VA "Experts" Screw Up Chief Ernest Henley's C-123 Agent Orange Exposure Claim

SNAFU.  Or perhaps FUBAR.  Pick whatever term you'd like to use, the fact is that VA's claims officer and, later, a Decision Review Officer both torpedoed Chief Master Sergeant Ernest Hensley's Agent Orange disability claim and appeal first submitted five years ago. Chief Henley got his DRO decision this month and was shocked to read that every Agent Orange issue was denied!

How could this be? VA approved C-123 veterans like him for presumptive exposure last June, so how could his claim be denied in January with the issue seemingly resolved already by VA?

Answer: either the VA staffers were magnificently ignorant of VA's widely promoted C-123 veterans' program, or they deliberately took action to ruin his claim. Truthfully, it feels like the latter because a VA Decision Review Officer is, in VA's words, "a senior technical expert and has jurisdiction (the authority to hear and decide) of any appeal." In other words, the go-to expert.

But the DRO expert working Ernest's claim really fouled it up! Note also that his claim had all the facts which LtCol Paul Bailey's C-123 claim was approved with back in 2013 on a fact-proven basis! Fortunately, the St Paul VA C-123 team has stepped in to make right Ernest's claim. They, too, cannot understand VA's numerous errors.

 Here are the four areas the DRO torpedoed his claim, quoted from the decision itself:

1. Service connection for ischemic heart disease due to Agent Orange exposure.

You contend that your current ischemic heart disease is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your private treatment records fail to show this condition began within a year of separation from active duty, so service connection on a presumptive basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink However, this document falls to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

 • Service connection for iseheinie heart disease due to Agent Orange exposure is denied.

2. Service connection for prostate cancer due to Agent Orange exposure.

You contend that your current prostate cancer is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for prostate cancer due to Agent Orange exposure is denied.

3. Service connection for melanoma cancer due to agent orange exposure.

You contend that your have melanoma cancer and that it is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied.

Your personnel records do not shows you served in Vietnam during the Vietnam War era, nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. 

However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm. Service connection for melanoma cancer due to agent orange exposure is denied.

The content of the veteran's claims file as of-the date of this Statement of the Case (SOC) is incorporated herein, by reference. The records in this case have been reviewed and the issues considered under the provisions of VCAA (Public Law 106-475). All indicated development has been undertaken and all reasonable efforts to assist you in pursuing your claim have been exhausted. The evidence of record is sufficient to render a sound merits decision. It is the determination of the Decision Review Officer that the evidence of record does not support any change in the previous determination which is confirmed and continued. This decision is based on a de novo review of the evidence contained in the claims record without deference to the prior determination under authority of 38 CFR 32600. 

The doctrine of reasonable doubt is not for consideration because the preponderance of the evidence is unfavorable. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your private treatment records fail to show this condition began within a year of separation from active duty, so service connection on a presumptive basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. 

Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crew member was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for ischemic heart disease due to Agent Orange exposure is denied.

 4. Service connection for prostate cancer due to Agent Orange exposure.

You contend that your current prostate cancer is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crew member was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for prostate cancer due to Agent Orange exposure is denied.

OUR RESPONSE TO VA'S C-123 CLAIMS PROCESSING CENTER, ST PAUL, MN:

(Re: 317/VSC/APPEALS/KKB)
The C-123 Veterans Association recognizes the determination with which this Veteran’s disability claim was denied by the Newman Veterans Affairs DRO. In each of the areas of the denial and of the appeal, the VA was in error.

Veteran Henley was an experienced Veteran of the 731st TAS C-123 squadron stationed at Westover Air Force Base. The Veterans Affairs has noted throughout its website and other documents that the 731st Tactical Airlift Squadron and associated maintenance and aeromedical squadrons were approved for presumption of Agent Orange exposure.

I join his other crewmates in confirming Veteran Henley was a crew chief on C-123 tail number 362 (Patches) and was subjected to exposure via frequent, regular, professional and hands-on duties aboard our former Agent Orange aircraft.

