24 July 2015

VA: We're not abandoning our C-123 widows and widowers!

Dear VA: Thanks for the proposed interim rule for our Agent Orange exposures. It took a lot of work.

But respectfully, no thanks. We're not abandoning the financial and medical needs of our widows and widowers! What a simply horrible demand. 

Please...your Plan B?

21 July 2015


Retired USAF Master Sgt. Casimir Cerniauska on right, his son on left


Retired Senior Master Sgt. Leslie Howe has battled two cancers -- non-Hodgkin lymphoma and prostate cancer, both of which have been linked with exposure to Agent Orange, the herbicide used by the U.S. military to destroy enemy cover and crops during the Vietnam War. Howe, 71, was never actually in Vietnam during the conflict, but in the 1980s he served aboard Air Force planes that contained trace amounts of the defoliant. Still, the U.S. Department of Veterans Affairs twice denied Howe's benefits claim, telling him in a letter that it "could not find a link" between his medical conditions and his military service.
"I flew in good conscience on that aircraft, not knowing the danger," said Howe, who recalled a distinct "aroma" at times while he worked in the aircraft as an air medical evacuation technician. "I did it because I wanted to serve my country."
c123 veterans
C-123 veterans reunited in early 2014: Master Sgt. Guy Delia (back left), Master Sgt. Richard Matte (front center), Lt. Col. Mary Griffin-Bales (back center) and Senior Master Sgt. Steve Caraker (back right). (Matte family)

C-123 Veterans' Comments Needed on VA Proposed C-123 Agent Orange Rule

Please help protest a particular point in the VA's proposed interim final rule dealing with C-123 Agent Orange claims. Veterans, you can do this by contacting your legislators and by submitting comments online at the Federal Register web page. 

Word your protest as you wish or consider the eight points I've listed below to include. 

The C-123 Veterans Association is trying hard to work with the VA on the issue of retroactive awards of our Agent Orange exposure claims. VA's proposed interim final rule addresses everything needed to provide our folks presumptive service connection for Agent Orange illnesses but it only recognizes claims from June 19 2015 forward.

VA states it will not permit retroactive claims, which VA does with other veterans' claims by back-dating compensation to the date the veteran files the claim with VA. In one instance, that has meant $130,000 to a post-Vietnam C-123 Reservist whose claim was decided before the rule VA now proposes. VA proposes that claims it delayed will be denied that retroactive adjustment, and that's wrong!

If the number of veterans VA expects to care for under the new rule generally have the same general original file dates as mine, for example, our veterans could be surrendering as much as $42,000,000 of back pay due us in this unfair process – that $133,000 apiece (four years times VA 100% SC.)

That is plain wrong! Wrong to punish us just because VA fought our claims which were proven valid by the IOM. Wrong to reward VA for denying us all benefits and compensation when their position against us is acknowledged to have been wrong even in the language of the Secretary's new rule.

So we will work hard on making this right. We have our arguments against VA's arbitrary date of June 19 2015 based on: 

1. Conflicts with earlier VA decisions by DRO & BVA that recognized fact-proven claims
2. Treats new claims differently than claims already awarded by VA
3. Forces veterans to surrender earned retroactive compensation without due process, even though these vets have faced years of denial of all VA care and benefits with claims unfairly denied with all facts now recognized in the Secretary's interim final rule. Everything the Secretary acknowledges in the details of the final rule was available to VA in 2011 yet VA failed to honor its duty to consider claims even on what it termed "a case by case" basis, forcing vets to seek care elsewhere or do without altogether. It would have been even a stronger case for acknowledging the claims had VA revealed the March 2013 report from the DOD Joint Services Records Research Center confirming the veterans' exposure, primary evidence VA officials suppressed contrary to VCAA.
4. Ignores VA OGC opinions' as mandatory precedents
5. Inserts a challenge on the issue veteran status not already raised in denied claims awaiting BVA or DRO - those claims were denied for scientific reasons now resolved by IOM but VA's new rule inserts a previously unvoiced challenge that C-123 folks weren't veterans, a point only possible by disregarding the OGC opinions
6. Ignores the March 2013 DOD JSRRC confirmation of the veterans’ exposures over two years earlier that should have forced recognition of the claims per VCAA and VA regulation VAM21-1MR
7. Fails to consider claims in a pro-veteran, non-adversarial, paternalistic and sympathetic manner as per law. VA fought to construct a barrier rather than letting itself remove one.
8. Abuses veterans rights through VA’s demonstrated intransigence in resolving the C-123 question when all evidence was available years earlier; VA uses the new rule to deny C-123 veterans benefits for the years VA stalled recognizing their claims, indeed, even ordering them postponed until the IOM, despite having all the convincing scientific and medical information in-hand all the years veterans claims were denied or delayed

