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:
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.
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.
(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.
