Coverup in the Desert - USAF destroyed evidence of veterans' Agent Orange exposure!

Subject: Destruction of Evidence?

The question has surfaced in Washington about the manner in which the Air Force came to decide to destroy the dioxin-contaminated C-123 aircraft, then in desert surplus storage in 2010. The C-123 veterans, exposed during our decade of flying the toxic C-123 fleet, need an opinion  as to what we should make of it, being from our impression a situation involving destruction of evidence? How can the AF misdeeds which affect our veterans’ exposure claims be categorized, because the airplanes were destroyed with the specific objective of preventing our claims?

We have located a set of AF papers via FOIA from Davis-Monthan AFB dealing with the toxic planes, which had been stored at Davis-Monthan AFB AZ since 1982 once we'd retired them to the desert.

One of the attention-grabbing points is the AF statement that their analysis of the EPA fines, which might be leveled for improper storage of hazardous/toxic materials, could reach $3.4 billion. There was also memo discussion of hosting Arizona EPA inspections but routing inspectors around the special fenced HAZMAT quarantine area into which the C-123s had been moved. The item that most offends veterans seems wrong to us but on what basis we can’t say.

Base officials had worried about these airplanes ever since 2000 when it became clear they could not be sold as surplus, not transferred to foreign governments, or even parted out for their very valuable engines.

Davis-Monthan solicited OSD’s suggestions about ridding themselves of the toxic C-123s. OSD concurred with AF understandings expressed in various memos that the airplanes could not be sold without enduring liability questions, even for parts such as avionics or engines, including on aircraft which had never been to Vietnam, and engines never unpacked from their storage wrappings.

OSD came to the conclusion that the aircraft needed to be destroyed to bring the issue to a conclusion. Base officials eventually found an EPA loophole which permitted toxic airplanes, which themselves should have been declared to the EPS, to be shredded into cell-phone sized scraps and then smelted, such waste being exempt from EPA hazardous labeling.

In a series of three memos to base officials, including the 505th Operations Officer, Major Carol McCrady, Dr. Al Young reviewed the situation, described an article about the stored airplanes which was published in Orion Magazine, and explained that visibility of the situation could lead to the already-exposed veterans turning to the VA for what he called “presumptive compensation.”

Mr. Buddy Boor then summarized in his position paper the Air Force options, and reiterated Young’s warning that the veterans might learn of the exposure and turn to the Department of Veterans Affairs for “presumptive compensation.” This recommendation traveled upstream to the Air Staff for its eventual approval.

OSD had stressed the need to minimize media attention. OSD recommended that base Public Affairs prepare a press release in case of media inquiry. OSD helped with

various editing cycles, eliminating words like “dioxin” and “Agent Orange’ and other attention-grabbing terms. 

Finally, OSD congratulated the Air Force on minimizing media attention – which was completely non-existent. C-123 veterans worry about the role of this OSD consultant, who describes us as "trash-haulers, freeloaders" for whom he has no respect but would have respect if we'd earned Purple Hearts. 

Well, our membership has plenty of Purple Heart Medals, POW Medals, Air Medals, Distinguished Flying Cross Medals, Bronze Star Medals, Aviator wings, parachute wings, Combat Infantry Badge and others - OSD should have checked before publicly disparaging us. He has his merits but we believe OSD's consultant isn't the right person to have a role in guiding the Air Force in preventing our access to VA medical care.

 What can be done to classify the wrong described here? To us it seems that this is destruction of evidence of our having been exposed. 

It is an inappropriate destruction of evidence by the AF to prevent our claims succeeding with the Department of Veterans Affairs. Obstruction of justice? Bad attitude? Nothing? Eliminating the airplanes has resulted in the Secretary of Veterans Affairs claiming that only two out of four airplanes tested positive for dioxin in 1996, when in fact 14 of 17 did. And it kept the AF from being able to more closely examine the toxic planes in subsequent studies, in particular the 2012 Consultative Report from the USAF School of Aerospace Medicine – the absence of test data led the AF to conclude they had no way to firmly conclude whether or not aircrews were exposed, and upon that indecision VA somehow based its interpretation of the AF report.

This hurt us. The Air Force has a legitimate interest in protecting present and future employees and military personnel, but it has no role in taking actions to prevent already-exposed veterans from turning to the VA for benefits. We feel the AF had a duty to inform us of the exposure, yet the question never arose until mentioned in the distribution memo from the Deputy Surgeon General of the Air Force when he mentioned there would be no notice so as to “prevent undue distress” to the veterans. 

We indeed have experienced distress.

 How can we describe these bad acts? What laws were violated? What OSHA regulations (if OSHA is applicable) were violated? Can we do anything about this?

Reserve Officers Association Adds Support

Today we heard from ROA Executive Director MG Andrews Davis USMC Ret. of his professional

association's support for C-123 veterans' Agent Orange exposure claims. I haven't been able to attend a national convention since Chicago 1982, and it was there USCG CAPT Sparks recommissioned me into the USAF Medical Service Corps. A great day, as I really wanted back on flying status, although it cost me a year of time-in-grade for promotion.

The broad language of ROA Resolution 10-26 "Recognition of Illnesses Caused by Hazardous Warfare Agents address our eligibility for ROA support, in addition to their historical role of advocacy of supporting national defense. We look forward to fleshing out the details of what ROA can suggest as we move towards convincing the VA to follow the law...and permit our service connection claims. Many of us have contributed to ROA programs ourselves for decades and we're grateful we can turn to our professional organization at this time.

