02 May 2015



By Holly Zachariah
The Columbus Dispatch  •  Saturday May 2, 2015

As a young man, Ralph DeSanto Jr. took apart the valves in front of him, valves that had come from C-123 aircraft that had repeatedly sprayed Agent Orange over Vietnam.

Each time he popped a rubber seal, he said, a tiny plume of red dust rose up. Inside each valve was the crystallized chemical from the herbicide that was widely deployed to kill the vegetation that concealed the enemy in the jungles and forests during the Vietnam War.

DeSanto never once thought that he should be worried, that he may be putting himself in danger, that with every touch of those airplane parts or with any swipe of residue he might have been increasing his risk for diseases.

But pressure is increasing by the day for the Veterans Administration to heed its own commissioned report released in January by the Institute of Medicine that said flight and maintenance crews such as the one that DeSanto was part of were exposed to high levels of dioxin. Advocates say the VA should expand the list of those eligible to receive benefits and care for Agent Orange-related claims to include them.

Until now, because those crew members were Air Force reservists and not classified as active-duty personnel, the VA has denied them veteran status and has not allowed their claims to any Agent Orange-related illnesses.

U.S. Sen. Sherrod Brown, D-Ohio, and six other senators last week sent a bipartisan letter to VA Secretary Robert A. McDonald, urging him to immediately use his executive authority to clear the way for the reservists’ claims.

“The VA’s position has been disappointing,” the letter reads. “It is our desire to see that C-123 veterans who suffer today because of service-related exposure to Agent Orange receive the help they need.”

Such a move could include as many as 2,100 former Air Force reservists from three bases, including perhaps as many as 1,200 who worked at Rickenbacker from 1972 to the mid-1980s, when the last C-123 that had been used to spray the chemical left the base.

Senator Jeff Merkley (Oregon) – Statement of Support for C-123 Agent Orange Veterans

Senator Merkley and his colleagues insist
that VA act now for C-123 veterans

Washington, D.C.  May 1, 2015   STATEMENT:

The Vietnam War ended almost 40 years ago, but some of our veterans are still suffering long-term health issues as a result of that war.  And there's at least one group of veterans who never even served in Vietnam, yet are casualties of the war nonetheless.  It's time to get them the health care they need and deserve.

Their story stems from their service aboard Fairchild C-123 planes in the '70s and early '80s.  Those planes were used to spray Agent Orange during the war, but were never properly decontaminated. An estimated 1,500 to 2,100 of our service members, including many reservists, trained and served on those planes until they were decommissioned in 1982, exposing them to dangerous levels of dioxins.

For nearly four years, I have worked to get the VA to recognize the claims of post-Vietnam veterans who flew in these contaminated planes.  Earlier this year, an Institute of Medicine study confirmed what I had been telling the VA for years: post-Vietnam veterans who served on the affected planes were exposed to potentially dangerous levels of dioxins - deadly compounds found in Agent Orange and other herbicides.

Recently, the VA took the first step towards ensuring veterans with diseases resulting from that exposure receive the proper benefits and compensation they deserve.  But our work is far from over.  The VA is still refusing to help former reservists.

Last week, I called on VA Secretary Robert McDonald to take the next step and extend full benefits and compensation to all affected C-123 veterans -- including reservists, who may constitute a vast majority of those affected.

Taking care of our service members is fundamental to who we are as a nation. We must uphold our promise to those who wear the uniform and fight for our nation. In the coming weeks, I will continue to push the VA to ensure that C-123 veterans get the help they deserve. They have stood up for us, and we must stand up for them.

note: The above proactive went out this week to an audience of 10,974.  This list was composed of veterans, family members of veterans, active duty military, those that have contacted Sen. Merkley's office in support of veterans issues, and contacted the Senator regarding the issue of Agent Orange.

01 May 2015

How Can (or Should) SECVA Address C-123 Agent Orange Claims"

We have maintained since first reading the Federal Register statements by VA about non-Vietnam Agent Orange exposures that the Secretary has every authority needed to act now. Without delay and without unnecessary legislation.

We also felt it was appropriate to also skip additional regulations. After all, three times VA explained to Congress and the people that VA would act to treat all non-Vietnam veterans' exposures the same as Vietnam veterans' exposures as regards presumptive service connection.

Why? Because a new regulation has to be published in the Federal Register and a period for public comment provided. The comment period, anywhere between thirty and ninety days, is to invite as broad a response from the public and stakeholders as possible. Sometimes, even 180 days might be provided. Whatever the comment period, that's time our folks are bared from VA hospital and other federal and state benefits...time we no longer have to fritter about waiting for VA to get itself organized.

So we'd recommended a comprehensive training letter instead. Telling the VBA and VHA staffs, especially claims adjudicators, that VA would henceforth recognize C-123 veterans' Agent Orange claims seemed a logical, simple and expedient approach.

If this mess is ever resolved without legislation, it will require such a training letter, or a new regulation under the Secretary's present authority.  If it is to be a regulatory approach, we can only hope that the comment period will be the minimum thirty days, and that some interim steps might be provided for meeting veterans' needs while the process plays out.

It has been years. There are so many fewer of us today than in 2011 when we began. VA: do something.

29 April 2015

2007 Federal Court Decision on Agent Orange Veterans Rebukes VA Reactionaries

"What is difficult … to comprehend is why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order [in 1991], continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to … veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct.” 
Nehmer v. VA, 494 F.3d 846, 864-865 (9th Cir. Cal. 2007)

28 April 2015

VA Secretary McDonald's March 17 Memorandum on C-123 Agent Orange Veterans

We haven't seen it but have had references from various sources. We've heard enough to be disappointed.

We'll have faith that the Secretary of Veterans Affairs meant for VA to respond effectively to C-123 veterans, but his Office of General Counsel (OGC) has been very effective in preventing any impact that matters.

Apparently responding to the January 8, 2015 report to the Secretary by the Institute of Medicine C-123 Agent Orange Committee, Secretary McDonald has issued a memorandum summing up the VA reaction and plan going forward, but his plan was created by OGC in defiance of the committee set up by the Secretary to recommend his response. The committee recommended a much more reasonable course, but the OGC felt it best to prevent veterans' care with their own plan.

