US Senators Demand Prompt VA Action on C-123 Agent Orange Claims

For Immediate Release: February 4, 2015

Contacts:             Martina McLennan/Ray Zaccaro (Merkley) (202) 224-3753

                                Rachel Hicks (Burr) (202) 228-1616

                                Josh Zembik (Blumenthal) (202) 224-6452

Following Institute of Medicine Study Confirming Agent Orange Exposure, Bipartisan Group of Senators Calls on VA Secretary to Ensure Post Vietnam Air Force Veterans Receive Proper Benefits and Compensation

WASHINGTON, D.C. – A bipartisan group of senators led by Oregon’s Senator Jeff Merkley (D-OR) and Senator Richard Burr (R-NC) today called on VA Secretary Robert McDonald to ensure that veterans long denied care for exposure to Agent Orange receive timely and proper benefits and compensation. The letter follows a recent Institute of Medicine (IOM) study that provides new and compelling evidence on exposure to Agent Orange of veterans who flew contaminated aircraft after the Vietnam war.

Merkley and Burr were joined in a letter by Sens. Ron Wyden (D-OR), Elizabeth Warren (D-MA), Richard Blumenthal (D-CT), and Michael Bennet (D-CO).

The IOM study, which was published in January, found “with confidence” that post-Vietnam veterans serving on C-123 aircrafts were exposed to potentially dangerous levels of dioxin from aircrafts that were used to carry and spray Agent Orange during the Vietnam War and that were never properly decontaminated.

According to the study, an estimated 1500-2100 personnel served on the affected planes, and numerous veterans among that group have developed symptoms, including cancer, consistent with Agent Orange exposure.  

The senators pushed the VA to reverse previous decisions that have denied veterans benefits and compensation, writing:

“Despite (1) multiple Air Force reports going back to 1979 showing that the C-123s were contaminated, (2) numerous expert opinions from inside and outside the government suggesting these veterans were  exposed to Agent Orange and other toxins, and (3) a judge’s order stopping the resale of these C-123s because the planes were a ‘danger to public health,’ the VA to-date has doggedly insisted  there is no possibility that post-Vietnam era C-123 veterans might have been exposed to dangerous levels of Agent Orange.  It also has denied all but one of the C-123 veterans’ claims for benefits.”

They continued, “It is our desire to see that C-123 veterans who suffer today because of service-related exposure to Agent Orange receive the help they need. To speed the award of benefits, we ask that you provide a presumption of service connection for these veterans.”

The senators also called on the VA to immediately review all C-123 Agent Orange exposure claims, including those that have been denied and are under appeal, and to work with the Department of Defense to proactively contact all veterans who served on any C-123s previously used in Vietnam to spray Agent Orange defoliant that were subsequently assigned to Air Force Reserve units based in the United States from 1972-1982 in order to notify these veterans that they may be eligible for benefits.

The full text of the letter follows below:

February 4, 2015

Dear Secretary McDonald,

We write to bring your attention to the Institute of Medicine’s (“IOM”) January 9, 2015, report on exposure to Agent Orange by veterans who served on Fairchild UC-123 Provider(“C-123”) aircraft post-Vietnam.  The report, commissioned by the Department of Veterans Affairs (“VA”), stated “with confidence” that these veterans were exposed to potentially dangerous levels of dioxin.  Given IOM’s recent finding, we ask that you use your authority to provide a presumption of service connection for C-123 veterans who flew or worked on planes that carried and sprayed Agent Orange and to revisit past and existing related claims.  

During the Vietnam War’s Operation Ranch Hand, the Air Force used approximately 30 C-123s to spray Agent Orange and other herbicides over Vietnam.  Though never properly decontaminated, these planes remained in the fleet until 1982.  An estimated 1500-2100 personnel who served on these planes were the subject of IOM’s recent report.  It found, “with confidence,” that these personnel were exposed to toxic levels of Agent Orange and other herbicides as a result of the failure to adequately sterilize the aircraft. 

Despite (1) multiple Air Force reports going back to 1979 showing that the C-123s were contaminated, (2) numerous expert opinions from inside and outside the government suggesting these veterans were  exposed to Agent Orange and other toxins, and (3) a judge’s order stopping the resale of these C-123s because the planes were a “danger to public health,” the VA to-date has doggedly insisted  there is no possibility that post-Vietnam era C-123 veterans might have been exposed to dangerous levels of Agent Orange.  It also has denied all but one of the C-123 veterans’ claims for benefits. 

The VA’s position has been disappointing.  In a June 7, 2013, response to an inquiry from Senator Richard Burr, then-Secretary of Veterans Affairs Eric Shinseki provided a fact sheet that concluded, “(1) any residual TCDD (dioxin) [the carcinogenic element in Agent Orange herbicide] 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.”  Further investigation was impossible due to the fact that the Air Force destroyed all the remaining C-123s before additional testing could be conducted. 

Because of mounting independent scientific evidence concluding that these veterans were exposed to dangerous levels of dioxin, the VA ultimately contracted with IOM to review the available data.  On January 9, 2015, IOM issued its final report.  The IOM committee concluded that C-123 flight crews “were exposed when working in the ORH C-123s and soexperience some increase in their risk of a variety of adverse [health] responses.”  (Emphasis in original).  The IOM’s report also “emphatically” refuted the VA’s long-standing argument that residual TCDD in the C-123s posed no risk for veterans, noting instead that it is “accepted in the field of exposure science” that the TCDD contamination “persist[ed] long after the[] [aircrafts’] use” during the Vietnam War, and that Air Force reservists serving on those planes were exposed to TCDD and herbicides “through multiple routes.”

