Vietnam War Agent Orange Spray Ops Approved 57 Years Ago Today

THIS DAY IN POLITICS

U.S. launches spraying of Agent Orange, Jan. 18, 1962

By ANDREW GLASS

 

01/18/2019 08:32 AM EST

After a period of testing, on this day in 1962, President John F. Kennedy gave final approval to “Operation Ranch Hand” — a massive UC-123K effort to defoliate the forests of Vietnam, Cambodia and Laos with an herbicide known as Agent Orange.

It involved the spraying of an estimated 20 million gallons of powerful herbicides over rural South Vietnam to deprive Viet Cong insurgents aligned with the communist government in Hanoi of food and vegetation trail cover. To a lesser extent, areas of Cambodia and Laos were also sprayed. The U.S. Air Force flew nearly 20,000 UC-123K sorties from 1961 to 1971.

During the decade of spraying, more than 5 million acres of forest and 500,000 acres of crops were heavily damaged or destroyed. Some one-fifth of South Vietnam’s forests were sprayed at least once — at up to 50 times the concentration that would be deployed for normal agricultural use.

Kennedy insisted on approving individual spray runs until November 1962, when the president authorized Military Assistance Command, Vietnam and the U.S. ambassador to South Vietnam to approve them.

Previously, top administration officials had debated whether to allow the destruction of crops, at the risk of violating the Geneva Protocol, which the United States had signed in 1925. However, Dean Rusk, the secretary of State, had told Kennedy on Nov. 24, 1961, that "[t]he use of defoliant does not violate any rule of international law concerning the conduct of chemical warfare and is an accepted tactic of war. Precedent has been established by the British during the emergency in Malaya in their use of aircraft for destroying crops by chemical spraying.”

In early 1964, members of The Federation of American Scientists began to object to the use of defoliants. The American Association for the Advancement of Science passed a resolution in 1966 calling for a field investigation of the Vietnamese herbicide program. In 1967, 17 Nobel laureates and 5,000 other scientists signed a petition asking for the immediate end to the use of herbicides in Vietnam. The administration ignored it.

The spraying program led some 3 million Vietnamese to suffer health problems caused by exposure to Agent Orange, including a million birth defects. Additionally, the toll on members of the U.S. military who handled the chemicals or were deployed in and around the targeted drop zone areas during the war caused another 2.8 million personnel and their offspring to suffer from its long-term affect — chiefly various cancerous conditions. Post-Vietnam C-123 veterans were also affected but granted disability benefits only after June 19, 2015.

While Operation Ranch Hand ended in 1971, its impact is still being felt today. The Veterans Administration recognizes a long list of diseases associated with exposure to Agent Orange. Vietnam War and C-123 veterans who were exposed and suffer from one of these conditions receive automatic presumptions of a service linkage, making them eligible for treatment at government expense, without the need to positively prove that such connections exist.

SOURCE: “This Day in Presidential History,” by Paul Brandus (2018)

Agent Orange – Its Legacy Endures

Posted: December 9, 2016
Norman Stockwell



Forty years ago, on December 10, 1976, the United Nations General Assembly passed the “Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques” by a vote of 96 to 8. It was the first time the international body had addressed the issue of the use of defoliants in military conflicts. Article One of the document broadly states: “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”

Agent Orange was one of a series of chemical defoliants used by the U.S. military in the war in Vietnam. From 1962 to 1971, over 20 million gallons of herbicides were sprayed on jungle and agricultural land in Vietnam and the surrounding countries of Laos and Cambodia. The spraying was ostensibly to eliminate foliage providing cover for enemy troops. It was called Operation Ranch Hand. Reaching its peak between 1967-69, Operation Ranch Hand sprayed toxic chemicals over more than one fifth of all the forests in what was then South Vietnam.

Of the 2.7 million U.S. troops who served in Vietnam, more than 39,000 have filed claims with the Veteran’s Administration (VA) for Agent Orange related health issues and, according to the Vietnamese government, more than 4 million of its citizens were victims of the spraying. The VA acknowledges more than 14 forms of cancer and other nerve and heart diseases to be directly associated with Agent Orange exposure. Birth defects in children of those exposed carry the toxic legacy forward into the next generation on both sides.