Chairman Senate Veterans Affairs Committee Promises Agent Orange Claims Support

Today I received from America's favorite "Socialist" Independent Senator from Vermont, crusty Bernie Sanders, a letter in response to our messages to him about C-123 veterans' claims.

His response: "I promise to do everything in my power to endure that the brave men and women who have put their lives on the line to defend our country, receive the highest quality benefits." We certainly cannot ask for more from Senator Sanders or his dedicated staff headed by Mr. Steve Robertson.

The Chairman's guidance, along with that of Senator Richard Burr of North Carolina, Senator Merkley and Congresswoman Bonamici (both of Oregon) and their staffs, has been extremely helpful in getting attention from the VA about this issue, and in forcing VA to reveal their extra-legal policies and activities designed to prevent C-123 veterans' claims. Armed with the knowledge of VA mistakes, we can answer better and more completely their demands for well-documented "fully developed claims."

C-123 Historical Record: 731st aircraft w/prior Ranch Hand history

Thanks to the Air Force Reserve Command and the Air Force Historical Research Agency, we now have a more complete record of those aircraft assigned to the 731st with previous use in Operation Ranch Hand. This is only for five aircraft, and the remaining five we still have to pin down, for instance, #362.

The list shows the association of the 74th AES with the 731st and thus explains how aircraft assigned to the 731st are also flown by the 74th. It also shows the list of aircraft used for Ranch Hand, and AFHRA's archival reconstruction of where those C-123s went after Vietnam and came to be assigned to the 731st.

The VA and Joint Services Records Research Center have insisted on this information to connect Form 5s and flight orders with duty aboard contaminated airplanes. They demand much more along other subjects, but this should tie up the historical questions raised by VA and their insistence that proof be on official military paperwork. While VA will certainly dream up more and more excuses to block our claims, at least this eliminates one of those blocks!

Our thanks to the archivists who worked so hard on this, especially Mr. Barry Spink at AFHRA.

We're Not Alone!

Leave your lawyer jokes somewhere else because here come "the good guys."

At the suggestion of Connecticut's Commissioner for Veterans Affairs Dr. Linda Schwartz, we discussed the needs of our C-123 veterans with the Yale Veterans Legal Services Clinic. No details here, but Yale has reviewed our situation and has concluded they'd like to help us find pro bono representation to the illegal VA and USAF responses to our C-123 FOIAs, which must be handled by the US District Court in Washington, or the US District Court in Portland for the Air Force FOIA. Although the Clinic is on summer schedule they hope to prepare an in-depth legal analysis of our eligibility for Agent Orange service connection, possibly ready in the early Fall. PLEASE: do not contact at the Clinic as they'd appreciate some time to get into more detail and to work with their own staff on what can be done to help our veterans. We'll publish everything they provide as soon as it is available.

We have also been receiving expert and generous advice regarding Agent Orange claims from San Diego attorney Katrina Eagle, a private attorney first referred to us by the State of Colorado Veteran Affairs director

who emphasized Ms. Eagle's aggressiveness and solid grasp of complex veterans issues. Ms. Eagle has spent months investigating our C-123 contamination and aircrew exposure issue, and the claim we veterans have under current law - and she feels we have "a righteous cause!" She has special insight now into the various letters from VA Compensation Services and the legal errors so readily apparent in them.

As a small firm, she's unable to help us on a pro bono situation, but is ready to apply her extensive background in veterans law and her recent careful examination of the C-123 issue in helping individual veterans. This isn't our sales pitch for her, but it certainly is our pitch that veterans seeking expert legal advice in submitting claims to the Board of Veterans Appeals should consider her. Ms. Eagle wrote:

As discussed, I would honored for you to provide my information to your members.  My website has all information and FAQ's but it is worth reminding your members that I do not charge for my assessment of any veteran's denied claim.  My initial procedure is fairly straightforward in that I ask for the veteran to send the most recent VA decisional document to me before I have a substantive conversation with the veteran.  I require that document so that I can confirm that VA has issued a decision that is still able to be appealed. As noted on my website, I do not charge a fee to review, nor do I charge an upfront retainer fee.  I am paid if and only when VA grants past-due benefits that I have litigated on the veteran's behalf.  My contingency fee is 20 percent, and I am never paid any portion of a veteran's current or future VA compensation.

Veterans appealing a denied claim can continue to have representation from an experienced veterans service officer from one of the veterans associations, and those services are always free. Selecting a VSO or an attorney to represent you claim is your own decision - both approaches have merits but in my situation, I'd be grateful for the services of an attorney like Ms. Eagle or an equally qualified lawyer specializing in veterans law. One of the reasons in my mind is the difficulty I've seen veterans having getting enough time from the overloaded VSOs, in some cases taking months to communicate, not developing strategies but "going with the flow," caving to VA statements, etc. An attorney walks out of the BVA a winner or a loser, just like the veteran, and fights hard because no win = no fee. 

Newest set of flight documents scanned, ready for download

Paul Bailey's collection of flight orders and Form 5s has been merged with those from Steve Caraker
and John Riley. We're getting some good information for everyone to cull through and find the papers necessary to substantiate YOUR service aboard one of the former Agent Orange spray aircraft. Other folks, like Al and Gail Harrington, and Joe Butler, have papers on the way.

Here is Paul's set of Form 5s

Here is Paul's set of flight orders

Here is our latest spreadsheet tying everything together -dates, crews and tail numbers

C-123 Veterans Briefing: 23-page handout updated & ready to download

Today we finished updating the briefing our Association uses for meetings with political and veterans organization leaders, its focus being the basic argument proving our Agent Orange exposure. We go into detail about the tremendous support other federal agencies have given us, such as the Director of the CDC/Agency for Toxic Substances and Disease Registry, and we also detail how the VA sets up roadblocks to keep our veterans from successfully pursuing disability claims.

