My C-123 retroactive compensation idea – shot down in flames!

Hey, I can't crash yet. Need another half hour
for an AFTP!

Well, that didn't go too well. I'd proposed a method whereby VA and the Air Force leadership would use backdated exposure injury Line of Duty determinations to satisfy statutory requirements for Title 38 "veteran" status.

"Sorry, but no" was today's response at noon from the VA.

VA leadership had their hearts in the right place, but had to turn us down. Still, we've got the principal goals for the last five years' work well-met: our people get VA benefits and disability compensation dated from June 19 2015 forward.

Half a loaf. But the best half! Sorry guys, but that's all we can push for at this time.

C-123 Vets Meet With Secretary McDonald

Secretary McDonald generously gave me over an hour yesterday afternoon for our private conversation tat the Denver DAV National Convention.
He was aware that our initial alarm about VA's statement to HuffPo about widows not being protected by the interim final rule was resolved by VA last Friday in their "reinterpretation" of the issue...in other words, the VA was led to do the right thing regarding widows/widowers' DIC but acted as though that was their intention all along.

Discussion:
1. VA disregarded years of confirmation from other federal agencies, failing to act when there was more than adequate "benefit of the doubt" evidence. The two VA C-123 Fact Sheets were discussed with the important point that errors littered the June 2013 letter to Senator Burr and VA failed to reveal the JSRRC information received four months earlier. VA failed their duty to be pro-veteran and non-adversarial and would be seen to have done so by the CAVC when appeals reach that forum.
2. VA disregarded (another word could be "suppressed") that 2013 Joint Services Records Research Center exposure confirmation from veterans, their attorneys, legislators, claims offices and BVA, as well as the May 2014 confirmation JSRRC began providing on individual C-123 veterans. This violated VCAA and VAM21-1MR.
I said the CAVC would find this a compelling argument in our favor and that unless retroactivity were provided appeals would be inevitable. We reviewed dates of interest, such as the May 2011 general "awakening" of C-123 vets to our exposures, and the fact all scientific information had been provided VA by the end of 2011 – all of which they ignored. We discussed the famous VA phrase, "VA has an overwhelming preponderance of evidence against C-123 claims."
3. I raised the VA OGC precedential opinions and how they should have led to veteran status per Title 38. He was already familiar with the "liberalizing" issue, and also with the fact that retroactivity had been recognized for the active duty C-123 vets, but not us. I pointed out that the DRO C-123 awards and the BVA decisions thus far had all recognized the retroactive claims. In the end, he promised to read all three essays.
I also reviewed the surprisingly small number of claims predating the June 19 2015 effective date, which if each were awarded 100% SC back to May 2011 would only total $1.2M additional cost to VA assuming the same average SC % on claims processed thus far, added to the VA OGC $47M forecast for C-123 issues (excluding medical costs)
4. I discussed my concerns about physician recruiting and retention, the need for skilled former military medics to conduct "sick calls" at VA day clinics as a physician force multiplier, acceptability of board credentials from the American Board of Physician Specialties, DO recruiting, and formation of a "VA Physician Reserve Corps" of departing docs to continue a lower level of service.

In conclusion, I was given twice the time than scheduled for our discussion and we ended only because I had to leave. He was sincere and agreed that VA could have acted sooner, and he'd review our request carefully. Thus far, I'm satisfied and now we'll wait to see if VA delivers any changes to the interim final rule.

How VA avoids its duty for "case by case" C-123 claims decisions (& also violates patient privacy at the same time*)

Here's how they do it. Here's how Veterans Benefits Administration and Veterans Health Administration/Public Health Section dooms a veteran's claim to denial followed by three to five years waiting for the Board of Veterans Appeals (BVA) to "remand" the claim for minor errors to be corrected...all adding up to years in which the Department of Veterans Affairs prevents all medical care and other benefits.

Below is an email between VA employees in their Veterans Benefits Administration and Veterans Health Administration. It was released last week through the Freedom of Information Act and under supervision of the US District Court/Washington DC. The court got involved because VA fought tooth and nail to prevent these things coming to light, and only the court's intervention forced VA to comply with the law.

VA's VAM21-1MR explains that regional offices will forward to the VA's Agent Orange Desk in Washington all Agent Orange disability applications for its opinion when the veteran claims an exposure but wasn't in Vietnam. VA will inquire through the Department of Defense Joint Services Records Research Center (JSRRC) for any official records which might substantiate the claim.