Via an interim final rule published by the Secretary of Veterans Affairs on June 19 2015 provided that Veterans of C-123 squadrons stationed at Westover Air Force Base, Rickenbacker Air Force Base, and Pittsburgh Air Force Reserve Station are all granted presumptive service connection.

Despite the Veteran’s documentation, his claim was not forwarded to St. Paul regional Veterans Affairs office for processing of C-123 claims as provided by VBA. We are amazed that this denial recognized the Veteran’s C-123 duties however but ignored that VA six months earlier recognized the C-123s as contaminated by Agent Orange. Please see the attached Veterans Affairs documentation. Further, in violation of VAM21-1, the rating officer failed to submit Chief Henley's facts to the Joint Services Records Research Center which would have substantiated the exposure claim immediately. Finally, the American Legion, which advanced the C-123 issue at the highest levels, failed here to properly support the Veteran’s claim with their claims rep's numerous mistakes trying to help Earney.

The Institute of Medicine study and report (NAS #18848) published on January 9, 2015 and accepted by the VA on that date provided recognition of these Veterans’ exposure and medical injury. The IOM report also faulted the Air Force report of 2012 for its failure in scientific and mathematical errors.  Scientists involved in publishing that original report, who opted to refuse to sign it, subsequently published in Environmental Research a more detailed study of the C-123 Agent Orange contamination.

On page 36 of the Statement of the Case, the Veteran is wrongly assured that the VA “applied the benefit of the doubt and liberally and sympathetically reviewed all the submissions in writing from the Veteran as well as all evidence of record.” Rather, the DRO failed to even consider the VA’s own regulations, findings, and documentation. This decision seems to be an effort to deliberately deny the benefits due him by ignoring with profound determination all VA evidence and findings that support his claim.  NONE of the hundreds of C-123 Agent Orange supporting documents in VA's possession was provided to Chief Henley, in clear violation of the Veterans Claims Assistance Act.

Good news from a brother C-123 veteran. Makes the effort worth everything.

In my email box this morning: (Jan 6 note: VA leadership saw George's note with August date...and corrected his claim back to June. Good job, VA!)

Wes;Thursday I got a letter from the VA awarding me 100% for leukemia effective Aug 24 2015. I had just about given up all hope. I want thank you very much for your help, without it the C-123 VETs would have been left out in the cold. Again "THANK YOU"
George B.

God Bless George in his continuing health issues, and God Bless St Paul VARO for caring about C-123 veterans.  Isn't this wonderful?

Today's Developments re: JSRRC C-123 Veterans' Agent Orange Exposure Claims – "The Rest of the Story!"

Our last post detailed the decision by the Huntington WV Veterans Affairs Regional Office in denying a C-123 veterans' claims for a variety of illnesses associated with his Agent Orange exposures at Westover AFB, MA. Huntington denied, citing the JSRRC report which detailed NO Agent Orange use at Westover AFB, MA.

Correct. But what Huntington failed to do was include the affirming language also in the JSRRC report which very much confirmed the veteran's exposure claim.

Get it? Huntington wanted the claim denied, so Huntington VARO carefully selected language (out of context) to cite refusing the claim, and also very carefully selected language they didn't want in the report, so as to make sure the claim was denied but looked as though the JSRRC report was in the negative. 

Thank you, JSRRC, for clarifying this situation!!

Very creative. Very wrong. This must be corrected by Veterans Benefits Administration! Here is the language Huntington opted to skip over to screw the veteran:

VA Continues Denying C-123 Vets' Agent Orange Claims–Merely Changes Their Wording

(please see today's next posting correcting the JSRRC actions which were perfect, as this error rests with the Huntington WV VARO)

It never stops.

Post Deployment Health in VA's Veterans Health Administration said no C-123 claims would be honored on their watch, and they continue to call the shots by ordering Compensation and Pension Service to make sure all such claims are denied.

