24 September 2016

VA ESTIMATE OF C-123 VETERANS' AGENT ORANGE DISABILITY COMPENSATION? $46,000,000

 $46,000,000

The biggest part of the battle was behind us. Finally, the Institute of Medicine had completed their two year study by a distinguished group of scientists and physicians, and agreed with us that we have been exposed to Agent Orange and harmed by that toxin. Their report was submitted to the Secretary of Veterans Affairs on January 9, 2015.

The IOM had a public hearing to announce their conclusions, and I attended to represent both active-duty and Reserve post-Vietnam C-123 veterans. Several attorneys from the law firm that represented us accompanied me. Observers were there from the US Air Force, the Senate, CDC, the press and the VA. 

Finally, I was to meet Assistant Secretary Linda Schwartz, a medically retired Air Force flight nurse who’d flown with us on occasion "back in the day" and is herself a C-123 veteran. Four years earlier I’d met her on the Internet in her capacity as Connecticut’s Commissioner of Veterans Affairs. She immediately offered the first of many critical suggestions on the conduct of our contest with the US Department of Veterans Affairs.

We’d won. No longer could the VA insist on its imaginary “overwhelming preponderance of evidence” against our disability claims. That evidence had been shown to be a total pretense, a policy sham advanced by the VBA Agent Orange desk and the VHA Post-Deployment Public Health Section. Both of these VA functions had been policy-driven to oppose our claims and this marks their defeat. In addition, the US Air Force School of Aerospace Medicine C-123 report released in 2012 was shown to be both scientifically and medically flawed (Lurker, 2014.) The IOM accused both the VA and the military of deliberately ignoring, disputing or minimizing all proofs of our exposure to prevent our claims.

It was quite a ground-breaking moment. Never before had a single group of veterans successfully argued its case and established the facts surrounding their Agent Orange exposure.  Before, as well as after us, VA always successfully argued against other veterans' claims. We’d won, but as Senator Richard Burr (R-NC),  ranking member of the Senate Veterans Affairs Committee, said in his own press release, “it shouldn’t have taken this long or been this hard.”

It remained for VA to finally decide whether and how to implement the conclusions of the IOM. This was a process we were unfamiliar with and one that took VA Secretary McDonald six months to complete and publish in the Federal Register.

Because of requirements built into the 1991 Agent Orange Act regarding how VA treats IOM conclusions, it was likely that VA would acknowledge our exposures. A working group was formed within the department and it submitted its recommendations to the Secretary.

Now the internal machinations began within VA. One of the biggest was to determine how much this was to cost the government.  The White House Office of Management and Budget weighed in with its estimate of $46 million to cover disability compensation. OMB made no estimate of the cost of medical care or survivor benefits each item expected to exceed the cost of disability compensation itself. In 2014, working with the Harvard School of Government, we calculated the total cost to be nearly $250,000,000!

On June 18 2015, I was invited to VA headquarters to hear Secretary McDonald’s decision:

1.   • VA would acknowledge the statutory veteran status per U.S.C. Title 38 of our aircrews, aeromedical evacuation crews and aircraft maintenance technicians, if they had any of the presumptive illnesses associated with Agent Orange. This was legally necessary to permit VA to provide benefits because the law is all specified ”veterans.” Unless activated, Reservists are not considered veterans in the law. The VA decision did not award veteran status to anyone not confirmed to have an Agent Orange illness.
2.    • VA would begin compensation effective June 19, 2015 and would not require claim submitted prior to that date to be resubmitted. Disappointingly, VA also decided against any retroactive compensation. This was disappointing to us because some have had claims in to VA for seven or more years.
3.    • VA would give all claims submitted for the next year and effective date of June 19, 2015 in effect making those claims partially retroactive.

I had always suggested a total number of our C-123 veterans to be about 2100. VA estimates that 25% of the personnel who served in Vietnam now have disability benefits for their exposures. If that same 25% applies to us, it means an average compensation of over $88,000 per veteran. The Harvard estimate of $250 million may yet be correct calculating in survivor benefits and the cost of medical care given our veterans.

