VA Hid DOD Confirmation of C-123 Veterans' Exposures for Two Years – concealed evidence vital to veterans' Agent Orange claims

VBA Agent Orange Desk Policy??

VA HID VITAL DEPARTMENT OF DEFENSE OFFICIAL CONFIRMATION OF AGENT ORANGE EXPOSURE EVIDENCE FROM C-123 VETERANS. (click for full source file of this report)

VBA's Agent Orange desk hid evidence from the Board of Veterans Appeals and US Court of Appeals for Veterans Claims! The personnel involved (staffers in the Veterans Benefits Administration) violated every trust a veteran is asked to have with the Department of Veterans Affairs. VA let valid C-123 veterans' claims be denied by withholding official DOD information which would have established service connection. VA thus insured through this arbitrary and capricious abuse of authority that all our claims were denied.

Revealed in VA emails and other correspondence released last week under the Freedom of Information Act are proofs of the intensity and creativity, as well as total disregard for veterans' rights, with which VA's Agent Orange desk in Veterans Benefits Administration fought all C-123 veterans' Agent Orange exposure claims.

This was done not as matter of law, nor even VA's own regulations, but because of the personal policy preferences of a few individual staffers.

"Quick...hide the Agent Orange evidence!"

VA's operations manual VAM21-1MR states that VA will ask DOD's Joint Services Records Research Center (JSRRC) to verify non-Vietnam War veterans' Agent Orange exposures. Vietnam War veterans are considered by law to have been exposed, but veterans exposed elsewhere have the assertions investigated by JSRRC. And JSRRC affirmed the C-123 exposures.

VA has had all this proof from JSRRC for over two years (March 13 2013 and perhaps earlier from veteran-submitted documents which VA ignored.) The agency never revealed anything to its regional claims adjudicators, Decision Review Officers, veterans, veterans service organizations, or VA's Board of Veterans Appeals where denied claims are reconsidered. 

Once the C-123 issue arose, VA was overly selective about what evidence it would accept from JSRRC, insisting it had to be contemporary military material only. In effect, VA was cherrypicking evidence from what JSRRC provided, accepting anything against the veterans, refusing anything helping the veterans. 

After VHA informed VBA of its position against honoring any C-123 veterans' claims, VHA Public Health staffers put out a web page (click...pre-2015 page) insisting their review of "all available scientific information" (actually, cherrypicked information to prove their own point) was against the exposure claims. VA then cited their own web page as proof in subsequent claims and BVA decisions. "It's true because we say it is, and the proof is that we said it." Simply put, this was policy-driven (non)scientific deception.

VA's web pages were false, and were finally modified to a more neutral tone on March 15, 2015. The Institute of Medicine confirmed the veterans' Agent Orange exposure and harmful effects on January 9, 2015 in its report to Secretary McDonald. VHA and BVA opposition to C-123 veterans' claims since 2011 was wrong. The dozens of reports from the CDC/ATSDR, NIH, universities, physicians and USPHS all were ignored or disputed by VA, but in the end VA was proven wrong.

Many federal agencies (including the deputy director and two successive directors of the CDC/ATSDR) and independent scientists had provided expert federal agency input to JSRRC hoping to get it to VA for proper evaluation of C-123 veterans' claims. To ignore these proofs, VA insisted to JSRRC the materials that only DOD materials offered were acceptable: No input from other federal agencies, universities, state governments or scientific associations would be acceptable to VA. 

We thought that senseless barrier had been resolved when two US Public Health Service physicians informed JSRRC...and USPHS commissioned corps physicians are military officers by statute. One was Rear Admiral Robin Ikeda (MD, USPHS) at that time Acting Director CDC/ATSDR. Another was Captain Aubrey Miller (MD USPHS) assigned to the NIH/National Institute of Environmental Health Sciences.

VA's Secretary Hickey was also visited by the Director National Institute of Environmental Health Sciences who discussed the science and veterans' exposure proofs. 

Mountains of legitimate, persuasive, and expert input, but VBA and its Agent Orange desk ignored it all.

Players: 

•at JSRRC, Mr. Dominic Baldini, Chief

• at VA, Manager, Agent Orange Desk, Veterans Benefits Administration

Documents:

• 2013 email between JSRRC and VBA's Agent Orange desk; JSRRC's chief provides confirmation documents adequate to approve claims. VA never acts on these and over years permits claims to be denied without providing them in fulfillment of VA's duty to assist every veteran's claim.

• JSRRC response on a C-123 veteran's exposure assertion; happens to be mine because I have no access to any others due to privacy protections. 

VA's VAM21-1MR states that VA will inquire at JSRRC for a veteran's exposure to be substantiated. It says nothing about whether VA must act on that but implies it. Nothing is said about VA not acting, however that clearly violates VA's statutory obligation to assist the veteran. 

For years, VBA callously permitted sick C-123 vets' claims to be denied, and their appeals to the BVA denied, without providing these readily available and affirming JSRRC materials which would have been so decisive in any fair forum. Amazing that DOD ad  "yes" but VA still chose to interpret that as the "no" VBA's Agent Orange desk prefered.

VBA repeatedly (2011 through late 2014) advised regional offices and VA personnel everywhere that there was no basis for VA to "concede" C-123 veterans' Agent Orange exposure. Because the Agent Orange desk refused to "concede" the veteran's exposure, that amounts to directions to regional offices to deny the claims, and many simply wrote, as on the Paul Bailey initial denial, "VA regulations forbid..." 

With Senate inquiries heating up the issue, VA later admitted it has no such regulation and no "blanket policy" against C-123 claims. Even today, VBA insists C-123 claims are handled on a case-by-case basis, yet on a case-by-case basis every single one is denied. Still, it certainly sounds like a blanket denial of all claims!

We ask our fellow citizens and legislators to remember that despite all the controversy and VA-pushback, C-123 veterans were eventually proven correct by the IOM C-123 report. VA was shown to be in scientific and procedural error in opposing reasonable claims. VA all this JSRRC and other federal agencies' proof in its possession since 2011, yet allowed exposed veterans to sicken and die by hiding the evidence.

