Finally...a Marine in place to help run VA: Assistant Secretary Brooks Tucker

He stood by us from the start.

Retired Maine LtCol Brooks Tucker served on North Carolina Senator Burr's staff. He was our first advocate in 2011 and stood with us for years until final victory in June 2015.

Last week Mr. Tucker was confirmed by the Senate as VA Assistant Secretary for Legislative Affairs. Congratulations!

VA ESTIMATE OF C-123 VETERANS' AGENT ORANGE DISABILITY COMPENSATION? $46,000,000

 $46,000,000

The biggest part of the battle was behind us. Finally, the Institute of Medicine had completed their two year study by a distinguished group of scientists and physicians, and agreed with us that we have been exposed to Agent Orange and harmed by that toxin. Their report was submitted to the Secretary of Veterans Affairs on January 9, 2015.

The IOM had a public hearing to announce their conclusions, and I attended to represent both active-duty and Reserve post-Vietnam C-123 veterans. Several attorneys from the law firm that represented us accompanied me. Observers were there from the US Air Force, the Senate, CDC, the press and the VA. 

Finally, I was to meet Assistant Secretary Linda Schwartz, a medically retired Air Force flight nurse who’d flown with us on occasion "back in the day" and is herself a C-123 veteran. Four years earlier I’d met her on the Internet in her capacity as Connecticut’s Commissioner of Veterans Affairs. She immediately offered the first of many critical suggestions on the conduct of our contest with the US Department of Veterans Affairs.

We’d won. No longer could the VA insist on its imaginary “overwhelming preponderance of evidence” against our disability claims. That evidence had been shown to be a total pretense, a policy sham advanced by the VBA Agent Orange desk and the VHA Post-Deployment Public Health Section. Both of these VA functions had been policy-driven to oppose our claims and this marks their defeat. In addition, the US Air Force School of Aerospace Medicine C-123 report released in 2012 was shown to be both scientifically and medically flawed (Lurker, 2014.) The IOM accused both the VA and the military of deliberately ignoring, disputing or minimizing all proofs of our exposure to prevent our claims.

It was quite a ground-breaking moment. Never before had a single group of veterans successfully argued its case and established the facts surrounding their Agent Orange exposure.  Before, as well as after us, VA always successfully argued against other veterans' claims. We’d won, but as Senator Richard Burr (R-NC),  ranking member of the Senate Veterans Affairs Committee, said in his own press release, “it shouldn’t have taken this long or been this hard.”

It remained for VA to finally decide whether and how to implement the conclusions of the IOM. This was a process we were unfamiliar with and one that took VA Secretary McDonald six months to complete and publish in the Federal Register.

Because of requirements built into the 1991 Agent Orange Act regarding how VA treats IOM conclusions, it was likely that VA would acknowledge our exposures. A working group was formed within the department and it submitted its recommendations to the Secretary.

Now the internal machinations began within VA. One of the biggest was to determine how much this was to cost the government.  The White House Office of Management and Budget weighed in with its estimate of $46 million to cover disability compensation. OMB made no estimate of the cost of medical care or survivor benefits each item expected to exceed the cost of disability compensation itself. In 2014, working with the Harvard School of Government, we calculated the total cost to be nearly $250,000,000!

On June 18 2015, I was invited to VA headquarters to hear Secretary McDonald’s decision:

1.   • VA would acknowledge the statutory veteran status per U.S.C. Title 38 of our aircrews, aeromedical evacuation crews and aircraft maintenance technicians, if they had any of the presumptive illnesses associated with Agent Orange. This was legally necessary to permit VA to provide benefits because the law is all specified ”veterans.” Unless activated, Reservists are not considered veterans in the law. The VA decision did not award veteran status to anyone not confirmed to have an Agent Orange illness.

2.    • VA would begin compensation effective June 19, 2015 and would not require claim submitted prior to that date to be resubmitted. Disappointingly, VA also decided against any retroactive compensation. This was disappointing to us because some have had claims in to VA for seven or more years.

3.    • VA would give all claims submitted for the next year and effective date of June 19, 2015 in effect making those claims partially retroactive.