That, and the VA medical care plus other benefits were what we had fought for these last four years. One of the most important of these benefits is VA Dependents Indemnity Compensation of $1240/month  for survivors, a benefit particularly important to our veterans who do not have military retirements. Another benefit is “Champ-VA” for families of totally disabled veterans without TriCare. 

We’d won,  and now our objectives became getting the word out to thousands of our folks now scattered throughout the country in the decades after our duty aboard the C-123 transports. We'd won, but were left without the retroactive compensation clearly due us, compensation which was supposed to be based on the date of claim application. That is our remaining objective.

23 September 2016

Hanscom AFB C-123 Maintenance Vet Gets Agent Orange Claim Corrected

Problem Solved. I received a message a few minutes ago that Joe Collins' cancer claim, at first denied, was corrected by senior VA leadership.

A few days ago I noticed a decision by the BVA about a veteran claiming C-123 Agent Orange exposure while a mechanic at Hanscom AFB back in the early '1970's – but his claim was denied and his appeal also denied! The vet's name was withheld but we tracked him down though Andy's Old Guys Network...Joe Collins.

VA had lots of text detailing Joe's service as an ART, and explained that such duty didn't convey veteran status for the period of his exposure. The denial also noted his Reserve duty, but still nothing triggered recognition of his benefits per the VA C-123 Interim Final Rule of June 2015. That made all post-Vietnam C-123 aircrews and maintenance folks veterans per the statute if claiming any recognized Agent Orange illnesses.

(Note 23 Sept 2016: VA leadership resolved this thru BVA, and Joe's claim is being expedited! Problem solved, but still a question left unanswered – how could the Boston regional claims office and the Boston BVA have screwed this up so completely?)

Thanks to our community of C-123 veterans, we were able to identify the C-123 vet whose claim was so terribly screwed up. Joe Collins is our guy, and today I had the pleasure of speaking with Joe and his wife.

We got his name and SSAN to authorities in VA to reconsider his claim and June 2016 denial.

Let's hope VA moves on this one: Joe's claim dates from 2007!

22 September 2016

Cliff Turcotte's Widow Approved for VA Agent 0range Survivors Benefits! Thank you, VA!

A few minutes ago, Cliff Turcotte's widow Norma phoned to tell me her good news: The VA approved her survivor benefits based on his service aboard our former Agent Orange spray C-123 aircraft.

Earlier this year, on hearing of her loss I suggested she apply for the benefits. His death is now considered by both the Air Force and the VA to be related to his toxic exposures while on duty with the 74th AES.

The VA calls it Dependents Indemnity Compensation (DIC,) awarded survivors of active duty or retired personnel in the amount of $1240. DIC is in lieu of survivors benefit compensation unless DIC is the lesser amount. For all, DIC is tax-free.

Cliff died before applying for any Agent Orange exposure benefits but on my urging his wife contacted the Agawam Town veteran service office and completed the necessary paperwork. VA awarded her the benefit retroactive to the date of her application, and this was just the greatest news I could hope for this morning!

Norma gave me her permission to tell everyone about this, and together we urge all C-123 veterans or their survivors to apply to the Department of Veterans Affairs if they have any of the presumptive illnesses associated with Agent Orange.

This can be done online, or through state or county veterans service officers or through any of the veterans organizations such as Disabled American Veterans and Veterans of Foreign Wars. The veterans organizations provide this as a free service as part of their congressional charters. Their VA-accredited representatives can usually be contacted through VA medical centers.

I don't know the list of our comrades' survivors but I know that Paul Bailey, Cliff Turcotte, Ed Kosakoski, Dick Matte and our other friends now lost to us would all want this benefit to protect their loved ones. Yet, every widow I've spoken with has been reluctant to apply, concerned that it could be unseemly to seek this important financial protection, or the benefits provided by state or local governments such as property tax relief.