Today we were copied on a VA Regional Office decision on one of our flyers. Like Paul Bailey and Dick Matte's earlier claims for Agent Orange exposure aboard the C-123 fleet at Westover, this NCO flew the same C-123s during the same time period. Unlike them, his claim remains denied. And will stay denied until reviewed by a Decision Review Officer or the BVA.

What is particularly weird here is the Joint Services Records Center response about the veteran's exposure claim. As far back as March 2014, JSRRC began confirming Westover's C-123 veterans' Agent Orange situation, yet here JSRRC denies it. So, VA refuses to accept JSRRC confirmation on other claims, but when JSRRC responds (incorrectly) in the negative, VA leaps at the opportunity to sink another deserving veteran's disability claim.

VA Denies Another C-123 Veteran Agent Orange Claim

Honoring its promise made us on February 28, 2013, the director of VA's Compensation Services (C&P) completed denial of my own C-123 Agent Orange service connection claim today. This completes C&P's 25 September 2012 advisory opinion provided the Portland VARO in which he directed opinions from toxicology scientists be disregarded because they weren't physicians.

The same advisory opinion also detailed the VA's one paragraph summary of the official finding of Dr. Tom Sinks, Deputy Director of the CDC/Agency for Toxic Substances and Disease Registry. Deliberately and evasively avoiding mention of Dr. Sinks' actual finding which stated "I believe that aircrew operating in this, and similar, environments were exposed to TCDD," C&P appends a sentence to that summary in a manner implying Sinks meant something altogether different: added was "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects" - a conclusion completely opposite Dr. Sinks' finding! VA also conveniently ignored (ignored to better deny the claims!) the ATSDR finding that C-123 veterans now face a 200 times greater cancer risk, thanks to exposure aboard the contaminated airplanes. 

This unscientific and prejudicial editing of another federal agency's finding was discussed in person with C&P's director and his staff on February 28 at his offices, but without comment, modification, retraction, denial or anything...other than his statement that he can't be personally familiar with every piece of VA correspondence over his signature. I understand, but I did bring it to his attention (without response) in November 2012, before it was used to deny my VA claim. While selectively applied to C-123 veterans, thank God VA does not apply that mistake about TCDD to other Agent Orange-exposed veterans.

Agent Orange, and its toxic component TCDD, are generally thought to be somewhat harmful, and considered a human carcinogen and one of the most toxic toxins on the planet. The VA, paying billions in Agent Orange veterans benefits, might consider applying the above paragraph in reconsideration of all those expenses if, indeed, there is no evidence of TCDD being harmful. VA might wish, however, to first run the issue past the Congress, the veterans organizations, the courts, the Institute of Medicine and their own executives. Perhaps...the statement of TCDD being harmless is applicable only in the instance of denying C-123 veterans our claims.

Completely ignored in today's denial of my exposure claim are expert findings in my favor provided by the University of Texas Medical School (Dr. Arnold Schecter), the EPA, the NIH, Dr. Jeanne Stellman, Dr. Fred Bowman (Oregon Health Sciences University Toxicology Department) and other highly esteemed scientists. Ignored completely are the numerous juried scientific articles establishing the TCDD contamination of the C-123, the bioavailability of that TCDD, the routes of exposure as having been dermal, inhalation and ingestion, and dozens of other proofs. Best dealt with by the VA by ignoring them as opposed to acknowledging the fact of the matter...C-123 veterans were indeed exposed to Agent Orange.

VA Exposure Expert

The question of "exposure" is pivotal. The VA utilized its own special in-house extra-legal (even though the issue has already been adjudicated and resolved, and VHA is not free to redefine such things and VBA isn't supposed to approach veterans claims with a VBA predetermination for denial) definition of exposure, being in effect "no C-123 exposure is ever going to be acknowledged." Science, however, more correctly defines exposure as "the contact between a chemical or biological agent and the outer boundary of an organism." Quite simple, and according to the NIH adequate to establish that C-123 veterans were exposed to Agent Orange to the complete satisfaction of the law. 

