Arbitrary decisions by Review Board demoralize vet claimants
In our vets’ fight for compensation after their uninformed exposure to toxic substances such as Agent Orange or depleted uranium, the Review Board does not treat cases by consistent criteria. Please note: On the Review Board there is no qualified doctor or scientist to assess the lengthy technical, medical and scientific information presented to support veterans’ claims.
In some, they apply what is called The Benefit of a Doubt under subsection 21(2) of the Pension Act. In others, they use an actuarial mindset and seek “small-print” insurance loopholes to deny claims. One “escape” condition seems to be if the claimant was a smoker at the time of exposure to the toxic element. Smoking overrides all other conditions for causing cancer, in decisions where the Benefit of Doubt is not applied, and the vet’s claim is denied.
In a fair and compassionate approach, the Review Board should be granting Benefit of a Doubt to all claims. Why? In ALL cases, the vets had no choice in their exposure to poisonous contaminants such as depleted uranium, Agent Orange and even the anti-malaria drug, mefloquine, which has now been proven to be a neurotoxin under certain genetic conditions. It is the responsibility of our government and Health Canada to test unknown chemicals for poisonous substances before putting our armed services in harm’s way. Since they did not, the Government of Canada and Health Canada are liable, in my opinion.
In the case of Gary Goode and other vets like him, there are stunning discrepancies applied by the Review Board to their claims. In total from June 14th 2004 to January 11th 2010, Veterans Affairs Canada received 3,071 disability benefit applications relating to Agent Orange exposure. Total Number of clients with Favourable Decisions: 59. Pensions Granted: 36. Awards Granted: 31. Note: Of the above total number of pensions and awards granted – 2 clients are in receipt of a pension and award. Would you say there is something wrong with this picture?
As Gary states in his 2010 summary analysis, “As you can see, the desired results of the Federal Government was not to find the true facts or the full extent and magnitude of the twenty-eight year chemical-spraying program in question at Gagetown.
“What the Government asked and paid for, was an obscured health risk assessment study designed specifically to minimalize their responsibility and liability for the adverse and devastating health effects caused by the toxic chemicals applied year after year for 20 years at CFB Gagetown.
“Mr. Greg Thompson, the past Minister of Veterans Affairs, in a letter from him to me in reply to a letter of demand I presented to him at his Riding Office in St.Stephen N.B., stated that ‘too much time has passed since the spraying of Agent Orange in the summer of 1966 and 1967 and with the passing of 40 years, Canadians have lost the opportunity to demonstrate how they were affected.’
“It is very clear that if Veterans Affairs Canada applied subsection (21) [the benefit of the doubt as mandated in the Pension Act] as they did with the 12 approved claims I have presented here, all an Applicant would have to prove is that he served at Gagetown any time from 1956 to 1984 and that he or she was afflicted with one or more of the recognized diseases associated with the toxic chemicals that were sprayed there.”
The glaring reality seen in reading through Gary’s completed application followed by concerned citizens’ demands for a full public judicial inquiry is Ottawa’s determination to cover up a blatant “national disgrace,” – as Green Party Leader Elizabeth May called it in her official letter of protest.
“Today (May 19, 2009), the Green Party of Canada stands in solidarity with Gagetown veterans and their loved ones to demand adequate compensation and a public inquiry. All Canadians deserve answers to questions regarding the exposure, disputed health risk assessments and mishandling of claims so that these cover-ups can be prevented in the future.”
What follows is a brief excerpt from Gary Goode’s lengthy claim but enough of it is presented to show you to what lengths and proof a vet must go to make a claim. The complete document is available upon request to Homecoming Vets. Gary applied to the Freedom of Information Act to support his references and arguments for justified compensation. At the end of this posting, the Board’s decision is stated.
You tell me if you think the Board’s decision for this vet is fair, just and compassionate. BONNIE
COMPARISON OF CLAIMS
By Gary Goode
Further to the Departmental Review of General Sellar’s approved pension application, the Board stated that his posting sheets showed that he was stationed at CFB Gagetown as a Lieutenant Colonel, dated from April 1963until 1966. The Department is aware that Agent Orange was used as a herbicide for defoliation on the training grounds of CFB Gagetown during the time frame that he was stationed there. It was the Board’s understanding that as an Officer he would have been required to be on those training sites.
As an Infantry Solder, I would also have been required to be on those very same training sites. The only difference between Mr. Sellar and me is that I served with the 2nd. Battalion Black Watch at CFB Gagetown and Mr. Sellar served with the 1st. Both Battalions lived and trained on the exact same toxic training sites.
The Board denied my original claim because they said I did not serve at CFB Gagetown in the known time frames when spraying with Agent Orange occurred. However, on Oct. 31 2007, I receive a letter from VAC which states the following:Dear Mr. Goode We are pleased to inform you that your application for the ex gratia payment related to the testing of Unregistered U.S. Military Herbicides at CFB Gagetown, including Agent Orange has been approved.
Veterans Affairs Canada even though in possession of my service records clearly showing I was in Gagetown and training on toxic sites during the known spraying times of Agent Orange and other highly toxic chemicals denied my claim, saying I was not there. VAC, then after reviewing my service records, approved and paid me the $20.000 ex gratia, conceding that I was indeed at Gagetown during the known spraying times and that my possible exposure to the U.S. unregistered chemicals including Agent Orange may have caused my lung cancer.