Please go to the Federal Register web page to enter your comments! Today the VA blocked my comments above, so please lend your voice to the struggle.

18 July 2015

VA Awards First C-123 Agent Orange Claim to Ed Kosakoski

Great News!

Retired LtCol Ed Kosakoski, former commander of the 74th Aeromedical Evacuation Squadron, Westover AFB MA, was awarded service connection for his Agent Orange exposure and resultant prostate cancer. The VA's action was taken yesterday, July 17 and retroactive to June 19. 

Staffers for Under Secretary for Benefits Allison Hickey notified his family of the good news. Ed's claim happened to be the first to be processed under the VA's interim final rule ordered by Secretary McDonald for post-Vietnam C-123 veterans, with the St. Paul VARO assigned to process all C-123 claims.

A pharmacist in civilian life, Ed's military service began in the Army, rising to Master Sergeant before earning his Air Force commission and transfer to the Air Force Reserve. As a squadron commander he took special interest in helping his senior airmen earn their commissions, and so many did his unit developed a reputation as "Colonel K's OCS." He is married to retired active duty LtCol Ingrid Kosakoski.

Good job, VA!

17 July 2015

Air Advisors Focus on Medevac Skills in Kabul

(from Air Force Association)
Air advisors with the Train Advise Assist Command-Air hosted 10 Afghan flight medics and a flight nurse for medical evacuation training on July 9 at Kabul international airport, where they simulated medevac procedures on a C-130H Hercules. Advisors and their trainees worked to reconfigure the cargo compartment with stretcher stations, and conducted procedures such as offloading patients and setting up litters. 

Afghan medics receive basic medical training through their national medical hospital, and then are sent to TAAC-Air for additional instructions to improve skills and techniques for medevac missions, TAAC-Air officials said. In order to build a sustainable training plan for Afghan military medics, TAAC-Air advisors are refreshing skills, such as movement fundamentals, with their trainees. The Afghan flight medics are the "cream of the crop," said MSgt. Matthew Scott, the senior enlisted advisor at the NATO clinic in Kabul and an​ emergency room manager from Eglin AFB, Fla. 

"We are working to get the young medics involved and get them so they can assist the experienced medics and soon do it by themselves," he added. The TAAC-Air advisors host weekly training events with the Afghan flight medics, with assistance from USAF aeromedical evacuation experts.

16 July 2015

VA starting to have good news for 74th AES C-123 veterans!

News today that two AME folks have received their VA disability decision...and both were positive!

Dick Matte, who is hospitalized and hoping to get transferred to a rehab center, received his 100% VA disability award, backdated a year (he thinks.) Dick previously got a partial award from VA and this completes things. Now, Dick will need to arrange his state benefits and the Combat Related Special Compensation program. Dick's clam was a regular claim for exposure, following an initial denial and an appeal with the help of Yale Law School. Coming before the VA's new C-123 decision, this makes Dick one of the very few C-123 vets succeeding in their claims thus far.

Ed Kosakoski, long-time commander of the 74AES, is in home hospice and VA called to say his prostate cancer has been given a 60% disability rating, with other issues still being considered. This should help both families and what a relief! Ed's claim may be the very first processed under VA's new C-123 Agent Orange exposure rule.

Good job, VA! Thanks for taking care of our friends!!

14 July 2015

VA Resolves Claims Backlog Through Veterans' Deaths; 1/3 on backlog have died per VA report

WASHINGTON -- More than 238,000 of the 847,000 veterans in the pending backlog for health care through the Department of Veterans Affairs have already died, according to an internal VA document provided to The Huffington Post.