Typical C-123 Veteran

The law? Forgettaboutit! The Agent Orange Act of 1991 and subsequent modifications, in particular the May 2001 VA promulgation of Title 38 (as detailed in the Federal Register) clearly spell out that VA will treat veterans exposed to Agent Orange outside the Vietnam "Boots on the Ground" group the same as the Vietnam veterans, and without having to establish medical nexus. Thus, given (1) our doctors' proof of Agent Orange-presumptive illnesses, and (2) the Air Force proof of the C-123 Agent Orange contamination, the only way for the VA to shoot down our claims is to (3) deny exposure. Deny, deny, deny.

Today, the VA Compensation Services locked on and fired, just as they promised they would for any C-123 veteran hoping to establish service connection for Agent Orange exposure.

Next step? Board of Veterans Appeals, at least, for any of our members surviving to present their claims after the typical five year waiting period which follows the two years wasted thus far.

Three C-123 Agent Orange Claims Approved!

A careful search for Board of Veterans Appeals decisions has revealed two C-123 veterans who succeeded in appealing their denied claims for Agent Orange exposure! (click for a copy)

One of these veterans was at Rickenbacker (with, somehow, two BVA decisions about his claim) and one at Hanscom with the 731st TAS. The Hanscom vet worked on our C-123s between 1972-1973, before the squadron moved to Westover.

So we have two exactly parallel situations where veterans just like us succeeded in their claims. Initially denied at their local VA offices, the men appealed and were successful at the Board of Veterans Appeals. And actually, we now have much more evidence to support our claims than was available back when these cases were decided.

While this brings some logic to other VA rating officers (ROs), BVA decisions are not precedent-setting. Some veterans experts even suggest not bothering submitting such similar cases, but here I think we have such identical situations as these winning cases, we should copy them to our local offices. If you are working through a veterans service officer such as the VFW or DAV, provide to them.

We must question why LtCol Aaron (Tim) Olmsted of the 731st didn't have this same documentation when his case was denied. At Tim's BVA hearing, his claim was denied solely because "the veteran failed to prove the airplanes he flew were the same airplanes used in Vietnam for spraying Agent Orange, or that the planes he flew were  flown in Vietnam." As the American Legion represented both him and the Hanscom veteran, that also leaves me wondering why that huge organization failed to submit the necessary proofs for Tim...everything was readily available on the Internet!

Veterans MUST Personally Review "C" File!

Your "C" file is the complete set of documents regarding your claim. This isn't your VA medical records although many or all of those records may be in the "C" file as evidence. Instead, the VA maintains at each Regional Office the veteran's initial claim, supporting documents, VA records relative to that claim, awards, denials...everything. Pretty much a complete legal gathering of your case.

The problem is, as I have found out in two recent incidents, you can't count on the accuracy of that "C" file unless YOU spend a couple hours turning pages and taking notes.

Yesterday I reviewed my notes from checking out my "C" file a week ago. Back then I thought I'd caught the significant mistakes made by the VA (failure to obtain correct information from the JSRRC, and other errors). But I missed a big one! A game changer that should have been working for me from the get-go.

The local office forwarded my case with a recommendation for approval by the DC folks, where my claim was denied, in part, for lack of medical nexus between Agent Orange and my Agent Orange-presumptive illnesses. Problem: The local office failed to forward my cardiac surgeon's letter establishing exactly that nexus!

I didn't catch this on my visit and only noticed it in passing looking over my notes and some of the VA's documents. This missing document can be critical to my claim and I'll notify my VARO to correct their oversight.

DoD records agency torpedoes C-123 Claims!