The Progressive first covered concerns over the toxic effects of Agent Orange in a May 1973 column noting: “…two Harvard scientists reported that a chemical defoliant widely used by the United States in South Vietnam during the recent unpleasantness has contaminated that nation's food chain. The scientists—chemist Robert Baugham and geneticist Matthew Meselson, who have made previous ecological surveys of Indochina—found the chemical, dioxin, in shrimp and five species of fish taken from various waters in South Vietnam. Dioxin, an ingredient of the defoliant known as Agent Orange, was present in amounts known to cause disease, genetic damage, and death in animals. The effect on humans has not yet been determined, but we are likely to find out before too long.”

It was exactly four years later in June 1977, that Maude DeVictor, an employee at the VA in Chicago first began to document the cases of cancer clustered in veterans who had been exposed to Agent Orange. A June 1978 article in The Progressive by Michael Uhl and Tod Ensign told her story: “Maude DeVictor works behind a cold, steel gray desk in the Benefits Section of the Veterans Administration regional office in Chicago. She is not your average paper shuffler. In recent months, Maude DeVictor has joined the select ranks of whistle blowers — those heroic individuals who discover an outrage and, in defiance of bureaucracy or suppression, bring it to public notice. The outrage Maude DeVictor discovered was the shocking effect of dioxin poisoning on American veterans who came into contact with the herbicides that were used to defoliate more than five million acres of the Vietnamese countryside between 1962 and 1970. Her efforts have not only focused attention on the plight of these latest victims of the Vietnam war, but have also raised new warnings against the domestic hazards posed by the herbicides.”

Our C-123 Agent Orange Freedom of Information Act Lawsuits: $120,000 spent in legal fees

This month I had three questions from other veterans about why our effort to get documents released from the VA and USAF managed to cost over $120,000. Easy answer – because that's all I had to spend; if we'd had more money and more time we would've spent it to get more documents uncovered.

I began filing Freedom of Information Act (FOIA) requests in early 2011. I soon asked Paul Bailey to file some as well to see if the responses produced different results. Initially, these went to Davis-Mothan Air Force Base and Hill Air Force Base where responses were timely and quite revealing. Several CDs were released and on them we found the first test reports showing dioxin contamination, destruction of the aircraft as toxic waste, internal memos from the Air Force consultant in many other documents that focused the next four years of our effort.

We had to study thousands of documents

Eventually we identified two major areas for further investigation. The first was the general manner in which VA initially developed its response to our exposure claims and then the finer details of that VA opposition. There were several damning "gotcha" discoveries revealing the VA deception, such as the VA claim to have an "overwhelming preponderance of evidence" against our claims being mere policy statement, not fact or science. (#1: VA Lawsuit)

The second was the Air Force 2012 C-123 Consultative Letter in which the US Air Force School of Aerospace Medicine examined the aircraft contamination. That report generally concluded the aircraft was contaminated and aircrew exposure possible yet, illogically, somehow unlikely to be harmful. This letter was seized upon by the VA as part of their justification for denying our claims and thus was very important to us. A confidential Air Force source had told us the report was tainted by command interference and was scientifically flawed. (#2: USAF Lawsuit)

These FOIA requests to VA and USAF were submitted properly, acknowledged by the government but never fulfilled. The Air Force initially indicated its cooperation, although two years past and it became clear no substantive response was forthcoming. The VA first refused to waive research fees and then, to stall us, demanded thousands of dollars for only a partial response. Then, that response failed to materialize even though we successfully appealed the estimated fee requirement.

At this point citizens can contact FOIA ombudsman in these departments but there we were also stonewalled. The only option left was federal court action compel the agencies involved to obey the law and meet their requirements. This is where most citizens find themselves helpless because the agencies involved have free legal support from their own staffs and the Department of Justice but a citizen must retain private counsel to go to court.

And that's where $120,000 of legal fees were needed.

We filed FOIA lawsuits in the US District Court of Washington DC and spent nearly three years and all that money to get the documents we required and which we are entitled to at the outset. A few papers were withheld for personal privacy or under the government's concept of "Deliberative Process" which is used to prevent discovery of how they came to conclusions (new FOIA rules enacted this year help correct this.) Interestingly, a part of the USAF FOIA was to the Air Force Surgeon General – that response was about 300 pages what's only 20 pages or so with text, all the rest redacted for one reason or another. We had ask – what the heck did the Air Force want to keep secret about our health and this 60-year-old airplane? We never found out.

