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 Violates 2010 Order from US Circuit Court of Appeals

Veterans Benefits Administration has violated a 2010 order from the US Circuit Court of Appeals. VA had been ordered to publish, and to implement, various rules involving Agent Orange exposure and veterans' benefits. The order flowed from a petition for a writ of mandamus from several veterans organizations and the National Veterans Legal Services Program.

And involved was the eligibility – the right – of C-123 veterans to exposure benefits.

The court approved the request for the writ and ordered the Secretary to publish in the Federal Register the changes in benefits recommended shortly before by the National Academy of Sciences/Institute of Medicine. The 1991 Agent Orange Act states that the Secretary has 60 days to implement such changes and the writ enforced that timely response upon the VA, which VA had been stalling on for too long.

The VA complied with the order, and on August 30 2010 published in the Federal Register the required rule changes bringing into effect the recommendations from NAS. C-123 veterans are directly affected in two ways:
1. The announcements in the Federal Register are binding upon VA 
2. The announcement on August 30 2010 included the VA's statement that no revision on VA regulations (VA 21-1MR) was necessary to address non-Vietnam exposure claims because VA would presume all such situations with recognized Agent Orange illnesses resulting would be treated the same as Vietnam veterans' "presumptive service connection"

So now VA has dodged its obligations to C-123 veterans by redefining "exposure" to prevent acknowledging C-123 veterans' fact-proven exposure claims. Setting up a definition of exposure unique to federal government medical and scientific agencies, VA defies opinions submitted by DOD, USPHS, CDC, EPA, NIH and other authorities to pretend this group of vets were never exposed at all.

And in this deception, not only do they defy their own rules, which courts have said have the rule of law, but they defy the US Circuit Court of Appeals. This is because, having published as ordered the changes recommended by the NAS, VA opts to avoid enforcing them and has for years refused to permit C-123 veterans to receive VA medical care.

VA Announcement in Federal Register
30 August 2010

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.

DOD Agency Confirms C-123 Vets' Agent Orange Exposures

Development: Beginning May 2014, the Army's Joint Services Records Research Center (JSRRC) began submitting official confirmation of C-123 veterans' Agent Orange exposure evidence to the Department of Veterans Affairs. This is a big deal...this should be a game-changer.

That is, if the VBA will permit claims adjudicators to follow VA's own regulations per VA 21-1MR.

Up to now, JSRRC responded to VA inquiries about aircrew and maintenance veterans with an inconclusive, "no records found to substantiate veteran's exposure claim." VA's manual "has the force of law," according to the Court of Appeals for Veterans Claims. JSRRC's military archivists in Fort Belvoir, Virginia research official documentation to help confirm or deny PTSD and exposure situations for all services except the US Marines...including C-123 post-Vietnam claims. JSRRC's empty response satisfied VBA's objective of preventing C-123 veterans' claims. The JSRRC answer, since May, has not been empty any longer...it is instead the final YES answer veterans were seeking!

Thus, because VA21-MR directs claims adjudicators to inquire with JSRRC to get an official thumbs-up or thumbs-down on Provider aircrews and maintainers, the recent JSRRC action means the final hurdle should have been resolved.

Problem: VA regional offices are postponing decisions on C-123 claims, for some reason waiting for the Institute of Medicine C-123 report to come out. We can only hope that repeated official promises, detailed earlier on this blog,  of "case by case" evaluations continuing are honored.

Action:  We think its time for Post Deployment Health to set aside that department's agenda and follow the law, VA 21-1MR, the US Constitution, and the many Federal Register statements that all veterans establishing proof of Agent Orange (herbicide, military herbicide, call it whatever) will have recognized Agent Orange illnesses cared for.

Let us into the hospital, please.

The Army Proved the C-123 Exposures, Despite VA Dismissal

It was heavily downplayed by VA and USAF in their C-123 reports. The Army's Technical Guide (TG) 312, considered the "gold standard' in its treatment of surface contaminations was dismissed as irrelevant regarding implications for C-123 post-Vietnam veterans.

It had to be. TG 312 was too accurate, and too spot-on to simply ignore, as VA and USAF had ignored the expert input from other federal agencies. VA's agenda was, and is, to "draw the line somewhere" (VHA to the Associated Press 2014) and prevent any further Agent Orange exposure claims (VHA to Major T. Rudd, US Army Chemical Corps 2012.) Because it helped establish C-123 veterans' exposures, the Army's TG 312 was a hurdle before VA in blocking claims, so they simply tipped it over and went around. VA's stated policy objective regarding post-Vietnam claims was, as they've stated since the beginning, to prevent approvals.

The Air Force Times itself did a complete explanation of the whole mess, and VA's intransigence, with a full-page article and also its editorial echoing that of other major publications.

By careful selection of which references to use and which experts and other federal agencies to ignore, VA VHA formed their arguments to prevent claims, and against the veterans, rather than letting the full body of evidence be evaluated to form their policy.

VA dismissed TG 312 as having no relevance for the C-123 interior and the aircrews' exposure. The complex interior of the C-123, mind, is of aviation grade aluminum, painted aluminum, wood, canvas, leather, glass, adhesives, other metals, canvas, fiberglass, wrapped electrical cables...many different surfaces upon which Agent Orange and its contaminant, dioxin, penetrated over the Vietnam years and then began to degrade.

