VA grants 100% disability claim for C-123 Agent Orange Avascular Necrosis

Today I received a VA 100% service-connected disability decision for bilateral hip avascular necrosis, having had three replacements in four years. This disease is not automatically recognized by the VA as associated with Agent Orange exposure so I had to establish medical nexus with three MD letters, three BVA decisions, and two peer-reviewed journals.

This is in addition to earlier decisions of 100% disability for prostate and bladder cancers and 100% for loss of use of both feet, which was also Agent Orange related per diabetes @ 20%. I was also previously service-connected for Agent Orange exposure with 20% for IHD. I already had 60% for cervical spinal cord injury and 40% for lumbar spinal cord injury, 10% for tinnitus, plus 20% for shoulder injuries. What a mess I am!

The VA decision review officer agreed there was Clear and Unmistakable Error on my hypertension claim denied in 1992 because I was on AD when diagnosed in 1991. Correction took 24 years!

Final result: I'm still at the same 100% total disability (even with a total of 460%) because that's the top end of the VA scale. I was already there because of shoulder and spinal injuries but this is a moral victory in getting VA to recognize the exposures and the resultant illnesses. It is my hope that the avascular necrosis decision will help other veterans in their claims.

What Does Secretary McDonald Need For C-123 Agent Orange Presumptive Eligibility?

Nothing. Everything is in place already for VA to act now to provide C-123 veterans Agent Orange presumptive eligibility. He should just hit the big red button to the right, and ACT NOW.

Nothing else required. No new law. No new legislation. No new regulations. No new rules.

Nothing. For many years, VA has had everything to do its job for C-123 vets, with far, far more effort put into blocking these veterans than in helping them.

For most of the C-123 veterans' needs, VA has all authority to begin providing care today. Perhaps some related issues such as veteran definition, BVA actions or other questions will need fine tuning via new regulation. Nothing that can't be resolved quickly.

The bulk of C-123 veterans need only VA's decision to obey the law and stop the improper blanket denial of all claims. VA can and should make that decision immediately.

The 1991 Agent Orange Act, Title 38, and VAM21-1MR are all in place and address our veterans' needs. VA even has repeatedly stated in the Federal Register that nothing else is needed – non-Vietnam veterans exposed to Agent Orange are provided presumptive eligibility.

Their 2010 Federal Register statement used the language "we wish to make clear" that exposed veterans will receive presumptive service eligibility, and with that, recognition of Agent Orange illnesses as line-of-duty illnesses. VA used the language "We therefore believe there is no need to revise the regulation..."

Mr. Secretary, no new rules are needed to make clear what VA has already made perfectly clear. Mr. Secretary, the VA Office of General Counsel already defined Reservists as "Veterans" under the law:

"The VA Office of General Counsel has held if the evidence establishes that an individual suffers from a disabling condition as a result of administration of an anthrax vaccination during inactive duty training, the individual may be considered disabled by an "injury" incurred during such training as the term is used in 38 U.S.C. §101(24). Consequently,such an individual may be found to have incurred disability in active military, naval, or air service for purposes of disability compensation under 38 U.S.C.§1110 or 1131. VAOPGCPREC4-2002,69 Fed.Reg.25176(2004).
In the VA Office of General Counsel opinion, the Veteran was a former member of the Army Reserve who received two anthrax inoculations during inactive duty training. The Veteran alleged suffering from chronic fatigue and chronic Lyme-like disease as a result of these inoculations. The General Counsel held that the Veteran may be considered to have been disabled by an injury in determining whether the member incurred disability due to active service. The General Counsel reasoned that inoculation with a vaccine involves the introduction of a foreign substance into the body and that, while the substance is intended to and generally does have a beneficial effect,adverse reactions,sometimes of a severe nature,may result. Additionally,the term "injury" in section 101(24) may be interpreted to include harm not only from a violent encounter but also from exposure to a foreign substance, such as a vaccine. The General Counsel found that the concept of "trauma," which is recognized as the cause of "injury," encompasses a broader definition that includes serious adverse effects on body tissue or systems resulting from introduction of a foreign substance. Thus, an adverse reaction to a vaccination may be considered an "injury" as that term is used in 38 U.S.C.§101(24). See VAOPGCPREC4-2002"

Mr. Secretary, there is no need to turn to Congress for legislation because VA has already told Congress no extra legislation is needed for VA to meet its responsibilities to C-123 veterans.