Scott Davis, a program specialist at the VA's Health Eligibility Center in Atlanta and a past whistleblower on the VA's failings, provided HuffPost with an April 2015 report titled "Analysis of Death Services," which reviews the accuracy of the VA's veteran death records. The report was conducted by staffers in the VA Health Eligibility Center and the VA Office of Analytics.
Flip to page 13 and you'll see some stark numbers. As of April, there were 847,822 veterans listed as pending for enrollment in VA health care. Of those, 238,657 are now deceased, meaning they died after they applied for, but never got, health care.

While the number is large -- representing nearly a third of those listed as pending -- some of the applicants may have died years ago. The VA has no mechanism to purge the list of dead applicants, and some of those applying, according to VA spokeswoman Walinda West, likely never completed the application, yet remain on the pending list anyway. West said the VA electronic health record system has been in place since 1985, suggesting some of the data may be decades old and some of those people may have gone on to use other insurance.

About 81 percent of veterans who come to the VA "have either Medicare, Medicaid, Tricare or some other private insurance," said West. "Consequently, some in pending status may have decided to use other options instead of completing their eligibility application."

But Davis disputed West on every point. For starters, an incomplete application would never be listed as a pending application, he said. Beyond that, the health records system West is referring to is just that: general health records, not pending applications for enrollment in health care. The VA has only required enrollment in health care since 1998, he said, and there was no formal application process before that. Davis provided an internal VA chart that shows backlogged applications only beginning in 1998.

As for some vets having other insurance, Davis said it is "immaterial and a farce" to suggest that means VA shouldn't be providing vets with the health care they earned.

"VA wants you to believe, by virtue of people being able to get health care elsewhere, it's not a big deal. But VA is turning away tens of thousands of veterans eligible for health care," he said. "VA is making it cumbersome, and then saying, 'See? They didn't want it anyway.'"

At a minimum, the high number of dead people on the pending list indicates a poor bookkeeping process that overstates the number of living applicants -- a number that should be closer to 610,000.
Davis sent copies of the report to House and Senate committees that oversee veterans affairs, and to the White House, hoping to spur congressional and presidential action to pressure VA to clear its health care backlog.

A spokesman for the Senate Veterans Affairs Committee did not respond to a request for comment. Eric Hannel, the staff director of the House Veterans Affairs Subcommittee on Oversight and Investigations, said his team is looking into the report's findings.

"We take it seriously," said Hannel.

A White House spokesman did not respond to a request for comment.

Davis recently sent a letter to Sen. Johnny Isakson (R-Ga.), who chairs the Senate Veterans Affairs Committee, laying out the problems with the health care backlog. He highlighted that 34,000 combat veterans are among those listed as pending for health care -- none of whom should be on that list since combat veterans are granted five years of guaranteed eligibility for VA health care.

"They have no business being there," he said. "These are men and women who served in Iraq and Afghanistan."

The best thing President Barack Obama can do, said Davis, is force the VA to allow veterans to upload their so-called DD-214 forms when they apply for health care. The form is a lifelong document that shows a person's military record. If veterans could use it to show their eligibility for health care, and if the VA assigned staff to review all of the pending applications, it would clear the logjam in the system, he said.

"The White House has the ability to direct the VA to do this immediately," said Davis. "That would get rid of the pending eligibility issue."

08 July 2015

C-123 Agent Orange Breast Cancer – What Do We Know So Far?

We've just started looking into this terrible disease which seems to strike veterans more frequently than women without military service. In particular, we want to address Agent Orange exposures aboard our C-123 aircraft. There seems to be an association between the confirmed dioxin exposure on the C-123s and the women's long-term, low-dose exposures between 1972-1982.