VA treatment of veterans' rights

They had all the DOD evidence necessary for the benefit of the doubt, pro-veteran, non-adversarial confirmation of our exposures from 2011 on, but chose to ignore, denigrate or simply hide that evidence to insure their policy of "no C-123 claims will be approved" as per statements by VHA Post Deployment Health. VA used its rules against veterans' interests where desired, but freely ignored the rules when staffers had their anti-veteran personal agendas to pursue. These staffers should re-read opinions by federal courts that emphasis VA's regulation VAM21-1MR has the force of law...adhering to it is a veteran's responsibility and also VA's.

​Related topic:

DOD's Agent Orange contractor produced their 2006 list of Agent Orange storage, transport, manufacture and testing sites outside of Vietnam. DOD was asked by VA to provide this. VA cites it when confirming or denying veterans' claims for exposure in other than the Vietnam "boots on the ground" basis.

As part of his 2012-2014 $600,000 no-bid sole source contract with VBA, the contractor submitted a report, citing himself, which generally concluded no changes were necessary in his 2006 report. Each of his monographs produced under the contract confirmed VA policy, perspectives, opposition to various veterans' claims, etc. None challenged or suggested changes, improvements, nothing.

DOD (Armed Forces Pest Management Board apparently has responsibility) has refused per the AFPMB director to amend this list even with IOM, ATSDR and other proofs of additional sites, yet VA continues to cite it in denying claims and denying appeals at BVA.  (example one)  (example two) Both VA and DOD have refused to update this nine-year-old list.

Any "proof" cited by the government to provide or deny a citizen's rights should be accurate. This DOD list is not accurate and is fatally flawed, yet VA employs it to block claims.

VA worked & spent $$$ to oppose Institute of Medicine C-123 result

Documents released today under supervision of the US District Court Washington DC provide all the details: VA submitted the C-123 exposure question to the Institute of Medicine for evaluation, but then worked behind the scenes to insure the IOM gave only the desired conclusion...the conclusion VA staffers felt best met their own policies. Thank God (and IOM staffers,) IOM didn't fall for VA's tricks.

This week, after years of delays and obstruction by VA, hundreds of pages of internal correspondence and emails were released dealing with the C-123 Agent Orange exposure concerns of over 2100 veterans who flew these transports following Vietnam. The aircraft were contaminated, but VA from the beginning took extraordinary steps to prevent exposed veterans from receiving vital medical care and disability compensation.

The efforts seem to date back to 2007, when LtCol Aaron Olmsted's Agent Orange exposure claim was denied by VA on the basis he had no proof his C-123s were the ones actually used in Vietnam for spraying Agent Orange. Records show Olmsted flew hundreds of hours in these aircraft, but VA's legal "duty to assist" was viewed by the Department with disdain.

No effort was made by VA to locate readily available records to confirm Olmsted's assertions, something veterans themselves did with a simple phone call and two days' waiting for results from the Air Force Historical Records Agency. VA could and should have done this in meeting its duty to help the veteran locate records, but their victory over his claim was more important. Even when proof of Olmsted's claims was finally offered the VA, it was ignored by the BVA, by the regional administrator, and by the attorney who opposed Olmsted at the BVA hearing.

In more recent years, VA's tricks included paying its principal consultant while he appeared before the IOM to "defend the VA's science" and most certainly, to oppose the great volumes of science supporting the C-123 veterans. The consultant had been awarded his VA no-bid sole source $600,000 contract, the work product of which focused on obstructing C-123 exposure claims. The contract, and its obvious conflict of interest (or certainly the suggestion of that possibility) was not revealed to the committee by VA or the consultant.

Note also that in 2011 the consultant labeled C-123 veterans with disdain as "trash-haulers, freeloaders looking for a tax free dollar...I have no respect." One senses this profoundly negative attitude even better endeared him to the VA, rather than disqualifying him as it should have from any effect on the health care of these 2100 exposed veterans he dislikes so much.

His 2009 role in having recommended destruction of the stored surplus C-123s as toxic waste and to prevent veterans from learning of the contamination was not discussed with the IOM. It should have been...so many things should have been revealed, both to the veterans and the IOM.

Previously a paid consultant to both Dow and Monsanto in their efforts to fight veterans' claims, and with years as an Air Force officer manning VA's own Agent Orange desk helping prevent such claims, the consultant was the perfect go-to guy for VA's Veterans Benefits Administration and Veterans Health Administration, whose senior staffers personally opposed expanding Agent Orange coverages to anyone.

Records now show that VA coordinated closely with their consultant, who nonetheless insisted he wasn't before the IOM to represent the VA. Not only did VA pay him $600,000 for work including monographs attacking the veterans' claims, but he was under that lucrative VA contract even at the time. IOM's questions to the consultant were answered only after first being passed by the VA to insure they met the Department's policy objectives, before being released to the IOM:

In the following email, the consultant writes the US Air Force and clearly states he is presenting to the IOM C-123 committee "on behalf of Compensation Service and the (VA) Office of Public Health." No, not independent at all, but he was presenting to the IOM as VA's voice:

The VA consultant referred frequently to his many monographs being "peer reviewed." This is highly questionable, as no researcher is permitted to select the reviewers as was done here. Peer review is meant to be a critical challenge to protect the scientific record, not this buddy-stamp from close associates holding identical views. Despite VA's own high standards for scientific research, this was allowed to pass without challenge to its many violations of VA Directive 0005 (Scientific Integrity.)

This attitude persisted into more recent years, as detailed in this week's FOIA results. VA expressly sought to "counter" scientific materials with paid-for input from selected sources, rather than letting science and the IOM proceed independently:

Besides contracting with its preferred "go-to" Agent Orange consultant, Veterans Health Administration also paid Sandia Labs to construct arguments against the many scientific experts whose professional opinions were universally in support of C-123 veterans' exposures;

Veterans have tried to stress the fact that of the dozens of independent scientists and physicians who concluded the veterans were exposed and harmed, none were paid.