Our first response to the Secretary's action is that we're grateful that the memorandum acknowledges the IOM report, and concurs with its finding of exposure and harm to the C-123 aircrews and maintainers.

Our next response is one of bewilderment. While the VA now agrees we were exposed and harmed flying the former Agent Orange spray aircraft, the Office of General Counsel developed its extra-legal approach which prevents any medical care or benefits. Widows, widowers and disabled vets whose claims have been in for years are blocked from any VA care.

How? By the OGC decision to limit service connection from March 17 going forward, and just to those Reservists who happened to develop their prostate cancer over the weekend duty. By limiting all benefits to Reservists whose ALS developed during their two-week annual training. By limiting benefits to Reservists whose soft tissue sarcomas, or any of the other recognized Agent Orange illnesses, developed during, and only during, their Reserve duties.

But there likely aren't any aircrew or maintenance personnel affected by the Secretary's memorandum because science and medicine know perfectly well these Agent Orange illnesses take decades to manifest themselves. Thus VA yields nothing, concedes nothing. Cares about nobody. Saves VA money.

We've learned that VA's OGC approach endangers today's Guard and Reserve forces. Reserve Component volunteers who deploy on some hazardous situation in which they are exposed to horrible diseases such as ebola and return to civilian status when the mission has been completed, will be refused care and benefits from the VA when the disease completes its two week incubation period and the Reservist is struck with horrible illness.

VA has responded to the four year C-123 thorn in its side with courtroom adversarial lightning bolts. VA found a clever way to say "We care" while simultaneously preventing care for all C-123 veterans as well establishing a new and magnificent barrier to all future pesky Reserve Component disability claims.

Dengue fever, malaria, ebola, burn bits, insect bites, dirty water, any and all other environmental hazards which present an illness taking time to develop...VA will care only for personnel (read none, except sudden-type situations like snake bites or chemical burns) who develop the illnesses while on duty. If a disease in its natural course takes a few days or weeks to develop and the Reservist has returned to civilian life in the meantime, too bad. VA announced April 16 it save money and keep appointment lines in its hospitals shorter by refusing any and all benefits with firmly-expressed appreciation for their service and regrets that the volunteer dead or dying servicemembers aren't real veterans.

OGC's inventive but certainly extra-legal approach has been challenged by Senate and House leaders, by veterans service organization, legal scholars, and C-123 veterans themselves.  At this point, things seem to have stalled for weeks. The Secretary's actual plan, announced to the Senate Veterans Affairs Committee as ready for implementation by early March, still flounders.

And veterans are still refused care. And OGC has developed a whole new way to prevent care sought by today's veterans exposed to harmful biological or toxin agents. Real Perry Mason stuff, this!

By the way, let's hope the VA informs DOD of their decision, because somebody has to tell the Reserve Component servicemembers still volunteering for such duty placing them in harm's way without VA at their back.

Maybe some firm should market a special health insurance scheme for the US Army Reserve, US Marine Corps Reserve, Navy Reserve, Coast Guard Reserve, Air Force Reserve, Air National Guard and Army National Guard.

As soon as those volunteers learn that once finished with their Reserve duty, VA won't care for them and neither will DOD's health care facilities, they'll either be out of the military or well-advised to insure themselves: DOD and VA won't.

"To render a decision which grants every benefit that can be supported in law while protecting the interests of the Government"

VA Office of General Counsel (OGC) considered the needs of C-123 Agent Orange veterans and, skillfully skirting the requirements of law expressed above for policy reasons, ruled the VA would not care for them in any way. Other than the Secretary of Veterans Affairs' memorandum acknowledging their exposures and the harm cause by Agent Orange, OGC felt the most they could stretch the law was to simply say "no."

As regards VA's statutory "duty to assist," it is hard to consider the $600,000 no-bid, sole source contract awarded an opponent of C-123 veterans' claims as assistance in any form. Rather, VA has provide none since we first approached them with our exposure concerns. Perhaps, at some distant BVA or COVA hearing, VA will permit me to see my C-file, and consider that satisfaction of their legal duty to assist me, and those like me, in our claims.

"Grants every benefit" quoted above from the statute has instead meant OGC must prevent any benefits at all, and they are great courtroom attorneys.

They were faced with their own binding OGC opinion which has stood for over a decade, which they dismissed by saying it was flawed. Blithely, they ignored expert legal input from Yale School of Law which perfectly detailed C-123 veterans' eligibility for "veteran" status per federal statute and entitlement to VA care and benefits.

OGC smiled at all the legislative and political pressure directed at them to do right by C-123 vets, but then dismissed all the authority granted by Congress to the Secretary, as well as his obligation to do all duties prescribed by law, by saying it was best left to the Congress to get around to the veterans' needs perhaps someday in the future. Also, OGC ruled it best to use VA's proposed legislative language which blocked any benefits for widows, widowers, and vets whose claims have been in since 2007. Studies eventually showed VA's  proposed weak legislation won't affect any C-123 vets at all...objective met!

Yup, best to do nothing. That was their superb courtroom approach. Problem: we aren't in a courtroom and this is a non-adversarial process. Actually, OGC should be helping the Secretary find, rather than avoid, a path forward to care for us.

Certainly, if VA was attempting to fight something for which their OGC precedential opinions and statutory duties were favoring the VA, VA would cite everything possible to get their way.

But not here. Rather than being the veterans' advocate by serving the Secretary well, OGC seeks to save VA money to help build the Denver VA hospital, and meet other needs, by ensuring Post Deployment Health's position against C-123 veterans' claims remains denied today, just as in 2011.

VA OGC Mission: Prevent claims when possible, delay claims in all cases, and PROTECT THE INTERESTS OF THE GOVERNMENT as best fitted to Post Deployment Health policy.

27 April 2015

Senate AGAIN Demands VA Action For C-123 Agent Orange Veterans

Following the April 9 conference at the Senate Russell Building to address C-123 Agent Orange veterans' medical and compensation benefits, senior members of the United States Senate repeated their earlier bipartisan demand that VA Secretary McDonald exercise his existing authority and order appropriate action now.