We will be distributing this at next week's Senate Veterans Affairs Committee hearing, as well as during meetings with other groups such as the MOAA, ROA and American Legion.

Please forward this handout to folks you'd like to have informed about our problem, and especially

present it to your senators and congressional representative, asking that they work with Senator Burr (Ranking Member Senate Veterans Affairs.)

VA Ignores Latest C-123 Veterans's Freedom of Information Request

Our guarantee of information, to help keep us free

VA people.

They must feel like very, very special people. Equal, perhaps, but far more so from their perspective. Exempt from the law, even. Able to decide which laws they will cooperate with, and which they benefit more by ignoring. Yes, very special people, dedicated public servants...at least, dedicated to insuring C-123 veterans are kept away from vital Agent Orange medical treatment.

C-123 veterans filed a Freedom of Information Act request demanding all VA materials about the C-123 and Agent Orange...VA correspondence, reports, scientific reviews, emails...and meeting notes from the two occasions in which C-123 vets met face-to-face with VA officials.

Initially VA took no objection as to the scope of the request...meaning they did not challenge the FOIA by exercising any of the nine exemptions in the law (privacy, junior persons's names, classified

information, etc)). However, VA tried to keep the FOIA blocked by demanding over $4500 for the requested materials. We appealed, and at their suggestion reduced the scope of the request to bring the cost down.

Surprise, surprise, surprise! Eventually the VA responded, but denied that any materials exist at all, anywhere. Not even the materials obviously on their Internet pages. So now the VA denies our claims and bases their actions on evidence which VA insists doesn't exist. VA copies language to their regional offices to use in denying C-123 claims...language and instructions to regional offices which doesn't exist.

What I find troubling is the signature on the final VA correspondence assuring C-123 veterans no VA materials exist. It is the signature of an attorney, the VA's assistant general counsel.  Over her signature as a government official, we are assured that our government's guarantee (that's the word the FOIA law uses) of access to information has been kept. Over her signature, we are assured that the Freedom of Information, which the President, Supreme court and the Congress all say is an important element of American democracy, has been complied with in response to our request. This makes me so very concerned, because what is going on to lead these VA officials to take such a stance against us?

Next step, United States District Court in Portland Oregon.

VA Denies C-123 Veterans' Claims with Deceptions

It is just a paragraph...a bunch of type characters printed onto the claim denial the VA sent this veteran (click to open) of the 731st Tactical Airlift Squadron, received just a few days ago. The paragraph doesn't look particularly evil or vicious. But it is.

Below is the vicious (because of the extent of the awful harm the VA knows they cause and don't give a damn) boilerplate language heartlessly tossed out by VA rating officers dedicated to prevent this veteran, and any others like him, from darkening the door of VA hospitals as he seeks care for Agent Orange illnesses.

"As of this date, the Department of Veterans Affairs (VA) does not currently recognize remote or secondary exposure to Agent Orange from contact with aircraft or equipment previously used in Vietnam. It should also be noted that the U.S. Air Force (USAF) recently collected and analyzed numerous samples from C-123 aircraft to test for Agent Orange. The Air Force's recent risk assessment report dated April 27, 2012 found that potential exposures to Agent Orange in C-I23 planes used after the Vietnam War were unlikely to have put aircrew orpassengers at risk for future health problems. The report concluded that a) there was not enough information and data to conclude how much individual persons would have been exposed to Agent Orange, b) that exposure to Agent Orange in these aircraft after the Vietnam War was lower than exposure during the spraying missions in Vietnam, and c) potential Agent Orange exposures were unlikely to have exceed standards set by regulators or to have put people at risk for future health problems."

VA makes a pretense that this claim denial from Providence RI was the result of the veteran's careful "individual" evaluation of his claim. VA makes a pretense also about the other C-123 claims being "individually' evaluated as well. But what is amazing is that VA claims denial officials in Portland and Memphis and Hartford and Boston and Providence (and who knows where else) are all coming up with the very same, identical, boilerplate repeated language...word for word. The raters caved to inappropriate to inappropriate VA HQ demands that C-123 claims be denied, and HQ kindly provides the boilerplate information. 

So much for the "individually considered" promises of how claims

will be evaluated, made by senior VA folks including General A. Hickey, Undersecretary for Benefits and her Director of Compensation Services. We expected more of these folks.

The only thing "individual" about C-123 claims being denied upon Washington's orders is each veteran's name on the denial package. That's a promise broken...and a promise broken which was made to the United States Senate which asked about C-123 exposure.

The "evil and vicious" parts mentioned above come in because the raters, and those who directed them to deny these fully qualified claims, know the words they copied (fed to every regional office from 1800 G Street in Washington, D.C.) are simply false. Words so false that if on active duty we'd used similar lies in anything involving airplanes or patient health, we'd be facing criminal charges, our honor lost. Planes would crash, patients would die...but that's why honor is required of military folks. It seems honor is not a problem, for some VA people.

Although the VA people also take oaths to support and defend the Constitution, things seem different so deceptions, half-truths, prevarications...anything goes. Their mission comes first, and that mission is barring C-123 veterans from VA hospitals.

