January 10 Update: C-123 Agent Orange Exposure Claims

In 2013 Senators Burr and Merkley raised a series of questions in a letter to Secretary Shinseki. The Secretary's reply, and the C-123 veterans' perspective on it, are attached.

Key Points:

1. Secretary denies "blanket policy" against C-123 claims, yet all are denied at regional offices on orders of Post Deployment Health, with language provided for denial ("regulations do not permit," no evidence of TCDD causing adverse health effects," etc.) More later on tomorrow's posting.

2. VA does not have a method of determining if a vet with stateside AO exposure was flying one of the Agent Orange C-123s: guess VA never heard of flight orders or Form 5s or flight logs, or of such evidence being submitted for years by claimants

3. Patches switched to bug juice around 1965, other UC-123Ks sprayed into later years. Patches had the "oldest" AO residue when tested in 1979 & 1996

4. Unfounded assumption that all other C-123s contain TCDD:" Actually, most did. In fact, AMARC randomly selected and tested 17 and all were positive for TCDD contamination

5. The Office of Secretary of Defense Agent Orange Consultant, provided his opinions: Before submitting his VA-solicited November 2012 report on C-123 veterans, he labeled us "trash-haulers, freeloaders looking for a tax-free dollar." Enough said, other than the fact his report said studies could not disprove our exposure.

6. Analysis of surface wipe samples showed no evidence in two of four aircraft tested: Secretary Shinseki fails to note the 1996 test showing 17 of 17 aircraft positive for dixon. Fewer and fewer reported positive over the decades.  Contamination was greatest in Vietnam, next greatest when the C-123s started stateside flight in 1972, and logically, grew less and less as it aged. Deceptive to have tests on hand of 17 aircraft positive for TCDD and only mention a subsequent test a decade later of four...and the Senior Agent Orange Consultant to the Office of Secretary of Defense recommended no further testing of any other aircraft...that effectively stopped any more being confirmed as toxic. Deceptive to use one test of 4 acft to conclude only 2 in the entire fleet were contaminated, especially when other AF tests show far more significant numbers

7. Chemical intake must be taken into account: Actually no. They must NOT be! The law only specifies "exposure." Exposed veterans, per 1991 Agent Orange Act, Title 38 U.S.C. Section 1116(a)(3) and Federal Register of 8 May 2001 page 23166 need only show exposure plus one of the presumptive Agent Orange illnesses. There is NO legal or regulatory requirement (nor per the Administrative Procedures Act may VA require, without prior notice in the Federal Register) for amount of chemical intake, bioavailability, flavor, color, amount or anything else...only simple proof of exposure to military herbicides. In December 2013 Yale Law Veterans Clinic, on behalf of the National Veterans Legal Services Project, finished months of investigation and concluded post-Vietnam crews able to show evidence of duty aboard known former Agent Orange C-123Ks are fully entitled to presumptive connection for Agent Orange illnesses. Their brief will be published next week (Jan 17 2013). These veterans' exposure is also confirmed by the CDC, EPA, National Institutes of Health, US Public Health Service, VA physicians, several university medical schools and schools of public health, and the CDC/Agency for Toxic Substances and Disease Registry.

Our challenges to the Secretary's response to the Senate go on and you can read if you won't grow bored. The point is that all veterans need only present enough proof to reach the famous "as likely to as not" threshold, but VA has lifted that threshold high above our heads...and tied our feet to the ground. They're afraid of asking the Joint Services Records Research Center for a Memorandum for Record, similar to the one VA solicited to more easily deny the Blue Water Navy claims...because JSRRC has enough archival military and government information to make a case for our exposure. Should JSRRC in any way confirm C-123 veterans' exposure, VA would have to develop yet another dodge to prevent acknowledging equipoise. Numerous veterans' requests to the VA, and directly to JSRRC, for such a memorandum have been ignored. JSRRC informed us on 7 Jan 2014 that only VA or other government agency could solicit such a document.

VA Post Deployment Health informed the US Army (Major T. Redd, Chemical Corps, then a Military Legislative Fellow) that they would "never permit" a C-123 claim to be approved. On 28 Feb 2013 (at VA offices 1800 G Street, Compensation and Pension's conference room with C&P's director and his staff) Compensation and Pension Services told Major M. Wentworth NC USAF Ret. and Major W. Carter, MSC USAF Ret. that no amount of proof, from whatever university or federal agency, would ever be acceptable in establishing a C-123 veteran's exposure claim.

C-123 claims are denied with statements that "regulations do not permit acknowledging exposure" on C-123s, but the Library of Congress and the Senate Veterans Affairs Committee are unable to find such a regulation...and anyway, it would have to first be published in the Federal Register to be applicable.

C-123 claims are ordered denied by the Director Compensation and Pension Service who wrote "no adverse health effects from TCDD." C&P's personal view of the toxicity of TCDD (dioxin) aside, the law specifies that veterans exposed to military herbicides will be treated for their illnesses. C&P's view of innocent TCDD is in contrast with the rest of science and medicine which have classified TCDD as a potent human carcinogen, without a known threshold of innocent exposure. Actually, C&P's comment was in his paragraph summarizing the statement of Dr. Tom Sinks, Deputy Director of the ATSDR...in which Dr. Sinks instead determined C-123 veterans were exposed!

Dr. Sinks' conclusion on behalf of the CDC/ATSDR was deliberately misstated by VA – "I believe aircrews operating in this, and similar, environments were exposed" was the actual conclusion in the same document which C&P mischaracterized. C&P went on in his denial to dismiss official opinions from the National Institutes of Health, the National Toxicology Program, Oregon Health Sciences University Toxicology Program, the US Public Health Service and every other supporting document provided by the C-123 veterans. VA's administrators know best???

This is not an even contest. In fact, it isn't even supposed to be a contest! What happened to a "veteran friendly" claims process?

We are veterans who submitted adequate proof of our exposure...adequate to make the case in any court just as it does in every single instance reaching the BVA, but Compensation and Pension orders all C-123 claims denied. The temporary savings in denied compensation is obvious, but it will catch up with the veteran eventually after the BVA sets things right. What permanently hurts the veteran, and what saves the VA millions, is denying all medical care to C-123 veterans for the years on an initial claim and the additional 2-3 years for a DRO or BVA hearing or even more for a remand.

The money a vet spends for his own pharmacy, optics, hearing, rehab, dental, imaging, surgeries, primary care, transportation, CHAMP-VA, counseling and everything else the VA would have provided by recognizing his disability...that's all money saved, to the great satisfaction of folks at 1800 G Street in the District. This is all care the claim-denied veteran pays for himself, or goes without. That's not right.

Finally, VA itself has already acknowledged our exposure! This was done in a claim denial, but VA's wording clearly shows their actual understanding and qualifies C-123 veterans for coverage. VA wrote: "Office of Public Health concluded that the existing scientific studies and reports SUPPORT (caps mine) a low probability that TCDD was biologically available in these aircraft." That "low probability" surpases the low threshold VA is supposed to demand for veterans' claims!