JSRRC has detailed my Agent Orange exposure proofs to the VA, but VA has ignored that response altogether because such confirming JSRRC responses don't fit with VHA's objective of denying C-123 veterans' claims.

The VA email above explains that VBA will be refusing my own claim for Agent Orange exposure. The law, and VA's published procedures in the Federal Register, clearly state the only requirement of exposure, and not medical nexus. I provided nearly 100 pieces of supporting evidence and expert medical and scientific opinions, which the VA email dismisses as "his PhD supporters."

The VBA writer said he was weighing my supporters against the VHA Public Health website evidence. The website was the product of two VHA physicians, one VHA toxicologist, and a VHA veterinarian also with a PhD in Public Health. VA's references were selected to argue the VHA position and all references which helped prove the veteran's' exposure were disregarded. VA dismissed any peer review.

This is called cherry-picking, not science. It is called policy, not medicine. The VA error is clearly evidenced in the January 8 2015 Institute of Medicine C-123 report to the Secretary of Veterans Affairs, in which the IOM (under VA contract) confirmed the C-123 contamination and the exposure and harm done the veterans who flew and maintained those planes.

Dismissed like my JSRRC confirmation or simply ignored among my submitted proofs were expert opinions (all unpaid) (plus my private physicians, not listed here) including:
• Dr. Jeanne Stellman, PhD, Columbia University
• Dr. Fred Berman,  DVM PhD, Oregon Health Sciences University
• Dr. Arnold Schecter MD, University of Texas
• Dr. Tom Sinks, PhD, CDC
• Dr. Linda Birnbaum, PhD, NIH/National Institute of Environmental Health Science
• Dr. Christopher Portier, PhD, CDC Director Agency for Toxic Substances & Disease Registry
• Dr. Mark Garzotto, MD, Portland VA Medical Center/Oregon Health Sciences University
• Captain Aubrey Miller, MD US Public Health Service
• Rear Admiral R. Ikeda, MD US Public Health Service
• Concerned Scientists and Physicians – dozens of experts who submitted a group letter to VA

The EPA did not provide their own opinion but they concurred in the NIESH opinion of Dr. Birnbaum. Thus agencies represented in affirming my exposure claim were EPA, NIH, NIESH, CDC, and USPHS. Opposing the claim was the Public Health Section, Veterans Health Administration and its staff of four. They did this simply by typing up a web page for the VA's website on which they said, based on their personal views, C-123 vets weren't exposed. Thereafter, rating officials, BVA and even CAVC cited the fault-laden website as somehow proof itself.

The law requires VA to give a veteran's claim every benefit of the doubt. "Resolving all doubt in favor of the veteran" is how VA is supposed to work, yet here and probably in many other unrelated cases VA personnel develop their own policy and bend all science, all rules, all laws to that policy. Here the policy was to prevent C-123 claims, and the policy has worked perfectly from 2007 to this very day.

The same VA players are still in place, feeding the Secretary of Veterans Affairs deceptive reports, having him sign misleading, dishonorable and error-laden letters to the Senate.

It is samo-samo. An uphill struggle where VHA expects veterans to wimp out at trying, discouraged by the barriers VA invents, the landmines used to blow up all protections in VAM21-1MR and other regulatory and statutory protections which should be extended veterans.

They can wait us out...after all, we're the old and ill veterans beating our heads against the wall at 810 Vermont. They simply close the door and lock us out until we die off or go away.

* PS...about the patient privacy. Read the email at the top of this entry. See how casually VBA sends over to VHA staffers information about a veteran's name, claim, disability status and personal medical information. As well as his personal observation that "100% must not be enough." Does this staffer think my spinal cord injuries, cancers and heart disease are "enough?" Is VA annoyed with my claim? Is this why this staffer disapproved my claim by dismissing all proofs and also by insisting that Agent Orange is harmless?