VA didn't waste a penny seeking any independent views or opinions which might agree with the veterans' claims, but spent hundreds upon hundreds of thousands of dollars to insure the defeat of those veterans' hope for VA recognition of Agent Orange exposures. Hardly "pro-veteran, non-adversarial, every benefit of the doubt rests with the veterans." 

Rather, we see the firm, steady determination to prevent C-123 veterans' access to medical care by spending VA dollars, bending rules and procedures, creating obstructions, implementing personal policies, and the deception of senior VA executives by staffers by feeding them error-laden memoranda to sign.

VA staff and contractors even tried to deceive IOM and senior VA leadership with data from tests performed on "Patches," the USAF Museum's former Operation Ranch Hand C-123. The contractor stressed a point about "only two areas" being TCDD contaminated. In fact, the testing officials determined that there were two "hot" spots but the majority of the C-123 interior was not contaminated, or was an area not tested for lack of accessibility. Big difference.

Early VA Actions "Stacked the Deck" Against C-123 Veterans For Years

"Overwhelming preponderance of evidence against veteran"...
CLAIM DENIED!

(VA Claims Motto??)

Wow. An "overwhelming preponderance of evidence "against a veteran's claim for Agent Orange certainly spells defeat for the vet. But it was a deception and there was no such "preponderance," much less an overwhelming one.

In fact, it was the reverse, with veterans' evidence being truly overwhelming but sneared at by VA.

Reading it aloud even now, it sounds like a VA must have had a tidal wave of facts and proofs to outweigh anything the veteran submits to substantiate a disability claim, rendering the claim completely without merit.

VA was aggressively opposed to C-123 claims, and annoyed that veterans continued to press their case and gather even more support...yet no matter how much proof veterans presented to VA, nothing budged its predetermination that anything conflicting with VA policy is useless, no more than a trifling and unpersuasive treatise.

That "overwhelming preponderance" catch phrase is one which stands out...shouts out... in reading hundreds of documents forced from VA's records via court action enforcing several Freedom of Information Act requests. VA initially denied all access to these records, then tried to deny access by charging thousands of dollars, and then simply refused to release anything.

"Overwhelming" prejudice would be a valid characterization of VA's approach to C-123 claims.

Finally, the C-123 Veterans Association suit in the US District Court of Washington DC prompted some cooperation. Over the past several months VA has given our attorneys at least some of the materials we sought.

"Overwhelming preponderance of evidence" is a thread running through many of these FOIA documents. Apparently the phrase was created by VBA's Agent Orange desk, and used by VA's Post Deployment Health Section in Veterans Health Administration as well as throughout VBA. It referred to, and summarized the conclusion of VA's facts against C-123 veterans' evidence about Agent Orange contamination and exposure.

But there was no such tidal wave of VA evidence. Rather, there was an "overwhelming preponderance of evidence" confirming C-123 veterans' arguments, all ignored by VA. Rather than permit evidence submitted by C-123 veterans to be fairly evaluated, Post Deployment Health trivialized it into insignificance against VA's evidence, using that characterization to assure senior VA leaders that C-123 veterans were completely in error and must be opposed.

To better avoid its non-adversarial, pro-veteran obligations, Post Deployment Health dismissed completely...even calling it "unfortunate, " all expert input from:
• CDC
• NIH
• US Public Health Service
• "Concerned Scientists & Physicians," Dr. Jeanne Stellman, Corresponding Scientist
• VA physicians
• Veterans private physicians
• Independent researchers with peer-reviewed articles establishing veterans' exposure

What was Post Deployment Health referring to with that phrase "overwhelming preponderance of evidence?"
• A letter from a Dow-sponsored scientist
• A letter from a Monsanto-sponsored scientist
• A VA contractor who had earlier denigrated C-123 veterans and who tailored reports to VA policy
• VA's own web pages, cited as their own authority, and which referenced only materials fitted to VA policy
• An inconclusive USAF report, later determined to have relied in part on poor math to reach its conclusions

Now that the Institute of Medicine C-123 report is on the Secretary's desk, VA should examine its initial knee-jerk reaction against the veterans' exposure claims, a position hard fought by VA from 2007 until January 2015. From the very first interaction with veterans in 2011, VA Post Deployment Health has clearly had a policy...perhaps a policy only among certain staff...that these claims were to be opposed.

The FOIA documents, and incidents through the years, show that VA predetermines veterans' claims to be denied yet still claim to offer a "case by case" evaluation. The record shows that such an evaluation actually means VA won't deny a claim until it is submitted,  and then it will deny it. Deny all such claims. But on a case by case basis, of course.

Statements were made by VA staff that C-123 claims would not be approved. The Associated Press was told, "We have to draw the line somewhere." Disability claims were denied – VA medical care refused to veterans seeking help – with language:

 "VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals"

In fact no such regulations exist. When veterans' legislators challenged this, VA conceded that no regulations actually exist, but that claims denied using that language were still denied. VA ordered claims adjudicators to use different phrases...but continue denying the claims.

VA even cited "scientific studies" by VA Public Health which turn out to be a handful of staffers selecting literature to fit their policy of blocking all claims. Finally, even the Secretary of Veterans Affairs tried to reverse the only C-123 veteran's award ever permitted by VA, looking for CUE as a basis even though every single requirement in VAM21-1MR was met, and continues to be met, by all such claims.

"Overwhelming preponderance" was used and repeated throughout VA to the point the entire agency was convinced that C-123 claims were to be denied. The phrase became its own proof, cited to refuse veterans vital medical and other benefits.

Due Process was ignored, and didn't factor into VA's "overwhelming preponderance of evidence" because VA predetermined all veterans' materials worthless and claims were ordered denied. So much for VA's own regulation VA M21-1MR...ignored by VA in its blanket denial of C-123 veterans' claims. The creators of "overwhelming preponderance" were successful in their goal of 100% blanket denial...on a case by case basis, of course!

We're not making this up: read the hyperlinked references, call VA leadership, ask the reporters, scientists and veterans.