Lesson learned #1: Federal agency compliance with FOIA requirements is very poor
throughout the government, but especially the VA and the military departments. Without
hundreds of thousands of dollars to pursue one's rights under the FOIA law there simply is
no way to proceed and our rights are trampled. Both VA and USAF agreed in court we
were right and they were wrong – we'd been entitled by law to the requested materials and
should have been given them years earlier when first sought in our FOIAs. .

Lessons learned #2: The 2014 Institute of Medicine C-123 Committee was provided all these documents and from them, and from other inputs, convinced the VA we'd been exposed and VA soon agreed. An especially alarming and disappointing IOM observation was offered from their review of documents we discovered:

Reports "from those in the military or associated with the VA tend to minimize the possibility of an increased risk of exposure and adverse health outcomes."

It is by such improper manipulation and deception that the VA denies veterans our legally required benefit of the doubt, subjecting veterans to a standard of absolute proof rather than mere equipoise. It was by this manipulation and deception that VA ignored confirmation of our exposures given at years earlier by the CDC and other authorities.

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

 $46,000,000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NEW ACTING VA BENEFITS UNDERSECRETARY SAYS AGENT ORANGE IS HARMLESS!

T. Murphy, VA Acting Undersecretary for Benefits

Problems continue to unfold at the Department of Veterans Affairs. The VA has had a series of recent personnel changes, one of them the departure of the man filling the office of Undersecretary for Veterans Benefits.

So, as a problem topped with another problem, in comes Mr. Thomas Murphy (himself a veteran, moving up from his Director, Compensation and Pension in less than a year to become Acting Undersecretary for Veterans Benefits. 

Mr. Murphy is a hard worker, and came to his earlier position at Compensation and Pension in 2010 where he oversaw VA's entire program for reviewing veterans' disability claims for approval or disapproval. His business background was at Home Depot.

Why is Mr. Murphy a problem? Because his six years at Compensation and Pension are fairly judged to be a relative failure in serving America's veterans. We'll focus here on two of these failures.

First, his determination and success in "holding the line" against Agent Orange claims. The two most visible groups he's fought on this are the Blue Water Navy Veterans and the C-123 Veterans Association.

In 2012 Mr. Murphy wrote his denial of a C-123 veteran's Agent Orange exposure claims after the Portland VARO said they wanted to approve...Mr. Murphy put a stop to that! "In conclusion, there is no conclusive evidence that TCDD exposure causes any adverse health effects." He wrote that to dismiss expert input from the CDC  confirming the veteran's exposure.

TCDD, the toxin in Agent Orange, is recognized by science to be the most toxic of the toxins, and definitely causes "adverse health effects." VA itself (but not Mr. Murphy) understands that it is a highly toxic substance. Likewise, NIH, EPA, WHO, NIEHS, US PHS and other health authorities understand TCDD ain't good for you.

His was no mere typo. Mr. Murphy's three-page denial blocked compensation and medical benefits to a veteran C-123 aviator. Four years later, VA itself conceded that veteran and other C-123 vets actually had been exposed to Agent Orange and could receive benefits.

At least, those who survived that long despite Mr. Murphy's policy of blanket denial by VA all C-123 claims would receive benefits.

Of course, Mr. Murphy assured veterans and legislators that VA had no such policy of blanket denials and instead promised to review all C-123 claims on a "case-by-case basis" – he just never bothered mentioning his assurance actually meant VA's case-by-case denial of every single claim submitted by every single veteran who flew the C-123.

Mr. Murphy must have been determined to deny this C-123 vet's claim. He rejected input confirming the vet's exposure not only from the CDC, but also from the National Institute of Environmental Health Services, the NIH, and numerous university-based scientists and physicians all supporting the vet's claim.

His denial opinion was read back to him, and he merely said he couldn't be familiar with everything leaving 1800 G Street over his signature. He hasn't made any correction to his 2012 statement, even with the last four years of confirmation of C-123 exposures.

In conference with C-123 veterans and his own staff, Mr. Murphy firmly explained that Veterans Benefits Administration had already determined none of the C-123 veterans were ever exposed, and no amount of proof from scientists or government agencies would raise the claim to VA's "as likely as not" threshold. All claims would be denied, he said.

But, of course, only after his "case by case" evaluation and automatic denial! It took four years and the Institute of Medicine study to get VA to begin permitting benefits for surviving C-123 vets. While that may have been a disappointing shift from the blanket denial policy VA still pretended not to exist, at least the department drew satisfaction in the money saved by blocking medical care and benefits for so many years.

