VA Leader Denies Agent Orange Claim – Insists Agent Orange causes “no health effects”

(Update Note: On December 4 2015, following action in the US District Court of Washington DC, the Justice Department released this statement from the VA:

"VA states as follows: The statement regarding TCDD exposure and adverse health effects was written in error and was incomplete." VA's error, but it sufficed to deny the veteran's claim for three more years.)

Figure 1: claim denied re: no adverse health effects from TCDD (12/3/2015-VA now says this was written in error)

The VA, along with virtually every other government agency, acknowledges Agent Orange as harmful to humans. TCDD, the toxin in Agent Orange, is recognized as the most toxic of toxins, and as a human carcinogen. The EPA data sheet is perhaps the most comprehensive.

Above: Advisory opinion from VA's Director of Compensation and Pension Service (C&P,) dated 25 Sept 2012. C&P ordered an Agent Orange-exposed veteran’s disability claim denied on C&P's director's own opinion that TCDD (dioxin, the toxin in Agent Orange) is harmless. In 2012, EPA officially classified TCDD as "carcinogenic to humans." In fact, the director was quoting from the opinion by Deputy Director Dr. Tom Sinks, Agency for Toxic Substances & Disease Registry who concluded veterans were exposed, and but Compensation and Pension clearly twisted ATSDR's summary by 180 degrees– Dr Sinks' ACTUAL summary: "I believe aircrew operating in this, and similar, environments were exposed to TCDD." I guess C&P didn't have space to type that part???

Below: Despite C&P’s preference to prevent claims, the law specifies herbicide exposure as the sole requirement for a veteran to be treated for Agent Orange illnesses. C&P’s actions were arbitrary and obviously, contrary to the 1991 Agent Orange Act, Title 38 as well as the Federal Register of 8 May 2001 page 23166, in which VA states all veterans exposed to military herbicides will be treated the same as Vietnam veterans, for Agent Orange-presumptive illnesses and diseases.

Figure 2: Federal Register 8 May 2001, p. 23166

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There are several other illegal or, at best, wildly illogical excuses by which VA evades the law to deny C-123 veterans' Agent Orange claims. All are invalid. Here are the proofs. 

1. No exposure. In 2012 VA redefined for their own agency the very word "exposure" to prevent all veterans from being able to prove exposure. The CDC more scientifically defines exposure as the contact (or inhalation or ingestion) with a contaminant. The VA, however, insists that the veteran also prove "bioavailability," which is not part of the law. No other health or regulatory agency agrees with VA’s bioavailability issue...in fact, authoritative agencies have directly challenged VA on their acts.
2. No Agent Orange on the veterans' C-123 airplanes. However, the USAF confirmed dioxin on all aircraft stored in the desert"Boneyard" in 1996. AF toxicologists labeled the planes "heavily contaminated" and "a danger to public health."

Figure 3: C-123 Smelting, June 2010

3. The airplanes are safe in their present configuration. This VA statement implies the C-123 airplanes are not toxic – and this is true only because they were all smelted as toxic waste in June 2012. Their "present configuration" is aluminum ingots or tin cans.
4. Regulations prohibit acknowledging exposure on these airplanes. This is boilerplate language provided by Washington to their regional VA offices for use in denying C-123 veterans' claims. However, in two years of research the Library of Congress and the US Senate can find no such VA regulation! Actually, even if there were a regulation, it would have had to be published first in the Federal Register, which has never happened (the Administrative Procedures Act.) Finally, VA repeatedly responded to Freedom of Information Act requests seeking such a regulation with their response “no such document exists.”

5. VA has no way to determine which aircraft were in Vietnam spraying Agent Orange. Actually, that proof has been provided the VA by the USAF Historical Records Research Agency by specific tail number of each Agent Orange spray C-123, such as the provenance of Patches, Tail #362.