What are the "vicious lies" in VA claim denials?
1. To deny claims, VA decided it doesn't recognize secondary or remote Agent Orange exposure. So what...not our problem! Our exposure is direct and primary. "Secondary" exposure is via something touching a contaminated surface and then carrying the contamination elsewhere. In the C-123 the dioxin was tested as "heavily contaminated on all test surfaces."  The LAW promises veterans proving their exposure will be treated...but the VA feels comfortable redefining law to their liking.
2. VA mentions the USAF tested the airplanes. To better deny

claims, VA doesn't get around to saying the AF found the C-123 fleet toxic even decades after the last Agent Orange spray missions and that the airplanes eventually had to be destroyed as toxic waste. Yes, the AV tested the C-123 and the warplanes were so toxic nobody could enter after that without HAZMAT protection!
3. VA mentions the AF report, but doesn't mention that the AF Surgeon General asked the VA that it not be used to deny veterans benefits. 
4. VA viciously lies by going on about exposure, but doesn't mention that the LAW does not specify how much, what kind, what color, what anything. The LAW says exposure, and if a veteran is exposed the veteran gets treated. Neither does the LAW permit the VA to deny veterans medical care because some VA administrator doesn't feel we deserve the care, or anything...no qualifiers in the law, simply the word EXPOSED.
5. VA lies by omission, leaving lots out of their paragraph which they really should publish...but leaving these things out helps VA prevent a claim's approval. VA don't mention that experts from all over have investigated the C-123 contamination and reached opinions that we were exposed. Ignored are experts like the Director, CDC/Agency for Toxic Substances and Disease Registry. Not mentioned either are the Director National Toxicology Program, or experts from the EPA and US Public Health Service. Not mentioned are experts from Columbia University, University of Texas Medical School, Oregon Health Sciences University and so many others. Others, with the statutory authority for making these decisions, and having far greater expertise about dioxin than the VA. Lies, lies and more lies.
6. VA mentions that exposures "after the Vietnam War" were lower than those experienced by the Ranch Hand spray veterans. True enough, but tossed in here just to be disarming, because again the law says EXPOSED, without requiring a veteran to be more or less exposed than any others. Dr. Jeanne Stellman of Columbia concluded C-123 vets were exposed less than Ranch Hand bur more than Vietnam War ground troops. Dr. Christopher Portier of the CDC.ATSDR felt the exposure was on a par with ground soldiers - but again, absolute confirmation C-123 vets were exposed.

VA people. They're not like us.

Vital Records Available for Your VA Claims (Form 5s, flight records, etc)

The VA has insisted that in addition to any other objections and qualifications they may present regarding C-123 veterans' claims for Agent Orange exposure, we have to prove actual service aboard a known spray aircraft.

Many folks like those in the 74th Aeromedical Evacuation Squadron saved only flight orders, none of which show tail numbers, only aircraft type, and we seldom signed off on Form 5s.

Thanks to certifiable hoarders Steve Caracker of the 74th with his set of flight orders, and John Riley of the 731st with his Form 5, we have the basis of a data collection now available...click for a spreadsheet of dates of AO flights (thus far...more will be added from other Form 5s) . John's Form 5s show dates on which C-123s he flew, and matching our fight orders with his 5 can provide a documented tail number for the VA. More and more will be added as others send in their papers as many have promised.

The next step is to blend in the names of people on flight orders to matched spray aircraft and dates so as to allow a printout of each individual's AO flights...volunteers??

Petition to US Senate: VA Must Care for C-123 Veterans

Click to Sign C-123 Petition to Senate

Please CLICK TO READ OUR PETITION - Sign if you wish.

Taking advantage of wonderful social media such as Google's Blogger and YouTube has helped get our message out to over 80,000 visitors. Today we add another useful tool, the petition services of CHANGE.ORG. We created a brief petition to the Senate Veterans Affairs committee, asking that they direct VA to treat C-123 veterans in accordance with the benefits we have earned under the law.

Please consider signing it, and please consider forwarding it to others for their support as well.

USAF Cheats on FOIA Response - then USAF Demands Return of FOIA Response

What a comedy of errors! The C-123 Veterans Association submitted an FOIA in August 2012 for everything associated with the Air Force C-123 Consultative Letter. That letter was a messed-up analysis of the aircraft's contamination and twisted conclusion that veterans somehow were not exposed to Agent Orange.

The request was approved completely – documentation, correspondence, recordings, emails...everything was to be released within the required response time of 20 days. What we got, however, after waiting 347 days, was a CD loaded with a bunch of decades-old records and a single page related to the massive study - and not even a copy of that study! That's not good, because the Freedom of Information Act assures us that citizens have a right to this information, and the FOIA is an important cornerstone of American democracy, according to the Congress, the Supreme Court and the President. Hey, Air Force - its the law!

But apparently not an important enough law to the folks at Wright-Patterson AFB. They feel free to delay as they wish, and to withhold information as they wish, even about this 60-year-old warplane. Apparently, something in the issue embarrasses the Air Force in some way, or there is something which needs being covered up (from their perspective) and that (from their perspective) makes it perfectly okay to sneer at our rights.

But the joke - FOIA officials at Wright-Patterson AFB almost immediately demanded RETURN of their CD. Seems they inadvertently included a full page of civilian employees' Social Security numbers. The same error as I'd pointed out to them two years ago, but this time we'd posted the CD of information before we noticed their problem (and immediately informed the 88th FOIA officials, of course) so it was out for all the world to see, and now AF has to find those employees and do a big mea culpa.

Oregon State Director of Veterans Affairs Endorses C-123 Veterans' Agent Orange Claims!

