January 10 Update: C-123 Agent Orange Exposure Claims

In 2013 Senators Burr and Merkley raised a series of questions in a letter to Secretary Shinseki. The Secretary's reply, and the C-123 veterans' perspective on it, are attached.

Key Points:

1. Secretary denies "blanket policy" against C-123 claims, yet all are denied at regional offices on orders of Post Deployment Health, with language provided for denial ("regulations do not permit," no evidence of TCDD causing adverse health effects," etc.) More later on tomorrow's posting.

2. VA does not have a method of determining if a vet with stateside AO exposure was flying one of the Agent Orange C-123s: guess VA never heard of flight orders or Form 5s or flight logs, or of such evidence being submitted for years by claimants

3. Patches switched to bug juice around 1965, other UC-123Ks sprayed into later years. Patches had the "oldest" AO residue when tested in 1979 & 1996

4. Unfounded assumption that all other C-123s contain TCDD:" Actually, most did. In fact, AMARC randomly selected and tested 17 and all were positive for TCDD contamination

5. The Office of Secretary of Defense Agent Orange Consultant, provided his opinions: Before submitting his VA-solicited November 2012 report on C-123 veterans, he labeled us "trash-haulers, freeloaders looking for a tax-free dollar." Enough said, other than the fact his report said studies could not disprove our exposure.

6. Analysis of surface wipe samples showed no evidence in two of four aircraft tested: Secretary Shinseki fails to note the 1996 test showing 17 of 17 aircraft positive for dixon. Fewer and fewer reported positive over the decades.  Contamination was greatest in Vietnam, next greatest when the C-123s started stateside flight in 1972, and logically, grew less and less as it aged. Deceptive to have tests on hand of 17 aircraft positive for TCDD and only mention a subsequent test a decade later of four...and the Senior Agent Orange Consultant to the Office of Secretary of Defense recommended no further testing of any other aircraft...that effectively stopped any more being confirmed as toxic. Deceptive to use one test of 4 acft to conclude only 2 in the entire fleet were contaminated, especially when other AF tests show far more significant numbers

7. Chemical intake must be taken into account: Actually no. They must NOT be! The law only specifies "exposure." Exposed veterans, per 1991 Agent Orange Act, Title 38 U.S.C. Section 1116(a)(3) and Federal Register of 8 May 2001 page 23166 need only show exposure plus one of the presumptive Agent Orange illnesses. There is NO legal or regulatory requirement (nor per the Administrative Procedures Act may VA require, without prior notice in the Federal Register) for amount of chemical intake, bioavailability, flavor, color, amount or anything else...only simple proof of exposure to military herbicides. In December 2013 Yale Law Veterans Clinic, on behalf of the National Veterans Legal Services Project, finished months of investigation and concluded post-Vietnam crews able to show evidence of duty aboard known former Agent Orange C-123Ks are fully entitled to presumptive connection for Agent Orange illnesses. Their brief will be published next week (Jan 17 2013). These veterans' exposure is also confirmed by the CDC, EPA, National Institutes of Health, US Public Health Service, VA physicians, several university medical schools and schools of public health, and the CDC/Agency for Toxic Substances and Disease Registry.

Our challenges to the Secretary's response to the Senate go on and you can read if you won't grow bored. The point is that all veterans need only present enough proof to reach the famous "as likely to as not" threshold, but VA has lifted that threshold high above our heads...and tied our feet to the ground. They're afraid of asking the Joint Services Records Research Center for a Memorandum for Record, similar to the one VA solicited to more easily deny the Blue Water Navy claims...because JSRRC has enough archival military and government information to make a case for our exposure. Should JSRRC in any way confirm C-123 veterans' exposure, VA would have to develop yet another dodge to prevent acknowledging equipoise. Numerous veterans' requests to the VA, and directly to JSRRC, for such a memorandum have been ignored. JSRRC informed us on 7 Jan 2014 that only VA or other government agency could solicit such a document.

VA Post Deployment Health informed the US Army (Major T. Redd, Chemical Corps, then a Military Legislative Fellow) that they would "never permit" a C-123 claim to be approved. On 28 Feb 2013 (at VA offices 1800 G Street, Compensation and Pension's conference room with C&P's director and his staff) Compensation and Pension Services told Major M. Wentworth NC USAF Ret. and Major W. Carter, MSC USAF Ret. that no amount of proof, from whatever university or federal agency, would ever be acceptable in establishing a C-123 veteran's exposure claim.

