability claims.

Veterans now can hope that VA will process their C-123 exposure claims sometime soon, but every C-123 veteran not otherwise eligible is still forbidden all VA medical care and other benefits until then. Not a single C-123 veteran's claim has ever been honored, even though the Institute of Medicine C-123 Committee determined in January 2015 that their claims were correct from the very beginning.

This wasn't David against Goliath: This was David against hordes of the Philistine giants! "We have to draw the line somewhere," they were shouting!

American Legion Statement on New C-123 Veterans' Agent Orange Exposure Rules

C-123 veterans awarded benefit eligibility

The American Legion - June 24, 2015

Featured in Veterans Benefits Center

The American Legion Online Update e-newsletter

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After a tumultuous uphill battle, some Air Force Reserve veterans will finally be able to receive disability benefits to cover Agent Orange exposure while serving around Fairchild C-123 aircraft. VA announced the decision during a closed-door meeting with The American Legion and a handful of other veterans service organizations, effective June 19. The decision is projected to result in the awarding of over $47 million in disability benefits over the next 10 years; the decision may slightly add to VA’s backlog of disability claims.

Affected individuals, not otherwise eligible for VA healthcare benefits, will also be afforded access to medical care and survivor benefits once supporting documentation is provided indicating herbicide exposure. Previously used to spray herbicides during the Vietnam War, reservists utilized the aircraft from 1969 to 1986 to transport cargo and medical supplies.

VA’s denials of claims associated with C-123 aircraft were based upon the premise that reservists were not exposed to the toxic herbicide. Nearly one month ago, VA Secretary Robert McDonald agreed to recognize the findings of a January 2015 study by the Institute of Medicine revealing that reservists were exposed to the contaminant at levels that would impact their health. After an initial indication that VA would grant the presumptive exposure, VA delayed its implementation of the policy. The failure to implement the policy garnered national attention after three senators placed a hold on the nomination of David Shulkin, M.D., for Under Secretary for Health until a formal announcement of the change in policy regarding C-123 aircraft.

“Our sense of relief is tempered by the grief felt for lost comrades,” said retired Maj. Wesley Carter, president of the C-123 Veterans Association. “It is also tempered with memories of well-funded and adversarial actions employed against our claims by the VA. Every medical and scientific fact that convinced the Institute of Medicine of our Agent Orange exposures in 2014 had been presented to the VA years earlier, but was ignored.”

Carter attributed the success of the campaign to The American Legion and other supporters who rallied behind the association. Though VA’s announcement signifies a major victory, Carter added that VA leaders need to review their actions to ensure that veterans exposed to toxins no longer “face such an unhappy struggle.”

More information can be found by visiting the VA’s website.

Veterans are also encouraged to call (800) 749-8387 for more information, or email VSCC123.VAVBASPL@va.gov.

- See more at: http://www.legion.org/veteransbenefits/228319/c-123-veterans-awarded-benefit-eligibility#sthash.viacKJEn.dpuf

Senate AGAIN Demands VA Action For C-123 Agent Orange Veterans

Following the April 9 conference at the Senate Russell Building to address C-123 Agent Orange veterans' medical and compensation benefits, senior members of the United States Senate repeated their earlier bipartisan demand that VA Secretary McDonald exercise his existing authority and order appropriate action now.

Initially, VA expected to propose legislation using language already agreed-upon by Senate staffers. Just before the conference VA pulled the legislation which had been objected to by the C-123 Veterans Association. The vets faulted VA for having inserted language barring retroactive claims, meaning those whose illnesses manifested over the years and who submitted claims not yet approved would be denied coverage and all claims honored only from March 17 2015 forward.

Actually, the entire idea of legislation was objected to, as everyone except VA realized the Secretary had all the authority needed to act immediately. Legislation would delay yet further any relief for veterans whose illnesses had been evident for years, and has the risk of not being enacted at all.

On April 23, Senators Burr, Merkley, Blumenthal, Brown, Bennet, Warren and Wyden forwarded a joint letter to Secretary McDonald. Outlining in detail the legal basis for Secretarial action versus legislation, the letter requested firm action by the VA within fourteen days. Their letter closely paralleled the scholarly, in-depth analysis authored by Yale University School of Law, the C-123 Veterans' legal advocate.

How Board of Veterans Appeals Sinks C-123 Exposure Claims

The impact of VHA's Post-Deployment Health Section is felt throughout VA and the veterans' community. Especially, it is felt by veterans whose appeals to the Board of Veterans Appeals are torpedoed by the unscientific policy statements fielded by Post-Deployment Health.

Below is a BVA finding which touched on a veteran's exposure claim. Look at the wording used by the BVA judges, especially "reviewed all available scientific information..."