A note: if Mr. Murphy's 2012 claim denial letter was written by a staffer for his approval, the staffer was most likely Mr. James Sampsel, manager of VBA's Agent Orange desk and liaison to the Joint Services Records Research Center (JSRRC) in DOD. Mr. Sampsel was also the staffer who drafted Secretary Shinseki's error-laden letter and deceptive C-123 Fact Sheet.

Mr. Sampsel, a Vietnam veteran himself, made his own perspective quite clear in a related email to Mr. Murphy. Mr. Sampsel determined that "the real problem" in denying C-123 veterans' claims is the amount of evidence confirming those exposures.

Get it? VA's "real problem" is that the veterans' proofs must be ignored by VA so as to deny the C-123 exposure claims. Mr. Sampsel, labeling CDC, NIH, US Public Health Service as "the real problem" in his email to Mr. Murphy, insisted VA had "an overwhelming preponderance of evidence" against the vets. He cited input from the VA consultant and VA's own web site, pretending that VA putting their policy statement online was "overwhelming evidence" sufficient to ignore the other federal agencies and dozens of independent scientists and physicians establishing the veterans' exposure injuries.

No legally required "benefit of the doubt" was even to be permitted. No contrary evidence was acceptable to VBA, Mr. Murphy or Mr. Sampsel...their policy overrode every regulation, law, Federal Register statements and assurances to Congress. Their anti-veteran preference overrode everything.

Even the DoD had tried to tell Mr. Sampsel it had credible evidence from many sources supporting the veterans. Mr. Sampsel, in response to DoD, put blinders on and was improperly very highly selective about what evidence it would acknowledge – if evidence supported C-123 claims it was immediately ruled unacceptable. As for VA and its campaign against C-123 claims, Mr. Sampsel would not request a JSRRC finding or permit one to be issued on C-123 veterans (note: this violates procedures described in VA's own regulation VAM21-1MR, as well as the Veterans Claims Assistance Act.) He then refused to acknowledge any JSRRC input he had not first requested...thus, no requests = no JSRRC confirmation = denied claim.

Mr. Murphy thanked Mr. Sampsel for his input.

Mr. Murphy's thanks were for Mr. Sampsel's success in denying all such claims for another three years. It wasn't until the Institute of Medicine's C-123 report was published that VA finally acknowledged the aircraft contamination and the aircrew's exposure.

Just as the CDC had said back in 2012, when more of the vets were still alive.

Davis-Wright-Tremaine Announced Their C-123 Veterans Association Pro Bono Legal Representation

DWT Files Suit on Behalf of Vets Who Suffered Post-War Exposure to Agent Orange  In the decade immediately following the Vietnam War, about 1,500 U.S. military reservists flew cargo and medical missions aboard C-123K aircraft—unaware that their planes they worked, ate, and slept in had been contaminated with dioxins from Agent Orange.

VA Leadership CONTINUES Fighting Veterans' Exposure Claims

Today's Camp Lejeune toxic water claimants would do well to remember the anti-veteran words of Mr. Brad Flohr, VA's Senior Advisor for Compensation Services. In 2013, Mr. Flohr commented on an Agent Orange disability award for a C-123 veteran, LtCol Paul Bailey (note: all affected C-123 vets were eventually provided presumptive service connection via an Interim Final Rule promulgated by the Secretary effective June 19, 2015.)

"-----Original VA message released by Dept of Justice under FOIA lawsuit-----

From: Flohr, Brad (SES EQV), VBAVACOSent: Monday, August 26, 2013 8:40 AM
To: Murphy, Thomas (SES), VBAVACO; Bilosz, Mark, (SES), VBAVACO; Black, Paul, VBAVACO
Cc: Flynn, Mary A. (SES), VBAVACO; Sampsel, James, VBAVACO
Subject: RE: VASec Wants to Know How We Granted SC for AO Exposure for a Vet Who Did NOT Serve in Vietnam

Unfortunately, there is evidence from credible sources, including ATSDR, noting the presence of Agent Orange in the C123 aircraft, so it would be difficult to sever service connection, not to mention politically unpopular."

"Unfortunately" he wrote? Evidence from the CDC and US Public Health Service and nationally-respected scientists and physicians supporting a vet's claim for medical care is somehow "unfortunate?" Evidence supporting a vet's claim is unfortunate AND credible, as he acknowledges. What the heck kind of evidence does Mr. Flohr find acceptable before he trashes a veteran's disability claim? How does he feel exempted from the Veterans Claims Assistance Act? From the Due Process Clause of the Fifth Amendment? Did he get a special pass to trash valid veterans' claims and ignore VA's legal duty to be pro-veteran, non-adversarial and paternalistic?