Himself a Gulf War veteran, Director Cameron Smith of the State of Oregon Department of Veterans

Director Cameron Smith, OR Veterans Affairs

Affairs on 20 May 2013 formally wrote VA Secretary Shinseki detailing C-123 veterans' eligibility for VA Agent Orange exposure benefits!

While wholly symbolic in addressing federal benefits, Director Smith's letter puts the VA on notice that yet another agency concurs with C-123 veterans' claims for having been exposed to Agent Orange and its contaminant, dioxin, during our post-Vietnam decade of flying those warplanes. Of course, any decision from the US Secretary of Veterans Affairs to confront his own Veterans Health Administration regarding that group's illogical, unscientific and illegal steps preventing our veterans' access to VA medical care rests with the Secretary, but the moral weight of Oregon stands behind us at last.

Director Smith cited the fact that VA's refusal to permit C-123 veterans' claims to be approved violates both the spirit and the letter of several regulations:
1. 38 CFR 3.03(a), Principals Relating to Service Connection
2. 38 CFR 3.07(a)(6), Presumptive Service Connection for Chronic Tropical or Prisoner-of-War Diseases or Diseases Associated with Exposure to Certain Herbicide Agents, Wartime Service On, or After January 1, 1947
3. 38 CFR 3.03(a), Diseases Subject to Presumptive Service Connection

Not touched on but directly applicable iis another foundation of our legal claim, that of the Federal Register of 8 May 2001 page 21366 where VA states veterans exposed to herbicides outside the scope of the Vietnam War (boots on the ground) will be treated the same as Vietnam War veterans. This is where VA is very carefully, and unscientifically, redefining "exposure" specifically to prevent C-123 veterans from qualifying!

VA has recently inserted an otherwise-valid toxicological concept called "bioavailability" which they insist is necessary before C-123 exposure can be conceded. Bioavailability means the impact in some way that is measurable of a substance upon the body. For instance, drinking coffee usually elevates one's blood pressure.

This is wrong. Bioavailability actually follows the issue of exposure. One must first be exposed to coffee to then experience its bioavailability. Checking everywhere in medicine and science where we can get opinions, C-123 veterans were scientifically and medically exposed to Agent Orange, in whatever form it may have been found on the C-123 which was both inhalation and dermal contact with it. Further targeting C-123 veterans is the recent VA unpublished directive that none of them will be permitted exams under the Agent Orange Registry program, with VA now insisting that only "liquid" Agent Orange exposure qualifies a veteran for any care. Bioavailability = VA obstructionism, flung at C-123 veterans to prevent caring for our Agent Orange diseases. No other reason.

Oregon joins the US Public Health Service, the EPA, the National Institutes of Health, the CDC/Agency for Toxic Substances and Disease Registry, the National Environmental Institute of Health Sciences, the University of Texas Medical School, the Oregon Health Sciences University and
other scientists and physicians in having concluded that C-123 veterans flew a contaminated aircraft, that we were exposed to Agent Orange during our service, and that we are due medical care and other benefits associated with whatever Agent Orange-preseumptive illnesses we experience. One has to wonder just how many experts outside the VA will it take to convince those non-experts within the VA to open their eyes!

Thank you, Director Smith, and Deputy Director VanDyke. Amazing what you can get done when a couple Marines are in charge!

C-123 veterans, your Association urges everyone to contact both state and federal authorities, such as your senators and congressional representative, to gain their endorsement urging Secretary Shinseki to do the right thing - make the VA follow the law regarding C-123 veterans Agent Orange exposure!

VA CLAIM DENIED! What to do next...

FINANCES & LEGALITIES May 17, 2013, 1:57 pm 17 Comments

After the Denial Letter Arrives

By SUSAN SELIGER

If you’ve been rejected for the Department of Veterans Affairs Aid and Attendance (A&A) benefit, there are steps you can take to get your application reconsidered. But first, a warning: Do not do what the V.A. denial letter suggests you do, as that may only bring you years more of delays. And second, you’ll need to invoke the spirit of Winston Churchill in his 1941 speech to the Harrow School: “Never give in — never, never, never, never, in nothing great or small, large or petty, never give in.”

The V.A.’s Caregiving Benefit

Veterans’ families struggle to qualify for the Aid and Attendance pension benefit.

• A Little-Known Benefit
• The Long Wait

Patsy Jones, the widow of a Vietnam veteran, had to go back to the V.A. five times over the course of a year before she finally qualified for the benefit, which reimburses veterans and their families for the costs of caregivers working in the home or can be used to pay for assisted living or nursing home care. Mrs. Jones, 64, had so many ailments (a stroke, dialysis three times a week, dementia, diabetes and hypertension) that she needed constant care in an assisted living facility, which her family struggled to pay for.

“They had my gas turned off in my house,” said her daughter, Tamara Jones. “I couldn’t pay car insurance. A&A was our last hope. When we were denied, it felt like somebody had killed our last hope.” Now, one year later, the Jones’s family received their first A&A pension benefit check, for $800, in April.

This week, the V.A. acknowledged the criticism over long delays in handling disability claims and announced that claims processors in all 56 regional offices would have to work at least 20 hours of overtime per month until the end of 2013 in an effort to eliminate the backlog. Unfortunately, this may not much help those awaiting decisions on A&A, who are often in their 80s and 90s and running out of time.

So here are the steps you should take if you or a family member has been turned down.

If possible, don’t go it alone. Although the V.A. does not allow you to pay someone to help you fill out the application right from the start, the department does allow applicants to pay for a V.A.-accredited professional to handle an appeal.