6. VA has no way to determine which veterans flew any Agent Orange contaminated aircraft. The veterans can help the VA here, but rather than ask VA makes their negative statement. In fact Air Force aircrews are provided "Form 5s" which detail missions, tail number of aircraft, personnel on board, type of mission, and other details. Veterans also can provide individual or crew flight orders, flight logs, and VA 21-4138 forms certifying their duties aboard known contaminated aircraft.
7. PhD toxicologists are not qualified to comment on medical nexus (per Compensation & Pension Service) Actually, the PhDs who wrote the VA were certifying our exposure, not commenting on medical nexus, because exposure is the only concern under the law. Still, it is illogical for VA to refuse such opinions which were provided by the CDC, NIH, EPA and other federal agencies, as well as medical schools and schools of public health. The toxicologists who provided opinions include Dr. Jeanne Stellman and Dr. Linda Birnbaum, Dr. Fred Berman, Dr. Wayne Dwernychuk and others.

8. PhD toxicologists are not qualified to comment on medical nexus. This is not a duplicate of the item above (7). Here, the VA refused PhD opinions and also completely ignored the physicians' opinions which were provided. Ignored were opinions from Rear Admiral R. Ikeda MD US Public Health Service, Dr. Mark Garzotto VA Portland, Dr. Arnold Schecter University of Texas Medical School, CAPT A. Miller US Public Health Service, and other physicians.VA, requiring a physician's opinion but refusing the scientists', then dismissed the physicians...even VA physicians who are acknowledged Agent Orange-prostate cancer researchers, by simply ignoring their opinions. Veterans’ laws require VA to address each of the proofs put forward by a veteran in a disability claim, which is why VA ignored the physicians altogether. VA perhaps did not note, or believes itself above, the decisions by both the 8^th and 9^th US Circuit Courts that held arbitrary government dismissal of qualified toxicologist opinions regarding exposure issues is illegal.

9. The Memorandum concluded by stating "it is not possible to derive quantitative estimates of any increased health risks for those individuals who came into contact with the UC-123 aircraft from 1972 to 1982." Here, VA quotes the 2012 Air Force C-123 exposure study.

In fact, the AF report simply states that by 2012 it proved impossible to decide the health risks caused by veterans who flew the C-123 fleet thirty years earlier – the AF study in no way dismissed exposure but simply said time's passage made precise measurements of health impact impossible. VA twisted that to their perspective that NO health impact was possible, clearly a prevarication. Further, scientists and physicians have challenged the AF report as "unscientific."

10. There is a low probability TCDD penetrated through the skin of these aircrews. Again, exposure itself is the sole question under the law, however even Department of Defense literature specifies dermal (skin) absorption as a significant route of dioxin exposure. Other VA, EPA and CDC literature recognizes occupational dermal exposure as perhaps the principal route of TCDD exposure. A 1995 study in Organohalogen Compounds by medical researchers reports that, based on its review of the scientific literature, “dermal uptake to TCDD is probably the primary route of exposure in the workplace."
11. Air Force testing concluded that the level of Agent Orange that crewmembers of C-I'23 aircraft were potentially exposed to, was "unlikely to have exceeded standards set by regulators or to have put people at risk for future health problems. Again from the Air Force C-123 study, this VA twist is deceptive, because there are no "standards set by regulators" and the law specifies exposure, not any requirement for the veteran to prove or indeed even experience "future health problems." Obviously, however, the C-123 veterans seeking VA medical care have experienced health problems, typically suffering a number of the “Agent Orange presumptive illnesses.”

12. Currently, there is no equivalent legal basis for acknowledging"secondary" or "remote" Agent Orange exposure, such as that from contact with material or equipment previously used in Vietnam. This statement from Under Secretary A. Hickey misses the point – exposure is exposure, and the law does not specify secondary, remote, what flavor, what color or anything else. It clearly, precisely specifies exposure. And the contamination level on these aircraft was firmly established by the USAF as well as the CDC/Agency For Toxic Substances and Disease Registry whose director himself officially and directly informed the US Army Joint Services Records Research Center. Air Force tests identifying our airplane as "heavily contaminated" and "a danger to public health" are statements well beyond the VA's threshold of equipoise!