C-123 claims are denied with statements that "regulations do not permit acknowledging exposure" on C-123s, but the Library of Congress and the Senate Veterans Affairs Committee are unable to find such a regulation...and anyway, it would have to first be published in the Federal Register to be applicable.

C-123 claims are ordered denied by the Director Compensation and Pension Service who wrote "no adverse health effects from TCDD." C&P's personal view of the toxicity of TCDD (dioxin) aside, the law specifies that veterans exposed to military herbicides will be treated for their illnesses. C&P's view of innocent TCDD is in contrast with the rest of science and medicine which have classified TCDD as a potent human carcinogen, without a known threshold of innocent exposure. Actually, C&P's comment was in his paragraph summarizing the statement of Dr. Tom Sinks, Deputy Director of the ATSDR...in which Dr. Sinks instead determined C-123 veterans were exposed!

Dr. Sinks' conclusion on behalf of the CDC/ATSDR was deliberately misstated by VA – "I believe aircrews operating in this, and similar, environments were exposed" was the actual conclusion in the same document which C&P mischaracterized. C&P went on in his denial to dismiss official opinions from the National Institutes of Health, the National Toxicology Program, Oregon Health Sciences University Toxicology Program, the US Public Health Service and every other supporting document provided by the C-123 veterans. VA's administrators know best???

This is not an even contest. In fact, it isn't even supposed to be a contest! What happened to a "veteran friendly" claims process?

We are veterans who submitted adequate proof of our exposure...adequate to make the case in any court just as it does in every single instance reaching the BVA, but Compensation and Pension orders all C-123 claims denied. The temporary savings in denied compensation is obvious, but it will catch up with the veteran eventually after the BVA sets things right. What permanently hurts the veteran, and what saves the VA millions, is denying all medical care to C-123 veterans for the years on an initial claim and the additional 2-3 years for a DRO or BVA hearing or even more for a remand.

The money a vet spends for his own pharmacy, optics, hearing, rehab, dental, imaging, surgeries, primary care, transportation, CHAMP-VA, counseling and everything else the VA would have provided by recognizing his disability...that's all money saved, to the great satisfaction of folks at 1800 G Street in the District. This is all care the claim-denied veteran pays for himself, or goes without. That's not right.

Finally, VA itself has already acknowledged our exposure! This was done in a claim denial, but VA's wording clearly shows their actual understanding and qualifies C-123 veterans for coverage. VA wrote: "Office of Public Health concluded that the existing scientific studies and reports SUPPORT (caps mine) a low probability that TCDD was biologically available in these aircraft." That "low probability" surpases the low threshold VA is supposed to demand for veterans' claims!

VA Secretary Insists "No Blanket Policy Against C-123 Exposure Claims" in Letter to US Senate – the facts prove Secretary wrong!

Repeating statements made earlier by Under Secretary Allison Hickey, Secretary Eric Shinseki on 7 June 2013 responded to Senator Richard Burr's letter of April 2013. You have to wonder...what happened to the staffer who wrote this flawed letter and asked the Secretary to sign it? Is he still employed?

Senator Burr had questioned the VA's universal denial of C-123 claims. He repeated several of the phrases used by VA in their C-123 disability claim denials, including the frequent "VA is unable to acknowledge Agent Orange-related illnesses as a result of this service." Senator Burr specifically suggested that:

All of this suggests that VA may essentially have a blanket policy of denying any claims based on alleged exposure to dioxin while serving aboard the C-123 planes, regardless of the weight of information submitted in a particular case."

On 7 June Secretary Shinseki reassured Senator Burr and the Senate Veterans Affairs Committee:

"...while there are no provisions for acknowledging presumptive, indirect, secondary, or remote exposure based on claimed contact outside of Vietnam or Korea with aircraft. equipment, or personnel from these locations, VA evaluates such claims on a case-by-case basis to determine if the available evidence supports service connection on a facts-found basis. In making such determinations VA applies the benefit-of-the-doubt principles contained in 38 United States Code § 5107(b) and 38 Code of Federal Regulations § 3.101 Accordingly, VA does not have a "blanket policy" for denying such claims."

