My VA Disability Claim – Five years of Waiting

I have an anniversary today, and two more on Tuesday.

On 28 February 1991 I was injured while deployed to the Gulf, hurting my neck and back. On the last day of the Persian Gulf War...lucky me. I never did have a good sense of timing.

The other two anniversaries on Tuesday relate to the first:
1. Tuesday marks five years since my VA disability claim was submitted.
2. Tuesday also marks the third year that my denied VA disability claim has been sitting on some desk at the Department of Veterans Affairs, waiting for an appeal.

Three years waiting for an appeal to progress to the Board of Veterans Appeals is in the range for a decision...although on average I should expect about another year yet.

Thank God for TriCare to meet my medical needs these last years!

Stunning 360º tour of the Davis-Monthan AFB "BoneYard"

(click to tour)

Wonderful news from Rickenbacker C-123 Widow – CLAIM APPROVED!

Received this email today, with wonderful news from a Rickenbacker widow:

Dear C-123 Association,

I am writing to thank you, once again for all you have done for me and all concerned with the C-123 problem.

I heard from the VA that My late husband was deemed to have died from AO related disease and they have already deposited money into my account. 

There is no explanation of the amount or how that is determined. It is 1/2 of what the Vietnam Veterans Assoc told me three years ago that would be awarded if it was determined that he had "boots on ground."  (That is something that I know to be true, but cannot prove.)

I am assuming that either the Vietnam Vet Assoc was in error or that the widow's pension is decreased by 1/2.

In any case, I'm happy that they acknowledged his death was due to AO exposure.

I am sorry to hear about the mix-up with Chief Master Sergeant Henley's case. I hope it is resolved quickly.

Again, you will never know how deeply grateful I am to you.

God bless you,

Barbara C.

VA "Experts" Screw Up Chief Ernest Henley's C-123 Agent Orange Exposure Claim

SNAFU.  Or perhaps FUBAR.  Pick whatever term you'd like to use, the fact is that VA's claims officer and, later, a Decision Review Officer both torpedoed Chief Master Sergeant Ernest Hensley's Agent Orange disability claim and appeal first submitted five years ago. Chief Henley got his DRO decision this month and was shocked to read that every Agent Orange issue was denied!

How could this be? VA approved C-123 veterans like him for presumptive exposure last June, so how could his claim be denied in January with the issue seemingly resolved already by VA?

Answer: either the VA staffers were magnificently ignorant of VA's widely promoted C-123 veterans' program, or they deliberately took action to ruin his claim. Truthfully, it feels like the latter because a VA Decision Review Officer is, in VA's words, "a senior technical expert and has jurisdiction (the authority to hear and decide) of any appeal." In other words, the go-to expert.

But the DRO expert working Ernest's claim really fouled it up! Note also that his claim had all the facts which LtCol Paul Bailey's C-123 claim was approved with back in 2013 on a fact-proven basis! Fortunately, the St Paul VA C-123 team has stepped in to make right Ernest's claim. They, too, cannot understand VA's numerous errors.

 Here are the four areas the DRO torpedoed his claim, quoted from the decision itself:

1. Service connection for ischemic heart disease due to Agent Orange exposure.

You contend that your current ischemic heart disease is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your private treatment records fail to show this condition began within a year of separation from active duty, so service connection on a presumptive basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink However, this document falls to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

 • Service connection for iseheinie heart disease due to Agent Orange exposure is denied.

2. Service connection for prostate cancer due to Agent Orange exposure.

You contend that your current prostate cancer is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for prostate cancer due to Agent Orange exposure is denied.

3. Service connection for melanoma cancer due to agent orange exposure.

You contend that your have melanoma cancer and that it is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied.

Your personnel records do not shows you served in Vietnam during the Vietnam War era, nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. 

However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crewmember was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm. Service connection for melanoma cancer due to agent orange exposure is denied.

The content of the veteran's claims file as of-the date of this Statement of the Case (SOC) is incorporated herein, by reference. The records in this case have been reviewed and the issues considered under the provisions of VCAA (Public Law 106-475). All indicated development has been undertaken and all reasonable efforts to assist you in pursuing your claim have been exhausted. The evidence of record is sufficient to render a sound merits decision. It is the determination of the Decision Review Officer that the evidence of record does not support any change in the previous determination which is confirmed and continued. This decision is based on a de novo review of the evidence contained in the claims record without deference to the prior determination under authority of 38 CFR 32600. 