We hope IOM’s findings will allow C-123 veterans finally to receive the benefits they have earned. However, our offices remain concerned  about the VA’s ability to provide these individuals with consistent, fair access to critical services.  For instance, the VA has repeatedly told some of our offices that it did not have a “blanket policy” of denying C-123 veterans’ claims.  Each claim, they assured us, was “evaluated on a case-by-case basis to determine if the available evidence support[ed] a service connection on a facts-found basis.”  However, at least one VA denial letter stated, “The VA and DOD have specifically provided guidance that such secondary [Agent Orange] exposure cannot be granted service connection, to include working on planes that carried or sprayed . . . the herbicide . . . .”  This discrepancy raises questions about the accuracy and validity of information provided to some of our offices, and the knowledge within the VA about VA policy towards these veterans.  This is why we are bringing the IOM’s findings to your attention. 

It is our desire to see that C-123 veterans who suffer today because of service-related exposure to Agent Orange receive the help they need.  To speed the award of benefits, we ask that you provide a presumption of service connection for these veterans.  Further, we ask that the VA immediately review all claims, including those that have been denied and are under appeal, made by C-123 veterans for post-Vietnam exposure to Agent Orange.  Finally, we ask that the VA proactively cooperate with the Department of Defense to contact all veterans who served on C-123s used to spray Agent Orange and other covered herbicides during the war and notify them that they may be eligible for benefits. 

We thank you for your attention to this matter.  We look forward to working with you to make sure the C-123 vets receive the benefits they deserve. 

Sincerely,

--

Martina McLennan

Deputy Communications Director

U.S. Senator Jeff Merkley

(202) 224-3753

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 Defies FOIA - Hides Documents from Senate & C-123 Veterans with "Don't Exist" Claim

"FOIA - a vital part of our democracy" The Department of Justice (but not the VA)

"They are honorable" Marc Antony, Julius Caesar, Act 3, Scene II)

FOIA-requested materials concealed from C-123 veterans. Documents don't exist? Well, they certainly DID until our FOIA was filed a year ago! But given the issue so important to C-123 veterans and in light of their team's preparation and participation in meetings on the issue of C-123 Agent Orange exposure, and the dedication they show to making sure it is never conceded, we can understand their preference to keep their materials under cover. And as Marc Antony said, "They that have done this deed are honorable."

C-123 veterans, joined by scientific experts and Senator Burr's Senior Policy Advisor, Mr. Brooks Tucker, conducted two meetings, one in 2011 and one in 2012, with representatives of the Veterans Administration to discuss C-123 Agent Orange exposure concerns. One meeting was a teleconference and the second, a gathering hosted by Mr. Tucker at the Hart Senate Building.

Extensive preparation went into these meetings on the part of the veterans and

scientific advisors, and VA representatives participated with perfect familiarity with the subjects discussed and also arrived at the Hart meeting with proposals to submit some issues to the Institute of Medicine for a special project. This makes clear that the VA representatives were prepared, and we certainly saw notes with more notes being taken. Last year, veterans submitted a broadly-cast FOIA net for all materials used by the VA for preparation for the meetings, and notes taken during that meeting, and other materials.

At first, the request was denied by the VA. Then the request resulted in an estimated $4700 fee, appealed by the veterans. Finally, the VA responded that no such materials exist. No memos. No emails. No briefings. No reports to superiors. No nothing. Yes, I know that a double negative, because there certainly was material, just not which they were willing to submit in response to the law.

"The law" you ask? Right...you remember...that thing which veterans are obliged to obey and which the VA flaunts. The law, which we, and they, were all sworn to protect and defend. The law. The foundation of our society and upon which we depend to compel government by, and not OF the people. Doesn't matter - big laws or small, one veteran or a thousand. Law is law - it must reign supreme, otherwise we are to expect (or beg) for our veterans' benefits from the whims of  a capricious and hopefully benevolent administrator.

But among others, VA disregards the Freedom of Information Act. Hello...neat word...freedom. Previously, considered important in American-style democracy. Here, VA even has their general counsel helping us to understand that these materials "have gone missing" in response to our FOIA. And as Marc Antony said, "They that have done this deed are honorable."

Really now, are we to believe that employees did nothing regarding Agent Orange, failed to send emails, didn't use references or correspond,  were hired without qualifications being noted, haven't published professionally, and addressed issues of contaminated aircraft and vehicles without research or conclusions, other than voicing them at the meetings with veterans? Did they beam down and back up again without documents? 

The VA claims in its online publications and correspondence with Congress that it conducted "scientific research" by its scientists and physicians, but it cannot account for that in any way, other than the internet pages. But that undocumented "scientific research" seems to have been enough to deny Agent Orange exposure benefits to C-123 veterans, and in the face of other federal agencies such as the EPA, NIH, CDC/ATSDR and US Public Health Service claiming the C-123 veterans were exposed. VA, by claiming no such materials exist, must have simply sat down and started typing at a computer with the only work product being the online pages about the C-123 veterans magically being spared Agent Orange exposure. Right. Uh-huh. 

VA, by responding in the negative here, doesn't even have copies of the Air Force test results, the materials provided by other federal agencies and universities...nothing.