But Post-Deployment Health didn't review all available information. Instead, they were charged with creating policy statements to block C-123 veterans' exposure claims. That meant they selected materials which opposed the basis for C-123 claims, and ignored materials which supported the claims.

If a scientific reference doesn't support the policy of preventing C-123 claims, VA doesn't mention it. Anything supporting a veteran's claim is disregarded in favor of materials selected by VA to deny claims.

So "all available scientific information" is VA-speak for carefully selected materials to prevent claims, not actually all available information. If VA had opted to provide a more scientific basis for considering C-123 claims, they wouldn't have ignored input from the CDC/Agency for Toxic Substances and Disease Registry, the US Public Health Service, the National Institutes of Health, Oregon Health Sciences University, Columbia University and others. VA wouldn't have ignored VA researchers and physicians who affirmed C-123 exposures, or ignored juried publications including the February 2014 Environmental Research article.

The paragraph below is from a recent veteran's claim denied by the Board of Veterans Appeals, citing boilerplate language about how Public Health reviewed "all scientific information" when, in fact, Public Health disregarding all information supporting C-123 veterans' claims and cited only those materials agreeing with VA policy. Further, the quote proves the BVA itself disregards any evidence favorable to C-123 veterans.

Furthermore, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange.  VA's Office of Public Health is noted to have reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces.  It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.  See http://www.publichealth.va.gov/exposures/agentorange.

April begins, and still no action by VA on C-123 Agent Orange Exposures

Don't they know what's happening? Don't they know our men and women are refused proper care and benefits for want of reasonable, proper, lawful, necessary decisions?

Don't they care, or know there is a price paid by us for their inaction and attitudes? That price is in denied medical care somehow sought elsewhere, in denied state benefits for us and our families, and in denied financial compensation for our line-of-duty illnesses.

Reasons? Maybe they don't care. Maybe they're too busy. Maybe hardliners in Post Deployment Health and in the Compensation and Pension Agent Orange Dsek are pushing back, still determined to deny 100% of all claims "on a case by case basis." Maybe because every month, every day VA postpones action on these claims is money saved, appointment lists kept shorter, and claims denied and off the backlog lists.

Seems like the VA decision is already in place.

Of course, some do, but the powers that be...just don't!

Vietnam Vets of America demands Agent Orange benefits NOW for exposed C-123 Westover vets

AGENT ORANGE

• Vietnam Vets of America demands Westover vets exposed to Agent Orange be granted benefits now
• National Commander of VFW demands Westover veterans exposed to Agent Orange receive benefits
• Sen. Elizabeth Warren, others urge Westover Reservists exposed to Agent Orange receive benefits
• Westover Reservists win a battle that should not have been necessary: Editorial
• Westover Reservists exposed to Agent Orange, federal officials rule after 4-year battle

The national president of the Vietnam Veterans of America is calling for bureaucrats from the U.S. Department of Veterans Affairs to be "relieved of their duties" for their continuing failure to grant benefits to veterans from Westover Air Reserve Base and three other military installations who were exposed to Agent Orange while flying planes previously used in the Vietnam War.

The Vietnam Veterans of America has been a strong supporter of the C-123 Veterans.

The two page letter expressed frustration over the fact that the veterans, who flew C-123 Provider planes after they had been used to spray Agent Orange to defoliate the Vietnamese countryside, have been fighting a four-year battle to receive medical benefits and disability payments for those who have fallen ill or become ill later.

"These VA bureaucrats attempting to delay justice ought to be relieved of their duties so they can no longer abuse veterans with their tactic of 'delay, deny until they die.' There is no excuse for why these worthy veterans are still not being treated with the appreciation and the respect their service warrants," John Warren, national president of the Vietnam Veterans of America, wrote.

He said the delay is especially vexing after an Institute of Medicine study commissioned by the Department of Veterans' Affairs determined that the about 2,100 military reservists who flew in or worked on the planes at Westover, Pittsburgh Air National Guard, Rickenbacker Air National Guard Base in Ohio and Hanscom Air Force Base in eastern Massachusetts, had been exposed to Agent Orange and are vulnerable to contracting the more than 20 diseases tied to the chemical.

The Department of Veterans Affairs is continuing to study the Institute of Medicine report, said Meagan Lutz, public affairs specialist for the Department of Veterans Affairs.
"In order to better inform and serve our veterans, the Department is examining policy and legislative issues in order to proceed with its final proposal," she said in an email. (note: different VA executives and public affairs spokespersons have offered a wide range of reasons for VA's delay; Ms. Lutz is the first to suggest the delay is to "better serve" veterans by continuing to refuse them medical care!)