USAF CHEATS on C-123 Freedom of Information Act Request

Today a CD with about 500 mg of test reports and other materials was received in response

to our 1 August 2012 FOIA submitted to the USAF Surgeon General and the USAF School of Aerospace Medicine, part of the Air Force Material Command, Wright-Patterson AFB, Ohio. The basic subject was the 2012 USAF Consultatative Letter dealing with post-Vietnam C-123 contamination and veteran exposure.

Requested those ten and a half months ago were public documents, already gathered in one place as per the orders given the AFMC earlier, so finding everything shouldn't have proved difficult.

(Click for Video on this Subject) What does seem to be difficult was letting go of the information, despite the force of law in the FOIA. Over six weeks were required for the AFMC Judge Advocate General attorneys to select what few items they'd approve for release. A single sheet of paper was all that C-123 veterans were permitted to get, and that was simply a note from one office at Wright-Pat to a JAG at Davis-Monthan asking for some copies of old records.

What did the AF keep from the public? They failed to release the following items listed in the FOIA, which itself was earlier approved without exception, other than for irrelevant personal information such as telephone numbers and names of junior personnel:

-marginal notations ==kept secret

-interim and final reports==kept secret

-emails===kept secret

-tapes or other recordings===kept secret

-correspondence==kept secret except for a single page letter===kept secret

-other official documents, many of which we first provided USAFSAM===kept secret

The FOIA response didn't even include the report itself, nor the instructions to the team, nor their work product...nothing at all. The materials were vital to help us challenge the various mistakes the AF made in concluding that our decade flying the toxic, Agent Orange-contaminated C-123 left us somehow unexposed. We veterans believe, especially considering the expert input we've received from other federal agencies confirming our dioxin exposure, that USAFSAM must have had command interference to reach any alternate position.The AF Consultative Letter is cited by the VA in their over-eager rejection of all C-123 veterans claims, and we needed this to better challenge the mistakes in it. But... KEPT SECRET for reasons that must be VERY important at WPAFB and the USAF Surgeon General!

This reeks! What in the heck is going on, with the VA responding in a similar manner stating that, although the VA had conducted a "thorough scientific review" no materials existed within VA regarding that thorough scientific review of the C-123 -- yet the VA has enough materials somewhere to permit them to deny veterans benefits! And now the AF doing much the same, releasing only older papers which generally address Agent Orange issues from the beginning of the Vietnam War until around the late 1990's. Absolutely nothing except a single page addressing the Consultative Letter and how it came to be so anti-veteran! 

Truly, this reeks! Something very unusual is going on to force otherwise responsible Air Force civilians and military personnel to disregard laws like the FOIA! 

HEY, VA and USAF: We veterans have a RIGHT, claimed here under the FOIA regardless of your preference to such hide such things (FOIA be damned, right?? Ain't no stinkin' law gonna bother you, right??) and thus to know the foundation of your schemes to turn us away from the doors of our VA hospitals as we seek Agent Orange medical care!

Anybody remember in some high school civics class long, long ago when we were fed the line about the people being sovereign, not the government? Anybody remember "support and defend the Constitution" in our oaths?

"Diamond Jim" Jimmy Maynard passes - God Rest this Merry Gentleman!

James R. Maynard Jr.

ORLAND - James R. Maynard Jr., 74, took his final flight Friday, May 3, 2013, surrounded by family as he succumbed to a long illness."Diamond Jim" or "Big Jim" is survived by wife, Kathleen; four children, three grandchildren, a sister and extended family.Jim worked for the U.S. government for 49 years, including 29 years in the U.S. Air Force and 20 years in the Department of Defense. Jimmy had years of service with the C-123 Provider at Westover AFB, MA. and will be missed by all members of the C-123 Veterans Association.A celebration of life will be held 1-4 p.m. Sunday, May 19, at Elks Club Lodge, Enfield, Conn. Being a Vietnam veteran, he requested in lieu of flowers, donations be made to Wounded Warrior Project, www.woundedwarriorproject.org or Disabled American Veteran Organization,www.dav.org. Published in BDN Maine on May 6, 2013

VA Violates Veterans Dioxin and Radiation Exposure Compensation Standards Act

"Scientific Review of C-123 Agent Orange" - quite unscientific!

VA has violated the Veterans Dioxin and Radiation Exposure Compensation Standards Act, in a deliberate manner to prevent veterans from receiving vital medical care! In particular, it has violated the section requiring the Secretary to produce and/or rely upon those guidelines which withstand peer review ("Peer review is the evaluation of work by one or more people of similar competence to the producers of the work"). And the VA's publications have manifestly FAILED peer review!

The guidelines required to be established in regulations
prescribed under this section shall include guidelines governing the
evaluation of the findings of scientific studies relating to the possible
increased risk of adverse health effects of exposure to herbicides
containing dioxin or of exposure to ionizing radiation. Those guidelines
shall require that, in the evaluation of those studies, the
Administrator shall take into account whether the results are statistically
significant, are capable of replication, and withstand peer review.

In 2012 the Department of Veterans Affairs prepared a document, claiming to be a "Scientific Review of C-123 Agent Orange," crafted to prevent successful claims by C-123 veterans who had been exposed to dioxin while serving aboard their aircraft between 1972-1982. Those warplanes had been used until 1971 for spraying Agent Orange in Vietnam. The VA review skillfully avoided references which would agree with the veterans' exposure, and selected only those which could argue against their exposure. Interesting, however, is the fact that one cited author (Dr. Linda Birnbaum, Director, National Toxicology Program) actually concluded veterans were exposed!