I had always suggested a total number of our C-123 veterans to be about 2100. VA estimates that 25% of the personnel who served in Vietnam now have disability benefits for their exposures. If that same 25% applies to us, it means an average compensation of over $88,000 per veteran. The Harvard estimate of $250 million may yet be correct calculating in survivor benefits and the cost of medical care given our veterans.

That, and the VA medical care plus other benefits were what we had fought for these last four years. One of the most important of these benefits is VA Dependents Indemnity Compensation of $1240/month  for survivors, a benefit particularly important to our veterans who do not have military retirements. Another benefit is “Champ-VA” for families of totally disabled veterans without TriCare. 

We’d won,  and now our objectives became getting the word out to thousands of our folks now scattered throughout the country in the decades after our duty aboard the C-123 transports. We'd won, but were left without the retroactive compensation clearly due us, compensation which was supposed to be based on the date of claim application. That is our remaining objective.

My C-123 Agent Orange Claim Approved Yesterday

1,638 days after it was first submitted, my VA claim for cancer, heart disease and several other Agent Orange presumptive ailments was finally approved. I'm service-connected for a total disability rating of 380%.

I had to work long and hard on this claim, using it to advance all C-123 veterans' claims, for nearly all of the past four and a half years for this claim. I had to spend over $22,000, plus about $11,500 contributed by other C-123 vets (most of whom are already covered by VA) to pursue the final resolution.

I detail all this only because it should have been unnecessary, but became essential when VA opted to disregard its legal and moral duties. The effort was worthwhile because it led to coverage for thousands of Active Duty and Reserve C-123 aircrew, maintainers and life support veterans, and our families.

I sincerely appreciate the unfailing support from Senators Burr and Merkley and their staffs, and the more recent efforts by VA leadership and staff to resolve my claim and those of other C-123 veterans.

But, as Senator Richard Burr (R-NC) told the Associated Press about us,
"It shouldn't have been this hard or taken this long."

The worry remains: how many other veterans are in similar situations having faced different hazards, but perhaps don't even know it or can't self-advocate?

VA C-123 "Fact Sheet" from Secretary Shinseki Overloaded With Errors & Misstatements; Senate Deceived

Shown below is the most significant explanation offered by the VA detailing VBA's policies against C-123 Agent Orange exposure claims. It reveals the errors, misstatements, omissions and prevarications that served as the basis for VA having refused C-123 veterans medical care and other benefits.(click for a detailed analysis of each red X.) These many challenges from veterans, although carefully substantiated, were unanswered – VA policies against C-123 veterans continued unchanged but we now see all the VA's errors and misstatements.

Although overburdened with errors, marked here with red Xs, this was provided the Senate Veterans Affairs Committee in response to Senator Richard Burr's (R-NC) letter to Secretary Shinseki, and addressed in great detail VA's many obstructions. Because it served as the vehicle to determine whether or not VA would permit medical care to C-123 veterans, it needed to be completely accurate for such an important decision...instead the red Xs show the entire document fatally flawed because we have the advantage of the IOM report, CDC and two years of the facts becoming clearer, and VA's errors becoming clearer as well.

There is no excuse for a single error on a letter from a member of the President's Cabinet to the Senate Veterans Affairs Committee. There is no excuse for refusing life-saving medical care with a policy laden with such errors. There is no excuse for staff work deceiving the Secretary in such a manner.

The errors now being seen more clearly, VA is proceeding with honoring C-123 veterans' claims and will no longer follow its blanket refusal policy.

A particular flaw in this deception of the Senate is the failure to note VBA Compensation Service (which drafted this for the Secretary's signature) failing to acknowledge having received four months earlier the March 2013 Joint Services Records Research Center confirmation of C-123 veterans' exposures.

From June 2013 until the January 2015 Institute of Medicine report to Secretary McDonald, this was VA's fundamental argument, and made very formal with the two pages of "Fact Sheet." The "Fact Sheet," was cited as an authority by VAROs until January 2015.