Led by Retired Maj. Wesley T. Carter, now of Colorado, who served as an air medical technician and flight instructor and examiner with Westover's 74th Aeromedical Evacuation Squadron for 20 years, the C-123 group is made up mainly of Westover veterans and has been fighting for the same benefits as those who served in Vietnam. They only discovered four years ago.the planes, which they spent 10 years flying in and working on, had been contaminated with Agent Orange since Vietnam.

The federal government automatically grants anyone who served in Vietnam, even for an hour, health benefits which includes free medications, dental care and other services, and disability payments if they fall ill from any of the diseases known to be caused by Agent Orange.

Also included in the list of supporters is the National Veterans of Foreign Wars. In February six senators, Oregon Sen. Jeff Merkley and North Carolina Sen. Richard Burr, a Democrat and Republican respectively, who have been advocating for the veterans for several years, as well as Sens. Elizabeth Warren, D-Massachusetts; Ron Wyden, D-Oregon; Richard Blumenthal, D-Connecticut, and Michael Bennet, D-Colorado, also signed a strongly-worded to the Department of Veterans Affairs Secretary Robert McDonald to show their support.

"I think it is high time this battle, which has gone on for four years, is over," said Archer Battista, of Belchertown, who retired from Westover as a colonel in 2001 and is a semi-retired lawyer.

Battista, who flew planes at Westover starting in 1974, said he has been trying to help some veterans and their families who are completely overwhelmed by trying to fight the battle for medical care. As a Vietnam veteran, he is already eligible for the benefits.

"All this time the clock is ticking on some very sick people and their survivors," he said. "We know they have a decision and the decision is favorable so what is holding this up?"

It is even more frustrating since there is a second part to the battle. The C-123 Veterans are still trying to acquire squadron rosters with the names of veterans who flew on or worked on the planes at the four bases so they can contact as many veterans as possible to warn them they had been exposed to Agent Orange.

So far all requests to the Air Force have been denied.
reporter: Jeanette DeForge

Little-Known Benefits From a VA Disability Rating

Our focus, of course, is always on establishing our eligibility for VA medical care: No medical care means terrific suffering and financial hardship for veterans unfairly denied earned care.

For 100% disabled veterans, VA's embrace is wonderful. Ophthalmology, audiology, counseling, rehab, dental, prosthetics, pharmacy, specialty clinics, general medicine...a wide range of vital services to help a disabled veteran recover, or improve as much as possible seeking the greatest quality of life possible.

And, of course, there is compensation. It is called that because of the philosophy of replacing, with some financial adjustment, the veteran's lost earning capacity. It is not a pension, it is not charity, it is not taking something more properly due another deserving veteran...it is earned by each veteran with a recognized service-connected illness or injury. There is no means test, of course: that's something required for a pension, but not service-connected compensation.

But there is more that veterans should be aware of (but I'm no expert...check with the VA for details!)

• State benefits, typically property tax relief, veterans bonuses, automobile licenses and waived auto fees, state veterans' homes, cemetaries, college tuition waiver, children's college tuition waiver
• Veterans Cemetery Administration. Burial in a national cemetery, state veterans cemetery. Burial allowances for service-connected deaths
• Priority One for VA medical care, with no co--pays
• Educational benefits for children; continued medical care for children disabled before age 18
• Transportation costs for medical care beyond a certain distance from a veteran's home
• Contract medical care in the community
• Long-term health care (this gets tricky...VA needs to explain if you're interested) in VA facilities or contracted local facilities; VA assistance with state nursing homes which charge fees
• One year of fee-waived VGLI (must be applied for) 

• Clothing allowance for clothing damaged by medicines, prosthetics, wheelchairs, etc.

• Independent living assistance, sometimes including home modifications, quality of life issues
• Access to VA's War Injury and Illness Treatment Centers
• Combat Related Special Compensation. Adjusts taxes on military retirement, in some cases to zero, because Agent Orange is a "weapon of war"

• Some commercial firms, like Lowes and Home Depot, offer discounts 

• Survivor's benefits, including CHAMP-VA

Yale School of Law Seeks C-123 Veterans – Read Their Offer of Free Assistance

Yale School of Law, under Dean Michael Wishnie, offers a terrific veterans law clinic that has been instrumental in addressing C-123 veterans' Agent Orange claims. At great expense to the school, they've stood by us for several years as we presented our claims to the VA.

Their C-123 report on presumptive service connection is top-quality legal scholarship and persuasive to any fair-minded VA claims adjudicator. They want to help you. Free. Very good help, and very free. They want to hear from C-123 vets who did not serve in Vietnam - Vietnam vets are already qualified for benefits Yale seeks for the rest of us.

Dean Wishnie and his team also represented a Westover veteran at the Boston VA for a Decision Review Officer hearing...you can imagine the impact as the veterans' representatives were introduced to the VA folks.