Initially, VA expected to propose legislation using language already agreed-upon by Senate staffers. Just before the conference VA pulled the legislation which had been objected to by the C-123 Veterans Association. The vets faulted VA for having inserted language barring retroactive claims, meaning those whose illnesses manifested over the years and who submitted claims not yet approved would be denied coverage and all claims honored only from March 17 2015 forward.

Actually, the entire idea of legislation was objected to, as everyone except VA realized the Secretary had all the authority needed to act immediately. Legislation would delay yet further any relief for veterans whose illnesses had been evident for years, and has the risk of not being enacted at all.

On April 23, Senators Burr, Merkley, Blumenthal, Brown, Bennet, Warren and Wyden forwarded a joint letter to Secretary McDonald. Outlining in detail the legal basis for Secretarial action versus legislation, the letter requested firm action by the VA within fourteen days. Their letter closely paralleled the scholarly, in-depth analysis authored by Yale University School of Law, the C-123 Veterans' legal advocate.

Today's Developments re: JSRRC C-123 Veterans' Agent Orange Exposure Claims – "The Rest of the Story!"

Our last post detailed the decision by the Huntington WV Veterans Affairs Regional Office in denying a C-123 veterans' claims for a variety of illnesses associated with his Agent Orange exposures at Westover AFB, MA. Huntington denied, citing the JSRRC report which detailed NO Agent Orange use at Westover AFB, MA.

Correct. But what Huntington failed to do was include the affirming language also in the JSRRC report which very much confirmed the veteran's exposure claim.

Get it? Huntington wanted the claim denied, so Huntington VARO carefully selected language (out of context) to cite refusing the claim, and also very carefully selected language they didn't want in the report, so as to make sure the claim was denied but looked as though the JSRRC report was in the negative. 

Thank you, JSRRC, for clarifying this situation!!

Very creative. Very wrong. This must be corrected by Veterans Benefits Administration! Here is the language Huntington opted to skip over to screw the veteran:

VA Continues Denying C-123 Vets' Agent Orange Claims–Merely Changes Their Wording

(please see today's next posting correcting the JSRRC actions which were perfect, as this error rests with the Huntington WV VARO)

It never stops.

Post Deployment Health in VA's Veterans Health Administration said no C-123 claims would be honored on their watch, and they continue to call the shots by ordering Compensation and Pension Service to make sure all such claims are denied.

Today we were copied on a VA Regional Office decision on one of our flyers. Like Paul Bailey and Dick Matte's earlier claims for Agent Orange exposure aboard the C-123 fleet at Westover, this NCO flew the same C-123s during the same time period. Unlike them, his claim remains denied. And will stay denied until reviewed by a Decision Review Officer or the BVA.

What is particularly weird here is the Joint Services Records Center response about the veteran's exposure claim. As far back as March 2014, JSRRC began confirming Westover's C-123 veterans' Agent Orange situation, yet here JSRRC denies it. So, VA refuses to accept JSRRC confirmation on other claims, but when JSRRC responds (incorrectly) in the negative, VA leaps at the opportunity to sink another deserving veteran's disability claim.

25 April 2015

VA Expands Choice Program Eligibility, Effective Immediately

In order to expand eligibility for the Veterans Choice Program, the Department of Veterans Affairs (VA) today announced that it will determine eligibility for the Veterans Choice Program based on the distance between a Veteran’s place of residence and the nearest VA medical facility using driving distance rather than straight-line distance. This change has been published in the Federal Register and is effective immediately. (4/24/15)

Good move, VA!

24 April 2015

VA Agrees C-123 Personnel Exposed to Agent Orange, But Pretends They Aren't Veterans & Blocks Benefits

Last Thursday Congressional staffers, veterans service organizations, legal scholars and C-123 veterans met with the VA's Office of General Counsel Mr. Richard Hipolit. Despite all their disagreement about VA's approach to preventing medical care and other benefits for Reservists they agree were harmed by Agent Orange exposure, agreement was reached on one important issue: Ebola.

Actually, on any situation like ebola, but that disease was offered as an example by the C-123 Veterans Association spokesperson. If a C-17 transport crewed by Active Duty, Air Guard and Air Force Reservists were sent on a humanitarian mission to West Africa, and the crew returned home and went about their regular lives but developed ebola after a week, only the Active Duty aircrew would be cared for by the VA.

VA officials agreed with the example that because the Guard and Reserve members' ebola didn't develop while they were on active duty but after, as is the natural course of ebola and so many other toxin and biologically-induced illnesses, the VA would not offer any medical care to them. The VA's interpretation of "veteran" status of veterans* exposed to anything is that an illness (read "injury") must manifest itself during the duty period.

So, if no overnight cancers, if no overnight ALS, if no weekend ebola, the aircrews and maintainers who were asked to volunteer are are their own when these ailments appear once off duty, even if scientifically and medically tied to their duty exposures. Surviving families are also to be abandoned by VA when mom or dad Reservist dies from the illness contracted while serving.

Even when the Institute of Medicine "emphatically" informed VA that C-123 crews were exposed to Agent Orange, and even though the Secretary signed a March 17 2015 memo agreeing with that finding and restating the VA's duty to protect, VA has found (actually, created) a means to prevent caring for ill aircrew and maintenance veterans. By deciding we aren't veterans, even if we were legally qualified as veterans before flying C-123, after flying C-123s, or both.

Clearly, VA OGC's flawed legal perspective also fails every real-world test.

Their agency, responsible for meeting the medical and other needs of those who volunteer to serve, is so eager to block C-123 veterans' benefits that it has constructed a flawed legal theory...so flawed that today's Reserve Components would be unlikely to volunteer if properly informed of the risks.

Actually, our airmen are and always have been patriotic enough to volunteer and probably would do so in any situation...but they'd be foolish, knowing that the VA has determined in advance to abandon them.

VA's proposed language to address C-123 servicemembers but withdrew it under severe criticism. OGC said they would reconsider the entire situation. The proposed legislation would, if enacted, protect C-123 Agent Orange victims by making them veterans by statute, but not resolve the conundrum DOD faces with Reserve Component volunteers left unprotected in all other situations. Like ebola.