Senator Burr (NC) Statement on C-123 Agent Orange Claims

Bipartisan Group of Senators Urge Action from VA for Care & Benefits of C-123 Veterans Exposed to Toxic Agent Orange

WASHINGTON, D.C. – U.S. Senators Richard Burr (R-NC), Jeff Merkley (D-OR), Michael Bennet (D-CO), Richard Blumenthal (D-CT), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), and Ron Wyden (D-OR) wrote to Department of Veterans’ Affairs Secretary Bob McDonald requesting that the department utilize its existing statutory authority to provide care and benefits to veterans exposed to toxic herbicide residue decades ago while they served on aircraft used to spray Agent Orange in Vietnam. 

“Justice for these veterans is long overdue and you have the authority and the ability to finally right this wrong,” the Senators wrote. "For nearly four years, the VA denied these reservists’ exposure to toxic Agent Orange residue in contaminated C-123s. On January 9, 2015, the Institute of Medicine issued a final report… which ‘emphatically' rejected VA’s assertion as to exposure. As a result, we understand you conceded that this group of veterans was, in fact, exposed to toxic Agent Orange herbicide. However, we also understand a question has arisen about whether some of these reserve airmen satisfy the statutory definition of ‘veteran' for purposes of eligibility for VA benefits. We fundamentally disagree and believe VA’s precedential interpretations of the relevant statute and the policy principle and legal precedent of construing statutes in favor of veterans requires VA to find these reservists eligible for benefits. We ask that you stand by those interpretations, which we outline in this letter, and which show that no additional statutory authority is necessary for you to immediately begin providing care and benefits to the C-123 veterans.”

Congresswoman Bonamici Asked to Challenge VA Briefing to Her in 2013

VA brief to Congresswoman Bonamici, June 6, 2013

Dear (member of staff in Congresswoman Bonamici's office)

I would like to offer our ​C-123K VETERANS Association ​perspective on the briefing provided Congresswoman Bonamici by VA in October 2013. I believe it was an improper brief in that it failed to properly inform a member of Congress regarding a specific constituent as well as the larger group, the C-123 Veterans Association, about which she and her colleagues questioned the Secretary of Veterans Affairs.​​ The VA brief was their response to the inquiry she put to the VA, dated October 23, 2013.

We sought Congresswoman Bonamici's help, not for any legislative relief, but rather asking her confrontation of VA over their failure to adhere to the law's requirements as well as VA's own as detailed in VA Manual M21-1MR. The Circuit Court ruled that VA's regulations "have the force of law." VA properly utilizes VAM21-1MR to obstruct claims lacking merit, but also ignores their regulation in the face of C-123 veterans' claims.

​• (FYI ​this overall issue has been assigned Office of Special Counsel File No. DI-15-1441. Any input others may have for OSF can be submitted to investigators citing that reference.)

​Although​ ​we were ​aware of Congresswoman Bonamici's inquiry to the VA, their response was only released to me by FOIA lawsuit last week, and was in the form of an email between Mr. Steve Westerfield of VA's Congressional Liaison and Mr. James Sampsel, dated apparently after the briefing.

Basically, VA's response was meant to ​be ​wholly negative, permitting no benefit of the doubt (of which there was an​d​ remains a great deal) to the​ir official ​position obstructing C-123 veterans' Agent Orange exposure claims. VA failed to mention that its position is opposed by several other federal agencies, including those with regulatory and statutory authority in this area (although not as regards veterans benefits.) VA's briefing was an expression of policy and not a presentation of the ​true ​breadth of a contentious issue.

It is a most serious issue, affecting VA's decision to refuse medical care for veterans claiming, with expert ​support​ from other federal agencies, Agent Orange exposure aboard their​ former Agent Orange​ C-123 transports over a ten-year period. The predictable financial loss, suffering and deaths make this an issue of urgent concern to every Oregon citizen as well as our legislative representatives.

The inadequacy of the VA briefing should be seen in light of recent VA IG reports addressing VA's "Fact Sheet" reports. I suggest, although the conclusion should be the Congresswoman's, that the briefing was deceptive and policy-driven.