Yale wants to keep helping. They are reaching out to all veterans and survivors to discuss certain legal strategies which can apply to us individually as well as our association.

Who: Primary fight crew, ACM, AGE, aerial port, AME, CAMS, life support, flight surgeons...personnel serving between 1972-1982 who had occupational duties on the C-123...that means hands-on, inside the airplane type of duty. Westover, Rickenbacker and Pittsburg units, plus Panama rotation.

The leaders of the C-123 Veterans Association ask each of you to cooperate. Doing so won't change any arrangements you may have for representation with a veterans service organization. Yale's powerful assistance to individuals and to the association is offered pro bono, of course. Other veterans legal clinics and some wonderful private law firms have also stepped up to represent our folks, all as a service in recognition of the sacrifices already made by C-123 veterans and our families.

For us lunkheads who never took Latin, that means free. I looked it up. Trust me. Jokes aside, the results these folks seek are vital and we can't get to our objective without your cooperation. Give them an email at c123.project@yale.edu.

Yale University Seeks C-123 Veterans To Discuss Agent Orange Claims – Westover, Pittsburgh & Rickenbacker

This is the veterans law clinic at Yale University and they want to hear from every single one of us who is a C-123 veteran, who did not serve in Vietnam, and who has or may have an Agent Orange illness. Yale's lead on the project to help us is Mr. Daniel Townsend at daniel.townsend@clinics.yale.edu

Now would be good. And it won't cost anybody anything. Its what they do. Help veterans expertly and for free. Pro bono, in Latin. I've worked my bottom off for four years to get C-123 veterans in this position and now I want you to do this for yourself and for all the rest of us. Aerial Port, AME, maintainers, Life Support and aircrew...get your name and telephone in to me. So far, only 30 names have been collected.

Yale Law = C-123 Veterans' Support - pro bono!

This is the agency which argued Dick Matte's claim (all their helping us is pro bono, of course) through the Boston VA Decision Review Officer and won that recent award. This is the superb law school which challenged VA head-on, explaining in great detail with their report how our Agent Orange exposures are covered under the law. These are the folks, under supervision of the dean of Yale's law school Michael Wishnie, who want hear from you.

Any questions just contact me.  Pilots LtCol John Harris and Col Arch Battista (he's also a retired attorney) and other Westover leaders have worked with these folks in the Dick Matte effort. Now we need your help on Yale's pro bono project involving all of us. Involving YOU!

Email them at daniel.townsend@clinics.yale.edu

CALL FOR VOLUNTEERS TO LEAD C-123 VETERANS ASSOCIATION

My time at the stick is over, and crew rest and financial relief desperately sought! I haven't checked but maybe there is even a FAR about too much time on veterans issues by one individual??

Who feels led to offer time and talent for the next year, with our important new objective of working with VA to implement recommendations of the IOM? The worst of the struggle is over – now we find our aircrews and maintenance personnel from all three bases and start getting the word out.

VA will help just in their administrative changes. Web pages, training letters, press releases all will orient claims official, health provider and veteran. The major veterans organizations will all be carrying the news in their magazines and web sites and we on ours. I've asked VA about reaching out through DFAS, ARPC, TREA, ROA, AFA and other authorities and associations. VA's working group, in place since IOM briefed VA on January 8, seems to be their focal point for the many decisions and we need leadership to liaise with them.

I believe we need to stay an informal, funds-free organization welcoming all with a simple request to join us. We do now need to start identifying all who'd like to be members and start a more formal collection of names, their association with the C-123 and how they can document that, illnesses, claims, denials, survivors and whatever else comes to mind in our group's new leadership.

John, Charlie, Andy, Big John, Butler, Arch, Jim, Clancey, Al and Gail, MGB...everyone. Please work this out among yourselves and find us leadership for 2015 and beyond!

Finances. We have nothing in the piggy bank, obviously. I propose we raise voluntary funds of at least $2000 per year for travel expenses, and that really covers only two trips to DC. There will be much work with legislators, VA, military associations and others which will need to keep us busy. Example: my last trip for IOM Jan 6-13 was $1250 and we shouldn't ask our leadership to get soaked for such expenses personally,

The web sites run about $250 a year, and postage maybe $200 now that we don't need to blitz every senator with a $35 350 page 3-ring binder, or solicit interest from reports with one.