How could the VA conclude it would charge us $4700 to collect and duplicate materials which, on 11 March 2013 and a year after the FOIA submission, VA reports the items don't even exist? How could mid-level mangers from the VA's VBA and VHA organizations not prepare, not take notes, and not generate work product following a meeting such as this? Attending for the VA were physicians, scientists and managers such as Director Post Deployment Health and Deputy Director. 

Why is VA hiding these materials? Why are they even hiding the ones already published on their web sites? 

Can you please help? 

And remember, Marc Antony assuring us "They that have done this deed are honorable" men and women, as indeed they are. And, "If you have tears, prepare to shed them now." (Julius Caesar, Act 3, Scene II)

Meeting With Senate, VA & USAF is ON!!

Thanks to Senator Burr's staff, on March 8 we'll have a face-to-face in the Senate Hart Building with representatives from the VA's Public Health and Benefits Administration departments, along with the Air Force's Senate Liaison Office. The meeting is to go over the recent letter from the Agency for Toxic Substances and Disease Registry, which supported the C-123 veterans' claim for dioxin exposure. We can only hope that VA has spent the month since the ATSDR letter fairly evaluating it.

Helping represent our veterans' concerns will be Dr. Jeanne Stellman of the Columbia University Mailman School of Public Health. Dr. Stellman brings thirty years of expertise to bear in responding to the VA's inventions of reasons to disqualify our people from legitimate AO-exposure claims.

We also hope to get a summary of the research finished by the USAF School of Aerospace Medicine. USAFSAM began with an analysis of twenty years worth of earlier tests, a review of scientific literature about dioxin and exposure routes, and now have an opinion to provide the Department of Veterans Affairs about the C-123's dioxin contamination and the exposure suffered by aircrews and maintainers. No definite word yet as to their conclusion but we hope it will be basically supportive of our claims.

VA has told Senator Burr recently that, except for the Vietnam Veterans boots-on-the-ground population, veterans must prove four things to be eligible for dioxin illness care:
1. proof of contamination
2. proof of exposure
3. an Agent Orange presumptive illness
4. a nexus between the exposure and the AO illness

Friends, once you can get past the VA's Dark Side (the benefits eligibility gatekeepers) you'll find the actual care providers and local administrators a truly caring group. The lines for care at a medical center or clinic may be long but there's usually free coffee, a paperback book donated by local citizens, a reasonably comfortable waiting room, and other veterans to swap war stories with. In the twenty years since my first visit to the Asheville Regional Medical Center to follow-up on Gulf War injuries, I have meet precisely ONE doctor who shouldn't have been touching patients, ONE patient receptionist who cut me short when I asked a question, and everyone else has been just wonderful...in sum, I'm grateful to be their patient.

The biggest concern veterans have, other than getting applications approved, is that the process remains far too long, even for today's new veterans who are counting on care waiting for them should they need it. FYI, my own Agent Orange claim, submitted via their "Fast Track" program, has been been in a full year this month and it is just barely past the half-way mark as per the eBenefits site.

Patches
Tail #362

Our Rebuttal of VA Comments to Senator Burr of North Carolina

Our letters to staff of North Carolina's Senator Burr and the staff of Commander, Air Force Reserve, which is supposed to have held a conference call with VA officials (no word back yet on any results). Letter to AF first, letter to Senator second.

--------------------------------------------

Dear Major Broussard,

Senator Burr's staff met with some reps from the VA regarding our C-123K problems, and were told that our Agent Orange exposure didn't happen because the post-Vietnam lifespan of dioxin on metal is short. The VA failed to tell my senator's folks that most of the airplane interior was not bare metal, but painted, and Agent Orange and its dioxin contamination soak into paint, and also soak into the insulation, wiring, web seating, etc, as well as the aviation-grade aluminum (which is more porous and which absorbed dioxin more readily than polished steel). 


They stated that the Air Force was concerned about the Agent Orange contamination of the C-123 in an effort to be overly cautious. They failed to note that the Air Force tests establishing the airplanes as "heavily contaminated, extremely dangerous, extremely hazardous, extremely contaminated" were done in 1994, 1996, 1997, 1998, 2000 and 2008, years before the airplanes were determined to be too toxic for a landfill and with smelting them the only option left. These tests did not use timid words like "cautious"...the official Air Force words were instead "extremely dangerous" and "extremely hazardous." 

The VA people seemed to say because time had passed by the point the aircraft were destroyed thirty years after their retirement, we couldn't have been exposed to dioxin in 1972-1982 (beginning the year after air airplanes' last Agent Orange spray missions during Vietnam), all the tests establishing contamination notwithstanding.

The VA cited the absence of tests done between the retirement of the C-123 in 1982 and their destruction in 2010, failing to note volume upon volume of official Air Force tests as well as Air Force-contracted tests, every single one of which reported positive for dioxin contamination.

A snow job. If it had been done by any military officer aware of the various tests I'm describing, it would be called dishonorable and a prevarication.

Please don't let it happen to you in presenting our concerns to the Secretary of Veterans Affairs. Even their own staff must have snickered at this effort with Senator Burr's people!

And please, what is happening? I was back in the hospital myself last week, and this week, and I'll be back again today. Like my crewmates, I'm gravely ill and would like to wrap this up before they wrap me up.