​Strengthening our assertion that the VA opposition to our claims is improper is the reason VA Compensation and Pension Service has given for denying claims. The Director of that department, ordering a veteran's exposure claim denied, wrote, "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects."

While that statement is scientifically flawed, and shown to be so even on VA web pages, denying claims which have awaited decision for over a year dooms the veterans to between three and four years in appeals to the Board of Veterans Appeals. Other VA executives, charged with challenging veterans' post-Vietnam exposure claims, actually told the Associated Press, "You have to draw the line somewhere." The same VA executive told staff members of Senator Richard Burr that VA could not permit any C-123 claim approvals.

Members of our association residing in Congressman Richard Neal's district have asked that he be invited to join Congresswoman Bonamici's inquiry. Congressman Neal's district includes Westover Air Reserve Base where most of the former Agent Orange spray planes were assigned and where the largest number of affected veterans still reside.

Among them is Master Sergeant Richard Matte. Under Secretary Hickey graciously intervened for VA's prompt reconsideration of Sergeant Matte's claim once she was informed of his heart transplant, loss of his left leg, and two massive heart attacks a couple months ago, leaving him gravely ill. Along with his other Agent Orange ailments, VA had refused every possible association of Sergeant Matte's ten years as an aircrew member aboard what Air Force toxicologists swore, under oath in federal court, were "highly contaminated on all test surfaces" and "a danger to public health.

The CDC in June advised the VA and USAF that Air Force test results made clear that aircrews and maintenance workers should actually have been flying in full HAZMAT protection, not simple cotton flight suits.

​From VA's briefing to Congresswoman Bonamici, and Secretary Shinseki's response to Senator Richard Burr on the same topic, VA admits not an ounce of doubt in favor of the veterans' exposure claims. Tellingly, VA avoids mention of the fact that other federal agencies have affirmed the veterans' exposures. CDC, NIEHS, ATSDR, USPHS, NIH, the Concerned Scientists and Physicians...all oppose VA's position, and none of this expert opposition was mentioned to Congresswoman Bonamici. Neither did VA mention the fact that opinions from Dow and Monsanto helped form the VA position against the veterans' exposure harm.

May we have an opportunity to continue this conversation, in association with ​legislative representatives from​ Vietnam Veteran of America and the American Legion?

Attach:
Flawed VA C-123 Brief (internal VA summary dated Aug 2013)
C-123 Veterans Association analysis of VA Brief to Congresswoman Bonamici and her colleagues

Another VA Fact Sheet Needs VA IG Review – The C-123 Fact Sheet

VA's Senate Briefer

In May 2013, the Secretary of Veterans Affairs responded to inquiries from Senator Richard Burr, Ranking Member of the Senate Veterans Affairs Committee, regarding VA management of C-123 veterans' Agent Orange exposure claims.

The Senate was fed two pages of deception. Here's how.

C-123 post-Vietnam exposure claims were ordered denied regardless of substantial proofs by Veterans Health Administration's Post Deployment Health Section and were the basis of Senator Burr's concerns. The Secretary's response was drafted for him by a Veterans Benefits Administration manager, Mr. James Sampsel, and has been found to present over twenty significant errors. Some can fairly be termed clearly deceptive.

Although the factual errors were pointed out to the VA soon after the Secretary's fact sheet was received by Senator Burr, no corrections were ever permitted. VA's consultant (who is a former Dow and Monsanto consultant well) even raised objections to the scientific merit of tests performed on Patches at the USAF Museum, but other experts disagree CDC, NIESH, the Committee of Concerned Scientists and Physicians, the original experts Dr. Ron Porter and LtCol (PhD) Wade Weisman, and the USAF-contracted testing facility Midwest Testing Institute... find the procedures and results appropriate and Drs. Porter and Weisman stand behind them, per their 2011 correspondence.