This was a skillful, deliberate, persistent (the word VA used to describe me...I'm credited with being "persistent") exercise in denial of the Fifth Amendment's Due Process Clause as regards VA's refusal to fairly evaluate veterans' qualified claims.

The question still on the table...what about other veterans' issues where VA does the same thing but without persistent self-advocacy by the vets? Dirty water, burn pits, immunizations, radiation, toxins, blast injuries, and all the other joys attendant to military service...what about them? Will VA reach out to veterans, or sit back and deride vet's claims with its all-too-prevalent "not on my watch" attitude?

There are new players in VA today, and we can hope for Due Process and the Constitution of the United States to mean something. We can look for a pro-veteran perspective to return to this essential institution. We can look...and hope to find it, for the sake of all veterans.

As for VA and Agent Orange: Never again can veterans be treated this way.

(C-123 Veterans' Motto)

HOW LONG CAN VA TAKE TO IMPLEMENT IOM C-123 FINDINGS? (see Feb 4 entry)

How long might we and our families have to wait for VA to act on the C-123 Agent Orange exposure situation?

FIRST FACT: VA could do what's needed tomorrow. Checking with legal scholars specializing in veterans law, and re-reading the Yale University School of Law C-123 report, it is clear that no new legislation is necessary to permit C-123 veterans into the VA healthcare system.

Previous announcements in the Federal Register addressing non-Vietnam herbicide exposures detail VA assurance of treating us with presumptive service connection, and VA's regulation VAM21-1MR (which courts said "has the force of law") have language already in place...so nothing need be done except – do it! 

Note: in comments to the Springfield (MA) Republican published 2/3/2015, a VA spokeswoman said it will take VA "several months."  UNCONSCIONABLE FOOT DRAGGING! What does Post Deployment Health calculate to be our veterans' death toll between January 9 (release date for the IOM report) and "months" later?

SECOND FACT: VA could drag this out beyond our imagination. They could imagine that new legislation is necessary to do what they already have authority to do, and VA Office of General Counsel could direct the whole thing to die by pretending to ask Congress for new legislation. Any legislation coming from that might be enacted, but only years after the last of us has had the final fly-over. They know this. Going to the legislature to ask for authority or guidance VA already has just won't cut it with either house.

THIRD FACT: Next-to-worst case is VA dragging out approval by waiting out the 60 days permitted after an IOM report. Then, burning off another 60 days proposing new regulations with a Federal Register posting (which would only be a repeat of their earlier statements) and then 90 days after that to effect new regulation. VA might see this as a present to us wrapped with a beautiful silk bow – but its not. Seven months to men and women our ages, with our diseases, brings a certain death count and VA knows this perfectly well.

Truth is truth, and VA has the truth in hand now from the IOM report. It is the same truth VA had on their desks seven to eight years ago – when more of us were alive. Truth, law, science together should move VA to make the right decision by us, but it sure would have been welcome those many years ago.

In their last Federal Register comment regarding non-Vietnam Agent Orange ("military herbicide") exposures, VA made their planned treatment of us clear. Very clear. Perfectly clear.

VA even used that very word. What part of "Finally, we wish to make clear" has been left unclear? Of course, VA made this commitment to the Congress and the American people before we came along with our exposure claims but I just can't imagine the Department...the Secretary in particular...reneging on making it "clear."

NASDVA Asked to Inform VSOs & Veterans About C-123 Developments

We again have asked the National Association of State Directors of Veterans Affairs to inform C-123 veterans and their survivors of developing eligibility news coming from the VA.

Over the four years of our effort to get VA itself to assist our veterans, NASDA has never responded to inquires or requests and we hope the recent IOM report and VA's reassuring comments since 9 Jan 2015 will help enlist their experts. Even earlier assistance from then-president Dr Linda Schwartz, Connecticut's Commissioner of Veterans Affairs, brought only silence.

We face a tremendous sea-change. VSOs, claims officers, attorneys, veterans themselves and all the web sites and printed literature will have to be inclusive of C-123 veterans' eligibility. Those details, once fleshed out by the VA, need to get in place immediately.

(1/31/2016: actually, we never heard a single word from NASDVA)

CALL FOR VOLUNTEERS TO LEAD C-123 VETERANS ASSOCIATION

My time at the stick is over, and crew rest and financial relief desperately sought! I haven't checked but maybe there is even a FAR about too much time on veterans issues by one individual??

Who feels led to offer time and talent for the next year, with our important new objective of working with VA to implement recommendations of the IOM? The worst of the struggle is over – now we find our aircrews and maintenance personnel from all three bases and start getting the word out.

VA will help just in their administrative changes. Web pages, training letters, press releases all will orient claims official, health provider and veteran. The major veterans organizations will all be carrying the news in their magazines and web sites and we on ours. I've asked VA about reaching out through DFAS, ARPC, TREA, ROA, AFA and other authorities and associations. VA's working group, in place since IOM briefed VA on January 8, seems to be their focal point for the many decisions and we need leadership to liaise with them.

I believe we need to stay an informal, funds-free organization welcoming all with a simple request to join us. We do now need to start identifying all who'd like to be members and start a more formal collection of names, their association with the C-123 and how they can document that, illnesses, claims, denials, survivors and whatever else comes to mind in our group's new leadership.

John, Charlie, Andy, Big John, Butler, Arch, Jim, Clancey, Al and Gail, MGB...everyone. Please work this out among yourselves and find us leadership for 2015 and beyond!

Finances. We have nothing in the piggy bank, obviously. I propose we raise voluntary funds of at least $2000 per year for travel expenses, and that really covers only two trips to DC. There will be much work with legislators, VA, military associations and others which will need to keep us busy. Example: my last trip for IOM Jan 6-13 was $1250 and we shouldn't ask our leadership to get soaked for such expenses personally,

The web sites run about $250 a year, and postage maybe $200 now that we don't need to blitz every senator with a $35 350 page 3-ring binder, or solicit interest from reports with one.