Perhaps Secretary Shinseki and Under Secretary Hickey have been left unaware that VHA's Post Deployment Health Section has instructed Compensation and Pension that ALL C-123 CLAIMS MUST BE DISAPPROVED because none of the veterans has ever been exposed. Golly, this sounds to us like a "blanket policy" to deny claims. And why?

This VA perspective that C-123 vets lack exposure is via Post Deployment Health's special, uniquely VA definition of "exposure" by which VHA added the word "bioavailability" to it...no proof of bioavailability, says the VA, equals no exposure. Elsewhere in science and medicine, exposure occurs upon contact, ingestion or inhalation...and we've double-checked with the CDC/Agency for Toxic Substances and Disease Registry, EPA, National Institutes of Health, medical schools and schools of toxicology. Even the Society of Toxicology's list of terms clearly explains exposure without the after-effect of bioavailability. Nowhere can we find (outside the VA Post Deployment Health...not even in other VA departments!!) any expert or medical dictionary to say otherwise. 

Let's be very clear: a cornerstone of the VA campaign against C-123 exposure claims is their denial that exposure ever took place. By slight-of hand, they deny exposure, not by saying we weren't in contaminated airplanes, but by pretending that the airplane's contamination couldn't expose us because there was no bioavailability proven. Again to be clear: exposure is one term, and bioavailability another. One is not part of the other, but they are related. (1) Exposure comes first, and (2) bioavailability may follow. But exposure, exposure, exposure! Only exposure is specified in the law. Scientists and physicians across the country have insisted to the VA that C-123 veterans were exposed via dermal and inhalation routes.

Or, as University of South Florida's Dean, Dr. Richard Pollenz explained it to the C-123 veterans on 10 January 2014:

"Bioavailability MUST follow exposure and it is a complex concept based on the chemical nature of the agent.  There is also the major concept of biotransformation since nearly all compounds are metabolized once they enter the body."   

Another expert disagreeing with the VA is Dr. Linda Birnbaum, Director of the NIH/National Toxicology Program and also Director, National Institutes of Environmental Health Sciences. She told us "In all my years as a toxicologist, I have never heard of bioavailability as part of the exposure field. Exposure is contact with a contaminant."

At the University of Texas Medical School, Dr. Arnold Schecter MD, a  highly esteemed Agent Orange researcher, commented, "Any dictionary or toxicology textbook will have a definition of exposure and also bioavailability. The issue of bioavailability is a different matter." Dr. Schecter has concluded that C-123 veterans were exposed and also that, unless specific testing to prove otherwise, C-123 veterans were actually exposed to Agent Orange with resultant bioavailability.

Now back to the Secretary's earnest assurance to Senator Burr that VA has no blanket policy against C-123 veterans' exposure claims and that each claim will be evaluated individually.

Perhaps the Secretary, and Under Secretary Hickey, are also unaware of just three of the more frequently-used blanket denial policies VA employs against C-123 veterans, provided the regional offices by Compensation and Pension Service:

1."In summary, there has been no long-term adverse health effects of TCDD exposure."
Gosh, ain't it great to know that VA's director Compensation and Pension (his quote above) has decided to deny claims on the basis that Agent Orange is harmless. Ignoring the very laws they are responsible for enforcing, VA opts to disregard proven veteran exposure and instead deny claims by pretending that dioxin is harmless. Don't you feel reassured?

2.  . "VA regulations do not allow us to concede exposure to herbicides for Veteran's (sic) who claim they were exposed to herbicides after the Vietnam War while flying in aircraft used to spray those chemicals."

 Neither the Senate nor the Library of Congress can find any VA regulation as specified above. The most applicable document is the 8 May 2001 Federal Register, page 23166, where VA agrees that all exposed veterans will be treated the same as Vietnam veterans. There simply is no regulation to which the VA refers! Washington even orders the regional offices to deny the C-123 claims. Come on...that kinda suggests a blanket policy, right?

3 [From C-123 veterans' claims decisions] . "VSR. Please tell veteran, "We are unable to verify or document that aircrew members were exposed to Agent Orange resulting from Agent Orange residue or dioxin contaminated aircraft or aircraft parts. Although residual TCDD, the toxic substance in Agent Orange, may be detected in C-123 aircraft by sophisticated laboratory techniques many years after its use, the Office of Public Health concluded that the existing scientific studies and reports support a low probability that TCDD was biologically available in these aircraft. Therefore, the potential for exposure to TCDD from flying or working in contaminated C-123 aircraft years after the Vietnam War is unlikely to have occurred at levels that could affect health." 