Regards,

   Wes Carter

--------------my letter to Senator Burr's staff follows: They are the folks who met with the VA and were told by the VA that our claims about Agent Orange exposure are groundless-----------------------------------

rustysilverwings@gmail.com
11 Oct 2011

Mr. Brooks Tucker
Senior Policy Advisor
Office of Senator Burr, North Carolina

Dear Mr. Tucker,

Thank you for explaining the results of your staff’s meeting with officials from the Veterans Administration regarding our aircrew exposure to Agent Orange during the decade we, as Air Force crewmembers, flew the C-123K/UC-123K “Provider”, previously used for spraying Agent Orange in Vietnam for Operation Ranch Hand. The VA’s characterization of the Air Force test results and the VA’s perspective of the Air Force position relative to the reuse of the surplus airplanes as expressed during your meeting could, perhaps, be described as a greatly overdone abundance of caution.

The Air Force and the General Services Administration, however, have instead officially described their position as cautious regarding the dioxin contamination…and absolutely not dismissive of the threat! In fact, totally the opposite as per their 2000 report to a federal judge in which both the AF and GSA both characterized these airplanes as being "heavily contaminated" by the dioxin on them. These two words were not used by a layman or a government attorney, but instead by the Air Force toxicologists who tested the airplanes. Certainly it should have been reasonable for the Air Force to be “cautious” regarding aircrew dioxin exposure, although it was not known to be contaminating our airplanes until the very first test in 1979 after we’d flown them for seven years. 


I would hope that the Air Force is “cautious” regarding any airplane, any crew, any possible hazard. In our case, the contamination having been established, the word should be alarmed!

Last week I asked experts for help regarding the VA statements that the surface aging of dioxin would make aircrew exposure to the toxin inconsequential. I sought opinions from two members of the Agent Orange Committee of the Institute on Medicine of the National Academy of Sciences, and scientists at both Oregon State University and Columbia University.

In particular, I sought the advice of Dr. Fred Berman, head of the Toxicology Department of Oregon Health Sciences University. In his May 2011 report to the Secretary of the Air Force, he evaluated (and validated) the Air Force test results and provided the University’s finding that our aircrews had been exposed during the timeframe 1972-1982. Yesterday, he replied:

Major Carter, Regarding the stance that the VA is maintaining (that dioxins would have degraded within a short time after service in VN had ended), you could reason that, if indeed the dioxins had rapidly degraded, and in light of the fact that dioxins were detected in significant concentrations on and inside Patches in 2000, then aircrews would likely have been exposed to much higher levels of dioxin between 1970-1980 than suggested in my letter to the Secretary of the Air Force (i.e. The dioxin concentrations immediately after service in Viet Nam would have had to have been very very high to begin with). Fred Berman From: Fred  Berman <bermanf@ohsu.edu>

Please, Brooks, in your representation of us to the VA, defend the position that we have indeed been heavily exposed.Air Force tests done in 1994 on Patches, our most famous C-123K/UC-123K which my squadron flew, reported it"heavily contaminated" with 100% of the swipe tests showing positive for dioxin. Not hypothetical...not degraded, not aged, not anything except "heavily contaminated." This test was done twelve years AFTER we last flew the series. Nobody could believe the aircraft was more contaminated in 1994 than it was in 1972-1982...the VA's own faulty information about surface contamination and aging of dioxin would argue against that conclusion! And no laboratory report concluding an aircraft to be "heavily contaminated" could possibly be seen as in agreement with the VA's description of the Air Force's view of dioxin contamination being so insignificant that the Air Force shredded and smelted the entire valuable fleet for a merely hypothetical risk. 

Please note also that the airplane tested last sprayed Agent Orange in 1969, yet it still tested 100% positive for dioxin, "heavily contaminated" on every single surface examined in 1994. The test did not reveal modest contamination,hypothetical contamination, degraded contamination, significant contamination, or any contamination other thanHEAVILY contaminated. The C-123K’s were even MORE heavily contaminated when we flew them over a decade earlier. Please compare this finding with the suggestions from the VA reps who you met with and you'll see the error of their logic and the blatant effort at disinformation. One should consider their argument here a clear prevarication and deception.

Lieutenant General John Hudson, USAF Retired and Director of the National Museum of the Air Force, wrote me that "before my tenure as Director the aircraft (Patches, Tail 362) was found to be contaminated with dioxin (and) was decontaminated by a contractor." The decontamination, to make it safe for the airplane to be brought inside the Museum, cost $52,000, and required striping all paint from the exterior, removing all insulation and other dioxin-laden materials, and sealing the airplane for all but very limited interior access.

Please remember that we flew Patches, and our other dioxin-contaminated aircraft, in our normal lightweight flight suits, without hazmat protection, without respirators, and without post-flight decontamination. We flew the airplanes for hundreds of hours, we worked on them in flight and on the ground for thousands of hours. We ate in them. slept in them, and were very, very exposed in them. Further, in flight the incessant vibration of the aircraft caused particles to become airborne and thus inhaled.

In 1996 the 355th AMDS/SGPB at Davis-Monthan AFB contracted with Alta Labs to evaluate the aircraft stored at Davis-Monthan, and nearly all tested positive for dioxin (some results were lost, and some were tested incorrectly with the lab determining that actual dioxin contamination might actually be higher than their test results first indicated). In 1997 Armstrong Labs from the Air Force Institute for Operational Health completed tests on C-123K’s stored at Davis-Monthan with similar results but adding the Lab’s concern that the dioxin toxicity could be severe enough to also contaminate the ground beneath the airplanes. AMARC employees were at this point in time directed to wear rubber gloves, a face shield, at least a half-face respirator, and Tyvek coveralls to avoid dioxin exposure, per instructions of Dr. Ronald Porter, Air Force toxicologist.