Chores, either done by the chairman or delegated to another volunteer:
1. web site and blog entries
2. correspondence with vets, legislators, military associations
3. close contact with VA to insure our needs are met with their program changes
4. PR...keep seeking interest from the press, promoted good coverage about us
5. a couple trips to DC each year; at least one guest appearance at the next annual meeting of the Vietnam Veterans of America and at the American Legion, our two key sponsoring veterans groups
6. I propose a poster display at the 2015 Society of Toxicology and the Association of Military Surgeons of the United States, telling the story of how we were screwed and how things worked out
7. work with the USAF Museum to amend Patches' history to cover our service
8. maintain contact with the Senate minority and majority leaders of the Veterans Affairs Committee
9. consider a more formal, permanent organization structure
10. STRATEGY, STRATEGY, STRATEGY for ongoing "guerrilla" advocacy of our veterans' issues, aka running an effective national campaign on less than pocket change!

Please find us a new chairman! If you want to pass the buck, nominate someone else and we'll crown him/her by popular acclaim!

Another VA Fact Sheet Needs VA IG Review – The C-123 Fact Sheet

VA's Senate Briefer

In May 2013, the Secretary of Veterans Affairs responded to inquiries from Senator Richard Burr, Ranking Member of the Senate Veterans Affairs Committee, regarding VA management of C-123 veterans' Agent Orange exposure claims.

The Senate was fed two pages of deception. Here's how.

C-123 post-Vietnam exposure claims were ordered denied regardless of substantial proofs by Veterans Health Administration's Post Deployment Health Section and were the basis of Senator Burr's concerns. The Secretary's response was drafted for him by a Veterans Benefits Administration manager, Mr. James Sampsel, and has been found to present over twenty significant errors. Some can fairly be termed clearly deceptive.

Although the factual errors were pointed out to the VA soon after the Secretary's fact sheet was received by Senator Burr, no corrections were ever permitted. VA's consultant (who is a former Dow and Monsanto consultant well) even raised objections to the scientific merit of tests performed on Patches at the USAF Museum, but other experts disagree CDC, NIESH, the Committee of Concerned Scientists and Physicians, the original experts Dr. Ron Porter and LtCol (PhD) Wade Weisman, and the USAF-contracted testing facility Midwest Testing Institute... find the procedures and results appropriate and Drs. Porter and Weisman stand behind them, per their 2011 correspondence.

Objection now to these tests from a single consultant who has expressed for decades his belief as to the innocence of Agent Orange, and who also expressed his disdain for the veteran aircrews, and who was retained by VA at a cost of $600,000 to obstruct the veterans' claims, seems hardly appropriate. It is, rather, starkly anti-veteran. The Fact Sheet is policy, not science nor law. It reflects staff members' personal agenda, selective use of references rather than a broad assessment of materials, and is clearly not a neutral, objective, accurate assessment of a serious issue.

Readers must note that unlike the recent deception VA's own Inspector General found in a VA Fact Sheet given Congressional staff, this is far more troubling as it is over the Secretary's signature and directly to the Senate Veterans Affairs leadership.

Department of Veterans Affairs (VA) 

Fact Sheet for the Honorable Richard M. Burr Regarding Processing of 

Disability Claims Based on Agent Orange (AO) Exposure Aboard C-123 Aircraft 

Outside the Republic of Vietnam 

Several hundred C-123 aircraft were used during the Vietnam War for a variety of
purposes, including troop and supply movements in Vietnam, flare dropping and
gunship security on Thailand airbases, and aerial spraying of insecticides to control
malaria-causing mosquitoes in both Vietnam and Thailand. Only a small number of
these C-123s (approximately 30) were rotated through Vietnam and used for the aerial
spraying of tactical herbicides, such as AO. This occurred from 1962 to 1971 during
Operation Ranch Hand, which was designed to destroy enemy food crops and reveal
enemy jungle positions. Following the 1971 termination of tactical herbicide use in
Vietnam, the involved aircraft may have been assigned other missions in Vietnam or
sent back to the United States.

Eventually, all C-123s in Southeast Asia were sent back to the United States, where they were used by Air National Guard or Reserve units for the remainder of their useful life. VA does not currently have a method of determining if a Veteran claiming stateside AO exposure was flying on one of the Operation Ranch Hand C-123s on one of the many other post-Vietnam C-123s flown stateside during the 1970s and 1980s.

The general claim of AO exposure among stateside C-123 crewmembers is based on a
wipe test sample of residual 2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD) (the
carcinogenic element in AO herbicide) found in only one C-123, which is exhibited at the
Wright-Patterson U.S. Air Force Museum in Dayton, Ohio. That aircraft, named
"Patches" because of the numerous enemy bullet holes that were patched during its
Vietnam service, was assigned to Operation Ranch Hand initially and stayed with the
operation longer than other C-123s. Most of the Operation Ranch Hand C-123s arrived
in Vietnam after 1968, when the application of tactical herbicides was on the decline
and herbicides other than AO, such as Agent White and Blue, were in use. These other
tactical herbicides did not contain TCDD.

Despite these facts, there seems to be a widespread and unfounded assumption that all
other C-123 aircrafts would contain TCDD samples equivalent to "Patches," if tested.
VA has no way of verifying this assumption, but government documents provided by
Dr. Alvin Young, a retired U.S. Air Force Colonel and leading expert on tactical
herbicides, do shed light on the issue. Analysis of surface wipe samples taken from
four mothballed Operation Ranch Hand C-123 aircraft between 1996 and 2009 showed
no evidence of TCDD in two of the aircraft and only trace amounts of TCDD in the other
two. Air samples from all four planes showed no TCDD. It is not clear how VA could
obtain additional aircraft samples and determine if residual TCDD was present in other
C-123s because they are no longer in use, and in some cases, have been destroyed.

Additionally, wipe sampling is a universally accepted method used to detect at what
level a chemical is present on a surface, but cannot be directly extrapolated to represent
human health risk, as chemical intake must also be taken into account. Further, the use
of a solvent removes more of the chemical from the surface than would be available through casual contact with the surface. This illustrates the difficulty VA faces when evaluating whether a particular Veteran claiming stateside AO exposure was actually aboard a C-123 used for Operation Ranch Hand and, if so, whether there was any residual TCDD present in that aircraft, and if it was able to enter the body.