 Mr. Flohr's August 26 2013 memo was triggered by the Secretary of Veterans Affairs, who on August 14 2013, asked his staff to account for how LtCol Bailey's C-123 Agent Orange exposure claim was permitted on August 3 2013 by the Manchester NH Veterans Affairs Office...which acted on the evidence but against VA HQ instructions (the DRO told VA HQ he acted on the evidence)...and the background on all such C-123 claims. Here is what Secretary Shinseki asked:

"I hope you are doing well and that you enjoyed your time off.  I have a question regarding disability claims and have no idea who to send it to.  Though you may be able to route me to the correct person. I would like to obtain information on claims for disability compensation based on exposure to Agent Orange during service on c‐123 aircrafts (post‐Vietnam) that were used to spray agent orange.
Specifically, I would like to know the result of such claims and a summary of why such claims are denied or approved.  Also, a summary of claims that were appealed and if the decision was reaffirmed by BVA or overturned.  If overturned, the reasoning for such action." 

VBA and VHA most senior leadership (the "VASec" – General Shinseki and staff) viewed evidence supporting this exposed combat veteran's claim as "unfortunate?" These words of Mr. Flohr leave an even more toxic taste in my mouth when considering the vindication given C-123 veterans by the Institute of Medicine's Agent Orange report in January 2015 and, eventually in June, the Secretary's Interim Final Rule. The C-123 veterans, it turns out, had been right all along...right in the science, right in the law. VA was wrong to have refused these veterans medical care for their cancers and other ailments. As Senator Burr said for his colleagues, "it shouldn't have taken this long or been this hard." And veterans shouldn't have died, denied VA medical care!

Perhaps Mr. Flohr, whose paramount duty should be insuring all eligible veterans are provided benefits earned as per the law, feels credible evidence needs to be withheld, much as VA withheld the JSRRC confirmation of C-123 vet's exposures in March 2013.

His documented background of anti-veteran perspective is enough to disqualify Mr. Flohr in any VA role where he determines whether veterans will or will not be permitted essential medical care and other benefits.

That would be "unfortunate" for Mr. Flohr but a Heaven-sent blessing for the troops! What should our analysis be of the people Mr. Flohr's August 26 memo was distributed to, including Mr. Tom Murphy, Director Compensation and Pension? 

Mr. Murphy, remember, authored the denial order for a C-123 veteran's claim by insisting that TCDD (the toxin in Agent Orange) was harmless! This prejudicial and unscientific comment stood to block the veteran's claim until October 2015. On December 1 2015, the Department of Justice reported that Mr. Murphy's statement "was in error and incomplete." In error and incomplete, but unfortunately it still sufficed for Mr. Murphy's purpose of blocking a claim for as long as he could, and until retroactive benefits were no longer available to the vet.

Finally, why the heck didn't anyone copied on this memo then or since act to correct the harm done by Mr. Flohr's blatant "unfortunate" remarks? Co-conspirators in VBA's objective of, as VHA's Dr. Terry Walters put it to the Associated Press, of having to "draw the line somewhere" should be questioned about exactly how bad such actions have to be before blowing the whistle!

What kind of VA do we have if it sees credible evidence supporting a veteran's claim as UNFORTUNATE? And the staffers get away with this for years! Are they free to disregard VA regulations (VAM21-1MR,) as well as the Veterans Claims Assistance Act and the Due Process Clause of the Fifth Amendment?

Mr. Flohr was interviewed by NPR but on a different exposure concern – Mustard Gas: "This is not an easy, not a simple thing," Flohr says. "But we have done everything that we could do, I definitely believe that." This was his weak defense of VA's failure to contact suffering volunteers for early Mustard Gas experiments...his defense was for twenty years of VA failing to honor its commitment to Congress and failure to contact over 75% of those veterans in the two decades since it said it would. Mr. Flohr is aided in VA's efforts to prevent Mustard Gas claims by the fact even the Pentagon says the necessary records have been destroyed. NPR reported, "And yet Flohr insists the VA still needs (lost government) proof in order to grant claims. "I'm sorry, " Flohr says. "But the only thing we can do is follow our statutes and regulations.