In 1997, aware of the health threat posed by the toxin, HQ AFMC directed via their memo that

the surplus “dioxin contaminated aircraft” (their words) be sealed and relocated within a “fenced area within the…security area. They will be completely out of view.” (their words). The quarantine effort, necessary for preventing additional personnel exposure, was also done with the specified goal of reducing the public awareness of the 21 remaining “dioxin airplanes”. This effort cost $160,000. Mr. Thomas Lorman, HQ/AFMC/LG-EV, wrote in 1997 that these airplanes are “likely to be contaminated with dioxin from defoliation operations…The Air Force can be up front and warn owners of possible contamination. JAV states the Air Force is at great risk.” (emphasis mine). Certainly this leaps the VA’s barrier of “as likely to as not” regarding any C-123K aircrew veteran’s disability claims! The Air Force’s description of these planes as too toxic for a landfill should also mean that the VA’s barrier of “as likely to as not” regarding our exposure has been greatly exceeded.

In 2008, four aircraft were selected at random and each tested positive for trace levels (or higher) of dioxin, and the test cycle was halted to save the $750-1500 cost per airplane, as well as to prevent characterization of the surplus fleet as "100% contaminated." Messages were exchanged stating that because of the high visibility of "the Agent Orange airplanes", this round of testing could state that four of eighteen aircraft tested positive, rather than continuing the testing and getting an even higher and more visible percentage. Further, AFMC had already decided to destroy all the remaining aircraft.

Please remind the Air Force and the VA that the quarantine of the contaminated aircraft, in which they were placed in a separately fenced area with HAZMAT signs prohibiting access, cost over $150,000. This was not done "just in case" the airplanes were contaminated, but because the base safety officials required it, and both the base medical organization and the AF Surgeon General dictated that workers wear hazmat clothing, respirators, head covers and decontaminate after working. This level of protection is appropriate for "heavily contaminated, extremely dangerous, extremely hazardous" contamination...just as these airplanes were described by Air Force test results.

Remind the VA that the General Services Administration as well as the Air Force testified before a federal judge in 2000 concerning the government's cancelation of a C-123 sale. Both agencies told the judge that these airplanes represented a danger to public health. They were characterized by the Air Force toxicologist, Dr. Ronald Porter, as “extremely hazardous waste requiring special handling, and his recommendation was to decontaminate each airplane (this recommendation submitted 16 years after we last flew them, 16 years in which their degree of contamination was reduced) at a cost of $15,000 apiece. They did not state that the danger was hypothetical, “overly cautious” or that the danger existed only in Vietnam. These officials testified that the airplanes were contaminated and should not be sold. As you know, two had already been sold to Disney for movies. Continuing on Page 11 of the judge’s ruling, the Air Force reminded the federal judge, and the judge cited as a finding, eight dangers of dioxin contamination from these airplanes, crediting the Agency for Toxic Substances and Disease Registry and the United States Public Health Service.

The director of the Agency for Toxic Substances and Disease Registry, Dr. Christopher Porter, wrote me on August 11, 2011, saying our collection of dioxin contamination materials concerning the C-123K is “remarkable”, and recommending that the information be “carefully considered by the Department of Defense”. Because his Agency was cited in 2000 as part of the scientific proof that the surplus C-123K fleet was dioxin contaminated, I strongly recommend that Dr. Porter be consulted for his specific recommendation that the aircraft were indeed contaminated a decade earlier when we flew them!

I personally will pay the travel expenses for Dr. Fred Berman, Dr. Christopher Porter, Dr. Jeanie Stellman of Columbia, or any other reputable expert to be by your side at any future meeting with the VA. Invite them and let me know their expenses. Dr. (name removed) is on the Agent Orange Committee of the Institute of Medicine/National Academy of Science... very, very familiar with the C-123K situation, has studied the multitude of tests done on the airplanes, and states that the aircrews were exposed. As you probably know, members of the Agent Orange committee cannot independently publish on the topic, but they certainly can answer questions...so ask (name removed) at (email address removed for privacy)

Please also remember that Judge Stephen Cohn of the Board of Veterans Appeals denied the late Lieutenant Colonel Aaron Olmsted's VA claim for Agent Orange exposure. Aaron ("Tim") Olmsted's VA claim was denied by Judge Cohn who cited two deficits in the claim: As reported by Connecticut Public Television, in summarizing Olmsted's denial, Judge Cohn ruled:

 1. Olmsted couldn’t prove that the airplanes he flew were the ones used for spraying Agent Orange during Vietnam and

 2. Olmsted couldn’t prove that there was any (my emphasis) dioxin contamination on the airplanes.

He should have had available both proofs...the tail numbers of contaminated airplane assigned to our squadrons have been researched and confirmed by AFRC, and the contamination is established by multiple Air Force tests, although these documents were not available to Olmsted when he filed because they were "kept in official channels only." Denying a veteran necessary documents to approach the VA for medical care cannot be characterized, as the VA has done to you, as "an overabundance of caution." 