The doctrine of reasonable doubt is not for consideration because the preponderance of the evidence is unfavorable. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your private treatment records fail to show this condition began within a year of separation from active duty, so service connection on a presumptive basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink. However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. 

Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crew member was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for ischemic heart disease due to Agent Orange exposure is denied.

 4. Service connection for prostate cancer due to Agent Orange exposure.

You contend that your current prostate cancer is due to serving as a maintainer of a C-123 aircraft that was formerly used to spray Agent Orange during the Vietnam War. A review of your service treatment records fails to show this condition manifested during service. Therefore service connection on a direct basis to service is denied. Your personnel records do not shows you served in Vietnam during the Vietnam War era. Nor were you stationed near the Korean DMZ. They do confirm that you maintained C-123 aircraft after the Vietnam War era. You submitted an aerospace vehicle inventory that list C-123's and you circled the aircraft you flew on in blue ink However, this document fails to link these aircraft to your charge or that they dispersed Agent Orange or any other herbicide during the Vietnam War. Additionally, an April 27, 2012 U.S. Air Force risk assessment found that exposure to Agent Orange in C-123 airplanes used after the Vietnam War were unlikely to have put aircrews or passengers at risk for future health problems. The VA determined that even if a crew member was exposed it is unlikely that sufficient amounts of dried Agent Orange residue could have entered the body to have caused harm.

• Service connection for prostate cancer due to Agent Orange exposure is denied.

OUR RESPONSE TO VA'S C-123 CLAIMS PROCESSING CENTER, ST PAUL, MN:

(Re: 317/VSC/APPEALS/KKB)
The C-123 Veterans Association recognizes the determination with which this Veteran’s disability claim was denied by the Newman Veterans Affairs DRO. In each of the areas of the denial and of the appeal, the VA was in error.

Veteran Henley was an experienced Veteran of the 731st TAS C-123 squadron stationed at Westover Air Force Base. The Veterans Affairs has noted throughout its website and other documents that the 731st Tactical Airlift Squadron and associated maintenance and aeromedical squadrons were approved for presumption of Agent Orange exposure.

I join his other crewmates in confirming Veteran Henley was a crew chief on C-123 tail number 362 (Patches) and was subjected to exposure via frequent, regular, professional and hands-on duties aboard our former Agent Orange aircraft.

Via an interim final rule published by the Secretary of Veterans Affairs on June 19 2015 provided that Veterans of C-123 squadrons stationed at Westover Air Force Base, Rickenbacker Air Force Base, and Pittsburgh Air Force Reserve Station are all granted presumptive service connection.

Despite the Veteran’s documentation, his claim was not forwarded to St. Paul regional Veterans Affairs office for processing of C-123 claims as provided by VBA. We are amazed that this denial recognized the Veteran’s C-123 duties however but ignored that VA six months earlier recognized the C-123s as contaminated by Agent Orange. Please see the attached Veterans Affairs documentation. Further, in violation of VAM21-1, the rating officer failed to submit Chief Henley's facts to the Joint Services Records Research Center which would have substantiated the exposure claim immediately. Finally, the American Legion, which advanced the C-123 issue at the highest levels, failed here to properly support the Veteran’s claim with their claims rep's numerous mistakes trying to help Earney.

The Institute of Medicine study and report (NAS #18848) published on January 9, 2015 and accepted by the VA on that date provided recognition of these Veterans’ exposure and medical injury. The IOM report also faulted the Air Force report of 2012 for its failure in scientific and mathematical errors.  Scientists involved in publishing that original report, who opted to refuse to sign it, subsequently published in Environmental Research a more detailed study of the C-123 Agent Orange contamination.

On page 36 of the Statement of the Case, the Veteran is wrongly assured that the VA “applied the benefit of the doubt and liberally and sympathetically reviewed all the submissions in writing from the Veteran as well as all evidence of record.” Rather, the DRO failed to even consider the VA’s own regulations, findings, and documentation. This decision seems to be an effort to deliberately deny the benefits due him by ignoring with profound determination all VA evidence and findings that support his claim.  NONE of the hundreds of C-123 Agent Orange supporting documents in VA's possession was provided to Chief Henley, in clear violation of the Veterans Claims Assistance Act.

IOM to VA: TIME TO START TREATING YOUR GULF WAR VETERANS!!