Chores, either done by the chairman or delegated to another volunteer:
1. web site and blog entries
2. correspondence with vets, legislators, military associations
3. close contact with VA to insure our needs are met with their program changes
4. PR...keep seeking interest from the press, promoted good coverage about us
5. a couple trips to DC each year; at least one guest appearance at the next annual meeting of the Vietnam Veterans of America and at the American Legion, our two key sponsoring veterans groups
6. I propose a poster display at the 2015 Society of Toxicology and the Association of Military Surgeons of the United States, telling the story of how we were screwed and how things worked out
7. work with the USAF Museum to amend Patches' history to cover our service
8. maintain contact with the Senate minority and majority leaders of the Veterans Affairs Committee
9. consider a more formal, permanent organization structure
10. STRATEGY, STRATEGY, STRATEGY for ongoing "guerrilla" advocacy of our veterans' issues, aka running an effective national campaign on less than pocket change!

Please find us a new chairman! If you want to pass the buck, nominate someone else and we'll crown him/her by popular acclaim!

Air Force Association Features C-123 Agent Orange Exposure History

 

The Lingering Story of Agent Orange

JANUARY 2015

BY JOHN T. CORRELL 

  

The assumption in the 1960s was that the use of herbicides in Vietnam did not pose a significant danger.

​

The UC-123K tactical transport known as “Patches” got its name the hard way. The aircraft was held together nose to tail with repairs to the battle damage inflicted by almost 600 hits from enemy ground gunners in Vietnam.

When its flying days were over, Patches was retired to the US Air Force Museum in Dayton, Ohio, as a memorial to the airmen who flew the dangerous “Ranch Hand” missions from 1962 to 1970.

Ranch Hand used herbicides to defoliate the vegetation in Vietnam, where the jungle provided concealment and cover for Viet Cong insurgents. It began as a peripheral notion in 1961 on a White House list of “techniques and gadgets” that might be tried in lieu of all-out combat and expanded from there.

At its peak in 1969, Ranch Hand employed only 25 spray planes, but the results and consequences went far beyond anything the White House ever imagined. Local commanders and ground forces swore by Ranch Hand, which stripped bare the enemy ambushes and hiding places. It was part of a broader operation named “Trail Dust,” which included spraying from backpacks, trucks, and riverboats, but the main operation was Ranch Hand.

The propeller-driven C-123 had long since been declared obsolescent but it found new purpose in Vietnam. In 1968, auxiliary jet engines were mounted under the wings, making takeoffs less hazardous for the heavily loaded Ranch Hand aircraft. The enhanced model was designated UC-123K.

The spraying was done from treetop level and was especially risky with the original equipment, which dispensed no more than one-and-a-half gallons of herbicide per acre, half the amount necessary for defoliation. Before the Ranch Hand crews got better sprayers that pumped three gallons an acre, they had to fly a second mission against each target. The ground gunners knew this and were waiting for them. With the improved system it took four minutes to empty the 1,000-gallon tank and cover an area 16 kilometers (10 miles) long and 80 meters (260 feet) wide.

About 10 percent of the Ranch Hand sorties destroyed crops supporting the Viet Cong—a priority for the South Vietnamese government—but the vast majority of them were flown to expose the enemy’s strongholds and travel routes. Even critics of the program concede that this saved many thousands of American and allied lives.

The Ranch Hand achievements are seldom remembered today, eclipsed by the enormous controversy about Agent Orange, the principal defoliant used in Vietnam. It is widely agreed now that the herbicides—deemed safe to humans in the 1960s—might cause cancer and other ailments. By an act of Congress in 1991, a deadly health risk is presumed for those exposed to Agent Orange.

Among other revelations, the most famous of all Ranch Hand airplanes, Patches, was found to be “highly contaminated” with Agent Orange residues and had to undergo an extensive cleanup before it could be put on display at the Air Force Museum.

A Rainbow of Defoliants

The herbicides came in 55-gallon drums marked with colored bands four inches wide. The defoliants were named for the color of the bands: Agents Blue, Green, Pink, Purple, White, and the most famous of all, Agent Orange, referred to simply as “Orange” by the Ranch Handers.

The active ingredients were the same as weed killers used for years in the United States on farms, along highways and power lines, and in popular lawn care products sold to homeowners. The compound 2,4-D destroyed broad-leaf weeds and 2,4,5-T worked on brush and hardwoods. However, unlike the commercial products which cut the weed killers with inert thinners, the military herbicides were sprayed full strength.

In the early part of the war, the preferred herbicide was Agent Purple, a patented product of the Dow Chemical Co., consisting of half 2,4-D and half 2,4,5-T. Dow could not produce enough to meet the demand but was wary about permitting others to make up the difference on license. In 1964, Ranch Hand began replacing Purple with Agent Orange, the same mixture without patent complications.

There were some complaints about the defoliation program, but these came mostly from ecologists and opponents of the war in general. Industry and the Pentagon defended the chemicals as safe. A government-sponsored survey by the independent Midwest Research Institute in 1967 found no reason for alarm. Little attention was given to scattered instances of skin rashes among plant workers, farmers, loggers, and other handlers.