I remind you that I was a Stan/Eval flight examiner in my crew position, certified by the Air Force as one of the three most knowledgeable individuals in my AFSC, yet neither I nor any other crew member ever was "official channels" enough to be told of this contamination. It was manifestly my duty to have known everything affecting my aircrew and my student’s health and safety. I have spoken to several state fire marshals who agree with Oregon’s state fire marshal that withholding this kind of information about toxin-endangered employees is a crime. Consider having a senior firefighter from the D.C. department or the Pentagon sit in with your next VA meeting. The only concern I'd have if having genuine toxicology or public health experts with you as the VA "explains things" is that the laughter from them over VA efforts at misinformation would disrupt your otherwise serious meeting.

As you know, the Air Force in 2010 finally smelted the toxic aircraft. In their approval memo, AMARG officials (505 ACSS and 74 CEG) stated “this can be done discretely. This option avoids all contact with or exposure to the public and the aircraft are not made available for commercial sale. This option can happen quickly. Smelting is necessary for these 18 aircraft so the Air Force will no longer be liable for ‘presumptive compensation’ for anyone who ever works around this “Agent Orange” metal…If the Air Force wants quick and quiet disposal, the Navy option is preferable.”

I am offended that these individuals took “quick and quiet” actions to prevent our veterans’ justified claims for “presumptive compensation”, especially considering that our exposure had already taken place.

Senator Burr and Mr. Tucker, you can see that our aircrews worked with this “Agent Orange” metal for a decade. We have been sickened by it as well as by the VA’s construct of any argument at hand, twisted out of context as much as necessary, to insure denial of our proven exposure. I am amazed that they can twist the Air Force initial test results ofPatches being “heavily contaminated” into merely, as you put it, “an overly cautious mindset.” In all the documents I’ve uncovered from the Air Force, there has been no such timid phrase used…the phrases used by the Air Force have been “Agent Orange airplanes”, “extremely contaminated,” “heavily contaminated”, “extremely dangerous”, “danger to the public” and similar language. These should be the words also used by the Department of Veterans Affairs in addressing our concerns.

We are gravely ill from this disaster. Please defend us with all your ability.

Respectfully,

For the Veterans of the C-123K

Wesley T. Carter, Major, USAF Retired

Medical Service Corps

VA Denies C-123 Agent Orange Exposure Argument

letter rec'd 17 July 2011)
Mr. Carter: Senator's staff met with VA staff last week to gather information on the status of veterans who claim exposure from service in C-123s. VA acknowledged that C-123 crews flew missions in Vietnam where they sprayed Agent Orange. All crewmembers involved in what was termed “Operation Ranch Hand” have presumptive exposure to Agent Orange, not only because of their duties spraying Agent Orange, but rather, because they were all based out of Vietnam for spraying missions.  

As you may know, anyone who ever set foot in Vietnam during the conflict has presumptive exposure to Agent Orange and in the case of these crewmen, I would surmise that a former crewman’s claim would be viewed as stronger than that of someone with far less proximity to the chemical.  VA experts said they have received hundreds, if not thousands, of claims for “secondary” exposure over the years and that the available science does not support the link between health issues and flying on an aircraft which was previously exposed to Agent Orange.  

They stated that Agent Orange “sticks” to soil and organic material very well, but on metallic surfaces in an aircraft, the Dioxin (ingredient of primary concern) evaporates very quickly posing no discernible health risks to those who flew the aircraft later. The VA has issued “many training letters” to their field staff regarding this issue. VA experts said VA has awarded disability ratings to crewmen who flew the “Ranch Hand” missions over Vietnam during the conflict, but has no scientifically based criteria for “secondary” exposure. 

According to the VA, they will help any others who flew on wartime missions with their particular claims. I understand your concerns are specifically related to post-war exposure and the Air Force documents regarding an aircraft that was also used during the war, so please contact me so we can discuss this matter further.

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TO MY AIR FORCE FRIENDS READING THIS: The VA wonks met with my Super Southern Senator's Senior Superb Staff which went to bat for us. VA took the position that none of the Air Force's tests, and none of the AF-contracted commercial testing labs' tests which the Air Force arranged, all scientifically proving the C-123K aircraft's toxicity, are acceptable to the VA. Let's pretend...Never happened.

 Instead, for reasons of budget and policy, the VA will pretend that the C-123K were not contaminated and the Air Force and all those testing labs and all those universities and all those generals and all those major commands and all those bioenvironmental engineers and all those medical experts simply must have been mistaken! As well as the infrequent decisions where they have awarded service connection to some of our personnel due to their C-123 dioxin exposure.


The AF must not have been in the last VA policy meeting where all the heads nodded in agreement..."yup, let's pretend all tests and evidence are inadequate and the AF was mistaken, or [apply preferred raison d'etre], and the AF had its head up its cargo bay. Those silly Air Force generals (two brigadier generals, one major general, one lieutenant general...seven stars right there, plus the AFMC/CC and the Air Force Surgeon General...maybe fourteen stars altogether)...what were they thinking to be writing foolish memos (AF Surgeon General, HQ AFMC, Deputy Assistant Secretary of the Army, Secretary of Defense, AF Office of Environmental Law) about those contaminated Providers? Those generals must have missed the memo from the Air Force Office of Environmental Law, which told them to keep the dioxin information within 
"official channels only". Guys...I think we read the reports the same way...DIOXIN CONTAMINATION, despite what the VA says.

