C-123 Veterans Association Works Washington – One Last Trip

I spent a week working various issues with VA and Senate staffers, including a very special luncheon on December 15 in the nice house just over my shoulder.

Worked with law firms providing our pro bono legal assistance, plus ROA, NVLSP, DAV and other advocates, finishing just a day before VA announced its new Camp Lejeune water policy which, like the C-123 policy, denied Reservists retroactive compensation benefits.

I had the opportunity to make suggestions to the Secretary of Veterans Affairs:
a) utilize fire department and military medics for VA home health care visits.
b) VA should inform America's 20 million veterans of steps ordinary Americans can take to help oppose terrorism.

Court Questions VA Conduct in FOIA Lawsuit

BY MICHAEL DOYLE
McClatchy Washington Bureau, September 24
WASHINGTON — The often-embattled Department of Veterans Affairs won the war but may lose an embarrassing battle over its handling of Freedom of Information Act litigation.

In what seems a rather noteworthy ruling Wednesday, U.S. District Judge Paul Friedman first sided with the VA in rejecting a FOIA challenge by Citizens for Responsibility and Ethics in Washington, but then raised the possibility of sanctioning the VA for its actions.

“This Court...is deeply troubled by the VA’s litigation conduct in the case: inaccurate declarations were left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic,” Friedman stated.

Friedman further ordered the VA to “show cause why a sanction under 28 U.S.C. § 1927, in the form of attorneys’ fees and costs, should not be awarded for the additional time and effort CREW’s attorneys were required to expend due to the VA’s tactics.”

The underlying FOIA request dealt with documents that could shed light on allegations that the VA discouraged staff from diagnosing veterans with post-traumatic stress disorder.

The VA’s precise legal conduct that’s in question is spelled out in Friedman’s decision, and in an earlier decision in which the judge declared that “counsel for the VA decided as a matter of litigation tactics not to be forthcoming by withholding relevant evidence until after the limited discovery ordered by this Court was concluded.”

 note: C-123 veterans have sought documents from VA under the FOIA for over two years so far.

JSRRC Visit Successful!

On February 27, I visited with the Army's Joint Service Records Research Center, positioned at Fort Belvoir, Virginia. Met by their chief, Mr. Domenic Baldini, we reviewed the concerns of C-123 veterans over a cup of coffee, and Mr. Baldini graciously let me bend his ear as long as I felt it a good exchange.

My key objective was to review with Mr. Baldini the extensive set of official documents...Air Force, GSA, NEA, CDC and so many other sources...pointing to the dioxin contamination of the C-123 transport we flew between 1972-1982. So long ago!

Mr. Baldini took special pains to detail his mission: it is to serve as the archivist of the military services regarding Agent Orange and PTSD. He is not a scientist to evaluate data, he is not even an historian who can review two documents and reach a third (and logical) conclusion from contemporary data (A plus B equals C...he might understand that but cannot report such a thought process, however logical.) He only reports what official US government documents describe. As Joe Friday on Dragnet says, "Just the facts, Sir."

Of note here is our insistence that JSRRC understand no mention was made back in 1972-1982 in unit histories of the 439th TAW or its subordinate units because (1) we were told the 1979 survey of Patches was proof nothing was wrong and (2) nobody worried about Agent Orange, especially once we were told none was on the airplanes, and thus no mention was made in official unit histories. I know...I supervised the unit historian for the 439th Tactical Airlift Wing (MSgt Marshall Hathaway) and spent hours getting the history into a format General Haugan would accept! Still, even with the absence in this particular document of record,

Further suppressing the paperwork needed by JSRRC was the mysterious step taken by the Air Force Office of Environmental Law in 1996, directing that "all information be kept in official channels only." That wrapped up information about C-123 contamination until 2011 when it was finally released via FOIA to the veterans. Too late to help avoid health issues. And remember - this was somehow, NOT a coverup! Right! Roger that!