Okay...let's look at these several issues, and see that they don't hold water.

First, with instructions to "tell the veteran" all the above to each Agent Orange-presumptive illness claimed would to anyone with a middle school grasp of English suggest a blanket policy. To repeat – it clearly is a blanket policy, despite the Secretary's earnest yet mistaken assurances to Senator Burr.

As to the issues, VA absolutely CAN (but refuses) to document and has repeatedly been provided original military documents establishing the contamination of the former UC-123K transports and the exposure aboard of the aircrews. Multiple federal agencies have tried to certify this to the VA but so far they have ignored the EPA, CDC, USPHS, CDC/ATSDR, National Toxicology Program, University of Texas Medical School, VA Regional Medical Center Portland, Oregon Health Sciences University, Boston University School of Public Health, Columbia University of School of Public Health, Dr. Wayne Dwernychuk (Hatfield Consultants), NIH/National Institute of Environmental Health Sciences University – conclusion: VA "unable to verify or document" because they simply refuse to accept all such documentation, just as the C-123 veterans were told would be the case by C&P's director.

Next, Agent Orange not only "may be" but certainly was detected...in every stored C-123 at the desert Boneyard before they were all destroyed as toxic waste.

Next, VA said it takes "sophisticated" laboratory techniques. Nope, only standard testing. The Army has the military's standard manual calle TG312, and the testing procedures done on the C-123s was standard among toxicologists and in accordance with TG312. The CDC, NIH, USPHS and EPA stand behind the AF tests proving the contamination, and from those test results, all the agencies (except VA) conclude the C-123 veterans were exposed. Because it is their responsibility for enforcing the various veterans' laws, VA feels comfortable, and indeed, somehow entitled to disregard them when dealing with C-123 vets.

The Secretary writes "detected many years after its use" to imply that somehow, age made it worse. In fact, it was worst in Vietnam when the Agent Orange was sprayed, then next-worst immediately after we started flying which was the year after the war ended, and the Agent Orange aged and became less potent over the years. His letter should say "detected for all years after its use." That's why AF toxicologist Dr. Ron Porter testified in a federal hearing that the C-123 fleet was "a danger to public health."

Our exposure, for a decade beginning in 1972, one year after the last spray missions, was quite intense, over a long period, and not to be dismissed as something noticed years afterwards. Tests from 1979 on proved the contamination! Only one C-123 was ever decontaminated, and that was at the USAF Museum on Tail #362 "Patches" and was completed fourteen years after we retired the airplane!

Next, the Secretary reports that his Office of Public Health concluded existing scientific studies don't suggest a probability of TCDD (dioxin) being biologically available. Of course, both the Secretary and the Office of Public Health fully understand that the law says nothing about Agent Orange being "biologically available," only that veterans establish their exposure. Bioavailability has nothing at all to do with Agent Orange exposure disability claims. And that's the law. 

Finally, exposure to TCDD unlikely to occur at levels to affect health. See the above...affecting the veterans' health, better known as "medical nexus," has nothing to do with claims for diseases recognized by the Secretary of Veterans Affairs as Agent Orange presumptive illnesses. Again, that's the law. If a veteran claims an illness not recognized by the VA as associated with Agent Orange, that's when medical nexus must be proven.

What a snow job. What a blanket abuse of veterans' rights!

What a blanket policy keeping C-123 veterans out of VA hospitals!

VA Disability Compensation: Dioxin & Ischemic Heart Disease Statement by Dr Linda Birnbaum

Statement by
Linda S. Birnbaum, Ph.D., DABT, ATS
Director
National Institute of Environmental Health Sciences
National Institutes of Health
Director, National Toxicology Program
Department of Health and Human Services

on
VA Disability Compensation: Presumptive Disability Decision-Making 

before
Committee on Veterans’ Affairs
United States Senate

Thursday September 23, 2010 (note: updated June 2013)

Mr. Chairman and distinguished members of the Committee—I am pleased to appear before you today to present testimony on the relationship between dioxin exposure and the risk of ischemic heart disease. My name is Linda Birnbaum; I am the Director of the National Institute of Environmental Health Sciences (NIEHS), of the National Institutes of Health, an agency of the Department of Health and Human Services, and Director of the National Toxicology Program (NTP), an interagency program, housed at NIEHS, whose mission is to evaluate agents of public health concern by developing and applying tools of modern toxicology and molecular biology. The program maintains an objective, science-based approach in dealing with critical issues in toxicology and is committed to using the best science available to prioritize, design, conduct, and interpret its studies.