Panel to VA: Stop studying causes of Gulf War illnesses, focus on treatment (House Veterans Affairs Committee Feb. 23 hearings)

By Patricia Kime, Military Times

A scientific panel has concluded that the Veterans Affairs Department should stop searching for links between environmental exposures in the 1991 Persian Gulf War and veterans’ illnesses and instead focus on monitoring and treating those who have health problems related to deploying 25 years ago.

In a report released Thursday, Institute of Medicine researchers said Gulf War veterans are at increased risk for developing some physical and psychological health conditions like post-traumatic stress, anxiety, Gulf War illness and chronic fatigue syndrome, but other diseases like cancer, respiratory illnesses and most neurodegenerative conditions do not appear to occur at higher rates in these former troops.

Without concrete information on each Gulf War veteran’s exposure and the unlikely prospect of ever having the data, VA should focus instead on following this group as members age and treat illnesses that develop, panelists said.

According to the report, the federal government has spent more than $500 million since 1994 to study Gulf War veterans' health but “there has been little substantial progress in our overall understanding of the health effects” from the 1990-1991 deployments.

Thus, “without definitive and verifiable individual veteran exposure information, further studies to determine cause-and-effect relationships between Gulf War exposures and health conditions in Gulf War veterans should not be undertaken,” wrote the panel of researchers, including experts in environmental health, epidemiology and medicine.

Future research, they added, should focus on personalized care for veterans, follow-up assessments and treatment.

The panel's top recommendation also said VA should thoroughly study the “mind-body” connection of disease.

"Any future studies of Gulf War illness should recognize the connections and complex relationships between brain and physical functioning and should not exclude any aspect of the illness with regard to improving its diagnosis and treatment,” panelists noted.

The new report has outraged advocates for veterans who suffer from illnesses stemming from their service in the 1990-1991 operation.

They argue the report reflects a bias among the panel toward VA and panelists were selective in choosing which studies they reviewed for the study, "Gulf War and Health, Volume 10: Update of Health Effects of Serving in the Gulf War, 2016."

"IOM committees should not be made up of former VA officials and their friends," said Rick Weidman, executive director for policy and governmental affairs for Vietnam Veterans of America. “It's outrageous that the VA under secretary from the 1990s who began the policy of minimizing Gulf War illness was on this committee or that the committee chair was on record before she was appointed saying you can't say what caused it.”

"The science is unequivocal, if viewed honestly and in its totality: Toxic exposures were responsible,” said Dr. Beatrice Golomb, a professor of medicine at the University of California-San Diego and former scientific director for the VA's Research Advisory Committee on Gulf War Illness. "But the IOM doesn't look at all relevant studies. This 'don't look, don't find' practice has been a consistent problem in IOM Gulf War reports.”

The report examined studies on myriad diseases and their prevalence in Gulf War veterans as well as those who did not deploy. The panel then categorized these illnesses on a spectrum ranging from the strongest link — "sufficient evidence of a causal relationship” — to "inadequate or insufficient evidence to determine an association.”

Post-traumatic stress disorder was the only condition the panel found to be caused by Gulf War deployment. The group also found sufficient evidence of an association for generalized anxiety disorder, depression, substance abuse, gastrointestinal symptoms, chronic fatigue syndrome and Gulf War illness, a catch-all term used to describe undiagnosed symptoms in Gulf War veterans.

According to the report, there also is "limited but suggestive" evidence that amyotrophic lateral sclerosis, or ALS, fibromalygia and chronic pain and self-reported sexual dysfunction are related to Gulf War deployment.

But it found little or no evidence that cancer, skin conditions, birth defects, musculoskeletal system diseases, multiple sclerosis and other illnesses were related.

“In spite of a thorough literature search, [this] committee found little evidence to warrant changes to the conclusions made by [a previous IOM] committee regarding the strength of the association between deployment to the Gulf War and adverse health outcomes," they wrote.

About a quarter of the war's 700,000 veterans developed symptoms after deployment that include chronic headaches, widespread pain, memory loss, persistent fatigue, gastrointestinal problems, skin conditions and mood disturbances.

Researchers have determined that environmental factors, such as chemical exposures in the region, including sarin gas, pesticides and anti-nerve-agent pills, may have played a role in development of diseases among some troops.

Anthony Hardie, a Gulf War veteran and director of Veterans for Common Sense, said the new report refutes earlier studies and is insulting to those who served as well as widows of those who have died from diseases like brain cancer and ALS.