Warning signals went off with the release in October 1969 of a National Institutes of Health study reporting laboratory experiments in which high concentrations of 2,4,5-T led to birth defects in mice.

The basic problem was not the weed-killing ingredients themselves; it was the “dioxins,” a kind of impurity created in small amounts as byproducts in the manufacturing process. Dioxins are everywhere—in diesel exhaust, in Styrofoam cups and Formica tabletops, in smoke from trash fires—and toxic in extreme doses. Production of 2,4,5-T generated a poisonous dioxin abbreviated as TCDD.

In response to the NIH study, the Department of Defense prohibited the use of Agent Orange around population centers. In April 1970, the departments of the Interior, Agriculture, and Health, Education, and Welfare suspended the uncontrolled use of 2,4,5-T in the United States and the DOD—over the objections of the Joint Chiefs of Staff—temporarily halted the use of Agent Orange in Vietnam. The temporary halt was never lifted, and when supplies of other herbicides, chiefly Agent White, ran out, the Ranch Hand operation came to an end.

A Spark in Chicago

As it turned out, the interdepartmental restrictions on 2,4,5-T in April 1970 did not amount to that much. They did not affect use for control of weeds and bush on range, pasture land, forest, or rights of way on nonagricultural land. Nor did they apply to products for sale to homeowners. The Agriculture Department and the Environmental Protection Agency saw no “imminent hazard” from 2,4,5-T.

To some extent, this reflected the political power of the chemical and agricultural industries but, at the same time, the scientific evidence about 2,4,5-T was ambiguous.

The Agent Orange controversy as it exists today began in Chicago in 1978. Maude de Victor, a benefits counselor in the local Veterans Administration office, put together a file on 57 cases of Vietnam veterans whose problems she believed to be related to chemicals in Vietnam. She shared her suspicions with a TV news producer whose documentary, “Agent Orange: The Deadly Fog,” was broadcast by WBBM, the CBS affiliate in Chicago, in March 1978.

Within weeks, VA got 500 claims for exposure to Agent Orange, 300 of them from Chicago and the other 200 from Arkansas, where veterans picked up the message and repeated it.

The issue soon went national, focusing largely on Army ground troops who said they had been exposed to the herbicides. Some of the news accounts exaggerated the circumstances, depicting the jungle as “dripping” or “drenched” with herbicides, hardly possible with a maximum dispersal rate of three gallons per acre, which works out to less than a teaspoon per square foot.

Nevertheless, there was enough substance for the issue to gain traction in Congress and in public opinion. Politicians made speeches and President Jimmy Carter formed an Agent Orange Inter-Agency Working Group that was eventually elevated to cabinet council status.

In 1979, the Environmental Protection Agency stopped most use of 2,4,5-T, declaring it unavoidably contaminated by dioxins. The EPA action came just before the annual spraying season, when seven million pounds of 2,4,5-T were to have been spread on forests, pastures, and along power lines and highways.

A number of newly formed veterans groups took up the charge, notably the Vietnam Veterans of America, a mainstream offshoot of the Vietnam Veterans Against the War. In 1979, lawyers representing the veterans filed a class action lawsuit against Dow and six other Agent Orange manufacturers.

The case never went to trial, settled instead in 1984 when the companies agreed to establish a $180 million fund for Vietnam veterans and their families. The chemical companies did not acknowledge any fault, but the net effect was a significant blemish on the image of the industry.

In 1983, Dow abandoned the effort to have 2,4,5-T declared safe. Production had stopped after the EPA ban in 1979, but this decision also ended sales from inventory, which had continued.

In 1984, Congress adopted the Dioxin Standards Act, which required VA to develop regulations for disability compensation to veterans exposed to Agent Orange. It stipulated that claimants should be given the benefit of the doubt in resolving the determination of claims.

Sifting The Evidence
The evidence against 2,4,5-T and dioxins was mounting but the data came either from laboratory experiments or situations in which civilians were exposed to herbicides other than Agent Orange in places other than Vietnam. Beginning in the 1980s, two large-scale government efforts sought to determine specifically the effects on US veterans.

The best such assessment was the Air Force Health Study, conducted between 1982 and 2003. With the help of the Ranch Hand Vietnam Association, the Air Force gained the volunteer participation of 1,150 former Ranch Handers, nearly all of the survivors from the total of 1,269 pilots, navigators, flight mechanics, and ground personnel who served with the organization in Vietnam (77 of the Ranch Handers were already deceased, 27 of them killed in action).

