Patches & the IOM C-123 Agent Orange Report

Visiting the USAF Museum, Wright-Patterson AFB and home of "Patches," our Agent Orange-contaminated C-123.

To all post-Vietnam C-123 Veterans: if you haven't already, contact VA and arrange your Agent Orange Registry physical. This is a free comprehensive exam looking for any possible Agent Orange exposure medical issues and it is vital whether you have any such illnesses or not. The first friend I talk into having the physical was found to have a life-threatening heart problem, and the physical perhaps saved his life. Call VA now!

I'm holding the report from the Institute of Medicine/National Academy of Sciences that convinced the VA our aircraft had been contaminated, we were exposed to Agent Orange, and we were harmed greatly by that exposure. Behind me is Patches, now decontaminated, of course. CDC actually notified VA that Patches and our other aircraft were too contaminated to be flown in American airspace, and the crews all should have been wearing full hazmat!

The report summary can be downloaded free at https://www.google.com/url…

The archives at the museum revealed the evidence of testing back in 1979 and 1994 and 1996, and the evidence that USAF bioenvironmental scientists concluded the airplane was "heavily contaminated with dioxin on all test surfaces, STILL after its last spray missions in 1968 during the Vietnam War.

We started flying Patches in 1972 and were exposed to the Agent Orange residue for the next decade. Although the CDC informed VA and USAF that the aircrews and maintainers had been exposed, officials at VA continued to insist otherwise and stated VA had "an overwhelming preponderance of evidence" against any harm being done.

In 2014 it became clear, based on the IOM study and the report I'm holding, that VA's position was based solely on its policy decision to block additional Agent Orange claims like ours. Policy, not science. Policy, not law.

The US Senate agreed. Under leadership from Senator Burr of North Carolina and Senator Merkley of Oregon the Senate blocked all VA confirmations until the C-123 issue was resolved. The national commander of the VFW testified to Congress that that full benefits for C-123 vets must be authorized,  All six major veterans organizations insisted VA act, with the Vietnam Veterans of America leading their joint efforts.

The media was behind us all the way. The first press coverage was in early 2011 in the Air Force Times where reporter Patricia Kime detailed our USAF Inspector General complaint wherein the service was asked, but refused, to notify our veterans of their potential exposures. Subsequent articles appeared in the Washington Post, Springfield Republican, American Legion Magazine, the Oregonian, Associated Press, CBS News, Pittsburgh Gazette, NPR All Things Considered, Boston Globe, Air Force Magazine, plus Military.Com and other Internet outlets. Air Force Times and the Springfield Republican both ran editorials insisting VA act in our behalf.

In 2009 Dr. Alvin Young, VA's principal consultant on Agent Orange, had strongly recommended to the USAF the immediate destruction of all C-123s stored in a hazardous material quarantine section of Davis-Mothan Air Force Base because, among other reasons, our already exposed air crews and maintenance veterans might approach the VA seeking care for Agent Orange illnesses. Destruction of the aircraft would help prevent such claims, especially, as it was pointed out, if the aircraft disappeared without public attention. Preventing claims seems to of been awfully important to the VA and so many others. It seemed so important to Dr. Young because in 2011 he denigrated us as "trash haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman." The VA certainly found the right voice to help it oppose our claims – VA had found a man who holds us in contempt to help VA avoid treating our illnesses.

In 2013 Dr. Young was in the middle of his unique VA two year $600,000 no-bid sole source Agent Orange consulting contract. He urged Mr. James Sampsel at the VA Agent Orange desk to "hold the line" (his words) against our claims. For his part, Mr. Sampsel informed his VA colleagues and supervisors that all proof confirming our exposure submitted to VA by independent scientific authorities and other federal agencies (CDC, DOD, USPHS, NIH)  was merely the real "problem" for VA – proof Mr. Sampsel and others in VBA would ignore despite VA regulation VAM21-1MR and despite the Veterans Claims Assistance Act.

Dr. Terry Walters at the VHA Post-Deployment Health Section, told the Associated Press that a line had to be drawn against our claims. Hold the line, indeed!

For too many years the VA "held their line" and denied every single claim submitted by our veterans of the post-Vietnam C-123 spray aircraft. While being paid by VA Dr. Young testified before the Institute of Medicine C-123 committee against our exposure claims. He even attacked the IOM report after its publication in January 2015 using arguments similar to ones used earlier when Dow and Monsanto sponsored him. But the committee saw through that. The committee also criticized VA and USAF for routinely dismissing, ignoring or minimizing  proof of veterans' exposures

In June 2015, the Institute of Medicine report I'm holding in the photo was acted upon by Secretary McDonald. He brought truth, science, law, and compassion into the process at last. The 2100 of us who volunteered to serve our country by flying and maintaining our aircraft willingly accepted the hazards of aviation service and now are acknowledged to have also endured hazardous toxin exposures for which the VA will now care.