VA assumes that some Veterans flew stateside aboard post-Vietnam Operation Ranch
Hand C-123s that did contain residual solidified TCDD similar to that found in "Patches,"
and so the issue of exposure and long-term health effects among those Veterans must
be considered. To that end, the Veterans Health Administration's (VHA) Office of Public
Health has already conducted a specific scientific investigation into the theory of
exposure to TCDD via incidental aircraft contact. The results are posted on VA's Web
site.

The general conclusion is that:
(1) any residual TCDD in the Operation Ranch Hand aircraft had solidified and is unable to enter the human body in any significant amount, and  (2) there is no scientific evidence that a Veteran's presence in an aircraft containing solidified TCDD can lead to adverse long-term health effects.

Regarding this VHA Office of Public Health scientific investigation:
1. Some scientists have argued against the VHA conclusions and provided opinions stating that the concentration of TCDD in "Patches" was excessive, and, therefore, crew members in any post-Vietnam Operation Ranch Hand C-123 would have been exposed to a high dose. However, several other scientists who are involved with ongoing toxicology research have independently and without solicitation contacted VA to refute the aforementioned opinions. They note that the percentage of TCDD in a wipe sample obtained with a solvent does not translate into a high dose that would be absorbed by the human body. They further note that studies show the skin to be a strong barrier against absorption and that extremely high temperature would be required to vaporize TCDD and make it available for absorption through the lungs.

2. Regarding VHA's conclusion on adverse long-term health effects, numerous public sources have identified the 20-year longitudinal Air Force Health Study, initiated in 1982, as a source of scientific information. It followed and studied 1,261 Vietnam Veterans who were actual pilots and crew members of Operation Ranch Hand C-123s. As such, they were exposed to tactical herbicides on a daily basis and testing showed the presence of TCDD in their bodies. However, current health data (obtained as late as 2012) fail to show a general increased risk of adverse long-term health effects as compared to other populations. Given that the evidence from actual participants in Operation Ranch Hand does not show a health risk from direct exposure to TCDD, it is difficult to ascertain a basis upon which to find a health risk among crew members of post-Vietnam Operation Ranch Hand C-123s.

Veterans Benefits Administration Veterans Health Administration
May 2013

Conclusion: There' much more for the VA IG to consider here! Denial by VA of essential medical care and other earned benefits, as VA staffers seek to implement their personal agendas, cannot be left unchallenged by VA's internal watchdog. Neither can VBA staffers' sabotage of the Secretary of Veterans Affairs in this year of monumental scandals be left concealed.

VA Raters Deny Claims in Error, But Only Veterans Suffer Consequences

By KEITH ROGERS
LAS VEGAS REVIEW-JOURNAL

Vietnam War Navy Cross recipient Steve Lowery isn’t alone in his battle to convince the Veterans Benefits Administration that his wounds are linked to his military service.

Lowery, a retired Marine major from Las Vegas, took a long-awaited physical examination Thursday at the North Las Vegas VA Medical Center to show a doctor that scars from shrapnel in his knee and those on his thighs from an AK-47 resulted from a 1969 firefight in Vietnam.

In 1994, the VA benefits office in Reno told him those wounds weren’t related to his military service, and he’s been fighting with the agency ever since.

The VA apparently disallowed his initial claim because the government’s archive agency failed to send his records to Reno. Bewildered by the decision, Lowery provided a copy of his personal medical file in 2010. Two years later, his claim was rejected again.

Since the Review-Journal wrote about Lowery’s case last week, other veterans have come forward with complaints about tactics employed by the agency, which demands that veterans prove their injuries were service-related but can deny claims without proving anything.

Analysis: Reporter Keith Rogers describes the problem correctly. VA claims workers can deny a claim on any real or imagined flaw, and can even as with C-123 veterans' Agent Orange claims deny the claims for VA-recognized Agent Orange illnesses by insisting Agent Orange is harmless.

Truth and accuracy and legal justification seem of little matter to Veterans Benefits Administration and its Compensation and Pension Service. VA can cite any reason that comes to mind, ignore the law and VA's own regulations, thus forcing any hapless veteran into a years-long appeal process to correct a claim. VA is not accountable for such heavy-handed abuse of their program, and claims officials face no consequences for their mistakes or poor judgment or event spiteful personal anti-veteran agendas. Remember: the veteran is already sick with cancer or another ailment or injury and has waited an average of a year just for VA to deny the claim.

Agreed – most VA mistakes are innocent or even tied to the veterans' difficulties providing proper records. However, too many situations like those described by Mr. Rogers reflect a VA system favoring rapid denial of claims with inadequate oversight, over proper adjudication of a veteran's search for medical care and other earned benefits. VA needs a system providing bonuses, if it really must incent its workers that way, based solely on their accuracy and proper decisions, not just volume of claims handled.

BVA or CVAC reversals and remanded decisions should have career consequences for VA staff matching the harm caused the veteran suffering the years-long impact of VA's mistakes. Any such consequences cannot possibly compare to the VA-caused  suffering of a veteran seeking care for cancers or heart disease being wrongly turned away from VA hospitals because of flawed VA decision-making.

VA Cites VA Researcher's 2013 Agent Orange-Prostate Cancer Study But Not Acceptable for Claims

When I was first diagnosed with prostate cancer, my oncologist was Dr. Mark Garzotto of the Portland VA Medical Center's Urology Oncology service. With his co-authors, Dr. Garzotto's article in the prestigious Cancer journal from the American Cancer Society revealed the disturbing conclusion that Agent Orange-exposed veterans are twice as likely to suffer highly aggressive forms of prostate cancer than vets without such exposures.

Dr. Garzotto provided his medical opinion that my own prostate cancer is, more likely than not, associated with Agent Orange exposure aboard the C-123s.

Dr. Garzotto's opinion in support of my claim for service connection has been dismissed by Portland VA Compensation & Pension as unqualified input because VAROs are directed by VBA to deny all C-123 claims.