It seems the VA has taken a position somewhat outside their published rules and guidelines so that in our case, a new implied position applies, to wit: Even if the VA rules state a veteran outside Vietnam must prove and does prove actual physical exposure to Agent Orange to be considered for AO-presumptive illnesses, in the case of our C-123 crews, additional proof will be required (beyond proving our actual laboratory test results and beyond the recommendations of the National Institute on Medicine) that establishes links between dioxin in the Agent Orange residue of the "extremely hazardous, extremely dangerous" airplanes we flew, and the illnesses recognized by the VA as AO-presumptive. Although Air Force labs have proven for 30 years that dioxin has been present, there is no "VA" scientific proof (just stuff from AF scientists, state toxicology labs, state health departments and guys like that) that nice, tasty dioxin on airplanes impacts C-123 crew health. That's not why we're dying, perhaps? Musta been those lousy flight lunches from Patrick AFB!

Ever catch that weird movie "Snakes on an Airplane"? Neither did I. However the title sorta suggests snakes crawling around an airplane, right? Well, if the VA were to evaluate the rattlesnakes you found slithering your cockpit and you're holding up for them to see while snake fangs stick through your arm, the VA would tell you (1) that's not a snake and (2) even if it is, its still not a snake and it evaporated much earlier and (3) once again, that rattlesnake you just had examined by a university as well as a government lab all of which certified it as a snake, is not a snake (aren't you listening?? Get with the program), plus where's the proof that rattlesnake venom is bad for you and (4) we don't got no rattlesnake budget for guys in flight suits like you (5) please don't leave that damn poisonous 8-foot rattlesnake (which its not!) monster here! Thank  you for your service.

Smelting Dioxin-Contaminated C-123 Aircraft

So the conclusion to my disappointment and sarcasm is that the contaminated C-123K will not soon be recognized as contaminated with the Agent Orange with which the planes were contaminated. That's "VA-speak". That's VA policy, regardless of the well-proven fact of the contamination. For budget reasons, the VA has reached this conclusion in opposition to the Air Force's own view (and without bothering to examine the aircraft or even read the AF test results...but hey...our planes were already destroyed because of the dioxin contamination). All because the VA field training memos specifies Agent Orange claims are to be denied except for Vietnam "boots on the ground".

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My note to my patient Senator's patient and dedicated staff:

Sorry for the sarcasm...nothing personal and I imagine on some days of the year those VA wonks you met with are decent types, but only with great effort and while nobody from the VA itself is watching.


Swinging back in print is my only outlet as those VA wonks are too far away to shake some sense into. You tried and I know you'll keep trying. Thank you for your folks' meeting with the VA. As expected, regardless of toxicology reports from the Air Force and the toxicology analysis by Oregon Health Sciences University, the VA reps maintained, without reviewing the documents but required by VA pretend policy, there was no dioxin remaining on the C-123 fleet. Foolish of the Air Force to simply not correct their reports in the first place so that the VA and AF would agree. Somehow, beginning in 1994 but also in 1996, 1998, 2000 and 2008, as per the Air Force reports I sent you, the Air Force Material Command has tested the C-123s and found them "heavily contaminated, extremely contaminated, extremely dangerous" and "extremely hazardous." That's why the silly photos of the base employees in their cute hazmat suits (as required by base safety officials, due to the "extremely hazardous" toxicity) to keep them from being exposed in 2010, almost 30 years after our last missions.

Dioxin does not "evaporate"...the carrier such as diesel fuel will. In fact it does linger very long in moist soil, but its half-life on dry surfaces is significant and was still present when the Air Force smelted the last such aircraft in 2010 due specifically to the remaining dioxin. Dioxin failed to evaporate (which it doesn't do...wrong term) in "Patches" at the Air Force Museum, so $53,000 had to be spent to decontaminate it enough to allow at least very restricted, very brief entrances. The VA suggests that the aircraft were toxic enough to be shredded and smelted due to their dioxin contamination but we'll all pretend that the aircrews were isolated from such contamination.

I suggest a mind game, similar to Einstein's famous day-dreaming as he developed both the Special and the General Theories of Relativity: Imagine working in an airplane with all its vibrations and imagine the airplane flying flower cargos full of pollen. You fly the airplane for ten years. You sleep in it overnight. Eat your meals, work your sorry butt off for years. Do you think you'll have pollen on you? In your hair? In your lungs? In your body fat? The VA says "no." Not if it is dioxin pollen!

My points again:

-we flew Patches and numerous other C-123s identified by AF as Agent Orange spray aircraft

-Patches and other C-123s always tested positive for dioxin to the point of the labs calling the spray fleet "heavily contaminated". "Extremely dangerous, extremely hazardous" characterization of the dioxin contamination reports does not equate to questionable VA double-speak as "secondary exposure"!

- Oregon Health Sciences University's Toxicology Department director's analysis of the Air Force tests showed aircrews would have "most likely" been exposed, especially so recently after Vietnam and for such an intense period of aircrew duties (thousands of hours aloft and on the ground as well). State of Oregon Health Department concurs with results of OHSU's toxicology report

-tests even up to 2008 reported the fleet contaminated to the point of requiring hazmat protection for workers at Davis-Monthan

-Office of Secretary of Defense, reporting to HQ AFMC and other Air Force organizations and describing the aircraft as "Agent Orange" "Contaminated" and other phrases, directed decontamination by destruction, the only time such a thing has been done in the history of the Air Force. This is because the aircraft were contaminated with dioxin. Full DVDs of FOIA information released from Hill, Brooks, and other facilities detail the "dioxin C-123s".  Poor Charles Serafini of the 649AESS was tasked with coming up with the plan to address the decontamination of the remaining aircraft, with Major Carold McGrady, and their sole focus was the dioxin problem presented by the aircraft's contamination...and keeping visibility very, very low.