“It’s the same old government theme from the 1990s to deny what happened and deny care and benefits — just when research to understand the illness and identify treatments is finally making real progress,” Hardie said.

Just Published - New VA Procedures for Processing C-123 Veterans' Agent Orange Claims

VA has published new guidelines for their internal processing of our C-123 Agent Orange exposure claims. Nothing here affects us much differently than before, but it continues to be important that everyone's claim have C-123 Agent Orange Veteran annotation, rather than let it sit at your local VA office unnecessarily long. St. Paul VA has a special team processing our claims - use them!

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from VA Manual 21-1, effective 20 January 2016

Here, from the Code of Federal Regulations 38 C.F.R. §3.307(a)(6)(v) is the VA C-123 regulation that is managed by VAM21-1 (above):

(v) An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.

Boston University Study: Causes of Gulf War Illness Pinpointed (?)

Maybe the examiners performing my Gulf War Registry Exam at Fort Jackson back in '92 weren't too worried about the mysterious "Gulf War Syndrome." They instantly assured me I didn't have it – their appraisal seemed more from a script than an individual examination. This new study by Boston University is summarized by the National Institutes of Health on its MedlinePlus site.

I thought I had GWS. I still do. I had giant cell arteritis, hypertension, peripheral neuropathy, weakness, chronic fatigue, depression, cancers, heart disease, joint pains, skin rashes on my bum and other things I'd never had before.  I became subject to MRSA after major surgeries.

Without explanation, these were all dismissed as totally unassociated with Gulf War Syndrome. Years later, the Palo Alto War Injury and Illness Study Center performed tests on me which confirmed loss of brain white matter, a GWS issue and a very early warning sign of Alzheimer's

This new study suggests that Gulf War Registry exams weren't done with much concern about identifying veterans to qualify for benefits, but rather, to keep them from qualifying.
                                                              –//–

MONDAY, Feb. 1, 2016 (HealthDay News) -- Exposure to pesticides and other toxins appears to be the cause of Gulf War illness in U.S. veterans, a new analysis states.

The Boston University researchers reviewed studies on Gulf War illness, and said their findings "clearly and consistently" show a link between the disorder and exposure to pesticides and taking pyridostigmine bromide (PB) pills, which were meant to protect troops against the effects of nerve gas.

There's also evidence of a connection between Gulf War illness and exposure to the nerve gas agents sarin and cyclosarin, and to oil well fire emissions, according to the findings published in the January issue of the journal Cortex.

These toxins damaged troops' nervous and immune systems, and reduced the amount of white and gray matter in veterans' brains, said study leader Roberta White in a news release from the university. White is a professor of environmental health at Boston University's School of Public Health.

The main causes of Gulf War illness are like so-called "friendly fire," said study co-author James Binns. "We did it to ourselves," he said in the news release.

"Pesticides, PB, nerve gas released by destroying Iraqi facilities -- all are cases of friendly fire. That may explain why government and military leaders have been so reluctant to acknowledge what happened," Binns said.

About 700,000 U.S. troops fought in the first Gulf War 25 years ago, and as many as 250,000 veterans of that conflict have Gulf War illness, the researchers said. It is a debilitating disorder that features symptoms such as fatigue, joint and muscle pain, headaches, concentration and memory difficulties, gastrointestinal problems and skin rashes.

For years, Gulf War veterans have claimed that the U.S. Department of Veterans Affairs did not take Gulf War illness seriously. In 2008, a committee created by Congress and directed by the White House released a report that said Gulf War illness is a real disorder that's distinct from stress-related syndromes.

The report from the Research Advisory Committee on Gulf War Veterans' Illnesses called for research into the causes and treatments of the illness. Binns was chairman of that committee.

Efforts to find effective treatments for Gulf War illness have been unsuccessful, but recent research has started to offer promising leads, the researchers added.

SOURCE: Boston University Medical Center, news release, Jan. 26, 2016

VHA Duplicity: Environmental Hazards Training & Briefing Materials

In 2013 and 2014, Dr. Terry Walters, then Deputy Consultant Post Deployment Public Health (part of VA's Veterans Health Administration) conducted a series of training meetings to address contemporary environmental threats faced by veterans. For the most part, the training was informative and accurate.

But the part dealing with C-123 Agent Orange contamination fell far short of VA's standard for scientific accuracy...so far short it was more deception and policy statement than science. Although VA now provides C-123 veterans with presumptive service connection, this slideshow was VA's last word on the issue and still negatively impacts vets being examined and treated by VA physicians.