As VA Secretary McDonald said to me at the White House, "We won." He meant "We" the veterans and "We" the VA, No longer adversaries.

Let's not let this happen again to other veterans facing toxic exposures.

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.

VA Needs to Hear Our Argument on Retroactive Disability Compensation

Here’s the law for veterans and the VA on retroactive disability compensation (38 C.F.R. 3.114)

“(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.”

C-123 veterans ask that VA more closely follow this section of 38 C.F.R. and further, interpret when possible in the most pro-veteran manner. Our exposures constitute injuries, which satisfy both our service’s and the VA’s requirements for statutory veteran status. Having all eligibility criteria met when the liberalizing benefit was promulgated, and having continuously maintained that eligibility, retroactive compensation is appropriate and not proscribed by 38 C.F.R. but instead provided for by it.

There is no justification in VA21-1M or 38 U.S.C. to prohibit Reservists and Guardsmen exposed to toxins which science and also VA acknowledges result in subsequent disabling injuries, illnesses and death. Indeed, prior to June 18 2015 and the C-123 Interim Final Rule, there was no prohibition to granting service connection for those exposures and grants were made repeatedly for Air Force Reservists’ C-123 exposure claims, including by different Boards of Veterans Appeals over many years.

Since early 2011 VA leaders, from the Secretary to more junior staffers, knowing that nearly all of the claims would be from Reservists, assured veterans and our legislators that each C-123 exposure claim would be considered on a case-by-case basis. This assurance was accompanied with directions to regional offices that no possibility existed to honor C-123 exposure claims and that VA regulations prohibited doing so. Secretary Shinseki published his June 7 2013 C-123 Fact Sheet through Senator Burr, in which he repeated that assurance and commitment. Any prohibition against retroactivity only arises from the June 18 2015 Interim Final Rule inclusion of an unnecessary liberalizing rule.

Between 1972 and June 2015, there have been no denials of C-123 Agent Orange exposure claims for Air Force Reservists, either at VARO-level or BVA, on the only recently raised question of veteran qualification. When BVA decisions addressed the issue of Reserve veteran status at all, it was to specify that the exposure injury, dating from the exposure, satisfied the statutory requirements.

This comports with binding VA OGC precedential opinions, which themselves have frequently been cited in VARO, DRO and BVA decisions on different illnesses and injuries.

The VA has stated it cannot permit awards retroactive from the date the Secretary’s dates for new rules. If that is the case, certainly VA cannot attempt to make retroactive the prohibition of retroactive compensation for claims properly submitted to Veterans Benefits Administration prior to the Interim Final Rule.  That, too, is blocked by the Secretary’s inability to effect changes for his rules prior to the rules taking effect.

It is proper for VA to determine it has the authority to deny retroactive benefits only for claims not filed before the June 2015 Interim Final Rule, and proper to also determine that it has authority to provide or deny retroactivity for claims received after the rule’s promulgation. Again, the Secretary’s authority to prevent retroactive compensation only derives from the Interim Final Rule but on a prospective basis, not prior to June 2015 for claims already submitted. Claims received by VA prior to June 2015 must be considered on a case-by-case basis with full retroactive effect of any awards. After June 18 2015 VA can apply both its barrier to retroactivity and presumptive service connection.

The Board of Veterans Appeals has repeatedly acknowledged the “veteran” status of Reservists exposed to toxins, BVA Docket 06-18 270 in 2007 held that a Reservist exposed to Agent Orange aboard my own C-123 aircraft (citing in particular #362 which I flew) at my own base(s) (Westover AFB and Hansom AFB, both in MA and both of which were bases I flew from) during the same time period, satisfy statutory requirements: The Board concluded:

“The Board will concede that the veteran was exposed to an herbicide during service. The service and museum (USAF Museum Dayton Ohio re: C-123 #362) records document the veteran’s reserve service in 1972 and 1973, the presence of that C-123 at Hansom in 1972 and 1973, the use of that C-123 in spreading defoliant in Vietnam, and service of that aircraft in Vietnam in 1972.
The board accepts that the veteran was exposed to an herbicide during service. The veteran was diagnosed with type 2 diabetes after service. The Board presumes that the veteran’s diabetes is service connected, and grants his claim.”

Another BVA case dealing with Air Force Reservists flying the same C-123s, concluded in its 2001 decision:

“Therefore, the Board resolves such reasonable doubt in favor of the veteran to find that the veteran was exposed to an herbicide agent used in support of the United States and its allied military operations in the Republic of Vietnam during, his active duty for training performed at Rickenbacker Air Force Base between 1970 and 1975. 38 U.S.C.A. 5107(b) (West Supp. 2001); 38 C.F.R. 3.102.