Response by the medical and scientific community was immediate, and negative. Acting on behalf of fifteen other scientists and physicians, Dr. Jeanne Stellman (Professor Emerita of the Mailman School of Public Health, Columbia University) submitted to the VA's Undersecretary for Veterans Benefits a scathing assessment of the VA's "Scientific Review". She and her colleagues termed their concerns with the VA "scientific apprehensions" and concluded the VA paper was "scientifically flawed" in many areas. 

Because the VA's "Scientific Review" was crafted to prevent C-123 veterans claims from being approved, it bears careful examination as to the failure to withstand peer review and thus violated the Veterans Dioxin and Radiation Exposure Act:

1. VA was challenged on errors regarding dermal exposure to dioxin
2.3. VA was challenged on errors regarding dermal absorption of dioxin
-VA was challenged on errors regarding failure to consider initial tests cited were completed on the aircraft seven years after the veterans started service aboard, and other tests up to forty years after the last Agent Orange spray missions, thus exposures were greater given the "fresher" dioxin
4. VA was challenged on errors regarding its dismissal of standard hexane and water wipe tests used to determine C-123 dioxin levels as "heavily contaminated"
5. VA was challenged on errors regarding failure to include reference to TG312, the acknowledged "gold standard" for evaluating surface contaminants
6. VA was challenged for deriding the concept of dioxin occupational exposure and for having incorrectly implied that only "sophisticated laboratory methods" could uncover the C-123 dioxin contamination of the warplanes, when in fact such sophisticated laboratory methods are the norm for all such examinations, and are standard in toxicology, and would be the same tests used in any civil, military or other setting where contaminants were suspected
7. VA was challenged on its incorrect statement that dried dioxin is biologically unavailable; further, it was noted that biological availability is not a requirement for veterans' claims for Agent Orange exposure per the Federal Register 8 May 2001 (page 21663)
8. VA was challenged for its failure to integrate the findings by the Director and Deputy Director of the Agency for Toxic Substances and Disease Registry, which were that C-123 veterans were exposed and further, had a higher cancer risk by far
9. VA was challenged for its failure to assess other contaminants present in Agent Orange, and for failure to address the broader issue of "military herbicides" as described in the 1991 Agent Orange Act and its various promulgations
10. VA was most directly, and most importantly, challenged for its baseless conclusion that exposure levels were unlikely to have subjected C-123 veterans to "levels that could affect health" since no regulatory standards exist, and generally accepted guidelines were greatly exceeded in this instance

The VA's so-called "Scientific Review," having failed peer review but nonetheless employed by the Under Secretary of Veterans Benefits to deny C-123 veterans' benefits claims, leaves the Secretary having violated the Veterans Dioxin and Radiation Exposure Compensation Standards Act, and to the terrible detriment of the veterans involved. Veterans thus are turned away from care for military cancers, heart disease and other Agent Orange illnesses, and forced to seek care elsewhere. Which was was the objective of the VA's Veterans Health Administration.

One must question what the internal process is for VA release of their "scientific" papers, which seem, judging by this low standard, mere mis-steps of policy statements wrapped in erroneous pseudo-science. And given the slanted perspective taken by the VA paper, those writing it should be called to account for their unprofessional involvement.

If you haven't already had an Agent Orange exam, your C-123 Veterans Association urges to to obtain one immediately, even at your own expense. Yesterday an important article was published about aggressive prostate cancer being linked to Agent Orange exposure:

"This is a very, very strong predictor of lethal cancer," said urologist Dr. Mark Garzotto, who worked on the study at the Portland Veterans Affairs Medical Center in Oregon."If you're a person who's otherwise healthy and you've been exposed to Agent Orange, that has important implications for whether you should be screened or not screened," he said. (click here for full text of published article)

Dr. Garzotto happens to be my own VA urologist and already provided an opinion that I was exposed

during my years aboard the C-123, but the Portland VA regional office then rejected his expert opinion classifying it as "unacceptable lay evidence." From my perspective, he's a great physician, teaches at a fine medical school, works for the VA and obviously knows a lot about prostate cancer and dioxin...but VA makes its own rules and then choses which ones to use against us. VA regional offices seek any opportunity, however remote, to deny claims regarding Agent Orange. Any supporting evidence of C-123 veterans' exposure to Agent Orange is automatically unacceptable to the VA, per VA Compensation Services.

Last week we were informed by VA's Deputy Director of Post Deployment Health that Agent Orange exams are no longer allowed for our exposed C-123 veterans because of new internal VA rules requiring the exam be restricted to just Vietnam veterans or veterans in contact with LIQUID Agent Orange. Because our exposure was to the dried dioxin residue on the airplane which left it "heavily contaminated" we are prohibited from seeking an Agent Orange exam.

We believe Dr. Garzotto's research makes clear that all C-123 veterans need to be examined if they haven't already been seen for Agent Orange exposure. Do this promptly even though we are now excluded from the VA system.

The current Agent Orange Registry page on the VA site is outdated where that it says all veterans who believe they've been exposed may ask for the AO exam. "All veterans" does not include C-123 veterans as of last week. Outdated, or there may be some sort of confidential VA Post Deployment Health internal memo used to exclude us, but this new exclusion from the Agent Orange Registry has been confirmed with their Deputy Director and veterans already denied exams. The version for  C-123 veterans is:

"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"

VA Health Benefits Administration, as we were told by Compensation Services when we met with them on 28 Feb 2013, already ruled that C-123 veterans could not have been exposed and that no evidence to the contrary, such as from VA doctors, scientists, medical schools, or even the finding by the Director of the CDC/Agency for Toxic Substances and Disease Registry that we WERE exposed, is acceptable to VA. So the VA has determined that we cannot seek medical care there, but Dr. Garzotto's research makes it clear that we must seek it somewhere - do so now! We can't wait for the VA any longer.