* While VA Office of General Counsel binding opinions and BVA decisions clearly say otherwise, OGC maintains under 38 U.S.C. § 101 (24) that Agent Orange-ill C-123 aircrews and maintainers were exposed in a proper duty status but weren't "injured" at the same time as the exposure. Statutes explain that Reserve Component members who are injured on Reserve duty earn "veteran" status thereby and thus are protected by appropriate veterans benefits. Yale School of Law produced very relevant point papers disagreeing with OGC, a position joined by all veterans service organizations, and members of the House and Senate.

22 April 2015

How Board of Veterans Appeals Sinks C-123 Exposure Claims

The impact of VHA's Post-Deployment Health Section is felt throughout VA and the veterans' community. Especially, it is felt by veterans whose appeals to the Board of Veterans Appeals are torpedoed by the unscientific policy statements fielded by Post-Deployment Health.

Below is a BVA finding which touched on a veteran's exposure claim. Look at the wording used by the BVA judges, especially "reviewed all available scientific information..."

But Post-Deployment Health didn't review all available information. Instead, they were charged with creating policy statements to block C-123 veterans' exposure claims. That meant they selected materials which opposed the basis for C-123 claims, and ignored materials which supported the claims.

If a scientific reference doesn't support the policy of preventing C-123 claims, VA doesn't mention it. Anything supporting a veteran's claim is disregarded in favor of materials selected by VA to deny claims.

So "all available scientific information" is VA-speak for carefully selected materials to prevent claims, not actually all available information. If VA had opted to provide a more scientific basis for considering C-123 claims, they wouldn't have ignored input from the CDC/Agency for Toxic Substances and Disease Registry, the US Public Health Service, the National Institutes of Health, Oregon Health Sciences University, Columbia University and others. VA wouldn't have ignored VA researchers and physicians who affirmed C-123 exposures, or ignored juried publications including the February 2014 Environmental Research article.

The paragraph below is from a recent veteran's claim denied by the Board of Veterans Appeals, citing boilerplate language about how Public Health reviewed "all scientific information" when, in fact, Public Health disregarding all information supporting C-123 veterans' claims and cited only those materials agreeing with VA policy. Further, the quote proves the BVA itself disregards any evidence favorable to C-123 veterans.
Furthermore, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange.  VA's Office of Public Health is noted to have reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces.  It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.  See http://www.publichealth.va.gov/exposures/agentorange.

C-123 Veterans Still REFUSED Agent Orange Registry Exams!

Last week two C-123 veterans notified me that they'd arranged Agent Orange Registry exams, and one said he was refused. Today I phoned eighteen VA medical centers to speak with their Environmental Health Coordinators to see what responses they'd offer to inquiries about C-123 AO exposures. (Note: one of the two Agent Orange exams mentioned above was cancelled this morning when West Roxbury VA telephoned the veteran to cancel her appointment, saying "official word had to come down before such exams were authorized.")

For years, Post-Deployment Health explained that C-123 veterans are not eligible for the Agent Orange Registry exam because they already determined we were never exposed. I've double-checked this personally but that was a year or more ago. After last week's meeting at the Senate Russell Building and with VA officials at 1800 G Street, I'd hoped more accurate information would be offered our veterans asking about the Registry exam.

Results: In five cases I left messages as their phones were unanswered, and two returned my calls.In ALL but one call where I was able to speak directly with the Environmental Health Coordinator, I was told that Reservists without Vietnam, Korea or Thailand service are ineligible for any Registry exam as well as ineligible for any other VA medical care. I spoke with Vermont, New York, Colorado, Florida, Arkansas, North Carolina, Arizona and other states.

The reason cited (in all but one case) was that the Agent Orange Registry is for active duty veterans only, not Reservists who only served in CONUS or Europe.

One coordinator asked a few questions and I explained I had cancer which had spread rapidly before my recent surgery. She still said I wasn't eligible for any care at all without service in Vietnam, Korea or Thailand. While I am already 100% service connected for other issues, she didn't ask any qualifying questions but wished me well. I didn't offer but only two coordinators asked for my social security number which would have led to their offering specific advice as to VA care for which I'm eligible.

The first return call was from Little Rock. He asked if I'd served in Vietnam, Korea or Thailand, and I mentioned post-Vietnam C-123. He then said as of 15 March VA is waiting for Congress to act and until then I'm not eligible for the exam. No other questions although I volunteered I had cancer surgery. He wished me well as he hung up. A Georgia VA facility said he'd have to wait until the Institute of Medicine report was acted upon by VA to permit me to have an Agent Orange Registry exam. Like the others, he asked no questions and made no suggestions regarding care.

One coordinator explained that the Registry exam played no role and said I could submit a claim without it. Two said they'd check further and get back to me.

Only the Asheville (NC) VAMC offered what I understand to be the correct answer: C-123 vets who believe themselves exposed can request the Agent Orange Registry exam. Priscilla offered to read or mail to me the VA web pages, and also told me how to find them myself. She asked for my last four which would have led her to my overall eligibility. She clearly wanted to be sure I was properly informed. Overall, whatever the official VA view is on Agent Orange Registry exams, clearly our C-123 veterans will not succeed in getting the exam.

Conclusion: C-123 veterans will most likely be refused the VA's Agent Orange Registry exam, even if the VA environmental health coordinator is told the veteran has an AO-recognized illness. There seems to be no recent guidance by VHA and Post Deployment Health's earlier order refusing the tests is still in effect.


18 April 2015

Are C-123 Veterans Actually Veterans?

No. Not if VA Office of General Counsel can prevent it!

"You're not veterans. Even if you were veterans before or after Reserve duty or even veterans in both situations, you're not veterans for purposes of Agent Orange exposure unless you qualify as such during your Reserve tour."

That was the VA Office of General Counsel talking last Thursday at the Senate Russell Building, defending its views in front of veterans service organizations,  Yale School of Law, House and Senate staffers, the media and others. The legal definition of "veteran" was raised as a stumbling block in our path to VA health care and other benefits.

Of course, this element of the puzzle could have been raised long ago and resolved, but for some reason, VA has a record of throwing obstacles one after the other, rather than putting everything on the table for the puzzle to be seen in one piece. Having resolved the scientific question of exposure through the Institute of Medicine C-123 report released in January 2015 (a process first discussed and promised the veterans in 2012,) VA OGC identified the statutory definition of "veteran" as its next barrier to our claims.