Other BVA decisions addressing Air Force Reservists in 2013 and 2014 (Matte [2014, Boston DRO] and Bailey [2013, Manchester DRO]) paralleled the several earlier decisions. In fact, there are no known BVA decisions addressing C-123 Air Force Reservists which did not acknowledge assume their satisfaction of statutory requirements for veteran status.

Thus, seven years of multiple well-reasoned BVA decisions about C-123 Air Force Reservists indicate that until the June 18 2015 Interim Final Rule was published, no such barrier existed to recognize satisfaction of an Air Force Reservist’s claim to veteran status via the herbicide exposure. There was no barrier because the VA OGC opinions satisfied the issue completely – until created in June 2015.

The C-123 AO exposure claim which generated the most attention from VA leadership was that of LtCol Paul Bailey. His denial in February 2013 dealt with the claim without concern for veteran status. When his claim was reconsidered by DRO, no concern was raised regarding statutory veteran status because it was conceded.

The Bailey decision received immediate and extensive scrutiny from VA leadership, including Secretary Shinseki. After the Washington Post’s August 3 story about the grant it generated email and other correspondence from VBA Compensation and Pension, VBA Agent Orange Desk, VHA Post Deployment Public Health, the Under Secretary for Health Administration, VA OGC, Congressional Liaison, and other officials…all without concern ever raised for any statutory veteran status and the only comments being that the claim was supported by credible scientific evidence and that is was proof of VA’s promise of “case by case” consideration.

On my own initial AO denial in 2012, no issue was made of statutory veteran status. Indeed, Mr. Tom Murphy in C&P directed the claim be denied, not on the veteran issue but instead by disregarding all the scientists’ and physicians’ input and asserting no exposure – my veteran status was unchallenged as in all the other veterans’ claims mentioned above. Mr. Murphy and the other VA executives with whom I’ve exchanged communications (VA OGC, Under Secretary Shinseki, VA Office of Congressional Liaison, regional offices) a question might have been raised by now regarding statutory veteran status, especially from Mr. Murphy or General Hickey. Denying my claim and appeal for years never touched on veteran qualification. If veterans failed to satisfy statutory veteran requirements for the specific time period associated with the exposure injury, that problem should have been raised by VA years ago. Instead, but problem of the Reservists’ status was created only with publication of the June 2015 Interim Final Rule.

Between 2007 and May 2014, each of the handful of approved Air Force Reservists’ Agent Orange exposure claims were granted on the fact-proven basis of herbicide exposure, but granted only through an appeals process involving DRO, or BVA actions where each of them was successfulasd433. In January 2015 the Institute of Medicine made that point even more clearly in its answer to Secretary McDonald’s charge to the committee. Before June 2015 each veteran granted service connection for C-123 Agent Orange exposures received full retroactive compensation. Our claims were submitted in the same time frame.

I flew with these veterans and was their flight instructor and flight examiner to train and certify them on the same aircraft on the same days, and we’ve had the same illnesses, yet my own claim was “postponed” for years and only recently awarded but with retroactive compensation blocked. Thus, my students received proper retroactive compensation but I do not, nor do other similarly situated Air Force Reservists, despite how perfectly parallel all the claims are, and only because VA did not process my claims or appeals within the 52 months it had them. The significant distinction here is only that some claims were granteed prior to June 2015 and most others, afterwards but without the same retroactive compensation. This is unfairly discriminatory.

Should this request for retroactive compensation for C-123 veterans be denied, we specifically ask for assurances that every effort was made by VA leadership to take the most pro-veteran perspective on each aspect of the issue.

A ray of hope might be found in the military Line of Duty determination process. In the Air Force, this is AF Instruction 36-2910, and the overall tone is strongly pro-veteran, and protective of servicemembers' VA rights. If the Air Force can generate LODs for our C-123 exposures and injuries, VA is supposed to accept them and thus we'll have satisfied the statutory requirement for "veteran" status and injury, and hopefully, then be qualified for retroactive disability compensation dated from date of VA claim. We'll see...here's the VA policy per 38 C.F.R. 3.1.:

In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.(Authority: 38 U.S.C. 105)

VBA Violated 38 United States Code 5103A(b)(2) – and more!

VBA Motto?

For nearly three years, Veterans Benefits Administration sat on vital evidence supporting C-123 veterans' claims for Agent Orange exposure injuries. Our inquiry about this, with copies of VA documents establishing our allegations, was provided the VA Office of General Counsel as well as VA IG and VA National Center for Ethics in Healthcare, without response. Actually, the Ethics Center did respond but said the issues are so serious it is outside their purview.