He offered much the same over five years ago, in an interview about Camp Lejeune with McClatchy Newspapers. "We're committed to do training for staff dedicated to do these claims." Five years ago he gave that interview and made that promise, yet VA's stall techniques continue to block Camp Lejeune vets still today. Although NPR's librarian found 1200 surviving veterans in just one month's effort, Flohr insisted that VA managed only found half that in over two decades, even with all the resources of the federal government.

"But the only thing we can do is follow our statutes and regulations," Mr. Flohr said.

EXCEPT...when those "statutes and regulations" happen to establish solid proof...credible government proof thrust upon VA by the NIH, CDC and the Department of Defense for C-123 veterans and our Agent Orange exposures, Mr. Flohr then considers proof "unfortunate" and best disregarded by VA.

Can these VA staffers, regardless of their position within the government, freely ignore laws and regulations? Can these staffers continue their quiet, unofficial, and personal vendetta against veterans with exposure injuries simply because they feel, as stated by Dr. Terry Walters to the Associated Press on May 14, 2014, "We have to draw the line somewhere." Echoing Mr. Flohr, she said VA was simply following the law...but now it is clear that these staffers worked hard to misinterpret the law, picking and choosing parts, ignoring other parts, all to block or delay veterans' claims. Were they somehow free to do this? Free to set their own special barrier to keep VA medical care away from these veterans?

Yes. No problem at all. They do it all the time without even having to answer for it. They work for the VA.

C-123 Veterans Still REFUSED Agent Orange Registry Exams!

Last week two C-123 veterans notified me that they'd arranged Agent Orange Registry exams, and one said he was refused. Today I phoned eighteen VA medical centers to speak with their Environmental Health Coordinators to see what responses they'd offer to inquiries about C-123 AO exposures. (Note: one of the two Agent Orange exams mentioned above was cancelled this morning when West Roxbury VA telephoned the veteran to cancel her appointment, saying "official word had to come down before such exams were authorized.")

For years, Post-Deployment Health explained that C-123 veterans are not eligible for the Agent Orange Registry exam because they already determined we were never exposed. I've double-checked this personally but that was a year or more ago. After last week's meeting at the Senate Russell Building and with VA officials at 1800 G Street, I'd hoped more accurate information would be offered our veterans asking about the Registry exam.

Results: In five cases I left messages as their phones were unanswered, and two returned my calls.In ALL but one call where I was able to speak directly with the Environmental Health Coordinator, I was told that Reservists without Vietnam, Korea or Thailand service are ineligible for any Registry exam as well as ineligible for any other VA medical care. I spoke with Vermont, New York, Colorado, Florida, Arkansas, North Carolina, Arizona and other states.

The reason cited (in all but one case) was that the Agent Orange Registry is for active duty veterans only, not Reservists who only served in CONUS or Europe.

One coordinator asked a few questions and I explained I had cancer which had spread rapidly before my recent surgery. She still said I wasn't eligible for any care at all without service in Vietnam, Korea or Thailand. While I am already 100% service connected for other issues, she didn't ask any qualifying questions but wished me well. I didn't offer but only two coordinators asked for my social security number which would have led to their offering specific advice as to VA care for which I'm eligible.

The first return call was from Little Rock. He asked if I'd served in Vietnam, Korea or Thailand, and I mentioned post-Vietnam C-123. He then said as of 15 March VA is waiting for Congress to act and until then I'm not eligible for the exam. No other questions although I volunteered I had cancer surgery. He wished me well as he hung up. A Georgia VA facility said he'd have to wait until the Institute of Medicine report was acted upon by VA to permit me to have an Agent Orange Registry exam. Like the others, he asked no questions and made no suggestions regarding care.

One coordinator explained that the Registry exam played no role and said I could submit a claim without it. Two said they'd check further and get back to me.

Only the Asheville (NC) VAMC offered what I understand to be the correct answer: C-123 vets who believe themselves exposed can request the Agent Orange Registry exam. Priscilla offered to read or mail to me the VA web pages, and also told me how to find them myself. She asked for my last four which would have led her to my overall eligibility. She clearly wanted to be sure I was properly informed. Overall, whatever the official VA view is on Agent Orange Registry exams, clearly our C-123 veterans will not succeed in getting the exam.

Conclusion: C-123 veterans will most likely be refused the VA's Agent Orange Registry exam, even if the VA environmental health coordinator is told the veteran has an AO-recognized illness. There seems to be no recent guidance by VHA and Post Deployment Health's earlier order refusing the tests is still in effect.