We don't know much. I'll list here what we've got so far:

1. We don't know the details of our own cohort...who many women, how many illnesses?

2. We don't find strong association of dioxin exposure with breast cancer in the literature.

3. WHO says dioxin increases the risk of all cancers. Men also get breast cancer, but more rarely.

4. VA does not include breast cancer among their list of Agent Orange-presumptive illnesses.

5. Our exposure range in age of the veterans spans most of the reproductive years (age 18 & up)

6. According to Lurker et al., the primary route of exposure is dermal to oral with a minor contribution from inhalation and not very much contribution from direct dermal contact

7. Our population is too small for a valid epidemiological analysis, so we may have to be satisfied with spikes and raw data. With regards to an epidemiological study, the Agency for Toxic Substances and Disease Registry (ASTDR) provides epidemiological studies of hazardous waste sites that are on the National Priority List (NPL). Typically, ASTDR staff and local public health officials identify the number of cancer cases in the area around the site and compare them to what the normal rate of cancer would be (i.e., a control group outside the affected NPL site).

8. VA is required to assess our claims in a pro-veteran, non-adversarial, paternalistic manner. While it's not likely, we can hope that VA's subject matter experts can offer input.

9. VA does not list breast cancer among the presumptive illnesses recognized for service connection, so breast cancer will have to be approached on a "fact-proven" basis for which we must establish at least a plausible medical nexus.

10. There are many potential allies in the breast cancer community to whom we can reach out for help.

11. We have momentum and credibility, having fought the basic C-123/Agent Orange battle and won.

12. We don't have and don't want funds, either raised from among ourselves or accepted from outside.

13. If this takes a long while, resolution is likely to be more for our survivors than ourselves.

14. Our veterans need to submit claims to the VA for any and all ailments, even if not presently on VA's list of recognized Agent Orange illnesses. Benefits date from the application.

C-123 Agent Orange Exposure & Breast Cancer

Breast Cancer: I need input on this as we try to convince VA to extend their Agent Orange coverage to include breast cancer. 

Please let me hear from survivors, researchers, epidemiologists...all those with an expert insight to this problem.

03 July 2015

Federal Court Sides With Veterans in Toxic Exposures Lawsuit

Ninth Circuit Court sides with veterans in toxic exposures suit, and includes a sly dig at the quality of VA medical care.

The U.S. military must continue to alert veterans exposed to chemical and biological weapons experiments of any new information that may affect their health and provide them ongoing medical care, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed in part, and reversed in part, a ruling by U.S. District Judge Claudia Wilken.
Wilken sided with the plaintiff class, comprised of thousands of Army veterans, in sustaining claims that the government had duties to them and that those duties were judicially enforceable. The appellate panel agreed, but also reversed a part of the judge’s order.
Wilken, while finding that the government was obligated to provide medical care to the test subjects, declined to compel the U.S. Army to provide that care on the grounds that care was available through the Department of Veterans Affairs. But the appeals court said that was an insufficient basis to deny the requested relief because there was no evidence that the care available at the VA would be “equal in scope and quality” to what the veterans are entitled to.
Health Problems
The plaintiffs sued the CIA, the Department of Defense, and others, accusing them of failing to properly treat health problems caused by the experiments, which took place between 1942 and 1975. They said the government exposed them to chemical agents, germs and drugs in researching how to defend against nontraditional weapons attacks, and failed to provide proper notice to many of the veterans about health hazards they faced by participating in the experiments.
The government has acknowledged the testing program, and in fact a 1953 DOD directive, and an Army regulation dating to 1962, require that subjects be tested only with their informed consent. A 1988 amendment adds that “[t]he duty to warn exists even after the individual volunteer has completed his or her participation in research.”
The government argued, however, that the 1988 amendment is not retroactive, a position rejected by Wilken and the appellate panel.
Fletcher’s Opinion
Judge William Fletcher, writing yesterday for the Ninth Circuit, noted that the regulation was revised in 1990 to make it explicitly applicable to “[r]esearch involving deliberate exposure of human subjects to nuclear weapons effect, to chemical warfare agents, or to biological warfare agents.” The change, Fletcher said, “would have made little sense if the notice requirement applied only prospectively.”
The government’s contrary argument, he said, was a “convenient litigating position” rather than an administrative interpretation to which a court should defer.
“We conclude that [the regulation] requires the Army to provide former test subjects with medical care for any injuries or diseases that were proximately caused by Army experiments in which they participated,” Fletcher wrote. “The fact that the VA provides medical care to some former test subjects, for reasons independent of [the regulation] does not relieve the Army of its duty….”
Fletcher’s opinion was joined by Senior Judge Mary M. Schroeder.
Senior Judge J. Clifford Wallace dissented in part, arguing that the Army regulation does not include a “specific, unequivocal command” that the Army provide medical care to former research volunteers, and that the district judge’s order denying that form of relief should be sustained “on the alternative ground that their claim is not judicially enforceable under section 706(1) of the Administrative Procedure Act (APA).”
The case is Vietnam Veterans of America v. CIA, 13-17430.