It turns out that VA benefits are available for Reserve and Guard members only if injured during Reserve duty, or if the servicemember completes a period of recall to Active Duty during the period in question. It is the view that Reserve and Guard, even if legally qualified as veterans before or after the period in question, are not "veterans" under the law unless they meet this criteria.

Example: a Reservist sent to duty in West Africa returns home and reverts to civilian status, develops ebola two weeks later. but is not a "veteran." Reason: because the illness or injury didn't actually manifest itself while the person was in uniform, even though the exposure occurred during Reserve duty. As ridiculous as this sounds, this exact scenario was run past VA Office of General Counsel and they agreed: VA actually would refuse care to an ebola-exposed Reservist.

The example closely parallels our Agent Orange problem.  We were exposed to the toxin dioxin in Agent Orange during the C-123 years of 1972-1982. However, soft tissue sarcomas and other Agent Orange illnesses don't manifest  themselves overnight, but instead can take decades for the exposure to be manifested in disease.

VA says because we didn't actually develop prostate cancer during a drill UTA, we were not injured in our Reserve status and therefore are not seen by VA as "veterans" for purposes of protection. An exposure to a Reservist which doesn't cause an immediate injury doesn't qualify the Reservist as injured and therefore a veteran under the law.

As you can imagine, this extremely restrictive OGC view didn't go unchallenged last Thursday. Rather, everyone present was of one voice: exposed C-123 servicemembers are veterans and are due VA care and benefits. There are a couple foundations for this challenge: in 2002 VA Office of General Counsel provided a formal precedent-setting option that a Navy Reservist given an anthrax vaccine who later developed serious illness qualified as a  veteran. It held that the vaccine was a foreign substance which injured her at the time of inoculation, even though the complications became evident years later. Our point: dioxin is a foreign substance which injured us.

VA OGC didn't take this quietly, Instead, they did the amazing thing of declaring their 2002 decision to be in error and therefore not applicable to the C-123. Nobody there was willing to let VA cherry-pick or redefine their own references and it was clear any final solution doing that was headed straight for court.

Still, the conference ended without degenerating into total chaos. VA OGC agreed that proposed legislation would be withdrawn, and to rethink the opposing arguments, especially in light of the unified front against the VA position. VA also came to realize that somehow language had been inserted in the proposed legislation barring retroactive claim awards, even if those claims had been in their system for many years.

"Active Service Criteria for Veteran Status (from the Congressional Research Service

“An applicant for VA benefits must have “active military, naval, or air service” to be considered a veteran for most VA benefits. However, not all types of service are considered active military service for this purpose.

In general, active service means full-time service, other than active duty for training, as a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or as a commissioned officer of the Public Health Service, the Environmental Science Services Administration or the National Oceanic and Atmospheric Administration, or its predecessor, the Coast and Geodetic Survey.

Active service also includes a period of active duty for training during which the person was disabled or died from an injury or disease incurred or aggravated in the line of duty and any period of inactive duty for training during which the person was disabled or died from an injury incurred or aggravated in the line of duty or from certain health conditions incurred during the training.

Additional circumstances of service, and whether they are deemed to be active military service, are set out in law. For example, if on authorized travel to and from the performance of active duty training or inactive duty for training, a person is disabled or dies while proceeding directly to or returning from such duty, the duty will be considered to be active duty for training or inactive duty for training."

17 April 2015

VA Secretary McDonald Orders Medical Care for C-123 Veterans!

Exercising his great authority on April 14, VA Secretary Bob McDonald ordered Veterans Benefits Administration and Veterans Health Administration to provide VA medical care to eligible C-123 veterans!

It is a victory for the Department of Veterans Affairs, with key players who've stood up for us also victorious: Allison Hickey, Linda Schwartz, the Secretary and others. VA succeeded in its mission with Secretary McDonald's message, and now those VA hospital doors are unlocked at last.

Good job, VA! While we have absolutely no idea how his orders will be implemented nor how long VHA expects to delay to get itself organized, this is wonderful news and shows the leadership we'd been hoping for.

AT LAST: VA RECOGNIZES C-123 VETERANS

From today's VA Compensation Service Bulletin:

The Department of Veteran Affairs has made the decision to consider a select group of Air Force Service members as being exposed to herbicides through regular and repeated duties while serving as flight medical and ground maintenance crew members on contaminated Operation Ranch Hand (ORC) C-123 aircraft that were used to spray Agent Orange in Vietnam.
The St. Paul Regional Office will process all claims for Agent Orange exposure related to C-123 Aircraft AO.  The St. Paul RO will be responsible to address all outstanding issues claimed. St. Paul Regional Office will take jurisdiction and follow standard claims processing procedures.



Since the St. Paul RO will have jurisdiction in these cases, I'm not sure what other qualifiers, or requirements are needed; however, they will provide the required information to the Veteran. Other ROs will merely forward such claims.

16 April 2015

Congratulations, Navy Reserve Association


Ten Things Every Veteran Should Know About Agent Orange

(Dr. Loren Erickson is a retired Army physician and VA public health expert.)

1. Agent Orange was a herbicide and defoliant used in Vietnam
Agent Orange was a blend of tactical herbicides the U.S. military sprayed from 1962 to 1971 during the Vietnam War to remove the leaves of trees and other dense tropical foliage that provided enemy cover. The U.S. Department of Defense developed tactical herbicides specifically to be used in “combat operations.” They were not commercial grade herbicides purchased from chemical companies and sent to Vietnam.
More than 19 million gallons of various “rainbow” herbicide combinations were sprayed, but Agent Orange was the combination the U.S. military used most often. The name “Agent Orange” came from the orange identifying stripe used on the 55-gallon drums in which it was stored.
Heavily sprayed areas included forests near the demarcation zone, forests at the junction of the borders of Cambodia, Laos, and South Vietnam, and mangroves on the southernmost peninsula of Vietnam and along shipping channels southeast of Saigon.