VA's policy: prevent C-123 veterans' disability claims. To do so, VHA used Dr. Terry Walters' PowerPoint presentation to train VA staffers and in 2014 modified it for presentation to the Institute of Medicine C-123 committee of the National Academy of Science.

Of the two slides dealing with C-123 issues, eleven specific points were offered.  All but two of these points were policy, not science and were wildly inaccurate –  the first point was somewhat accurate: the statement "a small number of these C-123s" did the spraying was actually 34 aircraft, about 10% of the entire fleet used in Vietnam. The second point was simple and accurate, as indeed the C-123 aircraft return to the US at the end of he Vietnam War.

From that point on, VA policy against C-123 claims overwhelmed any resemblance of fact. These are deceptions, and I use that because the staffers in Post Deployment Health were true experts in this field: these experts knew the facts involved but twisted them for policy fulfillment. As experts who were responsible for our care based on their assessment of the issue, their charts and opinions should have reflected only scientific accuracy. These can't be called simple mistakes – rather, these are twisted details perverted for VHA policy.

Remember that these folks in Post Deployment Health would never accept our flying them aboard a C-123 as poorly done as their science about the C-123! They'd rightfully demand the best the best from us because lives are at stake. Same with us and our C-123 Agent Orange exposure – our lives are at state, but we encounter a VHA that for years was determined to keep us from their hospitals! Also, their policy of preventing our valid claims can't compare to our dedication in getting our mission accomplished.

Let's look at the deceptions...or to be  less critical, misrepresentations. (for clarity I've added numbers as the slides had just bullet points.)

3. Wrong. Veterans cite test results on Patches completed by AF toxicologists in 1979 and 1994 which determined it was "heavily contaminated by dioxin on all test surfaces" and "a danger to public health." The slide mentions "a" wipe sample when, in fact, all wipe samples were positive for the toxin. Veterans also rely on tests completed at Davis-Monthan AFB on 16 of 17 surviving aircraft, all of which were positive for dioxin contamination.

4. Wrong. This is a bland prevarication. True, one test of only four aircraft showed these results, but the slide avoids mention of other numerous tests showing far wider scope of contamination. In fact, the Air Force eventually opted to destroy all remaining  C-123s as toxic waste.

5. Incomplete: Few tests involved air sampling. Those tests which were done were unreliable as the last Vietnam spray missions were done 37 years, but C-123 veterans began flying the planes one year after Vietnam when air samples would have been more accurately assessed the exposure. Further, the last air test were done after the planes had been parked for a quarter century.

6. Wrong: disproved by the 2015 Institute of Medicine C-123 Report

7. Irrelevant: the IOM recognized post-Vietnam veterans have a unique long-term low-dose exposure.

8. Irrelevant: misleading because it is irrelevant, and infers that post-Vietnam veterans were also unaffected; Wrong in that the Institute of Medicine does agree Ranch Hand vets do suffer a wide range of health issues, now recognized by VA as presumptive service issues.

9. Wrong. IOM data and data from the American Cancer Society show significant increases in health problems. In particular, the American Cancer Society and VA published research proving Agent Orange exposure results in twice the rate of highly aggressive prostate cancers.

10. Wrong. The populations cannot be compared, plus Ranch Hand veterans DO have increased health hazards recognized by VA itself. Wrong also in that post-Vietnam C-123 veterans had different exposures than Ranch Hand veterans...six to ten years aboard the toxic aircraft vs. a year or so in-country for Ranch Hand. Further, VA had been informed by the CDC two years before this graph was created that post-Vietnam C-123 veterans have a 200-time greater exposure to dioxin than military limits, and will experience a 182-times greater cancer risk as well. Other agencies confirming veterans' exposures include the National Institutes of Health and National Institute for Environmental Health Sciences, as well as the Concerned Scientists and Physicians.

11. Wrong: VA deceives the reader because it published prohibitions against C-123 grants, provided training like this arguing against exposures, refused to accept all other government and scientific input confirming exposures, and never permitted a single claim to be granted. Some very few (less than ten in the five decades involved) were approved in an appeals process.

VA to Me: "Why Did Your VA Claim File Grow to Twelve Volumes?"

Over the years, VA claims folks have often commented on my own C-file growing and growing, into what I last heard was twelve volumes. Their inference was "why?" 