Note: Title 38 USC addresses this issue: (1) Any officer or employee of the Department of Veterans Affairs, who by virtue of his or her employment or official position, has possession of, or access to Veterans Affairs records which contain individually identifiable information the disclosure of which is prohibited by 5 U.S.C. 552a or by § 1.575 series established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $ 5,000

VA Officials Asked to Designate C-123s as "Agent Orange Manufacture, Use, Storage, Transport" Sites

NOTE: 21 Feb 2015: Freedom of Information Act requests last week revealed DOD and VA agreed between themselves not to act on these requests.
(Letter sent to dozens of VA & DOD officials, seeking proper OPR action for such designations)

Dear Sir or Madam,

This Friday, the Department of the Air Force General Counsel informed us that it is the responsibility of the Department of Veterans Affairs to identify and list Agent Orange (military herbicide) sites associated with manufacture, transport, testing and use. Three times in two years we have sought just such a designation from LtGen Judith Fedder, DOD's OPR for installations, and each time have been told it is a VA responsibility. VA has repeatedly assured us, to the contrary, it is a DOD or AF function.

What is clear, from the DOD 2006 list, is that VA requested DOD to provide a list which was then prepared by a consultant (who has labeled Agent Orange veterans as "freeloaders, trash-haulers looking for a tax-free dollar from a sympathetic congressman. I have no respect.") through Battelle. He also sought and received an unbudgeted $600,000 contract through Veterans Benefits Administration on a no-bid, sole source two year deal for opposing post-Vietnam exposure situations on behalf of VBA and VHA.

In somewhat of a curious historical background, the consultant, in his capacity of Senior Agent Orange Consultant to the Office of Secretary of Defense, is credited by the USAF as being "the strongest proponent all along for immediate destruction without further testing" of the toxic C-123s in 2009, decades after they'd been designated by AF toxicologists as "heavily contaminated on all test surfaces" and "a danger to public health."

The VA consultant, towards the end of his two year contract, also assured the Institute of Medicine in June 2014 that the C-123s had been "decontaminated" after Vietnam although there is no documentation to that, and the suggestion runs contrary to Air Force tests over decades showing them still contaminated.

In reviewing the Air Force test results, the CDC informed the Institute of Medicine in June 2014 that aircrews should have been wearing full HAZMAT, or the airplanes grounded as unsafe in American airspace. The totality of this evidence of C-123 contamination exceeds that of nearly every site presently on VA and DOD lists.
• For instance, none of the vessels on VA's lists ever tested as positive for Agent Orange contamination, yet more than two dozen of our aircraft did.
• None of the Navy's ships were destroyed due to their contamination, yet all of our aircraft were.
• No Navy toxicologists testified in federal court that vessels were "a danger to public health," yet Air Force toxicologist Dr. Ron Porter did so regarding C-123s.
• No other federal agencies informed VA or DOD that Navy ships were contaminated and their crews exposed, yet CDC, NIH, USPHS, NIEHS and the National Toxicology Center have each so described our former Agent Orange spray aircraft.
• No naval ships were ever quarantined due to their herbicide contamination, yet all surplus C-123s were placed into HAZMAT quarantine at Davis-Monthan AFB.
• No US Navy ship were ever described by the Department of the Navy as "the Agent Orange ships" the Department of the Air Force referred to the C-123s as for decades.
• The EPA never proposed an illegal HAZMAT storage fine for naval vessels, yet EPA and AF JAG determined the Air Force was liable for a potential $3.4 billion fine for C-123s stored at Davis-Monthan, cited as partial authority for the unique destruction scheme in April-June 2010.

Accordingly, I request information as to the proper contact in your office of primary responsibility this function, as well as the criteria established for addition to the list, and your forwarding to them this request.

Please help us locate the authority by which Compensation and Pension rejects input from reputable toxicologists and epidemiologists, as well as physicians, who advised VA as to the contamination and exposure to military herbicides by C-123 veterans seeking who were seeking service connection for Agent Orange-presumptive illnesses. C&P stated these professionals lacked credentials to address medical nexus, but it is clear in VA 21-1MR as well as the numerous Federal Register postings that medical nexus is not a requirement for claims for VA-recognized Agent Orange illnesses. Was C&P unclear as to this requirement or did it seek to introduce conflict?

In a related matter, I'd appreciate any basis for which Compensation and Pension Service denies Agent Orange exposure claims with their statement, "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects." This statement seems to run contrary to VA's long-established position, as well as contrary to contemporary medical and scientific understanding. It also seems contrary to the requirements of VA M21-1MR, Title 38, the Federal Register VA postings, and the 1991 Agent Orange Law: how can Agent Orange claims still be denied on the basis of VA suggestions that Agent Orange causes no adverse health effects?