Let's put that fear to rest! Serving in the military it's done out of patriotic motivation and also for the opportunity to earn the benefits important to our lives. Our military retirement pensions, TriCare medical coverage and base shopping privileges are some examples we appreciate and have earned.

DIC and other survivor benefits are just as important and every servicemember wants these earned protections for our families. I assured Norma that Cliff probably headed over to get another beer from the refrigerator up in Heaven when he heard the good news!

We must give credit where credit is due and acknowledge the Agawam veterans service officer and also the VA itself for the prompt attention given the claim.

A personal note: Cliff and I joined the 74th AES the same day, and were welcomes aboard by Marv Proctor and Vinny Macrave. Cliff was a prior service Navy corpsman, and I was a prior service medic with the Army and as California Air National Guard, and both of us were staff sergeants. Cliff completed his education and was commissioned as a flight nurse, retiring as a major.

Once again today, Cliff's family told me how much he loved flying and loved the squadron.

13 September 2016

Institute of Medicine Criticizes VA & Air Force

In its C-123 Agent Orange Report, published under consulting contract to the Department of Veterans Affairs, the National Academy of Sciences Institute of Medicine made a startling accusation. Startling, because of the obvious intrinsic and extrinsic failures of which the IOM was accusing both the Department of Veterans Affairs and the United States Air Force. 

Citing numerous examples, the IOM broadly condemned these authorities for failure to accurately and objectively report, and then utilize, information about military toxic exposures and veterans' illnesses. From page 5:
Reports "from those in the military or associated with the VA tend to minimize the possibility of an increased risk of exposure and adverse health outcomes."
The IOM made clear the fact that veterans' exposures were treated by the VA in a manner calculated to either dismiss altogether or at least minimize the harm done military personnel whose duties presented toxic hazards.

This certainly made clear the VA failure to be pro-veteran and non-adversarial. Get the picture? Our VA doctors and scientists (including its consultant with his $600,000 no-bid sole source VA contract) were saying we were not exposed when they had facts in hand that we were exposed.

An analogy would be your doctor saying your arm isn't broken while both of you look at the x-ray of your broken arm. Plus, other medical experts and federal health agencies had already told your doctor the arm was broken. But the doctor and your insurance company had decided that they don't cover broken arms. Especially from you.

And for four years, our VA doctors in Post Deployment Public Health were determined to send us on our way untreated for our cancers and other illnesses because they had already reached a policy decision not to acknowledge any exposures. Especially from us.

In fact, as we were repeatedly told to our faces by VA officials, no amount of proof from whatever source would ever permit our claims even to come up to the minimum standard of "as likely to us not." And this was after the CDC/ATSDR had already informed the VA that we had a 200 times greater risk of cancer then screening standards. This was after dozens of university scientists and medical experts to Agent Orange aboard our old airplanes. But still, the VA Agent Orange Desk insisted to one and all, both inside and outside the VA, that VA had "an overwhelming preponderance of evidence" against us... But it didn't!

Remember, a veteran's claim is to be assumed truthful and factual on its face, but in case of a question the claim need only arise to equipoise – a level of "as likely to has not," or a 50-50 balance of the question. In fact, every benefit of the doubt is to be given the veteran in the claim. We know now, however, that no amount of proof would be accepted to support these claims – VA policy, rather than VA regulations and science had already been implemented at both VHA and VBA against the veterans.

Our association made accusations of ethical failures, all supported with documentation, against the Department of Veterans Affairs in our presentation to the Society of Toxicology at its 2014 Phoenix convention. Sponsored by a former president of the society ,we addressed the scheme by the VHA Post-Deployment Public Health Section which used a similar presentation to the SOT in 2012 which attempted to redefine the medical-scientific term "exposure." The VA presenters reinvented their use of the word exposure as "exposure = contamination field +bioavailability."

