Veterans Claims Help

I received this in the pipeline from the $1,23 crowd.  I refer to the second generation of Air Force Nasty Guard and Irregulars who were handed the old RANCH HAND C-123 Providers after the war. The list doesn’t stop there. Some were converted into air drop tankers for forest fires and the gift of AO just kept on giving. Dioxin and Picloram are very heavy metal solutions. They never lose their strength until diluted  innumerable times by the elements. Even then they only percolate to a certain depth. Their legacy lives on for many future generations when they percolate into the water table. This is science-not conjecture. Monsanto has been examining this phenomenon since 1957.

Read this and weep. VA, in their unending battle to absolve the government of any culpability, refuses to acknowledge that the above is true. When accosted with unassailable proof that C-123s were awash in it, they opted to hire their proctologists and foot doctors to opine on matters chemical. Independent IMOs are all well and fine but VA always seems to go to the same closet for theirs. Oddly, they all seem to support the VA’s theories every time. Rarely does the Vet or Vets as a  presumptive group win this war of words. Why is that? Read on.

From Steven Avery (Vets atty):

In a stunning rejection of American science and medicine, on January 10, 2013 VA officials trashed the input of expert scientists and physicians who’d earlier challenged the VA’s rejection of C-123 veterans Agent Orange claims. The VA flatly (but graciously!) dismissed or simply ignored vital concerns raised by the outside experts, and continued to defend VA’s initial, unchanging, knee-jerk, automatic and characteristic refusal to permit C-123 veterans to receive medical care. Please – we need both an attorney and a scientist to articulate a response to this recent VA letter…ideals on where to find such talent?

None of the independent experts were paid for their review of the situation and development of opinions. All of the VA personnel were paid to reject the outside experts’ opinions. The VA response is amazingly flawed, both in the science and the law, and a more detailed rebuttal of it will follow soon. The key errors we’ll point out now are as follows:

1. We do not contest the VA’s perspective that we are not a presumptive eligibility population, but rather are individually eligible to submit justified Agent Orange and military herbicide exposure claims. However, the Secretary has the authority to designate these veterans as a presumptive eligibility population, and the Secretary of the Department of Defense has the authority to designate, even retroactively (because all the airplanes have been destroyed) the fleet as “an Agent Orange exposure site.” Still, the simpler and more precisely-focused definition of this population is to permit individuals to be recognized for exposure by acknowledging the contamination of the aircraft and the fact of exposure, to be established by the individual’s proof of service such as flight orders, Form5s or other official documents associating the individual veteran with the airplane within the 1972-1982 timeframe, thus avoiding creation of a presumptive eligibility population

2. VA rejects wipe-based sampling, yet this was (and is) simply the gold standard scientific method for such testing, and it determined the C-123 to be “heavily contaminated.” In such testing, surfaces were not “rubbed” as the VA letter states, but to prevent surface agitation the wipe method requires simple gentle wipes, as the word implies – only VA challenges this procedure which has been accepted by the EPA, NIH, CDC and appropriate regarding the C-123 contamination studies

3. The wipe samples consistently proved presence of dioxin and military herbicides, and the VA’s characterization of the amount or degree of contamination as “residual” or “trace” is word-smithing meant to minimize or totally dismiss the scientific results of the Air Force’s own testing over several decades

4. The VA references to testing which establishes contamination many decades later is similar word-smithing to dismiss actual results: In truth, tests were conducted (but ignored by the VA) in 1979, fourteen years after that particular airplane’s last Agent Orange spray mission, and the tests confirmed military herbicides and dioxin contamination. VA ignores the fact that the veterans began flying these airplanes in 1972, thus the contamination was more concentrated when considering the half-life of dioxin on surfaces

5. VA tries to redefine both science and law in this letter. Science states that “exposure is the contact between a chemical or biological agent and the outer barrier of an organism.” Thus the veterans are exposed if their skin touches a contaminant, even if it is the VA’s hypothetical “dried dioxin.”