We understand that addressing these questions might cause some difficulty, but please accept that our veterans being refused VA medical care also causes difficulty, as well as suffering and deaths. At least, the VA officials receiving this email and its associated documents will have the relevant materials in their files for which future examination might prove useful in understanding years of delays, circumventions and obstruction of benefits sought by eligible veterans – or our survivors.

Respectfully,

/s/  Wesley T. Carter, Major, USAF Retired
Medical Service Corps
(former Stan/Eval Flight Instructor & Flight Examiner, C-123K aircraft)

VA Makes Its Rules...Then Ignores Them

VA Ignores Its Rules & Blocks C-123 Veterans'
Agent Orange Exposure Claims

The VA follows through on delivery of laws passed by Congress through the United States Code, for most veterans meaning Title 38 C.F.R. VA creates rules and regulations whereby it defines how it will implement the laws, procedures by which claims are to be addressed. They also publish in the Federal Register those rules and regulations, as well as explanations of issues, procedures and unusual situations.

VA's manual addressing veterans' claims is VA 21-1MR. But VA has been picking and choosing which parts of it their agency will implement and which it will ignore, for the purpose of blocking C-123 veterans' claims.

In our case, VA opted not to follow its own published regulation nor adhere to the explanations of its rules and regulations repeatedly published in the Federal Register. Together with numerous other steps by VA, a convincing picture forms of the department's program to block C-123 veterans' exposure claims.

Let's look at how courts have said VA is supposed to respect its own rules, rules by which it determines veterans' eligibility for care and compensation:

The U.S. Supreme Court has stated that, "[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.  This is so even where the internal procedures are possibly more rigorous than otherwise would be required" by statute or regulation.  Morton v. Ruiz, 415 U.S. 199, 235 (1974).  This is important when VA takes a "short cut" to save time or effort and then denies a claim.  The law is that even if a regulation requires less effort than a procedure used by VA in similar circumstances, VA cannot pick and choose when to follow its own rules and when not to do so.  See Castellano v. Shinseki, 25 Vet. App. 146, 151 n.2 (2011) ("[T]he Secretary must adhere to his own policies when adjudicating veterans' claims." (citing Morton, 415 U.S. at 235 (1974)).  Yet, 38 C.F.R. § 19.5 states that "[t]he Board is not bound by Department manuals, circulars, or similar administrative issues."

Compliance with the M21-1MR can also be reasonably raised by the record such that the Board should address the issue.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (Board must discuss provisions of law and regulation where they are made "potentially applicable through the assertions and issues raised in the record").  A regional office's failure to follow the M21-1MR and the Board's failure to identify such issues frustrates judicial review, warranting remand.  See Tucker v. West, 11 Vet. App. 369, 374 (1998) (where "the Board has incorrectly applied the law, failed to provide an adequate statement of its reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."); Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court").

That's the law. So why doesn't VA strictly obey it, as we must? Because they don't have to. Failure to perform as the law or its regulations demand have no consequence for the VA or any of its employees. If a claim goes to the BVA or Court of Appeals for Veterans Claims (CAVC) with clear violations of VA's rules, the worst that can happen is the claim gets remanded for reconsideration, with some comment from the judge if VA has been particularly outrageous. Nothing more.

No fines, No punishment, no nothing.  The only consequence is the veteran faces even more delay as the until the regional office gets around to reworking the claim and then its back in line again for reconsideration of the appeal. In some cases, this has happened three or four times with the CAVC becoming more and more irritated, and the regional office probably going "ho-hum." And the poor veteran waits years and years past when VA should, if following its own regulations, have awarded the claim.

So what's happening with C-123 veterans? For us, the regulation states that VA will follow a section of VA 21-1MR which addresses non-Vietnam War "Boots on the Ground" claims.

Violations of the its procedures set forth in the VA's claims manual (VA 21-1MR) are reversible errors on appeal to BVA or Court of Appeals for Veterans Claims. The CAVC has declared the M21-1MR manual has “the force of law” and if not followed by VARO raters and DROs violates both procedural and constitutional due process right of veterans. A case from Fort Ord had VA severely criticized for failing the "duty to assist" both stated and implied in VA 21-1MR when VA fails to follow its own rules. But the only penalty was paid by the veteran whose claim was remanded for further delay in the hopes of justice. (Eventually, the claim was successful.)