Understanding the role that environmental and occupational exposures play in the development of chronic diseases can be challenging, particularly for diseases that have significant risk factors in addition to the chemical exposure. Thus, the task of estimating the quantitative role of Agent Orange and dioxin exposure in the development of ischemic heart disease in Vietnam Veterans is clouded by the contributions of other risk factors such as age, smoking, family history, body mass index, serum lipid concentrations, and other factors. In 2008, my colleagues and I published a systematic review that evaluated the evidence of an association between dioxin exposure and cardiovascular disease mortality in humans.¹ We found that the studies in the highest-quality group found consistent and significant dose-related increases in ischemic heart disease mortality and concluded that there is an association between dioxin exposure and mortality from ischemic heart disease and cardiovascular disease.

Dr Linda Birnbaum Interview: What is Dioxin? (video)

Dr. Linda Birnbaum, now Director of the National Institute of Environmental Health Sciences, recorded a video addressing dioxin (TCDD) topics in 2004. While the research has continued for these past ten years, her report remains correct in every respect. Watch by clicking HERE.

Although Dr. Birnbaum explains why the National Institutes of Health and the CDC and the EPA consider dioxin a human carcinogen, over at VA's Compensation and Pension Service C-123 veterans must draw comfort from the Director Compensation and Pension's personal assurances that "in summary, there are no long term adverse health effects from TCDD." That's how he denies all C-123 exposure claims.

No evidence to the contrary from anybody, anywhere will ever change his mind, he told us...no matter what university, world-renowned scientist, federal agency, VA physician...never!

We sure need C&P to update less knowledgeable folks in science and medicine about his startling discoveries.

C-123 Colorado Resident Veteran Sought

Hello, Westover, Rickenbacker and Pittsburgh: I need to identify post-Vietnam C-123 vets living in Colorado...if you can help me find some, please drop me a note as soon as possible.
       Wes

The Veteran's Creed

VA backlog legislation becomes law

Jan 6, 2014 

Press Release

WASHINGTON, D.C. – VA CORE, the bipartisan legislation introduced by U.S. Rep. Ann Kirkpatrick, D-Ariz., to help tackle the massive claims backlog at the Department of Veterans Affairs, is now a law. It was included as an amendment in the Department of Defense reauthorization bill signed by the president at the end of 2013.

The passage is a key victory from Kirkpatrick’s work in the 113th Congress on behalf of veterans. She is Arizona’s only member of the House Veterans’ Affairs Committee and serves as Ranking Member of its Subcommittee on Oversight and Investigations.

The VA Claims, Operations and Records Efficiency, which passed the House in June, amendment directs the Department of Defense to provide the complete service treatment records of veterans to the Department of Veterans Affairs in an efficient, electronic format. Currently, the average veteran waits more than 250 days for a decision on a claim. About 175 days of that time is the VA waiting for the DOD to send the complete records, which DOD currently processes on paper rather than electronically.     

The VA CORE amendment will:

• Codify a plan both agencies agreed upon in February, in which Defense begins the immediate transfer of complete and certified service treatment records to VA, and electronic capabilities are in place by the end of 2014.
• Require the Department of Defense to provide certified, complete and electronic records to the Department of Veterans Affairs following military separation.

Backlog facts:

• The claims backlog is a growing and serious problem. As of December 30, 2013, VA had 636,029 claims pending. Of those, 377,409 claims were pending more than 125 days, at which point they are considered to be backlogged. Click here for weekly updates on VA claims.
• Veterans are filing disability compensation claims at historically high levels. VA now receives well over a million claims every year, and the numbers continue to grow.
• The current paper-based claims system was established following World War I.  Since then, statute changes made the process more complex, but no administration invested in updating the system. It was not until 2009 that our nation finally invested heavily in modernizing the claims processing system.

Reader Insists UC-123K "Patches" Never Sprayed Agent Orange

Received as a comment on our blog:

"UC-123K 56-4362 or known as Patches, was never an Agent Orange spray, The bird was a Malaria hunter and sprayed Malathion. written by a Ranch Hand."

