Found: Third Federal Register Statement from VA "Assuring" C-123 Exposure Rights

One of the pivotal changes in VA policy towards Vietnam Veterans was the 2008 Haas Decision. The proposed rule changes announced in the Federal Register for Hass also included another statement from VA addressing non-Vietnam exposures. Previously, VA had made the same statement on 8 May 2001 (page 23166) and VA was to make one also on 31 August 2010, each time along with fundamental changes in VA Agent Orange ruled. We say deceptive because VA then disregarded their obligations.

But each time there was no change in non-Vietnam exposures: any veteran with proof of Agent Orange exposure was to be treated with the same presumptive service connection as a Vietnam War "boot on the ground" veteran. So we should think the commitment, thrice-stated along with treatment of major changes in other VA Agent Orange issues, would be clear enough to all.

But no. Even after three repetitions, three assurances to Congress and the public that no further legislation was needed to insure VA would protect non-Vietnam War exposed veterans, VA has opted to reinvent the singular word "exposure," the core of each of these three Federal Register promises, to prevent any exposure claims.

The veterans were not exposed, according to the 2012 redefinition of exposure by the VA. "Exposure = contamination field + bioavailability." No bioavailability means no exposure claim approval, VA's basic goal regarding C-123 exposures.

And while we can establish our Agent Orange C-123 contamination, we cannot prove bioavailability these many decades later. We might have been able to do so back in 1982, but not decades later. Besides, VA forbids that test in the Agent Orange Registry exam, so the net result is they say we were not exposed and won't give us the test to determine exposure, so they conclude we weren't exposed. Weird, but their objective is to prevent claims so that's what they do.

Other parts of this Federal Register posting address Blue Water Sailors seeking Agent Orange exposure benefits. VA informs Congress that (from 16 Apr 2008, page 20569)

This action would not result in a finding or presumption that veterans who served on ships were not exposed to herbicides; it would merely clarify that such veterans are not automatically presumed to have been exposed and that the issue of exposure must be resolved on a case-by-case basis to the same extent as most other factual issues involved in claims for VA benefits.

This is the source for VA's insertion in C-123 claims that we are to be considered on a case by case basis, with examination of the factual issues. But in fact, that restriction to a case by case basis is mentioned only in context for claims of ship-board exposures, and does not relate to C-123 exposure situations. Thus, C-123 claims can be considered as a general situation, not requiring each claim's individual scrutiny past fundamental facts of veterans' honorable service, veteran's recognized Agent Orange disease, and veteran's proven exposure. 

In other words...presumptive service connection.

Here's the language protecting non-Vietnam herbicide exposures, so familiar to us after three years of quoting it to VA authorities and three years of frustration as VA ignores their own rules:

Veterans could establish service connection for herbicide-related
conditions by submission of evidence establishing exposure to
herbicides during service, just as they always could. If a veteran is
eligible for that presumption, then, as a result, VA will not further
scrutinize that veteran's claim on the issue of exposure.

We also note that a veteran who does not meet the requirements of
Sec. 3.307(a)(6)(iii) for application of the presumption of service
connection based on service in Vietnam may establish direct service
connection under Sec. 3.307(a)(6) and Sec. 3.309(e) based on
herbicide exposure if the veteran can establish that he or she was
actually exposed to herbicides in service. Section 3.307(a)(6)(iii)
only defines when the presumption of exposure to herbicide agents will apply. Additionally, as part of its duty to assist, VA will assist a claimant in obtaining any relevant evidence related to a claim forexposure to herbicide agents.

But VA cheats A lot. They deny exposure using their unique redefinition of exposure, they prevent tests for exposure, they wait forty years to address this issue in any way, they give IOM a charge which has nothing to do with the law's singular requirement of proof of exposure for presumptive service connection. And they, icing on the cake, they deny claims on the basis that no harm has been shown to be caused by exposure to TCDD, the toxin in Agent Orange.

In countless Federal Register postings, in hundreds of Board of Veterans Appeals citations, in CAVC citations, the standard language used is, "Agent Orange is carcinogenic, a fact that VA does not dispute."

But they do dispute it. They stop it into the ground and bury that acknowledgement by actually ordering claims for Agent Orange exposure denied because TCDD (the toxin in Agent Orange) "hasn't been shown to cause adverse effects."

Perhaps there's a misunderstanding here. Is VA stating that carcinogenic is not harmful? It seems bad to be exposed to something which causes cancer, as does Agent Orange. That's not harmful?
Oh, we forget: VA redefined exposure so that we were magically not exposed after all, and today we can pretend, with the VA, that the "heavily contaminated" and "a danger to public health" C-123s we flew for a decade were not harmful, and caused no adverse health effects."

Unfortunately, VA's redefinition doesn't carry much weight with my VA oncologist/urologist who already agreed my Agent Orange exposure was, more likely than not, the source of my prostate cancer.