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)

Proposal to Dissolve C-123 Veterans Association

The Last Bag Drag.
Time to file the voucher and head home.
Mission complete.

If things go through this week as VA has indicated, our reason for existence draws to a close. We told VA we'd been exposed to Agent Orange, and at long last the VA will begin treating our Agent Orange illnesses and providing the full range of care and benefits due us.

So there is nothing remaining that is unique to us. We've argued our case and won, and now the proposal for all to consider is simply dissolving our casual association, and inviting all members to affiliate with the Vietnam Veterans of America.

VVA is organized to meet our needs. Their service officers understand the VA and Agent Orange issues, and we share with VVA members the full range of veterans concerns. In particular, we have an abiding concern for veterans of all toxic exposures, something the VVA will fight for on our behalf and with our small number of airmen added to their ranks.

We'd thought of an aviation-focused chapter, but VVA's structure makes that impractical. Because we're spread all across the nation we can't enjoy the fellowship of other veterans unless allied with VVA and other service organizations such as VFW, DAV and the Legion.

Because of some continuing issues such as FOIA suits and Yale's representation of us on important cases, we will continue as an entity until these things are resolved. I'll also continue to blog as the mood strikes me...I've come to enjoy this as something of a focused journal

A note: of all the service organizations, while a couple like PVA and DAV mentioned us occasionally in their publications, our cause was championed by the VVA and the American Legion.

To both, we say "thank you, brothers."

The Problem in VA Contracts Also?

Iraq? What about the VA?

Why are big-$$ no-bid sole-source VBA contracts for Agent Orange studies issued...were the contracts contrary to VA purchasing regulations?

Veterans Affairs Failed C-123 Veterans, Disregarded Laws & Its Own Rules

The VA has failed C-123 veterans in major areas not previously addressed in this blog:

VA has a duty to assist the Veteran in obtaining all potentially relevant documents to substantiate a claim, including medical evidence to verify the claim. 38 U.S.C.A. § 5103A(a)(1), (b) (West 2002); 38 C.F.R.§ 3.159(c) (2008); Talley v. Brown, 6 Vet. App. 72, 74 (1993). 
Key Point: VA (the Federal Government) has a heightened duty to assist given several actions by US Government (VA and USAF:)

1. USAF identified hazardous materials in the C-123 but failed to properly protect occupants from 1979 on (date of the first C-123 "Patches" contamination test [Conway])

2. USAF determined Patches (a relevant sample aircraft and the only one so tested) to be "heavily contaminated with dioxin on all test surfaces" in 1994 but failed to inform exposed veterans (Porter/Weisman)

3. In 1996 USAF decontaminated Patches but later destroyed all other former Agent Orange spray aircraft in 2010, stopping planned contamination tests, and depriving veterans of evidence vital to exposure claims, as was noted by AF officials at the time as one of the justifications for their destruction

4. The official recommending the C-123 destruction ("the strongest proponent of immediate destruction") was subsequently retained by VA to address and dismiss, the C-123 veterans' exposure claims; In 2012, $600,000 ($300,000 for Sept 2012-2013, $300,000 for Sept 2013-2014) was spent by VA with the same consultant to establish arguments or hypotheses against C-123 veterans exposure claims but no funds spent were by VA to substantiate veterans' proofs and arguments. I guess that'll get the desired results.

VA has ordered an examination of the issue by the Institute of Medicine but issued a charge to the committee not addressing legal requirement for veterans' claims for presumptive eligibility. The consultant, stating he was not representing VA but explaining its science, put forward VA's arguments against the veterans' exposure but provided no such expert witness to argue the veterans perspective. I guess that'll get the desired results.

Veterans requested office space, printing and other minor assistance without response in their preparation to the committee. Unlike VA, veterans' meager personal funds proved inadequate to respond to VA's well-paid opposition, especially in the services of the consultant to the Air Force and subsequently, to the VA.

Years ago, the late LtCol Paul Bailey and Major Wes Carter filed Freedom of Information Act requests with the VA, seeing the basis for VA's unbending refusal to permit C-123 claims to be approved. VA then refused even the existence of any relevant materials, but on one response offered to provide some items for over $4000 in fees. Finally, VA simply refused until the C-123 veterans filed suit against it, and in complicated court maneuvers the US Justice Department, representing the VA before the US District Court of Washington DC. 