VA respects Dr. Garzotto's findings about Agent Orange and prostate cancer, but disregards his medical finding about me as a patient under his care. Surpisingly, VA recently cited Dr. Garzotto's article on their web site and wrote:

 Research on prostate cancer and herbicides  

"The Institute of Medicine (IOM) of the National Academy of Sciences concluded in its 1996 report Veterans and Agent Orange: Update 1996 and in future updates that there is limited/suggestive evidence of a positive association between prostate cancer and exposure to herbicides used in Vietnam. 

A 2013 study conducted at the Portland VA Medical Center and Oregon Health and Science University found that Veterans exposed to Agent Orange are not only at higher risk for prostate cancer, but they are more likely to have aggressive forms of the disease. Read the abstract for the publication, Agent Orange as a risk factor for high-grade prostate cancer. View more research on health effects of Agent Orange."

- See more at: http://www.publichealth.va.gov/exposures/agentorange/conditions/prostate_cancer.asp#sthash.RM5zHRwG.dpuf

AF May 2012 C-123 Exposures Report Differs from 1978 Draft of AFHS re: Aircrew Exposure: Command Interference?

Found in a 1982 report (covering Oct 78-Dec 82) of  USAF School of Aerospace Medicine report on Epidemiological Investigation of Health Effects in Air Force Personnel Following Exposure to Herbicides." The report is available in full at the USDA A.L. Young Collection, Item # 01570. Ranch Hand issues, to include comments on C-123 Ranch Hand veterans and non-Ranch Hand veterans, "

No. 01570, pages 21-22

The important observations to make are:

1. The C-123 non-Ranch Hand aircrews are acknowledged as "may have been exposed to significant Herbicide Orange residue in these aircraft. Therefore, this group may not have been truly unexposed to herbicides..."

2. No distinction is made as to routes of exposure

3. The May 2012 USAFSAM C-123 exposure report concluded the AF was unable to determine the amount of exposure post-Vietnam veterans had, and illogically then concluded there was too little exposure to consider them exposed. In VA-speak, this is equipoise, or "as likely to as not."

4. The Ranch Hand study addressed only Ranch Hand personnel. Only RH veterans had serum levels tested, at $1000 per test. As a small population, studies such as have but little epidemiological, especially for want of a proper control group.  The only real cohort to study is the larger body of Vietnam veterans of all services.

5. The Air Force Chief Medical Research Officer, Dr. Richard Albanese*, testified under oath that about 10% of his reports were modified by his supervisors and that about 10% of all reports he was aware of, such as the Ranch Hand Study of which he was principal investigator, also had command interference for policy objectives.

6. Ranch Hand and post-Vietnam C-123 crews are similar only in flying the same toxic airplanes and being exposed to the same military herbicide. They differ in amounts of exposure, duration of exposure, short vs. long term exposure, ages, years flying the toxic airplanes, gender (post-Vietnam crews began including many more female medical technicians and flight nurses, and some maintenance workers.) But again...both cohorts were exposed to the same military herbicide, Agent Orange, although VA policy prohibits testing the post-Vietnam veterans. 

Conclusion: USAFSAM is shown in their 1982 report to have opined that C-123 crews may have been exposed but changes it mind even in the face of additional exposure evidence in their 2012 report, and contradicts itself for reasons of command interference.
* Dr. Albanese later detailed the multitude of failures in the USAF Ranch Hand study.  He went into specifics regarding the interference by a  White House science committee (White House Working Group "WSWG") made up of military and VA representatives...and they don't seem to have changed anything in the last 22 years!
Additional Conclusion: USAFSAM again proved susceptible to command interference with their 2012 C-123 report. "Look

again" was the order from above when preliminary conclusions favored the possibility of aircrew exposures. "Drop it" was the order when one analysis supported the veterans' assertions. This called for an IG complaint to the 75th Air Wing Inspector General. I filed it in person in early 2013, but without any action or response...they dropped it.

No wonder the Air Force has refused to release the 2012 USAFSAM C-123 report materials, despite two years of FOIA requests and our suit in the US District Court of Washington. At least, AF has promised to allow "some" documents to flow by the end of September. 

Like VA, the AF is keeping source documents locked up until after the Institute of Medicine completes its study and report to the Secretary. Neither agency wants any materials likely to help support the veterans' claims to be made available.

C-123 Veterans Refused Agent Orange Registry Exam

As in 2013, we continue getting inquiries from our C-123 veterans trying to sign up for the VA's Agent Orange Registry Exam, but being refused by the VAROs. We even have VAROs such as Portland saying exams are available to C-123 veterans yet others, such as in Florida, refusing per the firm instructions from Post Deployment Health. Also confusing the situation is an earlier order by the Secretary of Veterans Affairs that any veteran claiming exposure be invited to the Registry.

The reversal of the Secretary's directive, per order of Post Deployment Health, is unfortunate and we don't agree, but it is correct.  VA's Post Deployment Health Acting Chief Consultant, Dr. Terry Walters, was asked by us last year about the language on the VA's exposure page inviting all veterans who believe they've had an exposure event to call the Registry.

Apparently the only way to regain permission to have an Agent Orange Registry exam is to petition the Secretary to reinstate his order following Post Deployment Health canceling it.

Too many of the C-123 veterans were relying on proofs of their dermal, inhalation or ingestion exposures to TCDD aboard the C-123 to conclude they'd been exposed. They were not aware of the VA redefinition in 2012 of "exposure" to redefine their TCDD exposures in a manner providing VA a way to deny exposure events. Yes, the vets were exposed in a scientific or medical sense, but no, not exposed per the VA's own unique redefinition created by Post Deployment Health for preventing claims.

The new definition used by VA for exposure requires veterans to proof that somehow that the TCDD we'd been exposed to had a biological effect...our exposures don't exist unless we can prove medical effect. This is hard, of course, with the VA prohibiting exactly those tests, plus we know the half life of dioxin in the body is 7 to 8.5 years, and for many of us it has been over 40 years since exposure.