-numerous general officers, JAG officers, medical officers and representatives from the General Services Administration in their reports and memoranda agree that the C-123K/UC-123K fleet was contaminated with dioxin, and have insisted as to this contamination before federal judges to prevent sale of toxic airplanes

Obviously, thanks to President Rowan at the Vietnam Veterans of America and his Agent Chairman, Mr. Oates, the issue will continue to be addressed. Certainly, with their meeting with the VA Secretary during the meeting at the end of this month in Reno.

It would be sarcastic to suggest, but it actually seems the VA thought process, their people should contact the Air Force Surgeon and the Air Force Material Command, as well as Armstrong Labs at Brooks AFB as well as the various contracted certified commercial testing labs which also offered reports, to suggest that their twenty year collection of positive dioxin tests on the C-123K fleet be changed to properly reflect approved current VA policy and doctrine. Those military testing labs must have been wrong. The Toxicology Department of the Oregon Health Sciences University must have been wrong. State of Oregon Department of Health was wrong. The Air Force Health Institute Armstrong Labs was wrong. Even the Agent Orange Senior Consultant to the Office of Secretary of Defense must have been wrong in all his reports and memos discussing the need to destroy the "contaminated", "dioxin", "Agent Orange" aircraft that we flew for ten years. And yes, all those generals, too!

Dear VA: You're not our enemy...there is no conspiracy against us, just rules which are senseless and unjust. Our concerns are post-Vietnam. Ours were other wars, other times, but amazing how 50-year old problems linger. Our claim is not for secondary, but for primary exposure to dioxin residue proven to be throughout the C-123K/UC-123K fleet in such a high degree of contamination that the entire fleet was destroyed because it was too toxic even for a land fill. We had "boots on the airplane"...the airplane the Air Force Surgeon General directed workers at Davis-Monthan AFB's Boneyard to work in hazmat clothing with full face filter masks, followed by decontamination. That is because AFMC's tests were POSITIVE and deadly for dioxin, and still positive after decades of degrading in the desert.

Please tell the bigwigs at VA that our crews started flying this toxic airplane the year after its last spray mission. Don't measure us by the test results 30 to 40 years after...our exposure from 1972-1982 was far more intense as the dioxin hadn't "evaporated" (to use the wording of one VA staffer). And neither had its half-life had time to affect its deadliness.

VA folks mentioned "training letters" sent to the field to help guide rating officers in denying Agent Orange claims effectively. Those VA letters work. An appeal I was made aware of recently involved the late Lieutenant Colonel Aaron Olmsted of Hartford, Connecticut. Judge S. Cohn of the BVA denied Aaron's claim because Olmsted offered no proof that the C-123s he flew had been used for Operation Ranch Hand, and Olmsted offered no proof that the aircraft remained contaminated. That proof was kept from Olmsted, from Stephen Reiss who represented the BVA in opposing Olmsted's claim, and from Judge Cohn.

The missing proofs were the two reasons cited in Judge Cohn's denial yet these proofs were readily available from the Air Force. Multiple professional Air Force lab tests, conducted by commercial testing firms as well as the respected Armstrong Labs at Brooks, confirmed (not speculated, or other such vague term) the presence of dioxin in exactly the words any normal person would find convincing..."heavily contaminated" reads the test report signed by the Air Force's own bioenvironmental engineer endorsing the lab's results. But until recently, the Air Force Office of Environmental Law recommended these reports be kept "in official channels only", the better to aid the VA in denying veterans' claims.

I'm sure the VA doesn't expect us to be passive about this. Even old warriors are still warriors, and we persist, however we are kicking the bucket, one after the other. Eventually VA wins. Especially here when the opposing pretense of "no dioxin" is established for VA policy and not scientific reasons. Amazing how we have located volumes establishing the dioxin contamination of the entire fleet of aircraft, yet the VA says the airplanes have no dioxin...without even testing them or evaluating the military's own reports. Just relying on their field memos which offer effective excuses for rejecting veterans claims...even when we've had ten years exposure to the stuff.

Dear Senator...may I have the names of the representatives from the Department of Veterans Affairs with whom you met in order to provide my collection of materials for their consideration.? At least, they'll want to prepare reasons for each of these reports to be disqualified and termed inappropriate, and to arrange to have the conclusions changed to ones the VA will support. 

The VA reports to you that for reasons of policy, their field training memos trump the Air Force tests, the Air Force Surgeon General, the Air Force Material Command civil engineer, the Air Force Material Command Surgeon, the base safety office at Davis-Monthan AFB, the base biomedical engineer, Air Force maintenance officers expert on the C-123K and familiar with its use for Ranch Hand, general officer's memos, JAG officers memos, commercial testing labs and the Office of Secretary of Defense's expert on Agent Orange. What a powerful field training memo.

And my ranting aside, please know how completely I appreciate your assistance. Numerous written and telephone attempts to seek help from other members of the Senate and House simply went unanswered...totally ignored by every single official other than you. Your kindness is noted. How do we proceed to correct this situation?


Hang in there, please! 

Sincerely,

Wesley T. Carter, Major, USAF

Retired

Here is the three-page chronology of documentation dismissed by the VA without even considering it. Test results, reviews by universities, Air Force documents...all trumped by the handy field VA training memo showing how to ignore valid proofs.