Another unusual point: always before contamination equals exposure. No qualification necessary as to how much or any other measurement. Why now, this new and illogical standard, being fought to the death (ours, not theirs) by VA staff? Why don't they feel constrained, or even guided, by the law?

Christmas Morning Reflections From a C-123 Guy

"Aren't you bitter?" she asked me. She meant bitter about the VA officials so dedicated to preventing veterans' access to medical care. She meant about the AF officials over the years who dealt with the contaminated C-123 fleet but never bothered to worry about the health of the crews already exposed.

We'd both awakened early this Christmas morning. As we waited for grandbabies to wake up and come to cuddle, our conversation under the warm covers drifted to the theme of the Christmas Eve services we attended here in snowy Denver. That pastor's metaphor addressed having to be led, each of us, many times in our lives - and how we all depend on unseen others, and God, to carry burdens when we are heavy laden.

My wife's question wove the Christmas message into our C-123 battle with the Veterans Administration. I thought about her question while framing an answer (contemplation and preparation are usually not parts of my conversational skill group) - and it was "no, not bitter. Disappointed, tired, weary of the vast amount of information about dioxin and toxicology to deal with - but not bitter."

Even after watching dear friends like Gabby Gadbois die, I'm not bitter. Even after learning of disease heaped upon disease in all the hospital stays I've had this year, with a PICC line still dripping medicine into my heart - not bitter.

Not bitter because there is much to be grateful for, and mostly for others carrying such a mammoth part of the load I'd otherwise be crushed beneath. First and foremost, grateful for my wife picking up responsibilities she'd never imagined having to manage by herself...and not because of any lack of qualification (she's got several more graduate degrees than I do) but by the sheer effort she must expend. All the housework, all the yard work, coordinating refurbishing contractors, leadership as an ordained elder in several church programs, Shelly's House for offenders...and caring for me hand and foot. Literally, as I cannot even put on that my own shoes and socks. She is my rock and my foundation.

So the bitterness leaves me altogether. What I conclude, however, is that we're dealing with people not like us. Not like the officers and NCOs I've served with. Not like George Gadbois. Not like Mike Walker. Not like Bob Boyd or Tim Olmsted. So many VA and Air Force officials just are not like us.

I don't believe I have ever served with an officer who would make battle against us as have the VA officials who sat around the conference table twice this year. I know I have never served with officers and NCOs who would learn of such a health hazard as our exposure yet somehow not to notify the crews involved or accept an order to hide the information from them. "Hell, NO" would have been the response from anyone I've ever known. Not the kind of American officer or American NCO that this Nation trusts us to be and hopes we will be faced with hard decisions.

We are not the kind of officers who would have tolerated Abu Grahib. We are the officers who in honor would have stopped it, at pistol point if necessary. We are not the officers who would fail our wingman - ever. We are the soldiers who truly carry our honor and our country's values into the military. Trash haulers, perhaps. Freeloaders - never. We are American soldiers. We were the kind of solders who mastered basic,  flight school, survival schools, the misery of SERE school up at Fairchild, and seemingly unending trips away from the family...all we wanted was to serve.

VA decision makers? Not to paint them all with the same brush, but too many are not at all like us. "Benefit of the doubt?" They pretend, nothing more.

A Request of VA and USAF leadership: Don't laugh because of our airplane - it is what you ordered us to fly. We've all flown many other planes, but somehow, like Medal of Honor holder Joe Jackson, we remain "C-123 guys" just like the C-123 will forever remain "the Agent Orange airplane." We flew the plane we were tasked to fly because AF leaders we trusted said that old bird, and our skills aboard it, were vital to the nation's defense. We certainly proved it during REFORGER exercises! Guys like Gail French proved it bringing in Tail #707 in flames, earning the DFC the hard way. Guys like Charlie Brown who came back from Hanoi proved it by putting on a flight suit again and quietly served with us. We earned the Airborne's Iron Mike award! The Army truly loved us, and after all the Army was JOB ONE as our primary customer in wartime. Of course, it would have been very nice if the C-123 had been engineered with some sort of commode and at least a Mr. Coffee! Maybe even an autopilot? Alas.

Merry Christmas from Wes

Agent Orange? Nobody knew the bill we'd be handed over this mess, but it is what it is. The intolerable part, the painful part, is now being treated as pariah by the VA - treated thus by people who are not like us. Fellow vets, don't be bitter. We are trying hard to carry the issue and we have so many helping carry the load with us - American Legion. Vietnam Veterans, leaders like Senators Burr and Merkley with their staffs, scientists and physicians across America.

Who knows? We might even have a secretly sympathetic ear somewhere within the VA...an ear which may someday hear our voices, out here in the wilderness where we trying, trying so very hard not to be bitter.

Dear VA, USAF, fellow Veterans and your families - God Bless & keep you, and Merry Christmas.