2. Any Veteran who served anywhere in Vietnam during the war is presumed to have been exposed to Agent Orange.

For the purposes of VA compensation benefits, Veterans who served anywhere in Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to herbicides, as specified in theAgent Orange Act of 1991.
These Veterans do not need to show that they were exposed to Agent Orange or other herbicides in order to get disability compensation for diseases related to Agent Orange exposure.
Service in Vietnam means service on land in Vietnam or on the inland waterways (“brown water” Veterans) of Vietnam.

3. VA has linked several diseases and health conditions to Agent Orange exposure.

VA has recognized certain cancers and other health problems as presumptive diseases associated withexposure to Agent Orange or other herbicides during military service. Veterans and their survivors may be eligible for compensation benefits.
  • AL Amyloidosis
    A rare disease caused when an abnormal protein, amyloid, enters and collects tissues or organs
  • Chronic B-cell Leukemias
    A type of cancer which affects a specific type of white blood cell
  • Chloracne (or similar acneform disease)
    A skin condition that occurs soon after exposure to chemicals and looks like common forms of acne seen in teenagers. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.
  • Diabetes Mellitus Type 2
    A disease characterized by high blood sugar levels resulting from the body’s inability to produce or respond properly to the hormone insulin
  • Hodgkin’s Disease
    A malignant lymphoma (cancer) characterized by progressive enlargement of the lymph nodes, liver, and spleen, and by progressive anemia
  • Ischemic Heart Disease
    A disease characterized by a reduced supply of blood to the heart, that can lead to chest pain (angina)
  • Multiple Myeloma
    A cancer of plasma cells, a type of white blood cell in bone marrow
  • Non-Hodgkin’s Lymphoma
    A group of cancers that affect the lymph glands and other lymphatic tissue
  • Parkinson’s Disease
    A progressive disorder of the nervous system that affects muscle movement
  • Peripheral Neuropathy, Early-Onset
    A nervous system condition that causes numbness, tingling, and muscle weakness. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of herbicide exposure.
  • Porphyria Cutanea Tarda
    A disorder characterized by liver dysfunction and by thinning and blistering of the skin in sun-exposed areas. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.
  • Prostate Cancer
    Cancer of the prostate; one of the most common cancers among older men
  • Respiratory Cancers (includes lung cancer)
    Cancers of the lung, larynx, trachea, and bronchus
  • Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)
    A specific group of malignant of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissues

4. Veterans who want to be considered for disability compensation must file a claim.

Veterans who want to be considered for disability compensation for health problems related to Agent Orange exposure must file a claim.
During the claims process, VA will check military records to confirm exposure to Agent Orange or qualifying military service. If necessary, VA will set up a separate exam for compensation.

5. VA offers health care benefits for Veterans who may have been exposed to Agent Orange and other herbicides during military service.

Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are eligible to enroll in VA health care. Visit VA’s health benefits explorer <http://hbexplorer.vacloud.us> to check your eligibility and learn how to apply.

6. Participating in an Agent Orange Registry health exam helps you, other Veterans and VA.

VA’s Agent Orange Registry health exam alerts Veterans to possible long-term health problems that may be related to Agent Orange exposure during their military service. The registry data helps VA understand and respond to these health problems more effectively.
The exam is free to eligible Veterans and enrollment in VA health care is not necessary. Although the findings of your exam may be used to inform your subsequent care, they may not be used when applying for compensation as a separate exam is required. Contact your local VA Environmental Health Coordinator about getting an Agent Orange Registry health exam.

7. VA recognizes and offers support for the children of Veterans affected by Agent Orange who have birth defects.

VA has recognized that certain birth defects among Veterans’ children are associated with Veterans’ qualifying service in Vietnam or Korea.
The affected child must have been conceived after the Veteran entered Vietnam or the Korean demilitarized zone during the qualifying service period.
Learn more about benefits for Veterans’ children with birth defects. http://www.publichealth.va.gov/exposures/agentorange/benefits/children-birth-defects.asp

8. Vietnam Veterans are not the only Veterans who may have been exposed to Agent Orange.

Agent Orange and other herbicides used in Vietnam were used, tested or stored elsewhere, including some military bases in the United States. Other locations/scenarios in which Veterans were exposed to Agent Orange may include:
Possible exposure of crew members to herbicide residue in c-123 planes flown after the Vietnam War

9. VA continues to conduct research on the long-term health effects of Agent Orange in order to better care for all Veterans.

VA and other Federal government Departments and agencies have conducted, and continue to conduct, extensive research evaluating the health effects of Agent Orange exposure on U.S. Veterans.
An example is the Army Chemical Corps Vietnam-Era Veterans Health Study designed to examine if high blood pressure (hypertension) and chronic obstructive pulmonary disease (COPD) are related to herbicide exposure during the Vietnam War. Researchers have completed data collection and aim to publish initial findings in a scientific journal in 2015.
Learn more about Agent Orange related studies and their outcomes here:http://www.publichealth.va.gov/exposures/agentorange/research-studies.asp

10. VA contracts with an independent, non-governmental organization to review the scientific and medical information on the health effects of Agent Orange.

VA contracts with the Institute of Medicine (IOM) of the National Academy of Sciences every two years to scientifically review evidence on the long-term health effects of Agent Orange and other herbicides on Vietnam Veterans. The IOM uses a team of nationally renowned subject matter experts from around the country to gather all the scientific literature on a topic, identify peer-reviewed reports, and then examine the studies to determine the most rigorous and applicable studies. The IOM looks for the highest quality studies. The IOM then issues its reports, including its conclusions and recommendations to VA, Congress, and the public.

About the author:
Dr. Ralph Erickson is an Army Veteran of the Gulf War (1990-91) and Operation Iraqi Freedom (2003). He retired with 32 + years active-duty service, during which he held a number of leadership positions to include:  Commander of The Walter Reed Army Institute of Research; Command Surgeon, US Central Command; and Director, DoD Global Emerging Infections and Response System (DOD-GEIS). He is a board certified physician in Preventive Medicine and Public Health. He received his medical degree from the Uniformed Services University of the Health Sciences  (USUHS), Masters of Public Health from Harvard University, and Doctorate of Public Health from Johns Hopkins University.