Veterans can take the VA at its word, especially when thrice-published to Congress and the public in the Federal Register. VA has made it clear that no new regulations are needed for C-123 veterans, as well as any other veterans, who have been exposed to Agent Orange to be treated for that exposure by the presumptive service connection.

VA has even added a little extra justification for recognizing C-123 veterans, perhaps the only step ever taken that helped these vets. Because some staffers in VA challenged the C-123 veterans' exposure and the bioavailability of the dioxin from the airplane, VA sought input from the Institute of Medicine which confirmed the airplanes' contamination and the veterans' exposure. And harmful effects of that exposure. First proposed in 2012 but canceled by VA, the study has made veterans wait another year to complete but is now in hand for VA to do what it should have done with the first C-123 veteran's claim in 2007.

In fact, VA lacks any regulation or rule permitting Compensation and Pension Service to deny all our claims as they now do, their blanket denial even though that phrase is not used. VA has no authority for refusing these qualified claims, especially now that Joint Services Records Research Center confirmation has been received.

Mr. Secretary, it is past time for that announcement you promised the Senate!

(VA's Federal Register post, 31 Aug 2010)

VA: C-123 Veterans' Service Connection – NOW!

The C-123 Veterans association is joined by other service organizations in calling on Secretary McDonald to recognize our aircrew and maintainers' Agent Orange presumptive service connection. 

It has been long enough.

VA Redefines "Exposure" to Block Agent Orange Exposure Claims

OSHA, CDC, NIH and all the others...not quite good enough for VA. At least, not when VA is casting about for something to use to prevent veterans' exposure claims.

To other federal agencies, exposure is defined as contact between a chemical (of any type) and the outer boundary of an organism. CDC, in about the same manner, defines exposure as:

Exposure: Contact with a substance by swallowing, breathing, or touching the skin or eyes.

OHSA defines occupational exposure...the kind experienced by C-123 aircrews, as:

Occupational Exposure means reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee's duties. 

But the VA needed to create its own definition. Not that there was anything incorrect or unscientific in standard medical or scientific definitions of exposure...its just that VA needed to create a definition to prevent exposure claims. All the other, scientifically correct definitions were, in fact, accurate but that was exactly why VA needed to create its own. Accuracy, and scientific correctness, were what VA saw as the problem in standard definitions of exposure.

VA needed to change the meaning of the word to prevent exposed veterans from qualifying for treatment of Agent Orange exposures.  Here's what the VA invented in their Post Deployment Health Section of Veterans Health Administration, in response to staff members insisting that no C-123 veterans would be permitted to have their Agent Orange exposure claims approved:

Exposure = contamination field + bioavailability.

As VA's Office of General Counsel explained, VA hasn't needed to define the word "exposure" before. There hadn't been any need, because  for one thing, VA never pretended to have the regulatory or scientific authority, or the need, to create its own unscientific and policy-oriented definition of the word. For nearly every situation, the standard reference of Dorlands Medical Illustrated Dictionary was ideal for every occasion.

But that need to come up with VA's own definition, however unscientific, arose just as soon as C-123 veterans pointed out the 1991 Agent Orange Act, and the multiple postings in the Federal Register all very clearly specify "exposure' as the single qualification for veterans to be able to seek VA medical care for Agent Orange-related illnesses.

So VA couldn't easily escape the obligation, oft-repeated, of honoring exposure claims and thus it simply changed the definition of the word...at least, within the VA. That's how the DOD, USPHS, CDC,NIEHS, EPA, NIH, OSHA, WHO, and all other government agencies consider C-123 veterans to have been exposed to Agent Orange, but the VA uses its private, and very unique, redefinition just so that the vets' claims can be denied.

Yale Law School Veterans' Law Clinic Report: C-123 Veterans Fully Qualified For VA Claims!

Earlier this year, The C-123 Veterans Association was referred by Connecticut's Commissioner of Veterans Affairs, Dr. Linda Schwartz (now with the VA) to the Yale University School of Law, which maintains a veterans law clinic (their "Jerome N. Frank Legal Services Organization") under Dean Michael Wishnie. Dean Wishnie, functioning as the Supervising Attorney, has provided an extremely detailed pro bono analysis of the C-123 exposure issue and has formed an expert opinion as to the eligibility of C-123 veterans for VA Agent Orange claims.