In fact, Patches did indeed spray Agent Orange, but was switched to malathion and returned to bright, shinny aluminum because the bug juice fouled the paint, leaving the other UC-123s in their familiar cammo scheme.

Working our way backwards, the 1994 tests on Patches labeled the aircraft "heavily contaminated with dioxin on all test surfaces" and "a danger to public health." The 1979 "Conway" test on Patches at Westover did not test for dioxin in particular, but did identify "military herbicides."

The USAF Historical Records Research Agency confirms Patches' history as an Agent Orange aircraft. Also, the Air Force Museum's bio of Patches acknowledges its Agent Orange spray history:

The Museum's Aircraft: Patches The C-123K on display saw extensive service during the Southeast Asia War as a sprayer, and Ranch Hand personnel developed a strong symbolic attachment to this aircraft. The aircraft took almost 600 hits in combat, and it was named Patches for the damage repairs that covered it. Moreover, seven of its crew received the Purple Heart for wounds received in battle. 
Patches was accepted by the USAF in 1957 as a C-123B, and it went to Vietnam in 1961 to fly as a low-level defoliant sprayer. In 1965, it was redesignated to UC-123B. At about the same time, Patches became a dedicated insecticide sprayer to control malaria-carrying mosquitoes, and in 1968, Fairchild converted it to a UC-123K. 

Houston VA Safety Researcher Receives Presidential Recognition

A patient safety researcher at the Michael E. DeBakey Veterans Affairs Medical Center in Houston has been named a recipient of the prestigious Presidential Early Career Award for Scientists and Engineers (PECASE). Hardeep Singh, M.D., M.P.H., Chief of the Health Policy, Quality & Informatics program at the Houston VA Health Services Research and Development Center for Innovations in Quality, Effectiveness and Safety, and Associate Professor of Medicine and Associate Professor of Medicine at Baylor College of Medicine (BCM), will receive the award from President Obama at a White House ceremony later this year.

PECASE awards are the highest honor bestowed by the United States government on science and engineering professionals in the early stages of their independent research careers. “The impressive achievements of these early-stage scientists and engineers are promising indicators of even greater successes ahead,” President Obama said. “We are grateful for their commitment to generating the scientific and technical advancements that will ensure America’s global leadership for many years to come.”

Dr. Singh received this award for his groundbreaking multidisciplinary research on missed and delayed diagnosis and patient safety improvement in electronic health record-based clinical settings. He is recognized for his innovative health services research in several related areas, including understanding and reducing diagnostic errors in the outpatient setting, especially missed and delayed cancer diagnosis; use of health information technology to identify and reduce diagnostic errors; and patient safety related to the implementation and use of electronic health records. In 2012, Dr. Singh received the AcademyHealth Alice S. Hersh New Investigator Award in recognition of the national significance of his work. His research has been published in prestigious journals such as the New England Journal of Medicine and JAMA and cited in several national policy reports. Dr. Singh was recently appointed to a federal advisory committee based at CDC and is currently leading national policy development efforts to improve diagnostic test results communication in the Department of Veterans Affairs.

“To be the recipient of such a prestigious award is an incredible honor,” said Singh. “Much remains to be done to make health care safer for all and I hope this recognition will inspire others to join our efforts to shape policy and practice through rigorous research.” Singh is working to train the next generation of interdisciplinary patient safety researchers to keep the field at the leading edge of innovation and to improve medical practice in a health care system increasingly defined by health information technology.

“Dr. Singh has rapidly become a pre-eminent researcher in the areas of reducing diagnostic errors and leveraging health information technology to improve safety,” said Laura Petersen, M.D., M.P.H., Director of the Houston VA Center for Innovations in Quality, Effectiveness and Safety, Associate Chief of Staff for Research at the Michael E. DeBakey VA Medical Center, and Chief of the BCM Section of Health Services Research. “The value of his work is already apparent in many areas of improving patient care. I cannot think of a more deserving candidate for such an honor.”

The Center for Innovations in Quality, Effectiveness and Safety is the largest health services research center in the Southwest. The Center conducts high-quality scientific research that improves the health of Veterans and patients across the nation, by helping to ensure the patient-centered delivery of scientific discoveries.

Challenges Raised to Proposed VA Rules

Posted at the suggestion of LtCol John Harris, from VAWATCHDOG.ORG. (Jan 11 note: I have read this carefully and now fully believe the proposed rule change is inappropriate and anti-veteran!)