The slow degrading was through weak UV exposure, as well as dioxin's half-life, different on different surfaces. But it was there, for decade after decade following Operation Ranch Hand in Vietnam, through the decade we flew them (1972-1982,) through the next decade while Patches (#362) sat at the USAF Museum, until Patches was tested "heavily contaminated on all test surfaces" in 1994.

TG 312, along with the USAF toxicologists who actually tested Patches, clearly showed these former spray aircraft a toxic threat to the crews who'd flown them. So VA dismissed both. VA said the AF tests were not applicable to the rest of the C-123 fleet (which hadn't been decontaminated but was determined with repeated tests to be contaminated with Agent Orange,) and TG 312 was based on wipe samples which disturbed the surfaces testing tested and therefore was inaccurate.

TG 312 is the "gold standard" of the US Army, respected by virtually every government, university and independent toxicologist, but VA's goal was to insure it somehow did not apply to the C-123 because tests on the C-123s, evaluated against TG 312, supported the veterans' exposure claims, even VHA's unique redefinition of "exposure" to require bioavailability. And wipe tests prescribed by TG 312 had adjustments calculated for physical disturbance in the testing procedures, a critical point mischaracterized by VA.

But most tellingly, the bioavailability is addressed in the TG 312  equations.  The surface and airborne concentrations are multiplied by various factors to yield an estimated dose by the various routes of exposure. For example,  by the direct dermal contact route, specific to dioxin, TG 312 notes the dermal absorption factor is 0.001, perhaps less significant unless exposed to large amounts over longer periods  However, the major routes of exposure are dermal to oral and inhalation which bypass the dermal barrier.  So VHA Post Deployment Health and the VA/Dow/Monsanto consultant were only partially correct positing that via direct dermal contact dioxin is not readily bioavailable.*

Exposure by ingestion and inhalation, exposure and yes...also bioavailability. Less so by dermal contact which was still intensive over the decade working on these transports, but it was there, too. We were exposed, and there was bioavailability. As Yale Law and other legal scholars agree, C-123 post-Vietnam veterans who flew former Agent Orange spray aircraft met the legal and regulatory standards to present vet's exposure claims. In 2001, 2008 and 2010, VA even said so, but this was before the C-123 vets grew concerned about our exposures, so VA had to redefine the word "exposure" used in several Federal Register promises to treat exposed veterans, so that they could better pretend we weren't exposed.

But VA says, "NO." VA orders regional offices to deny claims, has its C&P Agent Orange Inquiry Desk return "recommend disapproval" responses to claims forwarded IAW VA 21-1MR,  and create web pages alluding to non-existent "scientific studies" which were merely selective literature reviews to form words around VA's "we cannot permit any C-123 claims," as per the Deputy Chief Consultant, VA Post Deployment Health. "VHA has told us no C-123 veterans were ever exposed," according to C&P's statement on February 28, 2013 in his office conference with C-123 veterans.

The recent non-release of the FOIA'd USAF C-123 records, in which only a handful of hundreds of white pages had copy left on them after nearly all information was redacted, a line showed that the point-of-contact the Army for TG 312 would like to follow and assist the USAF C-123 investigation – but all such information was redacted and we don't know any more.

Neither do we know much about the VA's $600,000 sole-source, no-bid two year contract  for post-Vietnam Agent Orange exposure claim prevention...so many pages of the contract were redacted when released by VA. Amazing: the US government opts not to release information about Agent Orange studies it pays to conduct to the veterans who have been exposed and who need that information to accept, or to challenge its conclusions.

One final observation: the VA sought out the US Army Public Health Command for input regarding its TG 312 and the two organizations communicated regarding the C-123s. We veterans also wrote the Army with questions, but our inquiries were ignored, both the formal letters and the emails. The Army Public Health Command has in its mission statement the duty to assist in this regard, but withheld that assistance except to the VA.

* email, Dr. Peter Lurker to Major Wes Carter, 23 August 2014

VA Exec Insists Agent Orange is Harmless & Orders C-123 Exposure Claim Denied: Earns $11,000 Bonus!

Its true. The recent release of VA executive bonuses revealed a sore point about a sore point.

A C-123 veteran's claim for Agent Orange exposure was ordered denied by VA's Compensation and Pension Service with the statement that Agent Orange is harmless. Hard to believe, right?

Here is is. A regional office had recommended approval of a C-123 veteran's Agent Orange exposure claim and, following instructions in VA 21-1MR, forwarded the case to a special desk at VBA's Compensation and Pension Service. Quickly, the claim was slapped down and ordered denied.

In the Advisory Opinion sent back to the regional office, the Director of Compensation and Pension summaries the official findings by the CDC/ATSDR that C-123 vets were exposed to Agent Orange and suffer a 200-fold greater cancer risk with the misleading sentence in the summary paragraph, "In summary, there is no evidence of adverse health effects from TCDD exposure."

This executive earned $11,000 by overlooking the reams of VA official documentation labeling

TCDD "a potent human carcinogen." This executive earned $11,000 by ignoring the requirement in his department's own rules that all a non-Vietnam vet needs to prove is Agent Orange exposure, and the executive twisted the denial into one citing no proof of medical nexus...a requirement not mentioned in the law, VA rules, Federal Register...only in his mindset that the clam must be denied.

Maybe he was too focused on that $11,000 bonus to read the law correctly.