Here is their executive summary, which is expertly supported with a fourteen page brief:

Dear Major Carter,
 On behalf of the C-123 Veterans’ Association, you have asked us to consider whether existing medical and scientific evidence  satisfies the U.S. Department of Veterans’ Affairs (“VA”) legal standard for “actual exposure” to herbicide agents such that veterans who served on C-123 aircraft , which were used to spray Agent Orange and other tactical herbicides in Vietnam, are eligible for presumptive service connection for disability compensation benefits.  We are pleased to provide our legal opinion on this question.
 We conclude that existing evidence indicates that C-123 veterans satisfy the legal standard for “actual exposure” to tactical herbicides.  These veterans are thus entitled to presumptive service connection for listed diseases.  Because those veterans who served on C -123 aircraft can prove actual exposure  [via USAF Form 5s, flight orders, and other military documentation specific to both airplane type and "tail number,'] by law and regulation they need not demonstrate that they served in the Republic of Vietnam, nor are they required to present evidence bearing on “bioavailability” of herbicides, the duration or magnitude of their exposure, or any other criteria.  Under existing scientific and medical evidence, service on C-123 aircraft used to spray Agent Orange satisfies the VA’s standard for actual exposure to herbicides. Thus, veterans who served on such aircraft and who have a disease listed as service-connected for exposure to tactical herbicides are entitled to disability benefits on that basis.  In addition, like all veterans, C-123 veterans are eligible to seek benefits even for non-listed diseases, if the veteran can establish a medical nexus between the disease and the herbicide exposure. 

And here is the brief's conclusion:

Conclusion
 For the reasons stated above, C-123 veterans are entitled to service connection for listed diseases, because the available scientific and lay evidence demonstrates that veterans were “actually exposed” to tactical herbicides.  Veterans also remain eligible to seek benefits for non-listed diseases if the veteran can establish a medical nexus between the disease and the herbicide exposure. 

It is the plan of the Association to make the Yale brief available to all interested veterans. Yale will post it on their web site, and interested attorneys and VSOs can use the brief to hit hard on the legal justification for our exposure claims. Important: the brief can stand alone, but will do better through the initial disability claim if supported by Form 5s, flight orders, and other documentation available from the C-123 Veterans Association web site.

Dean Michael Wishnie

When using the brief, please make no changes, and please credit Dean Wishnie and his dedicated  team of Lora Johns, Daniella Rohr and Stephen Seigel! They were superb and they cared about us!

C-123 Veterans Association to Relocate to Fort Collins, Colorado

We're moving! The lure of grandchildren, plus the need to ask our adult children for help now and then, brings about our relocation from McMinnville Oregon to Fort Collins Colorado. This should be completed by November 11, so please use the McMinnville address (2349 NW Nut Tree Lane, McMinnville OR 97128) until then, and Fort Collins (1233 Town Center Drive, Fort Collins, CO 80524) thereafter.

Here is what we're giving up...sunrise Saturday morning from our kitchen deck. That's Mt. Hood on the left horizon, and Mt. Jefferson on the left, with the peaceful Willamette Valley wine country covered in morning fog down below.

Shutdown Continues to Sidetrack VA Exposure Claims

Another Quiet but Disastrous Collapse of the VA Claims Process

Got an Agent Orange exposure claim? Forget it! 

In many instances of "boots on the ground" Agent Orange claims for in-country exposure, VA turns to the Joint Services Records Research Center to confirm a veteran's service. Operated by the Army at Fort Belvoir, VA, JSRRC responds with whatever archival materials available to support, or deny, a veteran's claim. In nearly every case of a veteran claiming Agent Orange (or military herbicide) exposure outside Vietnam's "boots on the ground" population, VA requires an inquiry to JSRRC.

But JSRRC is closed. Its talented and dedicated staff of fifteen DOD civilian employees and managers are furloughed – absent from their usual duty posts so that means every Blue Water Navy, Brown Water Navy, Thailand, Korean DMZ and C-123 exposure claim will sit in their Fort Belvoir in-box until some day when Congress gets its act together.

Recommendation: If veterans can submit in their FDC ample official proof of their herbicide exposures, VA should skip the JSRRC procedure for now, granting presumptive service connection to be reexamined upon the government starting up again. Such proofs could be flight orders, deck logs, VA 21-4138s substantiated by authoritative sources, etc. Unfair to deny or delay veterans' claims just because JSRRC is furloughed!