Objection now to these tests from a single consultant who has expressed for decades his belief as to the innocence of Agent Orange, and who also expressed his disdain for the veteran aircrews, and who was retained by VA at a cost of $600,000 to obstruct the veterans' claims, seems hardly appropriate. It is, rather, starkly anti-veteran. The Fact Sheet is policy, not science nor law. It reflects staff members' personal agenda, selective use of references rather than a broad assessment of materials, and is clearly not a neutral, objective, accurate assessment of a serious issue.

Readers must note that unlike the recent deception VA's own Inspector General found in a VA Fact Sheet given Congressional staff, this is far more troubling as it is over the Secretary's signature and directly to the Senate Veterans Affairs leadership.

Department of Veterans Affairs (VA) 

Fact Sheet for the Honorable Richard M. Burr Regarding Processing of 

Disability Claims Based on Agent Orange (AO) Exposure Aboard C-123 Aircraft 

Outside the Republic of Vietnam 

Several hundred C-123 aircraft were used during the Vietnam War for a variety of
purposes, including troop and supply movements in Vietnam, flare dropping and
gunship security on Thailand airbases, and aerial spraying of insecticides to control
malaria-causing mosquitoes in both Vietnam and Thailand. Only a small number of
these C-123s (approximately 30) were rotated through Vietnam and used for the aerial
spraying of tactical herbicides, such as AO. This occurred from 1962 to 1971 during
Operation Ranch Hand, which was designed to destroy enemy food crops and reveal
enemy jungle positions. Following the 1971 termination of tactical herbicide use in
Vietnam, the involved aircraft may have been assigned other missions in Vietnam or
sent back to the United States.

Eventually, all C-123s in Southeast Asia were sent back to the United States, where they were used by Air National Guard or Reserve units for the remainder of their useful life. VA does not currently have a method of determining if a Veteran claiming stateside AO exposure was flying on one of the Operation Ranch Hand C-123s on one of the many other post-Vietnam C-123s flown stateside during the 1970s and 1980s.

The general claim of AO exposure among stateside C-123 crewmembers is based on a
wipe test sample of residual 2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD) (the
carcinogenic element in AO herbicide) found in only one C-123, which is exhibited at the
Wright-Patterson U.S. Air Force Museum in Dayton, Ohio. That aircraft, named
"Patches" because of the numerous enemy bullet holes that were patched during its
Vietnam service, was assigned to Operation Ranch Hand initially and stayed with the
operation longer than other C-123s. Most of the Operation Ranch Hand C-123s arrived
in Vietnam after 1968, when the application of tactical herbicides was on the decline
and herbicides other than AO, such as Agent White and Blue, were in use. These other
tactical herbicides did not contain TCDD.

Despite these facts, there seems to be a widespread and unfounded assumption that all
other C-123 aircrafts would contain TCDD samples equivalent to "Patches," if tested.
VA has no way of verifying this assumption, but government documents provided by
Dr. Alvin Young, a retired U.S. Air Force Colonel and leading expert on tactical
herbicides, do shed light on the issue. Analysis of surface wipe samples taken from
four mothballed Operation Ranch Hand C-123 aircraft between 1996 and 2009 showed
no evidence of TCDD in two of the aircraft and only trace amounts of TCDD in the other
two. Air samples from all four planes showed no TCDD. It is not clear how VA could
obtain additional aircraft samples and determine if residual TCDD was present in other
C-123s because they are no longer in use, and in some cases, have been destroyed.

Additionally, wipe sampling is a universally accepted method used to detect at what
level a chemical is present on a surface, but cannot be directly extrapolated to represent
human health risk, as chemical intake must also be taken into account. Further, the use
of a solvent removes more of the chemical from the surface than would be available through casual contact with the surface. This illustrates the difficulty VA faces when evaluating whether a particular Veteran claiming stateside AO exposure was actually aboard a C-123 used for Operation Ranch Hand and, if so, whether there was any residual TCDD present in that aircraft, and if it was able to enter the body.

VA assumes that some Veterans flew stateside aboard post-Vietnam Operation Ranch
Hand C-123s that did contain residual solidified TCDD similar to that found in "Patches,"
and so the issue of exposure and long-term health effects among those Veterans must
be considered. To that end, the Veterans Health Administration's (VHA) Office of Public
Health has already conducted a specific scientific investigation into the theory of
exposure to TCDD via incidental aircraft contact. The results are posted on VA's Web
site.