These men, in close daily contact with the herbicides for the length of their tours, had greater exposure to Agent Orange than anyone else. They took rigorous physical examinations at regular intervals over the course of 20 years, and their health was compared with a control group of 1,300 airmen who flew similar aircraft (C-130s) in Southeast Asia at the same time but who did not handle herbicides.

The Ranch Handers had dioxin levels much higher than the control group or the general US population, but except for a statistical association with diabetes—for which other causes could not be ruled out—there was nothing different or unusual about their health.

Retired Col. Ralph C. Dresser, commander of Ranch Hand from 1965 to 1966, is among those skeptical of the dangers attributed to Agent Orange. The Ranch Handers had been assured that the herbicides could be used without harm to humans or animals. “To make this point as Ranch Hand commander, I would dip my fingers into an open Orange barrel and rub the substance on my lips and tongue,” Dresser says. “While it tasted like hell, I have suffered no ill effects and I am 84 years old.”

The limitation of the Air Force study was that it included only airmen. That gap was supposed to be closed by the congressionally mandated Vietnam Experience Study, conducted from 1983 to 1987 by the Centers for Disease Control on contract to VA.

CDC interviewed and examined thousands of Army Vietnam veterans and for comparison, a large control group who did not serve there. The results were muddled. The study was unable to distinguish those exposed to herbicides from those who were not, in part because the CDC scientists did not understand troop movement data and other military matters and stubbornly refused military help in interpreting the information.

The study was canceled as impossible to complete in October 1987. Congressional Democrats charged that it was designed to fail and had been obstructed by political interference.

The most vehement critic was retired Navy Adm. Elmo R. Zumwalt Jr., former chief of naval operations, who had ordered the extensive spraying of Agent Orange when he was commander from 1968 to 1970 of the “brown water” naval forces patrolling the Vietnam coasts, harbors, and rivers. One of his swift boat commanders was his son, Elmo R. Zumwalt III, who died of cancer at age 42 in 1988. Zumwalt was convinced that the cause was Agent Orange.

In 1989, Zumwalt was appointed special assistant on Agent Orange issues to his friend, Edward J. Derwinski, the secretary of Veterans Affairs. Testifying in that capacity in 1990, Zumwalt told Congress that the CDC study and the Air Force study were “absolutely without merit.”

Zumwalt said, “The sad truth that emerges from my work is not only that there is credible evidence linking certain cancers and other illnesses with Agent Orange, but that government and industry officials credited with examining such linkage intentionally manipulated or withheld compelling information of the adverse health effects associated with exposure to the toxic contaminants contained in Agent Orange.”

Principle of Presumption

For more than 10 years, Congress had been asking questions about Agent Orange and not getting many answers. Patience was running out and the ire on Capitol Hill was bipartisan.

In February 1991, the Agent Orange Act passed the Senate by a thumping vote of 99-0 and the House by 412-0. The law said that any veteran of military, naval, or air service in Vietnam would be “presumed to have been exposed” to a herbicide containing dioxins and that there would be a “presumption of service connection” if the veteran contracted a disease specified in the act. Three such medical conditions were listed: non-Hodgkins lymphoma, soft tissue sarcoma, and chloracne.

The law further assigned primary responsibility for Agent Orange to VA—redesignated in 1989 as the Department of Veterans Affairs but keeping its old initials—and named the National Academy of Sciences to review and evaluate “available scientific evidence” and advise VA. If warranted, VA could add to the list of diseases.

That stood the controversy on its head. Questions about exposure to Agent Orange and its effects were no longer relevant. All that mattered was which veterans and which diseases qualified for the presumption.

The recognized authority for establishing connections between veterans’ illnesses and Agent Orange became the Institute of Medicine (IOM), the health arm of the National Academy of Sciences. IOM did not conduct its own research, relying instead on studies done by others. So far, IOM has made nine biennial reports, the most recent one released in December 2013.

The original list of three presumptive diseases has now grown to 14. Of these, six are types of cancer, including prostate cancer, which VA acknowledges to be “one of the most common cancers among men.”

In 2010, VA secretary retired Army Gen. Eric K. Shinseki said some members of Congress had objected to the addition of diseases that occur frequently in the general population but that the law did not allow him to exclude an ailment from presumption based on how common it is. Nevertheless, VA did not add high blood pressure of 140/90 or above, which was included in the IOM 2006 update, or stroke, which was in the 2013 report.

Of the 14 conditions on the VA presumptive list, IOM says that five meet a standard of “sufficient evidence of an association” and nine provide “limited/suggestive evidence of an association.” IOM says that in none of the 14 instances is the evidence strong enough to definitively rule out other explanations for the findings.