6. The pertinent laws and Code of Federal Regulations state that veterans outside the “boots on the ground” presumptive connection, such as the C-123 veterans, will be similarily protected.  When VA promulgated its herbicide presumption in 2001, the issue of herbicide exposure outside Vietnam was also addressed.  66 Fed. Reg. 23166 (May 8, 2001).  VA explained if a veteran did not serve in Vietnam but was exposed to an herbicide agent defined in 38 C.F.R. § 3.307(a)(6) during active military service and has a disease on the list of presumptive service connection (which includes diabetes mellitus type II and ischemic heart disease), VA will presume that the disease is due to the exposure of herbicides.  See 66 Fed. Reg. 23166; 38 C.F.R. § 3.309(e).

7. The VA dismisses the scientists’ insistence that the C-123 crews warrant VA benefits for exposure to military herbicides, yet that phrase is the one used in the law and the C.F.R.s. Nonetheless, the multitude of Air Force tests establishes the dioxin contamination of the C-123 fleet

8. VA mentions dismissively that “some” of the C-123 fleet was contaminated; in fact, 42% of the C-123s flown were former Agent Orange spray aircraft; in fact, only two of the eighteen remaining airplanes at Davis-Monthan were free of dioxin contamination at the tine of the fleet’s destruction as toxic waste in 2010

9. VA continues to ignore the vital facts that the veterans duty on the C-123 was for a full decade, and scientific tests show long-term, low-dose exposure to dioxin is extremely harmful

10. VA continues to ignore the fact that crews flew these contaminated airplanes the year (1972) after the last Agent Orange spray missions (1971)

11. Here, as ever since the veterans’ concerns were raised, the VA ignores the confirming opinions regarding exposure submitted by the CDC/Agency for Toxic Substances, the EPA, and the NIH. VA references their scientists and medical doctors (who only completed a literature review, in which publications which confirmed veterans’ exposure were ignored) and altogether ignores those of other federal agencies, universities and institutions. VA even makes reference to literature in their denial argument, some of which was authored by scientists who have concluded the veterans were, in fact, exposed

in their literature review meant to deny veterans exposure

12. The VA response completely dismisses all post-application exposure claims, which are actually well-founded in law, C.F.R.s, BVA, Court of Veterans Appeals citations…and science

13. Despite the fact that C-123 veterans’ exposure claims have been vetted by the American Legion and the Vietnam Veterans of America, VA insists there isn’t even enough “benefit of the doubt” to permit claims

14. Despite the fact that C-123 veteran’ exposure claims have been vetted by numerous physicians and scientists, to include members of the National Academy of Sciences, VA insists there isn’t even enough” benefit of the doubt” to permit claims

15. Despite the fact that the federal agencies responsible for making determinations regarding contamination and exposure have vetted those issues regarding the C-123 veterans, VA insists there isn’t even enough “benefit of the doubt” to permit claims

16. Despite the fact that the VA’s Board of Veterans Appeals has eventually recognized USAF Reserve C-123 veterans’ claims from the same units, and same bases, and same time frame and awarded service connection, VA insists there isn’t even enough “benefit of the doubt” to permit claims

he VA is dedicated to preventing C-123 veterans’ claims. It is our just and proper role to energetically advance our claims, but we are amazed that the VA is equally dedicated to preventing these claims rather than finding the proper channel to allow them to proceed. The VA is dedicated to preventing C-123 veterans’ claims…they should be dedicated to doing what is right and proper under the law.

—-VA’s response to the fifteen scientists and physicians joint letter to Under Secretary Allison  “Chipmunk” Hickey—-

Dear Dr. Stellman:

I am responding on behalf of Allison A. Hickey, the Department of Veterans Affairs (VA) Undersecretary for Benefits. Thank you for the letter expressing your views, and those of your colleagues, on the important matter of Agent Orange herbicide exposure and its relationship to Veterans who served stateside aboard C-123 aircraft previously used for aerial spraying of Agent Orange over Vietnam.
It appears you question the scientific analysis on this issue provided by the VA Office of Public Health and believe disability compensation should be based on evidence of dried dioxin residuals present on the interior surface of a C-123 aircraft. We appreciate your interest in this group of Veterans and the information you have provided. It will be considered as a source of evidence when adjudicating claims from this group of Veterans. However, we must also consider the evidence described below and must follow the laws that govern disability claims based on Agent Orange exposure. All claims are evaluated on a case-by-case basis.
Disability compensation provided by VA must be based on establishing service connection. This requires evidence of a current disability, evidence of an injury, disease, or event in service, and evidence of a medical nexus or link between the two. When Agent Orange exposure is claimed as the basis for the current disability, there are two routes to service connection. If the Veteran’s service falls under the Agent Orange Act of1991, which establishes a presumption of herbicide exposure for service in Vietnam, then the Veteran is eligible for service connection of diseases associated with such exposure by VA without the need for a medical nexus. Service aboard post-Vietnam C-123 aircraft does not meet the requirement for Vietnam service and so there is no presumption of exposure for these Veterans. Therefore, the alternative route to service connection is required which involves evidence of direct exposure on a facts-found basis.

The evidence associated with service on post-Vietnam C-I23 aircraft shows that some of these aircraft contained dried residual traces of the Agent Orange herbicide contaminant dioxin, which could only be obtained and measured by rubbing the interior metal surface with the solvent hexane, You have stated that the dioxin obtained by this process is sufficient to establish that the crewmembers were “exposed.” However, the scientists and medical doctors of the VA Office of Public Health have documented with scientific literature that residual trace amounts of dioxin on metal surfaces is not biologically available for skin absorption or inhalation because it is not water or sweat soluble and does not give off airborne particles. As a result, they have concluded that the likelihood of dioxin exposure was minimal, Your view of potential exposure must be weighed against their view when VA evaluates a disability claim.
In addition to the issue of potential exposure, there is the issue of establishing a medical nexus or link between the in-service event of flying on a post-Vietnam C -123 aircraft and development of a current Agent Orange exposure-related disease. VA laws and policies related to Agent Orange exposure, whether presumptive or based on facts-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide. There are no provisions for secondary or remote exposure, as is the case with dried dioxin residuals on metal surfaces found many years after the liquid state. The scientific evidence available to establish a medical nexus in these cases is limited and the VA Office of Public Health has provided a medical opinion that it is insufficient to establish the required nexus. While your letter focuses on the issue of potential dioxin exposure, it does not offer an opinion on the medical nexus issue nor does it address the potential for long-term health effects or disabilities resulting from service on the post-Vietnam C-123 aircraft.
Another issue you raised is the wording of the Agent Orange Act of 1991, which establishes a presumption of exposure to “herbicide agents” used in Vietnam that includes chemicals other than dioxin. You state that consideration should be given to these other chemicals when considering disability compensation based on exposure because they may have been present in the post-Vietnam C-I23 aircraft, However, since there is no presumption of exposure to any herbicide agents without Vietnam service, this legislation is not applicable. Additionally, the National Academy of Sciences’ Institute of Medicine, which is named in this legislation as a major source of scientific information related to herbicide agent exposure and its adverse health effects, has determined that dioxin is the primary “chemical of interest” associated with adverse health effects. If a disability claim were based on exposure to other herbicide agents, the same evidence of direct facts-found exposure and a medical nexus would be required for service connection.

We appreciate your input and the evidence you have provided on the issue of disability compensation for Veterans who served aboard post-Vietnam C-123 aircraft. When VA receives claims from Veterans based on this service, they will be evaluated based on the totality of the evidence, as described above, and determinations will be made on a case-by-case basis.

Sincerely,
Thomas Murphy
Director, Compensation Service

Oh well. Back to the drawing board. This shouldn’t come as any big surprise  Just when VA was looking to put the AO monkey back in the cage, out pops his offspring- SON of AO. What few realize is that all that AO in the bottom pan under the floors is not just AO. There’s undoubtedly an accumulation from earlier years of all the other flavors like Pink, Green, Purple, Blue and White. Disturbing, huh?