The general conclusion is that:
(1) any residual TCDD in the Operation Ranch Hand aircraft had solidified and is unable to enter the human body in any significant amount, and  (2) there is no scientific evidence that a Veteran's presence in an aircraft containing solidified TCDD can lead to adverse long-term health effects.

Regarding this VHA Office of Public Health scientific investigation:
1. Some scientists have argued against the VHA conclusions and provided opinions stating that the concentration of TCDD in "Patches" was excessive, and, therefore, crew members in any post-Vietnam Operation Ranch Hand C-123 would have been exposed to a high dose. However, several other scientists who are involved with ongoing toxicology research have independently and without solicitation contacted VA to refute the aforementioned opinions. They note that the percentage of TCDD in a wipe sample obtained with a solvent does not translate into a high dose that would be absorbed by the human body. They further note that studies show the skin to be a strong barrier against absorption and that extremely high temperature would be required to vaporize TCDD and make it available for absorption through the lungs.

2. Regarding VHA's conclusion on adverse long-term health effects, numerous public sources have identified the 20-year longitudinal Air Force Health Study, initiated in 1982, as a source of scientific information. It followed and studied 1,261 Vietnam Veterans who were actual pilots and crew members of Operation Ranch Hand C-123s. As such, they were exposed to tactical herbicides on a daily basis and testing showed the presence of TCDD in their bodies. However, current health data (obtained as late as 2012) fail to show a general increased risk of adverse long-term health effects as compared to other populations. Given that the evidence from actual participants in Operation Ranch Hand does not show a health risk from direct exposure to TCDD, it is difficult to ascertain a basis upon which to find a health risk among crew members of post-Vietnam Operation Ranch Hand C-123s.

Veterans Benefits Administration Veterans Health Administration
May 2013

Conclusion: There' much more for the VA IG to consider here! Denial by VA of essential medical care and other earned benefits, as VA staffers seek to implement their personal agendas, cannot be left unchallenged by VA's internal watchdog. Neither can VBA staffers' sabotage of the Secretary of Veterans Affairs in this year of monumental scandals be left concealed.

VBA's Claims Accuracy Only 25% – Corrections Take Three-Four Years at BVA

According to the Vietnam Veterans of America and the American Legion, about 75% of all disability claims processed by the Department of Veterans Affairs Veterans Benefits Administration are flawed in some manner, minor or serious, affecting the veteran's benefits. A 75% failure rate in aviation be mission-unacceptable, a certain suicide before completing two missions. Similarly, VA literally condemns many of us to a suicide mission while awaiting claims processing following by appeals at BVA to fix the VARO errors. This is troubling enough without contemplating VHA's determination to prevent C-123 claims altogether.

Claims appeals: Why they take forever
The American Legion - June 19, 2013

On June 18 2013 the House Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs held a hearing to find answers as to why the Department of Veterans Affairs (VA) appeal process for veterans’ benefits takes so long to complete.
According to a fiscal year 2012 report from VA’s Board of Veterans’ Appeals (BVA), it takes about 900 days from the time an appeal is filed to when a final decision is reached. The claims appeals of more than 45,000 veterans are currently pending at BVA.
The American Legion, which has 2,500 accredited service officers nationwide and about a dozen full-time national appeals representatives in Washington, submitted a statement for the record. From Jan. 1, 2010 to June 1, 2013, the Legion’s appeals representatives have represented 29,542 veterans and their dependents who were trying to get benefits claims from BVA. The Legion effectively demonstrated that VA had erred, or failed to fully develop a claim, in 21,632 (nearly 75 percent) of those cases.
On June 3, VA reported an accuracy rate of 89.6 percent for claims adjudicated over the previous three months. Yet, the Legion’s statistics indicate that VA regional offices (VAROs) are providing quality decisions in less than one-fourth of the claims processed. Admittedly, claims handled by the BVA are only a portion of those submitted. However, they are a sampling of work that reflects the quality of claims decisions at 56 VAROs nationwide.
Unquestionably, the appeals process proves to be time-consuming and frustrating for our veterans. By the time BVA renders a decision, a claimant will often have spent several years in the appeals process.