VA has asked for a proof they know is impossible to provide, which is, of course, the purpose of their redefinition of exposure. (exposure = contamination field + bioavailability.)

Proceeding from that special, but unscientific redefinition of exposure, and strengthening the barrier against C-123 claims, Dr. Walters changed the qualification for requesting an Agent Orange Registry exam to restrict it to only those veterans who'd been in the presence of liquid Agent Orange, as below. Thus, handling or being in any way exposed to Agent Orange in a solid or dried or vaporous form does not qualify for "exposed" per Dr. Walter's new restrictions.

On May 13, 2013, Dr. Walters kindly clarified her change in her email to me, although Post Deployment Health hasn't yet spelled out on the VA page for some reason:

"Other potential Agent Orange exposures:

Veterans who may have been exposed to herbicides during a military operation or as a result of testing, transporting, or spraying herbicides for military purposes. Learn about herbicide tests and storage outside Vietnam. Agent Orange or Dioxin dried on surfaces does not present a significant threat to human health. Veterans are eligible if they were in the presence of liquid Agent Orange such as when Agent Orange was sprayed, tested or transported."

As we suggested last year, we again ask Dr. Walters to more clearly implement her changes on the VA web site to prevent confusion. Too many of us go by VA regulations or statute, and obviously these conflict with internal VA staff personal preferences for management and prevention of exposure claims. The VA page was updated in December 2013 but lacks the changes implemented by Dr. Walters.

VA Under Secretary Urges Claim Approval – Except for C-123 Veterans!

VA Under Secretary for Benefits Allison Hickey stirred her troops in the Veterans Benefits Administration forward with her rousing message, "Let's show the world how much we care about them all! Lean in -- grant if you can. Deny only if you must!!!"

Sounds terrific. Great leadership from a woman who knows leadership inside and out. Yet it seems, based on years of our struggle, that the VA feels it "must" deny even in the case of medically and scientifically proven C-123 exposure claims. 

VA policy trumps, law, regulation, the Senate and the House, and General Hickey's message.

VA rejects input from the EPA, NIH, CDC, ATSDR, and US Public Health Service, all of whom support the C-123 exposure claims. VA rejects world-renown Agent Orange scientists who confirm the C-123 exposures. VA rejects any outside government agency, medical school, university school of public health, independent scientist...VA rejects every opinion if it supports the C-123 exposure claims, and VA accepts any opinion which denies it.

It don't seem fair. It seems far, far off from General Hickey's orders to the field..."deny only if you must" being twisted to "deny whenever possible."

Agent Orange Harmless, Claims VA Leader

Agent Orange is harmless, or so claims VA's Director of Compensation and Pension Services (C&P.)

His exact words were, "There is no conclusive evidence that TCDD exposure causes any adverse health effects." At least, Agent Orange is harmless only so far as veterans' Agent Orange exposure claims are concerned if they reach the director's desk for prompt denial.

TCDD is the toxic contaminant in Agent Orange, or, more specifically, 2,3,4,8-Tetrachlorodibenzenzodioxin. It is a recognized human carcinogen, recognized as such by EPA, WHO and other authorities, and also by the VA! Again, quite harmful except where Agent Orange-exposed veterans' claims are concerned...pretending otherwise is merely part of VA's campaign to deny medical care to qualified veterans.

C&P's statement was part of his September 2012 order that an Agent Orange-exposed war veteran's claim be denied. The VA's Portland Regional Office had recommended approval, but C&P then directed the refusal over his signature once he was made aware of the veteran's claim.  The director of C&P was asked about his position, obviously contrary to both law and science, during a face-to-face February 2013 meeting with C-123 Association members Wes Carter and Marlene Wentworth at VA's 1800 G Street headquarters.

He and his staff seemed unaware of his action in this particular case, but did nothing then or subsequently to revise the order denying the veteran's claim. Thus, it remains the position at the Department of Veterans Affairs that Agent Orange has not been shown to cause adverse health effects...their pretense is that it is harmless.

Apparently objecting to the veteran's submitting an Agent Orange exposure claim, the diretor went so much further in his order forbidding this veteran's application. Because numerous government and university scientists provided substantial proofs of the vet's exposure situation, He directed that all input from toxicologists, chemists, epidemiologists and environmental scientists input be flatly rejected and only physician input be acceptable. This flies in the face of decisions by the 8th and 9th Circuit Courts which ruled such arbitrary dismissal of expert toxicological input illegal and unfair.

Actually, numerous physician statements of support were also included in the veteran's claim and these should have meet C&Ps requirement. These were submitted by the vet's own VA physician (Dr. Mark Garzotto, an acknowledged Agent Orange researcher and also professor of medicine at Oregon Health Sciences University), from Rear Admiral R. Ikeda (MD, USPHS) Director CDC/Agency for Toxic Substances and Disease Registry, CAPT Aubrey Miller (MD) US Public Health Service, and Professor Arnold Schecter (MD) at the University of Texas Medical School.

However, these physicians were all dismissed by simply ignoring them without comment of any sort, either in C&P's order or in the actual claim denial. By pretending their nonexistence, VA skirted the need to permit this convincing evidence to support the veteran's claim.

The determination of Compensation and Pension Service to prevent this veteran's claim was made even clearer in their mischaracterization of the C-123 Agent Orange study completed by the Air Force and release in May 2012. The VA twisted the fact, saying the Air Force concluded exposures by crewmembers were unlikely to have exceeded regulatory standards. In fact, the AF made that conclusion only for passengers, not for crew members who were in the C-123 much more over a full decade of flying. And besides, there are no published regulatory standards for dioxin exposure, because any exposure is considered harmful by regulators.

Conclusion: strictly for policy reasons alone and disregarding the 1991 Agent Orange Act, Title 38 and the Federal Register of 8 May 2001, and disproving promises by Secretary of Veterans Affairs Eric Shinseki that all C-123 claims will be carefully considered, the VA is determined that C-123 veterans' claims will be denied regardless of proof, legal sufficiency, medical or scientific justification. At least, if C&P has any say.