VICTORY – Another C-123 Veteran Wins Agent Orange Exposure Award

Today we learned that Dave Noonan has won his VA Agent Orange exposure claim, joining Lt Col Paul Bailey as the only two such veterans to succeed in convincing the government of the validity of their situation.

More details when Dave forwards a copy of his decision, but it was based on his duties associated with the C-123 at Westover.

Congratulations, Dave!

VA Cheats On Toxicologists' Expert Evidence - defies 8th & 9th Circuit Courts!

In its energetic denial of claims for service connection regarding C-123 Agent Orange exposures, Compensation & Pension's director dismisses expert findings provided about C-123 veterans by some of the field's leading toxicologists. 

The director explained to PVARO that as toxicologists, these scientists lacked medical credentials to establish medical nexus. C&P perhaps passed over the fact that medical nexus was not the issue but EXPOSURE was, medical nexus not being a veteran's responsibility to establish if claiming an Agent Orange presumptive illness. When arguing against veterans, however, VA has no trouble citing toxicologists as experts! 

     VA's own toxicologists are welcome to oppose veterans' claims - but unacceptable to VA in presenting veterans' claims? This VA perspective defies logic.

     In any case, C&P was in error in dismissing the toxicologists' findings. I refer readers to Marmo v. Tyson Fresh Meats, Inc. Decided by the 8th Circuit in 2006, the Court decided that  toxicologists are allowed to testify that exposure to a certain chemical is the cause of particular injuries. While I respect C&P's dedication in preventing our claims' approval, it is misplaced fervor. 

      It is also inappropriate and discriminatory, failing to permit the applicable portions of the 1991 Agent Orange Act, Title 38 CFR and other promulgations of Agent Orange and veterans issues protect C-123 veterans. VA's verbal shell

game, switching exposure discussed by the scientists with medical nexus which was not addressed by them, was meant to confuse and misdirect. In fact, toxicologists are uniquely QUALIFIED to address questions of toxin exposure. Here, especially, with several federal agencies as well as the most reputable scientists in their field offering findings in our favor. For whatever reason C&P felt appropriate, they did not address but ignored the MEDICAL opinions provided by physicians to better doom the claims.

     

      In a decision earlier this year, the 9th Federal District found in Whitlock v. Pepsi Americas that such baseless dismissal of expert testimony of toxicologists and chemists regarding exposure issues was an an abuse of discretion by lower courts, and presumably, decision-making bodies such as VAROS making such blanket dismissals would also be illegal.

     I am not sure of the law, but if a federal court cannot

freely disregard expert testimony of toxicologists and chemists addressing exposure questions without earning criticism for abuse of discretion, I cannot imagine greater privilege in doing so by the Department of Veterans Affairs, especially when those opinions are from other federal agencies with the statutory responsibility for determining issues of toxicological exposure. 

     The National Academies Press "Reference Manual on Scientific Evidence: Third Edition" (2011) provides an excellent narration of the generally accepted role of toxicology in addressing exposure questions and the acceptance of toxicological testimony in legal proceedings.

      C&P is skilled and creative in preventing fair and legal evaluation of C-123 veterans' exposure claims, but I ask that VA consider actually basing our claims on law and science, not individuals' preferences.

     Finally, as many BVA citations such as 0634583 and 1110601 make clear, the VA itself has no reservations using VA's own toxicologists in making claims determinations regarding exposures. Is the C&P' suggestion that veterans can't be protected by expert toxicologists' evidence but the VA is free to do take advantage of their professional qualifications necessary to deny claims? 

    It is also amusing (no...actually it hurts!) that VA BVA decisions frequently dismiss PHYSICIAN evidence from veterans because the doctor lacks toxicological expertise - but here C&P opts to dismiss toxicologists instead! Anything to deny a claim. Are they making up the rules as they go along??

Coverup in the Desert - USAF destroyed evidence of veterans' Agent Orange exposure!

Subject: Destruction of Evidence?