10 April 2015

Negative Attitude at VA's Agent Orange Desk

Today we received a "final" set of documents from the Department of Veterans Affairs. Released under the federal court action we filed to force compliance with the Freedom of Information Act, several highly-redacted documents show the anti-veteran attitude of some VA executives.

Determined to prevent C-123 Agent Orange claims, VA's memorandum below rips into our efforts to detail eligibility for VA care, and ignores challenges to the errors which he included in the draft provided to Secretary Shinseki's response to Senator Burr. Much of his memo and the Secretary's response to Senator Burr have been shown in time to be in error...errors paid for by veterans denied VA medical care.

Why is this memo important? Because VA's manual VAM21-1MR requires regional VA offices to forward for his attention any non-Vietnam Agent Orange exposure claims. The Agent Orange desk has insisted since the first of our claims came across that desk that they were to be fought.

VA's memo is also revealing in that it recommends ignoring my privacy complaint which dealt with a VA contractor being provided my medical information. And ignore it VA has done for two years, despite requests to the VA National Center for Ethics in Health Care.

Although VA touts its "case by case" evaluation of our claims, in fact they are prevented by informing the regional offices that VA "cannot concede" the exposure as claimed. So, on a case by case basis each case is ordered denied, although VA objected to this being termed a "blanket policy of denials." No C-123 claims have ever been permitted under his watch, although two veterans' claims were successful under appeal.

Actions by the Agent Orange desk are in contrast to VA's required pro-veteran, non-adversarial, benefit of the doubt approach. His actions show VA's determined efforts to, as one executive put it, "draw the line somewhere."

Here is how veterans' efforts are blocked at VA Compensation Service's Agent Orange desk. That part of the VBA is still a key player advising the Secretary on obstruction of the Institute of Medicine C-123 report's conclusions.
From: VBAVACO 
To: Flohr, Brad (SES EQV), VBAVACO Cc: Murphy, Thomas (SES), VBAVACO; Flynn, Mary A. (SES), VBAVACO; Black, Paul, VBAVACO; Imboden, Jacqueline, VBAVACO; Strickland, Allison, VBAVACO 
Subject: FW: 12 Nov 2012 C-123 Report to Compensation Services Date: Friday, August 23, 2013 10:31:00 AM Attachments: Young Article Response Aug 22.pdf image001.jpg 
This is one more attempt (among numerous others) by Wes Carter to attack the VA and claim he and the other 1500 post-Vietnam C-123 crew members were “exposed” to AO. This latest is a grandstand attempt to imply that there is a conspiracy between VA and Dr. Alvin Young to deny Wes Carter his “deserved” benefits. His attached statement is long on rhetoric and short on substance. He is again stating that he was “exposed” to AO by virtue of the dried/solidified TCDD found in one C-123 (“Patches” in the USAF Museum), and that VA “law” requires service connection as a result. He is likely pressing the issue anew because of the recent DRO C-123 grant publicized in the media.The question I have is: where did he get Dr. Young’s C-123 Report to Comp Svc? (note: one of this contractor's $600,000 no-bid sole-source contract for post-Vietnam monographs opposing veterans' claims.)
He definitely did not get it from me or Dr. Young. My only release of this report was to the Boston/Manchester RO when they requested Comp Svc input from the AO Mailbox on the claim of the C-123 Veteran who was ultimately service connected by the DRO. The RO may have shared it with congressional sources, since there was much congressional pressure on this case. And, Wes Carter has direct and extensive contact with all members of Congress interested in this issue. As usual, he distorts the issues for dramatic effect with his question: “How was the Advisory Opinion on my own disability claim provided to the consultant (Dr. Young)?” 
Comp Svc did not provide any advisory opinion to Dr. Young. Wes Carter’s own website contains multiple references to the Comp Svc advisory opinion, (note: correct, but such references were not published before Dr. Young was provided a copy by VBA, only after.) which he criticizes at great length, stating that the RO wanted to grant but Comp Svc overruled them. Anyone in the Internet universe could read about Wes Carter’s case. He has a long standing dislike of Dr. Young and many other scientists who do not agree that he was “exposed” to AO. He refers to them with abusive language on his website. This includes VHA toxicologist Terra Irons, who he singles out for website name-calling based on her statements at a SVAC and Senator Burr staff meeting we attended on the Hill, where Wes Carter showed up in person. I suggest that Wes Carter should receive no reply based on this e-mail. As I have learned, any reply to him will generate additional attacks.

09 April 2015

Dino White – passed away this morning

Dino White, a member at the AME as well as Westover's clinic, passed away today after enduring the effects of a stroke for the last eighteen months.
Rest in peace, dear friend.

07 April 2015

C-123 Agent Orange exposure claim awarded – here are the details

In November the Boston VA Regional Office held a Decision Review Officer hearing for a C-123 veteran from Westover AFB, MA. The claim was decided in his favor for all Agent Orange-recognized illnesses, and a copy of the VA' decision is posted HERE.

Yale School of Law deserves great credit for this victory, and thanks are due them and the many vets who personally appeared to give evidence for this veteran. It probably didn't hurt that the veteran's story was carried as a front page story in the Sunday edition of the Boston Globe.

Key point: The VA conceded the veterans' Agent Orange exposure at Westover AFB, where his squadron flew the former Agent Orange UC-123 aircraft. The decision closely parallels that of LtCol Paul Bailey's 2013 award from the Manchester NH VA Regional Office.

Although both veterans flew the same airplane, the same days, performing the same duties as others who've made claims, these are the only two awards made in favor of the veterans and all other claims have been ordered denied by VA's Compensation and Pension Service. I note that both claims were for men I flew with and trained on the C-123, but my claim and others like mine remain denied.

VA decisions, even those by Decision Review Officers and the Board of Veterans Appeals, have no effect on other claims, regardless of how parallel the situations. Here, one veteran's claim for exposure aboard his C-123  is awarded while another on the same airplane is denied.

Perhaps VA finds no discomfort in contrary situations such as this. I also note that my request for DRO (claim submitted 3/2011, denied 9/2012) was made in 2012 and still has not been acted upon in over two years, while the attached claim requested DRO in March and received the hearing in November of 2014.

05 April 2015

C-123 Agent Orange Claims Progress 2011 to 2015?