Legal experts advise us that the three Federal Register statements VA published regarding non-Vietnam exposures constitute VA rules published by the Secretary and VA is compelled to follow them. This is why OGC quickly opted to redefine exposure, different than other government agencies and even differently than VA's standard dictionary of medical terminology and its court-accepted definition of "exposure." Redefining standard terms differently than other federal agencies (CDC/ATSDR, ) to prevent claims, and predetermining our claims to be without merit, denies us due process.

When claims like ours have persuasive supporting evidence dismissed in advance, when VARO staff is trained that C-123 claims are baseless, and when VA fails to follow its own manual as well as the specific commitments made in the Federal Register, due process is denied and, as the CAVC and other courts have said, our Constitutional rights abused.

When VHA executives state "We cannot permit C-123 claims" or tell the Associated Press, "We have to draw the line somewhere" or "No C-123 veterans were ever exposed," our rights are abused. Not a little, but in direct trashing of our Right to Due Process under the Fifth Amendment to the United States Constitution. In case you're not familiar with it, that's one of the "Bill of Rights." VA trashes it, destroying personal liberties guaranteed us under the Constitution. That's a pretty big deal.

VA doesn't care. No problem for them, either as an agency or for the individual doing the trashing.

The VA has created a C-123 process like this:
1. Veteran files exposure claim (assuming he/she isn't dissuaded by the VA web pages stating somehow, no exposure occurred) or told by VSOs and VA staff there is no eligibility and therefore, no need for vets to apply as the process is hopeless
2. Claim gathers input from JSRRC if available, but claim is usually denied at the VARO on the strength of VHA/VBA instructions, training to dismiss/disregard veteran's proofs
3. Non-Vietnam AO claim is supposed to be routed to VBA Agent Orange desk, Mr. James Sampsel, the gentleman who drafted Secretary Shinseki's deceptive, error-laden letter to Senator Burr
4. Agent Orange desk issues Advisory Opinion directing the VARO to deny the claim
5. Claim is appealed and BVA correctly interprets scientific evidence; thus far all appealed C-123 claims are successful and our Fifth Amendment rights restored, albeit with great delay
6. Trend developing in non-C-123 Agent Orange situations where BVA is stating claims for exposure are not authorized for other than VN, DMZ, some ships, etc – this is a great error because every claim should be permitted to stand on the evidence of proven exposure, as VBA Under Secretary Hickey has stressed so many times, but without VA follow-through because instead, each claim is ordered denied
7. VA has spent $600,000 with an outside consultant for creation of monographs challenging C-123 veterans' claims, but not a penny was spent to support the claims. VA even invited Dow and Monsanto to submit a letter arguing against veterans' exposure claims. These "experts" continue to assert that dioxin has not been shown to be harmful, which is shown to be a false statement: the VA itself, EPA, NIH, CDC, FDA, WHO and virtually all other regulatory and scientific organizations recognize dioxin as a potent human carcinogen.

Why? We don't know. There aren't enough of us (about 2100 crew and maintenance veterans) to warrant such a continuing (1331 days) campaign to bar us from VA hospitals. Probably, admitting our exposures would trigger something else which we're unaware of but which VA is so determined to prevent.

We're waiting for the Institute of Medicine C-123 Agent Orange report, although it is months late from its anticipated September 30 release. Probably VA is fighting that report as well in the review process before publication, but perhaps we are just off base and the IOM is taking more time to make its report comply better with the VA's charge to the committee.

In any case, VA rating officials have ordered all C-123 claims postponed until results of the IOM are clear and implemented by the VA. This has meant eleven months thus far with more to come, in delaying VA from obeying the regulations it published for itself...and for us...to follow regarding Agent Orange claims.

Even in the most positive review of what's happened and what is to come in this process, VA wins, defeating our access to VA care for over 1331 days since we first sought their help. No catch-up check for delayed compensation makes up for denied medical care, denied family benefits, refused state benefits due vets with acknowledged VA disabilities, and the misery of having to fight this fight for years when our focus should instead be on family and resolving medical issues.

We fought our wars. We didn't expect to come home to do combat with the VA.