Copyright 2015, Metropolitan News Company

30 June 2015

VA Answers Basic Questions About C-123 Agent Orange Claims! Hotline=1(800) 749-8387

July 2 - phone number the hotline is corrected here
 and is actually 1(800) 749-8387

A very kind response from Veterans Benefits Administration leadership! We asked for clear and simple instructions for our folks to follow and VBA just emailed us exactly that. Here's the scoop...read carefully and get those claims in if you have what you believe to be one of the Agent Orange-related illnesses. 

Specific claim situations:

a. no claims submitted yet 

Veterans with disability they believe is caused by Agent Orange exposure should file a claim for service-connected benefits on VA Form 21-526EZ (available at your local regional benefits office, through a Veterans Service Officer (VSO), or online athttp://www.va.gov/vaforms/ or file a claim online at https://www.ebenefits.va.gov/. 

Survivors whose spouses died from Agent Orange related disease should file a claim for Dependency and Indemnity Compensation on VA Form 21-534EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/

b. claims submitted no decision

If you already informed VA that this was a C-123 claim, you should just sit tight while we resolve the claim.  We generally work claims on a first in, first out basis, so if your claim has been pending six months or more, it should be near the top of our list.  If VA is not already aware that your claim is C-123 related, you should contact your VSO or call us at 1 (800) 749-8387 and request that we add that notation to your file and route your claim to the St. Paul, MN regional office.

c. claims denied not yet appealed

If you believe VA’s decision was wrong, initiate an appeal on VA Form 21-0958, Notice of Disagreement, available through your VSO and online at http://www.va.gov/vaforms/.  You have one year from the date we notify you of our decision to file an appeal that may protect the effective date.  After one year, you will have to file a reopened claim.  The process to reopen is the same as described under “no claim submitted yet”, but usually requires new and material evidence.  Because of the rule change, VA will consider the reopened claim even if you don’t have additional evidence.

d. claims denied and appealed

If the appeal is currently pending at a regional office or the Board of Veterans Appeals (BVA), you should make sure that VA is knows this is a C-123 claim.  If you’re not sure, you should contact your VSO or call us at 1 (800) 749-8387 and request that we add that notation to your file.  If your appeal is still at the regional office and you have more evidence to submit, mail it to the regional office intake address below.  If your appeal is pending at the BVA and you have more evidence to submit, mail it to the Board at the other address below.

RO appeals:
Department of Veterans Affairs
Claims Intake Center
Attention: C123 Claims
PO Box 5088
Janesville, WI 53547-5088

BVA appeals:
Department of Veterans Affairs
Board of Veterans Appeals
Attention: C123 Claims
810 Vermont Ave, NW
Washington, DC 20420

If you’re unsure where your appeal is inside VA, you can send evidence and information to either of the addresses and we will locate the file and forward the new evidence for consideration.

e. claims appealed, denied

If the claim was appealed and the appeal was denied, you can submit a reopened claim.  VBA requires new and material evidence to reopen a denied claim, but in this case the rule change is sufficient to reopen your claim. 

Veterans with disability they believe is caused by Agent Orange exposure should file a claim for service-connected benefits on VA Form 21-526EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/) or file a claim online at https://www.ebenefits.va.gov/. 

Survivors whose spouses died from Agent Orange related disease should file a claim for Dependency and Indemnity Compensation on VA Form 21-534EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/)

f. anything else?