“Brown water” sailors who operated on Vietnam’s internal waterways are included in the VA presumption but “blue water veterans” who served offshore are not. There is a continuing challenge, with some support in Congress, to extend coverage and benefits to those who served in the “territorial seas” within 12 miles of the Vietnam coast. IOM says there were several “plausible routes” for Agent Orange exposure to reach that far, including spread of the spray by drifting winds.

More Exposures Exposed

In recent years, the Agent Orange issue has transcended Vietnam. The “significant use” of herbicides around US bases in Thailand was disclosed by a Freedom of Information Act case in 2010. This spraying was done by ground units to eliminate vegetation for security purposes. VA now awards compensation on a case-by-case basis to those whose duty was at or near the perimeter of these bases.

VA also presumes the exposure of veterans who served between 1968 and 1971 in areas near the Demilitarized Zone in South Korea, where South Korean soldiers sprayed Agent Orange and other herbicides.

However, the most dramatic new challenge involves the old Ranch Hand airplanes, which were configured back to standard C-123s when the Vietnam War ended and were flown by US Air Force Reserve units in the United States for 10 years. These crews are now exhibiting the same illnesses attributed elsewhere to Agent Orange. Some of the aircraft —including Patches, which had to be decontaminated before going on display at the Air Force Museum—were found to be carrying residues of Agent Orange.

“In 2010, the Air Force destroyed 18 of the Vietnam-era aircraft in part because of concerns about potential liability for Agent Orange, according to Air Force memos documenting the destruction,” Steve Vogel of the Washington Post reported in August 2013.

The aircraft were shredded at Hill AFB, Utah, and the aluminum remains were destroyed at a furnace in Michigan heated to nearly 1,400 degrees to be sure the dioxin residues were gone.

A hazardous waste manager at Hill said that “Ben and Jerry’s ice cream has more dioxin than these aircraft,” but Vogel obtained several Air Force documents that indicated deeper complications.

Vogel quoted a memo in which a consultant advised recycling or disposing of the aircraft “as soon as possible to avoid further risk from media publicity, litigation, and liability for presumptive compensation.” Another memo said, “Smelting is necessary for these aircraft so the Air Force will no longer be liable for ‘presumptive compensation’ claims to anyone who ever worked around this ‘Agent Orange’ metal.”

In 2013, VA reversed its denial of an Agent Orange-related claim by a pilot who had flown Patches, often eating and sleeping on the aircraft, and who had since developed cancer. Subsequently, VA considered C-123 contamination claims on a case-by-case basis, but took the position that post-Vietnam exposures to these aircraft “were unlikely to have put aircrew or passengers at risk.” The effects differ from direct contact with Agent Orange in liquid or spray form. “In the dry form—for example, adhered to a surface—Agent Orange residue cannot be inhaled or absorbed through the skin and would be difficult to ingest,” VA said.

A finding by the Institute of Medicine on the C-123 contamination residues was expected but had not been announced as this article went to press in December. If IOM reports a connection between the contamination and the Reservists’ medical problems, VA must then make a determination about the status of the claimants.

The Prevailing Conclusion

The controversy, such as it is, rolls on. There is no doubt that the veterans have the health problems specified. However, the extent to which their illnesses were caused by exposure to Agent Orange as opposed to other causes cannot be determined. In a broader sense, the principle of presumption makes the question of little or no importance.

 “It’s safe to assume that dioxin isn’t responsible for all of the lung cancer, ischemic heart disease, diabetes, and other ailments common to aging populations that now afflict Vietnam veterans,” says Peter Sills, an attorney who helped represent the Vietnam Veterans of America in the class action lawsuit. “But the government’s insistent, unsupportable attempts to prove that herbicides haven’t harmed its soldiers have made it impossible to tell which of these illnesses are service-related. In avoiding its responsibilities, the government has found itself under a far greater obligation than it would have faced if the job had been done correctly in the first place.”

Reports abound of Vietnamese civilians with birth defects and various illnesses said to be caused by exposure to herbicides. However, there is no data to distinguish between the possible effects of Agent Orange and other explanations for health problems in rural Vietnam in the 1960s, and the US government has not acknowledged any responsibility. 

The overwhelming consensus of the medical-scientific community is that the Agent Orange dioxins cause cancer and other diseases and was responsible for these conditions among Vietnam veterans. The news media is almost universal in subscribing to the case against Agent Orange and public opinion is not far behind.

Nobody, including VA, has an accurate handle on the scope of Agent Orange claims, but new cases in the past five years alone number in the hundreds of thousands with retroactive benefit payments to veterans and their survivors reaching well into the billions of dollars.

The end of the Agent Orange story is not yet in sight.

John T. Correll was editor in chief of Air Force Magazine for 18 years and is now a contributor. His most recent article, “The Third Musketeer,” appeared in the December 2014 issue.