In fact, their redefinition of exposure by the addition of the word bioavailability as a required part to the concept of exposure made impossible most exposure claims from veterans, especially those like us, exposed years earlier and with illnesses such as prostate cancer or soft tissue sarcoma taking years to evolve after our toxic exposure event.

No expert we could find, insider or out of government, agreed with the VA redefinition. All took exception to it, even the director of the National Toxicology Program who said she had never heard of such a thing. She explained bioavailability is a separate but related term. Inventing its own definition rather than use the standard ATSTR glossary of terms Dorlands Illustrated Medical Dictionary (the VA standard reference,) Post-Deployment Public Health was driven by its unofficial, improper but rigidly applied policy to block C-123 Agent Orange exposure claims.

So one has to ask: Did the medical and scientific errors revealed by the IOM in the VHA Post-Dedeployment Public Health Section ever result in comment or criticism, or did they get their full bonuses? One wonders if questions arose about VHA intrinsic and extrinsic ethical failures as regards veterans health? At least one of the 2012 VA poster team still works in that section of VHA... were there any career implications for her participation in this campaign against C-123 veterans?

Finally one must also ask were these experts more disappointed in their failure to implement VA VHA policy against C-123 vets than in the IOM accusations?

12 September 2016

C-123 Veterans Association Comment – VA Proposed Rule for Camp Lejeune Exposure Victims

Submitted today to the Federal Register:


"The C-123 Veterans Association congratulates Secretary McDonald on his decision to propose a new "final rule" for the Camp Lejeune exposure victims. We urge it's prompt enactment to prevent further deaths and suffering of Camp Lejeune victims thus far so unfairly treated. We note the sense of urgency conveyed in the press release concerning gravely ill potential beneficiaries of this rule.

Our own exposures to Agent Orange aboard our aircraft left us contesting with the Department of Veterans Affairs over whether our aircraft were contaminated, then whether we were exposed, and finally whether we were harmed. At each step we found VA opposition, rather than support. VA insisted it had "an overwhelming preponderance of evidence" against our claims, but in fact all it had was the preference by handful of employees to tolerate no more Agent Orange claims, facts and VA M21-1MR be damned.

It took a review by the Institute of Medicine of the National Academy of Sciences to show the VA and the Air Force that their science and mathematics were mistaken and clearly policy driven. The same IOM report made clear VA had all the science in hand from DoD, other federal agencies and several universities to make the proper decision years before they were moved to final action. Those four years left our aircrew in maintainers denied disability compensation, medical care and other benefits.

Like us, Camp Lejeune victims had confirmation of their situation from ATSDR but faced a hesitant VA monolith. Such hesitation beles the department's oft-stated commitment to be pro-veteran and non-adversarial. Observers of the Camp Lejeune CAP Committee see this quite clearly. VA was most certainly adversarial!

The Secretary's decision to act last week was based on the same science available to VA years ago, so how can VA justify its delay?. The apparent intrinsic and extrinsic ethical failures must be examined on this and all other exposure situations where the VA's action is found hesitant or even downright anti-veteran.

The 2015 Institute of Medicine C-123 Report on our own C-123 veterans' exposures to Agent Orange contained a telling statement just as true for Camp Lejeune victims as for us: Reports "from those in the military or associated with the VA tend to minimize the possibility of an increased risk of exposure and adverse health outcomes." In plain language, the VA lowballs their assessments rather than consider "worst case"  or even typical case appraisals. That's not scientific...that's anti-veteran policy.


Examining how the VA treated our air crews and the Camp Lejeune veterans can only lead a critical observer to conclude that the VA is untrustworthy, deceptive, and comfortable refusing life-saving medical care to veterans eventually shown by the facts of the matter to be fully qualified for the appropriate service-connected disability rating. There is no catch-up for denied family benefits, essential medical care, housing and education benefits and all the other programs designed to help a disabled veteran have the quality of life similar to those who opted against service in the defense of the Nation. 