VA promised to try to flow documents to us as soon as possible, given the May 15 and June 16 Institute of Medicine C-123 hearings. However, the first we saw anything was when the IOM let us purchase a CD with selected VA documents on it...VA certainly left a lot out, including everything which might support the veterans' which we didn't already have. Then, when the IOM public meetings concluded, VA has returned to its original sop, "we ain't got nothing" perspective, refusing everything we sought. Legal actions continue in the US District Court for Washington D.C.

From VA 21-1MR: "(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."

The important points here are that the government is to assist gathering such records, and the government is to include as applicable records from "a Federal department or agency," as well as records from State or local governments...and other non-Federal governmental sources. 

How did VA meet its responsibilities? It shirked its duty in the case of C-123 exposure claims, VBA has even held that input from the CDC/Agency for Toxic Substances and Disease Registry, the NIH/National Institutes of Environmental Health Sciences, the US Public Health Service, and numerous State agencies is unacceptable and has made no effort to fulfill its duty to assist. Neither, has VA notified veterans of its failure to locate relevant documents, by simply predetermining that such documents are not relevant. In fact, their relevance is clearly spelled out here, proof prevented by the VA.

38 USC §5103, and 38 CFR §3.159, implemented with VA  21-1MR describes the relationship between the Joint Services Records Research Center (JSRRC) and the VA when addressing exposure claim of individuals. VA must make "reasonable efforts" to obtain non-federal records identified by the veteran. Not only does this describe the VA's duty to assist, it infers that such non-federal evidence may be applicable and considered. 

VA must make at least a single request plus a follow-up, and must notify the veteran of failure to locate and what follow-up efforts might be made. Summary: a veteran need only indicate existence of a relevant source of proof and the government must make "reasonable efforts" to acquire it, and notify the veteran if unable to do so. 

So far, VA defines its reasonable efforts to help us by refusing our FOIA.  Also:

– By reinventing fundamental terms of science. 

– By disregarding other federal agencies' input. 

– By disregarding private & VA physicians' input

– By dismissing university experts (physicians & scientists)

– By cherry-picking and paying consultants who've expressed great distain for us, and predetermined no exposures were possible to any Vietnam ground soldier and certainly not us

– By constructing illogical and unscientific arguments against us. 

– By failing for many years to obey the law as now written, hoping for some action by IOM to permit VA to construct new barriers.

– By wording their IOM charge so nothing of direct consequence will help.

– By deceiving Congress, the veterans and the public by ignoring three separate commitments posted in the Federal Register (8 May 2001, 15 April 2008, 31 August 2010) to care for exposed veterans.

– By its General Counsel ignoring systemic problems formally brought to his attention.

– By systemic refusal to consider C-123 claims, including stating that none will ever be permitted, and that "a line must be drawn," training adjudicators to deny exposure claims, all while also assuring Congress that all claims are considered on a case-by-case basis, but only to be uniformly denied.

– By its Inspector General ignoring systemic problems brought to its attention.

– By speaking and writing to us very politely, very respectfully, while insuring we are kept out of their hospitals.

– And regardless of any IOM actions, VA will wait us out...delay, delay until we die!
And as they know that won't be long, now. I guess that'll get the desired results.

New TRICARE Nurse Advice Line Now Available

On Friday April 25th TRICARE’s new Nurse Advice Line (NAL) started service throughout the continental United States, Alaska and Hawaii. In March they began what they called a soft launch in six sites to make sure the system worked. The six sites were Military Treatment Facilities at NH Oak Harbor, NH Pensacola, GLWACH, Fox AHC, Seymour Johnson AFB and Whiteman AFB.

In 21 days they received 628. 137 were general health care questions while 501 calls were about an injury or illness. 60% of the call were about adults and 40% were for children.  95% of the callers said that were planning to go to an emergency call or urgent care before the call. After the call:

• 29% of the callers were advised by the nurse to go to an emergency room or urgent care
• 20% were given appointments at MTFs and
• 51% decided they did not need to go to an emergency room urgent care or have a appointment made for them.
• 
  

The NAL is 24/7 and toll free. If you are sick, hurt or just have a question all TRICARE beneficiaries can immediately speak to a trained medical professional by calling
1-800-TRICARE (874-2273) 
For more information please go to:
www.tricare.mil/CoveredServices/BenefitUpdates/Archives/04_25_14_
NurseAdviceLine