Time is of the essence once a veteran becomes ill and files a claim. Life-saving care won't be permitted until the vet's claim is processed and (hopefully) approved.

VA know this, which is exactly why VHA considers 1331 days of delay thus far a spectacular victory, a victory of preventing our access to its world-class medical institutions. Why?

The more vets receiving care, the longer the waiting lists which draw such attention from the media, and the more VA's budget is impacted in providing essential care. VHA sees prevention of our care their greatest cost-saving opportunity...the longer they hold off claims or keep them denied, the more money saved for VA.

VA Fails C-123 Veterans: Evades "Duty to Assist" Agent Orange Claims

"Duty to assist." It is the law. Not the discretion of VA Veterans Benefits Administration, but the

compulsion of the law and VA's duty to obey.

But this is the VA, and their mission is to care for veterans but also to proven veterans from seeking that care. By denying disability claims and, as we've learned from the media, by postponing access to VA clinics and providers.

VA is required by law to provide veterans "reasonable assistance" in claims and appeals. Generally, this is straight-forward: VA gets the service records, tells the vet what is needed for proof, and sometimes inquires of the Joint Services Records Research Center (JSRRC.) The JSRRC is an Army function supporting all services, and their archivists provide special research into veterans' claims for PTSD and Agent Orange exposures.

So here's what VA regional office or Board of Veterans Appeals is supposed to do if relevant records might be available from other federal agencies:

Get the stuff. If the records are reasonably available and apply to the veteran's claim...get the records. Be veteran-friendly, because that's the law. But remember: veterans must obey the law but the VA is exempt from trifling issues like privacy or FOIA ("a fundamental right in our democracy" per President Obama.)

But what does VA do? They'll order the service records and other VA records. Then VA drops the ball. Heck, they toss the ball out of the court, deliberately.

For years with veterans dying while claims piled up, VA tightly restricted any such helpful information forwarded to them by JSRRC.
For years the VA liaison with JSRRC insisted that only military information was acceptable to the Veterans Administration. That way, VA could hide behind a JSRRC response devoid of input from agencies such as CDC, National Institutes of Health, EPA and other outfits who might have examined the veteran's PTSD or exposure situation and offered official opinions. "Don't tell us about it" ordered the liaison officer putting the earplugs in.
This is the same gentleman who in October 2011 personally informed C-123 veterans they'd "probably never" get an exposure claim approved.

No wonder, with this man telling JSRRC not to permit reams of relevant documentation to cloud the issue. When C-123 veterans asked him directly to request that JSRRC submit evidence from other federal agencies, he was evasive in his answer, saying:

We appreciate your interest in issues related to post-Vietnam C-123 aircraft. However, please understand that JSRRC functions to provide VA with information found in Department of Defense documents to assist with resolution of disability claims. JSRRC does not function to distribute information from other sources to VA." He continues, "Until such time as the IOM review is completed, VA will continue to evaluated post-Vietnam C-123 claims on a case-by-case basis."

This gate keeper, the VA liaison to JSRRC, set up a barrier to relevant claims information, clearly contrary to the requirements of the law and VA's own procedures. For him, Mission Accomplished by helping insure claims would be denied for want of readily available JSRRC input.

And he made things even worse for Agent Orange-exposed C-123 veterans. The law requiring VA to seek out and accept input from other federal agencies continues in its next paragraph:

(1) Obtaining records not in the custody of a Federal department or agency.VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.

Ignoring this requirement of them, VA refused university reports, independent scientists and other expert input, even if that input was an analysis of military archival documents. For instance, Dr. Jeanne Stellman (Columbia University) and Dr. Fred Berman (Oregon Health Sciences University) together analyzed test data of decades of Air Force C-123 toxicology surveys. They provided expert input to the veterans for supporting exposure claims and also participated in the October 2011 teleconference with VA officials (including the VA JSRRC liaison). Useless, said VA, and refused to permit JSRRC to integrate such expert interpretation of military tests. "Useless," it was claimed by the liaison officer, to better obstruct exposure claims.

What's the result? VA stacked the deck and then still looked at our cards, and also decided which cards would be in the dec but up their sleeves instead. So much for being pro-veterans, non-adversarial and veteran-friendly.