I stressed JSRRC should include other contemporary and subsequent documents to conclude whether or not the C-123 fleet was contaminated, and if possible, reach a conclusion about the veterans' exposure. In particular, we reviewed the 1979 Conway and 1994 Porter/Weisman reports, each of which was positive for contamination by military herbicide. Further proof was in the many USAF toxicological studies of the stored surplus C-123 fleet, the January 2000 GSA court case where the USAF toxicologist testified under oath before a federal judge that the C-123 fleet was "heavily contaminated and a danger to public health."

Mr. Baldini repeated his duty as an archivist, able to address only official USAF documents, so I laid them on the table (having earlier provided hard copy as well as a DVD).

The result: Mr. Badlin expects that JSRRC will be able to provide a more comprehensive response to VA inquiries about C-123 veterans' claims, no longer simply stating no materials exist to substantiate the veteran's assertions. Otherwise, the claim is doomed, with VA using the JSRRC negative response as adequate proof to deny. Mr. Baldini works with Mr. Jim Sampsel of the VA's Compensation Services, and I've had the opportunity to meet with him. We were assured in 2011, well before other federal agencies and university experts concluded we've been exposed, that C-123 veterans are not and will not become eligible for VA Agent Orange benefits and their perspective has not changed. Nor will it. Even when regional offices suggest approval, such claims receive an "advisory opinion" insuring they will be denied.

Still, at least JSRRC is to be congratulated for its honesty and dedication to provide VA and each veteran a comprehensive detailing of its examination of the claims. The 15 JSRRC researchers (they need MORE!) are to be congratulated and thanked. All we asked for was a fair shake...we flew the airplane, there are officials reports about its contamination, and we want that history documented to the VA so that if our claims are denied, it will be for reasons other than the truth of our service! JSRRC will give us that fair shake from now on, and the VA will utilize other steps to prevent claim approvals.

Ya gotta wonder: there are so few of us C-123 veterans. The VA broadly swung open the benefits gate to PTSD and other Agent Orange groups, yet even when we provide expert medical, scientific and appropriate federal agency supporting opinions, the VA insists it will abide only with the views of its own scientists.

Next C-123 Veterans' Meeting Set with VA Executives - February 28

The Director of Compensation Services for the VA's Benefits Administration, kindly offered an opportunity to visit with him and discuss C-123 veterans' concerns about Agent Orange exposure and claims for Agent Orange-type illnesses.

Set for February 28 at his office, we hope to gain a firmer understanding of just how much proof the VA will require for our C-123 aircrews, maintenance and aerial port personnel to present before we meet the VA's "as likely to as not" threshold. The rules are that the veteran gets the benefit of the doubt, but it feels like our initial inquiries were met with a knee-jerk refusal, and that has been the defensive position of the VA ever since.

"Exposure" seems to be the big issue between the parties. We need to get the VA to specify just how much exposure, because the law doesn't address "how much." Neither does it address what kind, etc. If the VA will spell out their requirements beyond that specified in the law, that will give us a target for our continued efforts. Right now, it seems whatever we offer is short of the mark, regardless of the agency of federal government, the qualifications of the scientists or physicians...each piece of proof we present fails to add up to enough to warrant "service connection."

At least, that is the situation at the VA. Once claims are denied and reach the Board of Veterans Affairs the decisions are made in favor of the C-123 veterans, but that wastes years of additional waiting. We don't have those years, so it would be nice to ask Compensation and Pension to give us a formula the VA will accept, however demanding it might be, so that our claims won't be automatically denied. VA promises each claim will be evaluated individually, but we note that they are then denied individually as well, regardless of the weight of evidence presented.

My week in Washington includes meetings with other federal agencies which have already reviewed the situation and offered their opinions confirming C-123 veterans' exposure, and perhaps with the Joint Services Records Research Center in Alexandria to see if they have made progress on evaluating the Air Force documents dealing with the aircraft contamination. Several of the national veterans organizations have invited me to discuss the aircraft contamination, and our hope is more national resolutions to join with those already passed by the Vietnam Veterans of America and the American Legion. Two national groups will be presenting resolutions to their membership at conventions this summer. Thanks, brothers!

And no visit to DC goes well without a visit to our senators' and congresswoman's office to thank them for their tireless support.

At the very least, once the week concludes, it will have been pleasant to have met the executives assigned to disapprove our claims with their "Not on my watch" denial.