VA Denies C-123 Crews Agent Orange Claims

from the National Guard Association of the United States, Washington Report

The Department of Veterans Affairs is defending itself against charges that it inappropriately
 denies claims from C-123 crew members who say they were exposed to Agent Orange after
 the Vietnam War.

According to a lengthy article in The Washington Post Sunday, the aircraft used to drop the
defoliant on the jungles of Vietnam from 1962 to 1971 were flown after the war by reserve
component crews, some of whom now claim illnesses they suffer were caused by exposure
to the chemical. Members of the C-123 Veterans Association say they should be eligible for
the same compensation as Vietnam veterans who came in contact with Agent Orange and
now receive compensation for a range of ailments and conditions.

Sen. Jeff Merkley, D-Ore., and Sen. Richard Burr, R-N.C., the ranking Republican on the
Senate Veterans Affairs Committee, have asked the VA’s Office of Inspector General to review
the department’s denial of the airmen’s claims.

“It appears that [the VA] does, in fact, plan to deny any C-123 claims regardless of the
evidence submitted in a particular case,” the lawmakers wrote in a letter.

VA Secretary Eric Shinseki responded to Burr in a letter saying, “VA does not have a ‘blanket
policy’ for denying claims” filed by the C-123 veterans in the National Guard and Reserve.
The Post quoted a VA statement saying claims are reviewed on a case-by-case basis.

The issue is clouded more because the Air Force destroyed most of the airplanes that were
retired in 1982. The newspaper cites Air Force memos that say that 18 C-123s were destroyed
in 2010, in part, because of liability concerns.

- See more at: http://www.ngaus.org/newsroom/news/va-denies-c-123-crews-agent-orange-claims#sthash.syMJtDln.dpuf
note: while we appreciate Secretary Shinseki's assurance of a case-by-case evaluation of C-123 claims, it is impossible not to note that 100% of them are denied, although then approved after waiting years through the VA's Board of Veterans Appeals process. 

This seems more like a policy-driven denial process than a "case-by-case" evaluation.

The simple legal requirement of non-Vietnam War veterans is that they submit proof of exposure to "military herbicides" such as Agent Orange. Our warplanes were contaminated...indeed, according to the Air Force, "heavily contaminated on all test surfaces."

The C-123 veterans have submitted that proof, provided them by the Air Force. The proof has been substantiated by the CDC, EPA, NIH, US Public Health Service and several university schools of medicine and schools of public health.

VA Updates Senate on Disability Claims – promotes Fully Developed Claims (FDC)

VA official outlines progress in reducing claims backlog

By Department of Veterans Affairs News Release | Headquarters Marine Corps | December 13, 2013

WASHINGTON --

A senior Veterans Affairs Department official outlined progress made by the Veterans Benefits Administration in reducing the backlog of veterans' disability compensation and pension claims by 36 percent since March, attributing the success to the combined impact of transformation initiatives and increased employee productivity Dec, 11.

Allison A. Hickey, Undersecretary of Veterans Affairs for Benefits, testified at a hearing of the Senate Veterans Affairs Committee.

"We know there is much more work to be done to reach our goal of eliminating the disability claims backlog in 2015," Hickey said. "But I'm encouraged that the improved tools and processes we've put in place so far are having a real impact so that we may better serve our nation's veterans, their survivors and their families." Although she personally opposes C-123 veterans' claims, General Hickey has done much to improve the overall VA claims processing nightmare.

Hickey detailed the elements of the Veterans Benefits Administration's transformation plan, which includes retraining and reorganizing its workforce, streamlining business processes, and building and implementing new technology solutions. With each transformation milestone, she said, VBA is successfully moving away from a paper-bound, manual process to improve benefits delivery through paperless claims processing. She also noted that if full funding is received, mandatory overtime for VBA claims processors, which helped to bring down the backlog this year, will continue for much of 2014.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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