JSRRC, Alexandra, Virginia

This week I had the opportunity to review my "C" file at the local regional office. Lesson learned...should have done so much earlier! It turns out that the Joint Services Records Research Center, the DoD agency responsible for informing the VA about any veteran's individual PTSD or Agent Orange claim, was totally off base and helped torpedo my VA claim.

In my case, which is likely the same as every other C-123 veteran who has approached the VA for service connection, the VA regional office did a fair job summarizing my claim and boiled down to a single question what was needed from JSRRC: "We are requesting a determination as to whether herbicide (sic) were found as alleged." An accurate answer would be vital, confirming my own description of the situation or leaving it unfounded.

JSRRC has boxes and boxes of supporting information collected in their normal course of activities. They gather unit histories, combat action reports, deployment orders...all that sort of stuff. But for some reason, last year when I was referred to JSRRC for information to support the C-123 exposure issue, they responded in the negative...nothing available, per their chief, Mr. Dominic Baldini.

So I oped to provide Mr. Baldini a large collection of what our C-123 veterans had collected since April 2011. I sent JSRRC flight logs, toxicological tests, contemporary news articles, "buddy letters", expert independent scientific opinions, findings by other federal agencies, photographs, emails and official correspondence. Enough any historian would agree to answer that question"was herbicide found as alleged." Sometimes historian want original source documents, and everything I sent is still readily available today from the various agencies if Mr. Baldini felt he couldn't accept what I sent as official enough for their purposes.

Faced with their mission objective of helping the VA help veterans substantiate claims, the JSRRC completely failed me and all other C-123 veterans. Instead of responding to the VA's inquiry about me with a summation of testing done on Patches and the rest of the fleet, supported by all the official documentation which thus far totals over 300 pages, the JSRRC simply torpedoed  us!

In respond to the VA question, the JSRRC uselessly and in error wrote:

"Unfortunately, the JSRRC in unable to verify or document that an (sic) air crewmembers were (sic) exposed to Agent Orange resulting from Agent Orange residue or dioxin contaminated aircraft or aircraft parts. Please refer to your (VA) website and the VA's determination for this information."

Four problems here which would ruin any C-123 veteran's hopes for a fair deal from the VA:
1. JSRRC did not address the question posed by the VA but instead said it couldn't "verify or confirm" aircrew Agent Orange exposure
2. JSRRC referred the VA back to the VA for supporting information (with the referral back to the VA's C-123 press release from VA Public Health) - ridiculous in the extreme to tell the VA  seeking source documents to read their own (erroneous) web page!
3. JSRRC was incorrect in their answer anyway, as ample information was available at JSRRC to establish aircrew Agent Orange exposure - in particular, the expert scientific opinion from Dr. Tom Sinks, Deputy Director, CDC Agency for Toxic Substances and Disease Registry, who stated:

"Given the available information, I believe that aircrew operating in this, and similar, environments were exposed to TCDD"

Dr. Sinks, speaking on behalf of his agency which is responsible for making such decisions, coudn't have been any clearer. His letter certainly was one item of verifying documentation JSRRC had to offer. His answer should have been adequate.
4. Finally, once JSRRC responded the VA did nothing to challenge  either the failure to address the original VA question, or to challenge the JSRRC response which clearly was in error - the VA had the same documentation from ATSDR and other sources

Another VA Claim Sunk - for inadequate proof!

Observation: We all need to personally visit our Veterans Affairs Regional Office (VARO) to review our records. Discuss with the staffer who will sit with you while going through the records any errors, omissions, whatever. You can request copies which they may be courteous enough to offer, but if not, simply FOIA the entire collection. Remember this "C" file at the VARO is separate from your medical records and you need to make sure both are complete and accurate. In my visit I uncovered three very important issues to address which will help make my case successful...well worth the trip downtown to keep them from letting your application be torpedoed!

This is terrifying. JSRRC and the VA can't be counted on to meet their own mission of accurately gathering and evaluating evidence of our Agent Orange exposure, and then when challenged by veterans simply ignore us!