Input from (1) CDC, (2) National Institutes of Health, (3) US Public Health Service (4) The Concerned Scientists and Physicians and other agencies was received by VA as those agencies sought to confirm C-123 veterans' exposures. (5) Input was even submitted by the Department of Defense Joint Services Records Research Center (JSRRC) beginning in March 2013, but ignored by VA Agent Orange Desk other than in internal discussions about how to disregard it. JSRRC proofs weren't released to C-123 claimants. (6) Even VA physicians who are acknowledged cancer researchers were disregarded (Dr. Mark Garzotto, Cancer Society researcher and author, professor at Oregon Health Sciences University and my urology oncologist at VA Portland.) VA's Mr. Tom Murphy, Director of Compensation and Pension, disregarded every other physician and scientist who submitted evidence on my own exposure to Agent Orange.

Lots of evidence. Evidence even VA described as "credible." Yet for years, VA ignored every bit of it for every one of us. Even today, neutral observers cannot fathom VA having disregarding solid evidence, raising the barrier for C-123 veterans' claims far past its fundamental standard of "as likely to as not." Indeed, VBA's Mr. Tom Murphy, Director of Compensation and Pension, even stated to us and his staff that no amount of proof from whatever source would be permitted to let a C-123 claim be approved.

There's law about such things. VA is required under the Veterans Claims Assistance Act (VCAA) to assist veterans in obtaining records from all other government agencies. It is clear that VA's use of these laws and regulations is primarily procedural but the only enforcement seems to be against veterans and not to compel VA to be correct and legal. Until recently I hadn't found the specific language in the United States Code, but happened upon it today:

(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records.
(Authority: 38 U.S.C. 5103A(b)(2)) 

 That's pretty clear. If VA "becomes aware" it will notify the veteran. One can assume that if VA has "relevant records" in its own possession, it will "notify the claimant."

But the Veterans Benefits Administration neither notified the veterans of available relevant records nor provided those records once in possession of the VA. Instead, VA decided that input from DOD, CDC and other relevant agencies wasn't adequate for VA's purpose...which was to obstruct the C-123 exposure claims. VA even dismissed JSRRC input, writing that it wasn't the role of JSRRC to dictate VA policy.

There's more. VA's Manual M21-1 states:

    Federal records are any documents in the custody of a Federal department or agency. Federal records include but are not limited to:

 ·  service treatment records (STRs)
·  other service department records (such as personnel records, line-of-duty determinations, inpatient treatment records or behavioral health records) that are not included with the STRs
·  VA medical and other records (including Vet Center records and authorized VA medical treatment or examinations at a non-VA facility)
·  Social Security Administration (SSA) records
·  Public Health Service records, and
·  Department of Labor records.

Somehow, VBA opted not to provide C-123 veterans conclusive evidence of their exposures, preferring to simply deny the claims by insisting no evidence existed. Further, VA's manual has specific instructions for VA claims adjudicattors about JSRRC reports of veterans' exposures:

Has the veteran provided sufficient information to permit a search by the JSRRC?
● If yes, send a request to the JSRRC for verification of exposure to herbicides.
● If no, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. (Note: For a sample of a formal finding, see M21-1MR, Part IV,
Subpart ii, 1.D.16.c.),
● decide the claim based on the evidence of record.

(VA21-1, Part IV, Subpart ii, Chapter 2, Section C) 

Here's an actual example of how VBA avoided its duties under VCAA, 38 U.S.C. and Due Process. In June 2014 VBA denied a C-123 veteran's claim for various Agent Orange presumptive illnesses, including prostate cancer and heart disease. In its denial, VBA wrote,

"JSRRC is unable to verify or document that aircrew members were exposed to Agent Orange residue or dioxin contaminated aircraft or aircraft parts. (JSRRC response dated May 2012.)"

But that's not correct! JSRRC had specifically informed VBA's Agent Orange desk (Mr. James Sampsel) in March 2013 that C-123 veterans had, per credible government scientific documents (as VBA itself described them,) been exposed to Agent Orange aboard their aircraft. Mr. Sampsel's emails circulated throughout VBA and VHA, yet nobody took exception to VA characterizing the information in an anti-veteran manner or staffers' decision to disregard the JSRRC input.

It is important to follow the dates. In 2012 JSRRC did provide VA an initial negative report but updated that with its confirmation in March 2013, yet VBA denied the veteran's claim in June 2014 citing old information and withholding the newer JSRRC response. VBA even termed the current JSRRC and other information as "unfortunate and credible scientific information."

"Credible scientific information" plus JSRRC confirmation...all vital, primary evidence to support all C-123 veterans' claims. All of it, however, withheld by VBA as it stalled C-123 claims until forced by the Institute of Medicine report to finally recognize the issue in June 2015. And then, VBA even found a way to block retroactive benefits for the years it stalled and violated veterans' rights.