Its not like we're sick or anything. 

Its not like having our soft tissue sarcomas, heart disease, diabetes, prostate cancer, ALS and other illnesses treated now or months from now will make any difference in the end. 

We might live a little longer. We might be in less pain, but really, what difference would it make? To VA...nothing at all.

A few months here, a few months there...what's the problem with VA refusing care even if the Institute of Medicine said we were exposed to Agent Orange and harmed thereby?

Its not like we have any special right to have our illnesses cared for. Indeed, our lesson from VA is that for their reasons not shared with us, we shall do without.

We're tough. We were taught for years by the military to tough it out, work through the pain. Now, we'll just have to learn to do without medical care...a lesson taught us since our first C-123 Agent Orange claims was denied by Compensation and Pension.

After all, the Director of VA Compensation and Pension has explained in ordering all C-123 claims denied* (on what they termed a "case by case" basis) that there is no evidence of TCDD causing any adverse health effects
and therefore, Agent Orange claims are without merit. 


And Post Deployment Health leaders helped us understand that, just like Vietnam veterans, we were never exposed anyway. 


This was later termed "an unfortunate choice of words," meaning the claim was ordered denied but other excuses should have been created for refusing the medical care sought by the veteran. 

The "unfortunate choice of words" was left to be appealed, a process underway since 2011 and which may or may not be resolved at some point prior to the veteran's death. It was important to Post Deployment that "a line had to be drawn somewhere."

There is firm VA protection for a veteran' right to appeal, but precious little assurance of a fair and accurate decision in the first place.

*2012 Agent Orange exposure claim denial by Compensation and Pension. Mischaracterized actual scientific opinion by Dr. Thomas Sinks of CDC/ATSDR that veterans were exposed. Please compare Dr. Sinks' letter to VA with the summary prepared of it by VA.  Dr. Sinks later made clear to VA that C-123 veterans should have been wearing full HAZMAT in the contaminated airplanes. VA Office of General Counsel explained that such errors can be appealed, even if the correction process takes years. Years during which VA refuses care and benefits.


03 April 2015

Senator Blumenthal's Office: "Nothing soon from VA" to allow any C-123 Agent Orange exposure claims

VA C-123 Claims SITREP
Yesterday Senator Cory Gardner's (R-CO) staff informed us they'd just checked with Senator Richard Blumenthal's office and were told that no VA action is expected anytime soon. Blumenthal is Ranking Member on the Senate Veterans Affairs Committee, and was briefed last Friday by VA on their confidential deliberations.

News like this of continuing VA delays comports with statements by VA spokesperson Ms. Meagan Lutz who informed reporters that VA now has no set date for any C-123 Agent Orange announcement, in effect, an indefinite postponement of the announcement first promised for the first week in March.

Different VA sources have offered different reasons for the delays. After the Institute of Medicine published its January 9 2015 C-123 Agent Orange report which confirmed exposures, VA was supposed to formulate a response within 60 days. Whatever the reason(s) the effect is that VA's ban on medical benefits for these Agent Orange-exposed veterans will continue just as it has since 2011, with all claims denied per Compensation and Pension. Claim delays are money-savers for VA.

Compensation and Pension is the VA function which has ordered Agent Orange exposure claims denied on the basis that other federal agencies' confirmation of C-123 exposures are unacceptable to VA, and that dioxin (the toxin within Agent Orange) has somehow "not been shown to be harmful." Of course, dioxin is recognized elsewhere in VA and throughout science as the most toxic toxin made by humans and a known carcinogen. VA later wrote that it had used "an unfortunate choice of words" but the claims are allowed to remain denied as was the objective.

The inference was clear:  as has been the case from the first, all such claims were to be denied no matter what, citing anything as basis, whether accurate or not.

Perhaps voices within the Department preferring a pro-veteran program in compliance with the law are in conflict with other folks, mostly in Post Deployment Health and VA's Agent Orange desk and other leaders in VA's C-123 committee, who prefer to continue their own agenda of denying benefits to C-123 veterans regardless of merit.

There is concern among the veterans that VA still might create a response which excludes, rather than includes, exposed veterans. We are about each of our men and women, and their families.

01 April 2015

Our "high-tech" 21st Century Air Force??

From today's publication of Air Force Magazine. Look very carefully at what Lt. Hunt is using to boot up his Minuteman missile command post...an 8-inch floppy disk! How can we run a world-class 21st Century strike force with stuff Radio Shack dumped as obsolete two decades ago?

No doubt familiar with far more modern technology, Lt. Hunt probably had to be shown how to insert the floppy after his instructor finished explaining what it was and waited for the laughter to subside.
On the other hand security is probably enhanced by the fact these have to be the only 8-inch floppy drives left in the entire world!

31 March 2015

Board of Veteran Appeals Uses Boilerplate Denial Language for C-123 Claims, IGNORING VA's own Institute of Medicine Report

The Board of Veterans Appeals regularly posts its most recent decisions on claims veterans appealed to that body. We note that as in months and years past, BVA continues to use its error-laden boilerplate language to deny veterans' claims. Cited below is a paragraph from an unfortunate veteran's decision.

Furthermore, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. See: http://www.publichealth.va.gov/exposures/agentorange
This citation references the Office of Public Health having "reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces." What the citation avoids mentioning is the highly selective approach used by Public Health when they first listed their carefully selected references in 2011. Only references arguing against veterans' claims were permitted, and all references supporting C-123 exposures were ignored.

The March JSRRC report and the January 2015 Institute of Medicine report completely put to rest the above error-laden assertions...C-123 aircraft were indeed contaminated and the veterans were indeed exposed. Although VA has yet to react to this report done at their own expense, BVA and other VA bodies continue denying C-123 veterans' claims by repeating the same paragraph.

What was ignored by VA in its review of "all available scientific information?"
• CDC/Agency for Toxic Substances & Disease Registry report to VA
• Concerned Scientists & Physicians Group Report to VA
• Oregon Health Sciences Perspective on C-123 Aircraft Exposures
• NIH/National Institute of Environmental Health Sciences report to VA "concluding exposures were plausible"
• All works of Dr. Jeanne Stellman