New Study Links Agent Orange with Aggressive Prostate Cancer

(Posted: An article by my own VA urologic oncologist here at the Portland VA Medical Center. Note that the VA has earlier dismissed Dr. Garzotto's opinion confirming C-123 Agent Orange exposure as "unacceptable lay evidence", regardless of any qualifications he obviously presents. Any evidence at all which contradicts PostDeployment Health is unacceptable.)

About 3 million Americans served in the armed forces in Vietnam and nearby areas during the 1960s and early 1970s, the time of the Vietnam War. During that time, the military used large amounts of mixtures known as defoliants, which are chemicals that cause the leaves to fall off plants. One of these defoliants was Agent Orange, and some troops were exposed to it. Many years later, questions remain about the lasting health effects of those exposures, including increases in cancer risk, according to the American Cancer Society.

Past studies have linked agent orange exposure to serious health issues including tumors birth defects and cancers such as breast cancer, multiple melanoma and prostate cancer however, some studies found a small excess risk of prostate cancer related to dioxin exposure until now.

A new study reveals U.S. Veterans who were exposed to Agent Orange is linked to a two-fold risk for developing the most deadliest forms of prostate cancer.

Photo credit:  

GettyImages/TIME & LIFE Images 

A new study led by Dr. Mark Garzotto, MD, associate professor of surgery/urology at Oregon Health and Science University, Chief Urologic Oncology, Portland VA Medical Center and colleagues have found that agent orange is not linked to a small excess risk of prostate cancer but is linked to a two-fold significant risk of developing the most deadliest forms of prostate cancer.

In this cohort study researchers looked for a link between Agent Orange exposure and life-threatening, or high-grade, prostate cancer, Nathan Ansbaugh, MPH, designed and conducted analyses on a group of 2,720 US Veterans who were referred by multiple providers for initial prostate biopsy. Biopsy results and clinical information were compiled for analysis by principal investigator Dr. Garzotto.

Risk factors included family history of prostate cancer, digital rectal examination, prostate-specific antigen (PSA) density, body mass index, and service branch history. Agent Orange exposure was collected through entry in electronic health records. Those with missing data were considered unexposed.

Participants were mostly Caucasian, average age 64.7, 39.4% were overweight and 42.9% obese.

Prostate biopsy showed 896 participants had prostate cancer and that the cancer was high-grade in 459 of those cases. Medical records showed 203 participants had been exposed to Agent Orange.

Exposure was significantly tied to prostate cancer (P=0.017), and especially so for high-grade prostate cancer (P=0.01) -- a 52% and 74% increased risk, respectively. Agent Orange exposure was associated with a 2.1-fold increase (95% CI 1.22-3.62, P<0.01) in the risk of detecting prostate cancer with a Gleason score ≥8.

Independent predictors included positive family history, older age, Marine Corps service, and increased PSA density.

According to the researchers the findings from this study shows knowing whether they have been exposed to Agent Orange is a readily identifiable way to improve prostate cancer screening for Veterans. Lethal cases would be spotted earlier, which with prompt treatment could potentially prolong survival and improve quality of life for patients.

Dr. Garzotto stated “It also should raise awareness about potential harms of chemical contaminants in biologic agents used in warfare and the risks associated with waste handling and other chemical processes that generate dioxin or dioxin-related compounds.”

The authors note that their findings should influence prostate cancer screening screening practices for veterans, particularly those who have been exposed to Agent Orange.

This study is expected to be published in the journal Cancer today.

More information on Agent Orange and cancer can be found online at the American Cancer Society website.

Citation "Agent orange as a risk factor for high-grade prostate cancer" Cancer 2013

 Explore further: Agent Orange exposure linked to life-threatening prostate cancer

USAF C-123 Exposure Cover-up? How Could That Be? Impossible !!!

(sarcastic, but it is certainly meant to be!)

C-123 Agent Orange and Veterans’ Exposure – A Coverup? NEVER!

How Could You Think Such a Thing?

Let the word go forth…there could be NO cover-up of the Agent Orange exposure allegedly experienced by those cranky old C-123 veterans. Nothing could be farther from the truth, and veterans need to appreciate the honest, straight-forward treatment of this issue by Air Force civilian and military leaders dedicated to truth, justice and the American way. Honor means everything to today’s Air Force leadership. 

How could the C-123 veterans, guys who flew C-123s, know anything? Even if they variously flew A-37s, F-105s, T-38s, C-124s, KC-135s, C-141s, F4s, B-52s, F5s, C-130s, C-17s and C-5s, in addition to every type civilian jetliner, what could C-123 guys know about flying? What could these guys with basic and frequently, advanced degrees in law, engineering, public health, nursing, physics, history, journalism, theology, fine arts, music, chemistry, criminology, international relations, business administration, accounting, education, aeronautics, public administration, education…what could the C-123 vets possibly know or understand about cover-ups? About aviation? About military issues? Even though their combat experiences range between Vietnam, Grenada, Panama, Gulf One, Somalia and later, what could they possibly understand of warfare?

Let’s make those veterans dispense with foolish thoughts of cover-up right away. Even mentioning cover-up is certain to cause eyes to glaze over, ears to stop hearing, and minds to stop thinking. No, no! No C-123 cover-up ever and here’s the story. Actually, a “non-story” because officially there’s no cover-up, right?