It took years to get VA to budge. Only in June 2014 did VA's Congressional Liaison Office inform legislators that VA would permit JSRRC to include a more broadly-interpreted list of acceptable source documents. "Compensation Service has been notified that JSRRC has been notified that JSRRC has begun providing these letters, or summaries of their content, to VBA regional offices for consideration in claims based on association with post-Vietnam C-123 aircraft." Well, that only took two of the last few years of my life.

And the telling point: It was VA, not JSRRC, that was the gate keeper. JSRRC had the information from Wes Carter personally delivering it to Fort Belvoir in February 2013, but was not permitted to use it. Finally, on June 6 2014, the VA Congressional Liaison Office informed our legislators that the rules changed...evidence would be permitted to be considered.

The funny thing is that it was VA insisting that JSRRC rules prohibited non-military input, and JSRRC insisting that it was the VA forming the barrier. Looks like VA was just a little deceptive, right?

Veterans Ask Society of Toxicology for "Equal Time"

In our earlier posts we explained how VA used the Society of Toxicology poster display they presented
to redefine the scientific term "exposure." To prevent veterans from coverage for Agent Orange illnesses, VA redefined exposure to "Exposure = Contamination Field + Bioavailability."

This is incorrect. Exposure is defined everywhere as contact by the skin with a contaminant, or its inhalation or ingestion. There is no requirement for bioavailability, which is the VA's attempt to reintroduce medical nexus as a requirement for Agent Orange coverage – and this was prohibited by the 1991 Agent Orange Act and Title 38! The Federal Register specifically provides for our benefits.

The Association has approached the Society of Toxicology for some sort of platform for us to challenge the VA's unscientific, policy-driven poster presentation. The request to the SOT's president follows:

Dear Doctor Lehman-McKeeman,

We seek SOT assistance regarding the poster display submitted by the VA at an earlier conference, which addressed Agent Orange and our exposure aboard contaminated C-123 transport aircraft. 

We believe the science in the poster was flawed and policy-driven, to the point of redefining the term "exposure" to require bioavailability. This incorrect VA redefinition thus denies all our veterans' Agent Orange exposure claims. This definition defies that of the SOT, ATSDR, EPA and others. 

I earlier asked SOT's help with this but without response. The Washington Post, Huffington Post, Fox News, UPI and other sources have recently covered this sensitive issue, but the core of it is the VA's SOT poster standing unchallenged by SOT. 

I ask that SOT consider the attached article, edited for a more appropriate tone, as a layman's SOT essay. I ask that I be given permission to present at the 2014 conference on this topic, repeating what I said at the January Institute of Medicine meeting. 

At the very least, I ask that The C-123 Veterans' Association be permitted to submit a poster display addressing this issue. 

The VA used their SOT poster as their pulpit to deny over 2000 veterans coverage for Agent Orange benefits. The question of the medical or legal impact of the dioxin exposure is not at hand, only the word "exposure." 

VA has opted to redefine that without challenge by SOT. VA used SOT as a vehicle against our interests, used toxicological concepts which should have been challenged, and we are entitled to our response. 

Alternately, can you invite input from a recognized authority, perhaps an interested SOT member? 

I hope I can your help with this, as earlier suggested by Dr. Birnbaum. VA redefining science to oppose our claims should not remain unchallenged by toxicologists.

Sincerely,

Wesley T. Carter, Major, USAF Retired, Medical Service Corps
Chair, The C-123 Veterans Association

attached: "VA Redefines Science to Deny Agent Orange Claims" 

VA Rules Ignored - C-123 Veterans Wrongly REFUSED Care!

Veterans benefits are supposed to be administered in accordance with law, but officials at the Department of Veterans Affairs routinely ignore, or twist the meaning of, the Agent Orange Act of 1991 and the various rules and regulations implemented since its passage. 

Of particular interest to C-123 veterans is Title 38 CFR Part 3, "Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes." In this publication of the Federal Register (Vol. 66, No. 89/Tuesday, May 8, 2001) VA incidentally addresses the military herbicide exposure of veterans who were exposed through service other than in Vietnam or other areas provided "presumptive" exposure status, such as the Korean DMZ. 

VA was seeking in this action to address issues surrounding type 2 diabetes, and also addressed the exposure outside Vietnam as a comment that no specific rule was necessary to address that population, because VA "will presume that the disease (the acknowledged set of Agent Orange-presumptive illnesses) is due to the exposure to herbicides."