Doug Rosinski’s comment on VAWatchdog.org.

On October 31, 2013, VA published a proposed rulew hich seems to be flying under the radar.  Perhaps that is because the Federal Register notice is entitled "Standard Claims and Appeals Forms" and most people have not paid much attention to it.  Despite its boring title, I can assure you that this is potentially one of the most far-reaching rule changes in a very long while.  We have attached the comments of the Veterans Justice Group LLC which more fully explains our concerns with this VA action. In this rulemaking, VA is proposing nothing short of creating a fully adversarial appeals process for denied claims beginning at the Notice of Disagreement (NOD) and a "completeness" requirement for initial claims that sets the effective date of an award as the date VA agrees that a claim is "complete" – not the date a claim is submitted.  Both of these changes turn the VA process on its head by creating new duties for claimants and shifting some current VA duties to claimants.  Ironically, in our view, the disruption caused by these changes – not to mention the direct effect on claimants' ability to file and appeal claims – is very likely to cause more delays and more wasteful litigation. While we believe very strongly that the Secretary does not have the legal authority to implement the radical process changes proposed in this rulemaking, it is stunning to us that he would try to do so under the guise of "standardizing" VA forms.  

Actually, we are supportive of standardized forms and VA correspondence, as it is incredibly frustrating to receive 57 (or more) versions of rating decisions, etc., from VA.  It is, however, quite another thing altogether to dismantle the "non-adversarial" VA system in the process.   Two proposals are particularly stunning.  In the first, VA proposes to eliminate the "substantially" complete and "informal" claim categories.  Instead, there will only be "incomplete" and "complete" claims.  Anything other than a "complete" claim "could not be the basis of an effective date."  Further, to be "complete" a veteran's claim application would have to state the "specific medical conditions" for which he or she seeks benefits. [C-123 Veteran’s note: Under Secretary Hickey strongly recommends veterans submit Fully Developed Claims with assistance from qualified Veterans Service Officers, such services freely provided by VFW, DAV and other organizations.] 

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

.

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)

New VA Web Site for Families Dealing With PTSD

Good move, VA!

VA web site for families of veterans with PTSD

Department of Veterans Affairs

The Department of Veterans Affairs (VA) has set up a web site specifically for the families of veterans who have PTSD.

According to a report published on Monday by Military.com, the VA has set up the VA Caregiver Support web site because of concerns about caregiver burnout.

“Caregiver Burnout is the experience of feeling physically, psychologically, and medically unhealthy due to over compensation of family members when caring for service members with post traumatic stress disorder (PTSD) or other conditions.”

Living with a veteran who has PTSD isn’t easy. In fact it can be exceedingly difficult.

For the veteran, having nightmares or flashbacks about the worst moment in your life can ruin your day. Nightmares or flashbacks often leave the veterans feeling emotionally cut off from others, so they have a hard time relating to their spouse and family.

So the veteran pulls away from other people and becomes isolated.

Some veterans with PTSD find it hard to make friends, because of the feeling that “You make friends and friends die.” But their families can’t possibly understand that feeling, so the veteran and the family wind up living side by side in two entirely different worlds.

And sometimes, veterans with PTSD act in strange ways that can drive their family members up the wall.

There has been an overdose of publicity about how veterans with PTSD have inappropriate busts of anger, because of the way they respond to stress in survival mode, as if their life was being threatened.

While the “Rambo syndrome” may be good for Hollywood, there is no data to indicate that it is real. Veterans with PTSD don’t run around acting like Rambo.

But sometimes veterans with PTSD do strange things that their families just don’t understand.

You’re there to support your veteran. We’re here to support you.

Three symptoms of PTSD play a big part in this: Thinking that you are always in danger; feeling anxious, jittery, or irritated; and experiencing a sense of panic that something bad is about to happen.

That’s why so many veterans with PTSD can’t sit with their back to the door.

It doesn’t seem like a big deal, but think about it from the family’s point of view.

Every time you enter a restaurant, you have to look for a place where the veteran with PTSD can sit facing the door, and then make sure nobody sits in that seat before that veteran with PTSD can.

The same is true every time you enter a conference room, or even somebody else's living room. You never get the chance to relax.

Even after the veteran has learned anger management techniques that eliminate sudden bursts of anger, the families of a veteran with PTSD still have to be constantly on alert for the things that can trigger anxiety in the veteran.