Post-Deployment Public Health in VHA must carefully re-examine its values relative to those expected of the Department of Veterans Affairs by veterans and the public at large. 

To repeat, we offer our strongest support for this measure by the Department of Veterans Affairs on behalf of Camp Lejeune personnel and their families. We further urge the Secretary to do the right thing on retroactive compensation for the reserve component servicemembers."

C-123 Veterans Association Comment – VA Proposed Rule for Camp Lejeune Exposure Victims

Submitted today to the Federal Register:


"The C-123 Veterans Association congratulates Secretary McDonald on his decision to implement an interim final rule for the Camp Lejeune exposure victims. We urge it's prompt enactment to prevent further deaths and suffering of Camp Lejeune victims thus far so unfairly treated. We note the sense of urgency conveyed in the press release concerning gravely ill potential beneficiaries of this rule.

Our own exposures to Agent Orange aboard our aircraft left us contesting with the Department of Veterans Affairs over whether our aircraft were contaminated, then whether we were exposed, and finally whether we were harmed. At each step we found VA opposition, rather than support. VA insisted it had "an overwhelming preponderance of evidence" against our claims, but in fact all it had was the preference by handful of employees to tolerate no more Agent Orange claims, facts and VA M21-1MR be damned.

It took a review by the Institute of Medicine of the National Academy of Sciences to show the VA and the Air Force that their science and mathematics were mistaken and clearly policy driven. The same IOM report made clear VA had all the science in hand from DoD, other federal agencies and several universities to make the proper decision years before they were moved to final action. Those four years left our aircrew in maintainers denied disability compensation, medical care and other benefits.

Like us, Camp Lejeune victims had confirmation of their situation from ATSDR but faced a hesitant VA monolith. Such hesitation beles the department's oft-stated commitment to be pro-veteran and non-adversarial. Observers of the Camp Lejeune CAP Committee see this quite clearly. VA was most certainly adversarial!

The Secretary's decision to act last week was based on the same science available to VA years ago, so how can VA justify its delay?. The apparent intrinsic and extrinsic ethical failures must be examined on this and all other exposure situations where the VA's action is found hesitant or even downright anti-veteran.

The 2015 Institute of Medicine C-123 Report on our own C-123 veterans' exposures to Agent Orange contained a telling statement just as true for Camp Lejeune victims as for us: Reports "from those in the military or associated with the VA tend to minimize the possibility of an increased risk of exposure and adverse health outcomes." In plain language, the VA lowballs their assessments rather than consider "worst case"  or even typical case appraisals. That's not scientific...that's anti-veteran policy.


Examining how the VA treated our air crews and the Camp Lejeune veterans can only lead a critical observer to conclude that the VA is untrustworthy, deceptive, and comfortable refusing life-saving medical care to veterans eventually shown by the facts of the matter to be fully qualified for the appropriate service-connected disability rating. There is no catch-up for denied family benefits, essential medical care, housing and education benefits and all the other programs designed to help a disabled veteran have the quality of life similar to those who opted against service in the defense of the Nation. 

Post-Deployment Public Health in VHA must carefully re-examine its values relative to those expected of the Department of Veterans Affairs by veterans and the public at large. 

To repeat, we offer our strongest support for this measure by the Department of Veterans Affairs on behalf of Camp Lejeune personnel and their families. We further urge the Secretary to do the right thing on retroactive compensation for the reserve component servicemembers."

07 September 2016

Specific laws and regulations addressing our C-123 Agent Orange benefits

Sometimes I am asked about the specific laws or regulations that address our post-Vietnam agent orange exposures a board to C-123 and the VA benefits we have earned. You can use Google to find the many VA web pages detailing our issue.

Here they are:

• 38 C.F.R. § 3.307
• 80 Fed. Reg. 35,246, 35,248 (June 19, 2015)
• VA regulation M21-1, Part IV, Subpart ii, 1.H.3.(Feb 5, 2016)