This is the reason BVA judges have correctly awarded service-connection to C-123 veterans in Boston and in Pittsburgh, after regional VA offices failed to follow their own rules and regulations. 

Currently, to circumvent their own rule, VA denies "exposure" itself. Unable to deny contamination because the AF tests clearly establish the dioxin contamination of the C-123 fleet, and unable to deny the Agent Orange illness our physicians identify, VA is left with their trump card - to pretend that no exposure took place!

The law, however, is quite clear. "Exposure" is even clearly defined by the EPA itself as "contact between an agent and the visible exterior of a person," or, alternately, contact between a chemical or biological element and the outer boundary of an organism." That's us, folks. 

Fighting back, determined to prevent access to their medical care for our Agent Orange illnesses, VA conducted a literature review which they termed a "scientific review" - citing in some cases 30-year old discredited articles, and carefully avoiding publications which confirm our exposure (such as the DOD TG 312), VA bars the hospital door. They even ignore, or cite as irrelevant and incompetent "lay evidence" expert opinions from EPA, US Public Health Service, CDC/Agency for Toxic Substances and Disease Registry, National Institutes of Health, the National Toxicology Program, Columbia University, University of Texas Medical School, Oregon Health Sciences University Toxicology Program, and many, many more highly qualified scientists and physicians. How many does it take to convince? Actually, VA has said it doesn't matter - no proof will be considered, regardless of qualification or expertise, per VA's Compensation Services.

How? Again, because they dispute "exposure" and claim it is secondary, where in fact it is initial, or primary. They claim it is too little an amount to harm...but the law does not require any amount of poison to be poison! And VBA claims Veterans Health Administration findings eliminate any need to evaluate a veteran's proofs because VHA rules come first.

Some regional offices have quoted one of the VA's internal decision-making matrix for claims rating officers, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. This is meant to address issues such as B-52 flying over Vietnamese air space, or aircraft flying from Thailand without landing inside Vietnam, and hypothetical contamination of aircraft or equipment later serviced outside Vietnam, such as trucks, armored vehicles and the like. This does not address contaminated C-123 spray aircraft, saturated with Agent Orange, and which official USAF tests confirmed as being "heavily contaminated" and "a danger to public health." Here's what the decision matrix states:

If the Veteran’s claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, please be advised that there is no presumption of “secondary exposure” based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam.  Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam.  Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND.  Also, there are no studies that we are aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred.

Following is the critical language in the Federal Register meant to include C-123 veterans in the group of veterans who will be treated the same as Vietnam veterans, regarding Agent Orange exposure:

"Herbicide Exposure Outside Republic of Vietnam 

One commenter urged that VA amend the proposed regulation to include veterans who did not serve in the Republic of Vietnam, but were exposed to herbicides during their military service.Section 1116(a)(3) of title 38 of the United States Code establishes a presumption of exposure to certain herbicides for any veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, and has one of the diseases on the list of diseases subject to presumptive service connection. However, if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e)). We therefore believe that there is no need to revise the regulation based on this comment."

Friends, I admit getting several hours of generous help from researchers at at the Library of Congress, but if you can't trust your librarian who can you trust?

New Hampshire C-123 Veteran's Claim Denied

On February 28, 2013, celebrating the anniversary of the ending of the first Gulf War, the Manchester (NH) Department of Veterans Affairs denied a Westover C-123 veteran's claim for Agent Orange exposure. The claim was presented by the New Hampshire State Veterans Council.

Key point: the denial reads "Although you submitted numerous amounts of evidence to support your claim, 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." Wow...a whole regulation prohibiting justice for C-123 veterans! Guess these RO experts don't bother reading Title 38 too closely. Wonder where we can read this mysterious "regulation?" Actually, the law and CFRs provide that veterans exposed to military herbicides need only evidence their factual exposure to then seek service connection for Agent Orange-presumptive illnesses. As has been demonstrated in the nearby Boston BVA.

This veteran's inclusion of supporting opinions from EPA, NIH, CDC, Columbia University School of Public Health, Oregon Health Sciences University, University of Texas Medical School and other experts only brought the VA's summary "there is no basis in available evidence of record" to dismiss the science which otherwise so clearly proved his case.

Here's the amusing element: "Every attempt was made to verify your exposure to herbicides. However, we were unable to verify your exposure." Right.