Reason 1: appeals necessitated by denials and the support documentation for those appeals, over five years of effort that Senator Richard Burr said "shouldn't have taken this long or been this hard."

Reason 2: because I was uncovering the materials necessary to prove our scientific and legal arguments about Agent Orange on the C-123 (our "boots on the airplane" work.) Freedom of Information Act requests, news articles, correspondence, technical and scientific reports, experts' findings and much, much more.

Reason 3: to prove the key point that no amount of proof from whatever source would move C&P to approve a C-123 claim (this is before the Interim Final Rule) because unofficial policies were in play against this group of veterans. Example: Portland VARO wanted to approve my claim in 2012 and cited a "plethora of evidence" but C&P minimized the evidence, dismissing it in their denial advisory opinion as "a few documents."

Strategy: to eventually get to the Court of Appeals for Veterans Claims and not only argue the particular claim should be granted as fact-proven but also prove that VA had systematically abused VCAA*, JSRRC, VAM21-1MR, and always withheld "benefit of the doubt," holding us to an impossibly higher standard of proof to substantiate claims.

Result: it worked by moving to an IOM study. Also worked by showing the growing body of materials from credible sources persuaded legislators that there was a reasonable technical argument in our favor. It also showed that VA had established an improper barrier against granting C-123 claims while wrongly assuring Congress that claims were fairly evaluated – which was not the case. VA responses also showed serious technical errors, such as in the C&P-drafted Secretary Shinseki "C-123 Fact Sheet" sent to answer Senator Burr's letters and the Senate Veterans Affairs Committee.

Background: at our first teleconference with VHA/VBA in early 2011, Dr. Walters made the point that no possibility existed for C-123 vets' exposure. She later told the Associated Press she "had to draw the line somewhere." At our first meeting with Tom Murphy in his office, he stated no amount of proof from whatever source would permit C&P to approve a C-123 claim. 

He based that on Dr. Walter's position, and told us the issue was solved with her conclusion. We again asked what proof from CDC, ATSDR or other authorities would bring C&P to reconsider and he answered "nothing. The issue is decided." At about that time, Dr. Walters prohibited C-123 veterans from the Agent Orange Registry exam**, even though a Secretarial policy was in place that any veteran could seek the exam.

This was while Secretary Shinseki and others were insisting VA had no regulation against C-123 grants (although it was frequently stated as such on denials) and evaluated claims on a "case-by-case basis" even though 100% of the claims were denied except a handful through BVA and two DROs.

We had to argue two separate issues: the fact of contamination on the aircraft, and the fact of potential exposure. VA denied both. Eventually VA also threw up the veteran status challenge...that proved to be a barrier resolved only through the Interim Final Rule.

VA insisted there was no C-123 herbicide contamination because had that been conceded, VA was bound by three separate Federal Register assurances that any veteran with exposure outside Vietnam would still be treated with the same presumptive service connection. Thus, in VA-speak, no contamination meant no presumptive service connection.

VA abused this point yet further by insisting that even if there was contamination, there could have been no exposure. Toxicologically, that is impossible. Exposure to a toxin occurs via inhalation, ingestion or dermal contact. We sought expert opinions on exposure from Dr Linda Birnbaum, Director, NIH National Institute of Environmental Health Sciences and others which directly challenged VA. 

To further VA's struggle against conceding exposure, VA redefined exposure. Using the 2012 Society of Toxicology annual conference, VHA Post Deployment Health presented a poster which included Dr. Iron's line (as though it was scientific fact) "exposure = contamination field + bioavailability." Dr. Walters then used that redefinition to insist that because in later years C-123 veterans years later could prove bioavailability to her satisfaction, no exposure occurred and therefore, no presumptive service connection and no consideration for direct proof either. 

Other scientists took umbrage at VHA's Post Deployment Health redefinition of exposure, and as a result I was sponsored by the Director, NIESH in challenging VA at the 2014 Society of Toxicology conference. I presented an argument against the redefinition as well as VA ethics.

VHA redefining such a fundamental scientific term for use only by VHA and VBA for C-123 herbicide claims (and not elsewhere in VA) got quite a bit of notice elsewhere and moved more scientists and agencies to help us. It also helped that all of VA uses Dorland's Illustrated Medical Dictionary for official terminology, and VBA's unique redefinition contrasted with Dorland's.

* (note: as regards VCAA, none of the government documents addressing C-123 Agent Orange exposure has ever been provided other veterans by VA, despite requirements that all available government materials be made available.)

**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."