I think we’ve covered all the bases, but we’re happy to answer any questions you or other C-123 Air, ground maintenance, and aeromedical crewmembers have.  If someone needs individualized advice on their claim, they should call 1 (800) 749-8387 and the experts will help sort out the issues.
Survivors should file reopened claims on VA Form 21-534EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/).  If they’re experiencing extreme financial hardship or fall into any of the other categories below, they should inform us and provide whatever supporting evidence they have.  Evidence that would support a finding of financial hardship, and allow us to move their claims to the head of the line, include things like
  • an eviction notice or statement of foreclosure
  • past due utilities notices, and/or
  • collection notices from creditors.

If they need help, they should work through a Veterans Service Organization or call the specialized C-123 claim processors at 1 (800) 749-8387.  They can also call VA’s primary claims help and information line at 1 (800) 827-1000.

Our response...Good job, VA! Thanks!

28 June 2015

Clear & Unmistakable Errors (CUE) Taint VA's C-123 Claims Processing

CUE has been committed on numerous occasions by the Department of Veterans Affairs in processing C-123 claims. We'll point out some CUEs of major significance.

CUE means that a veteran’s claim has been mishandled or unjustly processed to the point that the errors are so apparent and so prejudicial that the injustice is plain for all to see. 

VA commits CUE frequently and resists admitting it. The BVA and CAVC don't often recognize it either. VA's standards to acknowledge its own CUE are very high.

But their C-123 CUE record is both obvious and terrible. Let's look at some of their most painful examples of CUE violations all flowing from a single incident – and there are dozens more we don't have time to detail here.

The Incident: March 2013 receipt by Veterans Benefits Administration Agent Orange Desk of an email from Mr. Dominic Baldini, Chief, DOD Joint Services Records Research Center (JSRRC), confirming C-123 veterans' Agent Orange exposures. VBA did nothing with the JSRRC report, which came to light only in May 2015 through Federal court-supervised Freedom of Information Act releases by the VA.

Further, the JSRRC began issuing individual veterans' C-123 exposure confirmations in May 2014, none of which have been acted on by the VA, which instead ordered all C-123 claims "postponed" as they remained until June 2015. Thus, VBA improperly ordered claims to be denied, forbidding medical care and other benefits for two years after the first JSRRC confirmation and one year after the second JSRRC confirmation.

1. VA abused C-123 veterans rights to Due Process by denying claims and withholding compensation ("property") when VBA received, but failed to reveal, Department of Defense Joint Services Records Research Center (JSRRC) confirmation in March 2013 of our Agent Orange exposures. That confirmation was backed up with HQ Air Force Reserve Command tail number records of our former Operation Ranch Hand aircraft, with CDC confirmation of the harm caused by our exposures, and by the original and subsequent Air Force tests in 1979, 1994, 1996, 1977, 2000 and 2009. 

2. The same misstep regarding the March 2013 JSRRC confirmation had another CUE. VA's own regulation VAM21-1MR, requires that VA provide such information to claimants but VBA failed to do so. Federal courts have ruled the VA regulation to have the force of law, and VA's violation of its regulation was a clear and obviously prejudicial error.

3. VA is required by the Veterans Claims Assistance Act (VCAA) to provide all available government, as well as readily available non-government, records helpful to a veteran's claim. VA failed to do that with C-123 vets when they withheld the JSRRC exposure information.

4. Very specifically, 38 C.F.R. § 3.156(c) provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back. No C-123 veteran whose claim was denied was permitted this protection. The March 2013 JSRRC confirmation (from DoD, "the relevant service department") had no VBA reaction, which should have been to permit all denied claims to be reconsidered. Instead, VA took no action at all, other than to dispute the JSRRC input, and not reveal it to veterans.

A single example of VA action, tied to four or more Clear and Unmistakeable Errors. A perfect example of how VBA fought off C-123 veterans' claims for four years, regardless of the merit of our arguments...merit finally confirmed by VA but only after the January 2015 release of the Institute of Medicine C-123 Agent Orange report.

No veteran such be the subject of such determined VBA CUE, but over 2100 men and women were abused by staffers in VA determined to block any and all C-123 claims. CUE didn't seem to deter them at all. 

Not a problem, at least from the VA's perspective. We paid the price for their erroneous and unconstitutional actions.