The VA is required to inquire of the JSRRC whenever a non-Vietnam War veteran claims exposure, and JSRRC, per Mr. Dominic Baldini, its chief, has ample US government opinion and archival information to respond positively to every VA C-123 inquiry. In fact, the VA could even (foolishly) assert that TCDD/Agent Orange is beneficial, and that would still have no impact at all on the legality of an exposed veteran's claim. (3 Oct 2014 update: JSRRC has begun providing adequate documentation of exposures)

13. 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. This statement by Secretary Shinseki is amazing, in that indeed, the first two tests (Conday, 1979 & Porter/Weisman, 1994) confirming dioxin on our airplanes was on a single aircraft, however Secretary Shinseki ignored, for whatever policy reason, the subsequent test in 1996 which showed ALL seventeen C-123s stored by the AF remained contaminated with dioxin. This toxicity was identified even 25 years after the last C-123 Agent Orange spray missions. Here again, the Secretary was poorly informed before he signed his letter containing this blatant misstatement to Senators Burr and Merkley.
After 2003 the Air Force (355 AMDS/SGPB Captain Borma) grew concerned that no amount of testing would eliminate liability and concern about C-123 dioxin contamination, and the cost of wipe tests ($1,500 each C-123) led to the AMARC decision to cease sampling. Further, better and more definitive air sampling was ordered halted. The AF decision to avoid more definitive characterization of the toxin hazard cannot be used as some illogical proof the C-123s were not contaminated...all testing done proves otherwise. In 2009 AMARC, with Air Staff approval, determined all aircraft would be smelted as toxic waste, completed in June 2010. Approval correspondence from the Office of Secretary of Defense consultant to AF officials, and from them to their supervisors,  included official concerns already exposed veterans would learn of the contamination and seek veterans benefits. (Fig 4)

14. Government documents provided by a retired U.S. Air Force Colonel and leading expert on tactical herbicides, do shed light on the issue. Heis the Office of Secretary of Defense consultant who recommended destruction of the toxic C-123s, noting that exposed veterans might otherwise apply for VA care. One is reminded of C&P’s decision that non-physician opinions are unacceptable to VA, yet the consultant's views are in line with the VA’s decision to bar C-123 veterans’ claims, and thus decisive.

In 2011, the consultant referred to the C-123 veterans as "trash-haulers, freeloaders, looking for a tax-free dollar." Such prejudice renders anything from him unacceptable. Further, his views, which have been defensive of Agent Orange use, are directly countered by experts with the US Public Health Service, the EPA, the CDC and the National Institutes of Health.

Figure 4: Consultant's correspondence re: C-123 veterans

15. 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. Here again the Secretary errors. Wipe samples were the standard when the C-123s were first tested, and they are the standard today in civil and military situations. In fact, the military's "gold standard" on toxicology is Army TG312 which specifies wipe sample use. Further, under the law and Title 38, VA is prohibited from requiring any extrapolation of threat to health, or any other thing, for veterans exposed to Agent Orange claiming Agent Orange-presumptive illnesses.

Indeed, air samples might have further confirmed the contamination, but wipe samples were perfectly adequate, as confirmed by the Director, CDC/Agency for Toxic Substances and Disease Registry (Rear Admiral (MD USPH) R. Ikeda as well as the Director, NIH/National Toxicology Program (Dr. L. Birnbaum). Air sampling was done on C-123s initially but along with wipe samples stopped because of cost per airplane exceeding $1500, with no level of decontamination possible...the decision to save money and stop testing cannot then be used as proof against veterans' claims.

16. 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 C-123 crews. Again the Secretary errs and ignores the laws he swore to enforce. Exposure itself is the question, not whether Vietnam-era veterans had more or less exposure than C-123 crews. Indeed, Dr. Jeanne Stellman, Professor Emerita at Columbia's Mailman School of Public Health, calculated that C-123 veterans had more Agent Orange exposure than the average Vietnam ground soldier, and somewhat less than the Ranch Hand crews.

The Secretary further errs in failing to consider that the C-123 crews flew their toxic airplanes for a full decade, not the eleven months that constituted a tour in Vietnam.

17. Chemical intake must also be taken into account. Actually, no.  In fact, it cannot be taken into account! The law specifies exposure, not chemical intake. Here the Secretary swaps around with "bioavailability' and "medical nexus," neither of which is legal to consider in a veteran's Agent Orange claim for presumptive illnesses, and such terms might be applicable only for illnesses not recognized by the VA as associated with Agent Orange.

[1] Kerger et. al., Validating Dermal Exposure Assessment Techniques for Dioxin Using Body Burden Data and Pharmacokinetic Modeling, 25 Organohalogen Compounds 172, 172 (1995)