The question has surfaced in Washington about the manner in which the Air Force came to decide to destroy the dioxin-contaminated C-123 aircraft, then in desert surplus storage in 2010. The C-123 veterans, exposed during our decade of flying the toxic C-123 fleet, need an opinion  as to what we should make of it, being from our impression a situation involving destruction of evidence? How can the AF misdeeds which affect our veterans’ exposure claims be categorized, because the airplanes were destroyed with the specific objective of preventing our claims?

We have located a set of AF papers via FOIA from Davis-Monthan AFB dealing with the toxic planes, which had been stored at Davis-Monthan AFB AZ since 1982 once we'd retired them to the desert.

One of the attention-grabbing points is the AF statement that their analysis of the EPA fines, which might be leveled for improper storage of hazardous/toxic materials, could reach $3.4 billion. There was also memo discussion of hosting Arizona EPA inspections but routing inspectors around the special fenced HAZMAT quarantine area into which the C-123s had been moved. The item that most offends veterans seems wrong to us but on what basis we can’t say.

Base officials had worried about these airplanes ever since 2000 when it became clear they could not be sold as surplus, not transferred to foreign governments, or even parted out for their very valuable engines.

Davis-Monthan solicited OSD’s suggestions about ridding themselves of the toxic C-123s. OSD concurred with AF understandings expressed in various memos that the airplanes could not be sold without enduring liability questions, even for parts such as avionics or engines, including on aircraft which had never been to Vietnam, and engines never unpacked from their storage wrappings.

OSD came to the conclusion that the aircraft needed to be destroyed to bring the issue to a conclusion. Base officials eventually found an EPA loophole which permitted toxic airplanes, which themselves should have been declared to the EPS, to be shredded into cell-phone sized scraps and then smelted, such waste being exempt from EPA hazardous labeling.

In a series of three memos to base officials, including the 505th Operations Officer, Major Carol McCrady, Dr. Al Young reviewed the situation, described an article about the stored airplanes which was published in Orion Magazine, and explained that visibility of the situation could lead to the already-exposed veterans turning to the VA for what he called “presumptive compensation.”

Mr. Buddy Boor then summarized in his position paper the Air Force options, and reiterated Young’s warning that the veterans might learn of the exposure and turn to the Department of Veterans Affairs for “presumptive compensation.” This recommendation traveled upstream to the Air Staff for its eventual approval.

OSD had stressed the need to minimize media attention. OSD recommended that base Public Affairs prepare a press release in case of media inquiry. OSD helped with

various editing cycles, eliminating words like “dioxin” and “Agent Orange’ and other attention-grabbing terms. 

Finally, OSD congratulated the Air Force on minimizing media attention – which was completely non-existent. C-123 veterans worry about the role of this OSD consultant, who describes us as "trash-haulers, freeloaders" for whom he has no respect but would have respect if we'd earned Purple Hearts. 

Well, our membership has plenty of Purple Heart Medals, POW Medals, Air Medals, Distinguished Flying Cross Medals, Bronze Star Medals, Aviator wings, parachute wings, Combat Infantry Badge and others - OSD should have checked before publicly disparaging us. He has his merits but we believe OSD's consultant isn't the right person to have a role in guiding the Air Force in preventing our access to VA medical care.

 What can be done to classify the wrong described here? To us it seems that this is destruction of evidence of our having been exposed. 

It is an inappropriate destruction of evidence by the AF to prevent our claims succeeding with the Department of Veterans Affairs. Obstruction of justice? Bad attitude? Nothing? Eliminating the airplanes has resulted in the Secretary of Veterans Affairs claiming that only two out of four airplanes tested positive for dioxin in 1996, when in fact 14 of 17 did. And it kept the AF from being able to more closely examine the toxic planes in subsequent studies, in particular the 2012 Consultative Report from the USAF School of Aerospace Medicine – the absence of test data led the AF to conclude they had no way to firmly conclude whether or not aircrews were exposed, and upon that indecision VA somehow based its interpretation of the AF report.

This hurt us. The Air Force has a legitimate interest in protecting present and future employees and military personnel, but it has no role in taking actions to prevent already-exposed veterans from turning to the VA for benefits. We feel the AF had a duty to inform us of the exposure, yet the question never arose until mentioned in the distribution memo from the Deputy Surgeon General of the Air Force when he mentioned there would be no notice so as to “prevent undue distress” to the veterans. 

We indeed have experienced distress.

 How can we describe these bad acts? What laws were violated? What OSHA regulations (if OSHA is applicable) were violated? Can we do anything about this?