My Review Board Hearing
My Review Board Hearing was heard in Penticton B.C. on Wednesday, 11th June 2008.
In support of my pension application I provided further supporting documentation that was not available to me on my first 23rd June 2005 application.This information included: ER-G1: Medical report dated 2 May 2008 from Dr. Bill Nelems my Thoracic Surgeon. ER-G2: Record of service from 1967 to 1971. ER-G3: Briefing Note to the Minister prepared on 3 June 2005. ER-G4: Briefing on the CFB Gagetown Brush Regrowth Control Program to Members of N.B. Cabinet by Mr. R. Walter dated 24 January 1985. ER-G5: Herbicide Use – CFB Gagetown history. ER-G6: Standing Committee on National Defense and Veterans Affairs report dated 17 November 2005. ER-G7: Statement form the applicant dated 11 June 2008. ER-G8: Report Titled “ Genetic Damage in New Zealand Vietnam War Veterans. ER-Attached- G1: Minister’s Decision dated 14 June 2004 referencing General Gordin Sellar’s approved disability pension application. ER-Attached-G2: Entitlement Review Decision dated 2 November 2006 referencing another client. ER-Attached-G3: Entitlement Review Decision dated 29 June 2007 referencing another client. ER-Attached-G4: Entitlement Review Decision dated 14 February 2007 referencing another client. ER-Attached-G5: Entitlement Review Decision dated 20 March 2007 referencing another client
I testified that during my time at Gagetown I trained as an infantry solder. If I was not on parade I was out in the training area, sometimes for weeks at a time. Much of my time was spent crawling on my belly or digging trenches in the dirt. There was little foliage in the areas where I trained, most of it being brown or yellow. I acknowledged that I did not see actual spraying as it occurred and that it would have been difficult to determine how soon after spraying I entered areas that had been sprayed with defoliants. However, it was evident from the state of the vegetation that defoliant had been used. I expressed my concern that I was constantly in the dirt in which defoliants would have collected and that the toxins in the defoliants would still have been present for many years after the spraying.
I testified that during my time in Gagetown, I would have spent time in the Clones and Murphy bivouac sites with the levels of dioxin found and still present there today being 75 and 143 time above the Canadian Council of Ministers for the Environment (CCME) guide lines for human safety as reported by the Base Gagetown and Area Fact Finding Project (BGAFFP).
In an interview I conducted with Dr. Dennis Furlong the Chair of the (BGAFFP), Dr. Furlong told me that the highest level of dioxin found on the base was 170 times above the CCME guide lines for dioxin in the soil. This level of dioxin is 27 Parts Per Trillion (ppt) higher than the 143 (ppt) times higher than the CCME guidelines for dioxin in the soil as was later reported to the media by none other than Dennis Furlong of the BGAFFP.
The CCME allowable levels for TCDD Dioxin in water is (1 ppt) and in soil the allowable levels for TCDD Dioxin is (4 ppt). So depending on whether you believe what Dr. Furlong told the media or what he told me in front of a witness that I just happened to have with me at the time, the highest levels of dioxin still present at Gagetown are either 139 (ppt) or 166 (ppt) above the CCME guidelines. Dr. Furlong also told me there was a total of nine areas on the base that had been closed because of high levels of dioxin found in those areas. Dr. Furlong only reported to the media, that there were three areas closed.
The following is from DND’s own documents acquired through the Freedom of Information Act:ER-G5: Herbicide Use – CFB Gagetown history, clearly showed that 75,000 liters of dioxin contaminated Agent Orange and Agent Purple were sprayed on the Gagetown training area from 1956 to 1967.
- 75,000 liters of dioxin-containing herbicides (Agent Orange, Purple and Pink) were sprayed on Gagetown.
- There was a total of 1,225,000 liters of Tordon 101 containing hexachlorobenzene sprayed in liquid form from 1965 to 1972. (This is Agent White.)
- A total of 2,038,000 pounds of Tordon 10K containing hexachlorobenzene was sprayed for 11 years over a total acreage of 50,000 acres. (This is also Agent White)
- In total 3,263,000 liters and pounds of Hexachlorobenzene and Dioxin containing herbicides (Agent Orane, Agent Purple and Agent White) were sprayed on Gagetown.
Meg Sears Ph.D. with a Masters Degree in Chemical Engineering, 1981;McGill University and a Bachelor of Applied Chemistry and Chemical Engineering Degree 1979; University of Toronto states the following in her Sworn Affidavit for the Plaintiff in the Class Action Law Suite against the Defendants, Her Majesty The Queen, Attorney General of Canada, Government of Canada, and the Minister of National Defense.
“The years when particular pesticides were used and the total quantities applied, as provided to the Fact Finder project, are graphed for the chemicals used in greatest quantities, over multiple years, in a Figure provided at the end of Exhibit 2. Clearly 2,4-D, picloram, dicamba, 2,4,5-T and very recently glyphosate were the mainstays of the herbicide program.
“Thus, regardless of exposure at particular occasions to the other chemicals listed in Exhibit 3, people in and around CFB Gagetown would have been exposed to 2,4-D, dicamba, dichlorprop, 2,4,5-T, picloram and more recently glyphosate, as well as the components that accompany them such as contaminants, adjuvants and breakdown products. These chemicals are the main focus of this affidavit. Only dichlorprop and glyphosate were not used in Vietnam, meaning that a vast majority of the herbicide types and quantities sprayed at CFB Gagetown were also used in Vietnam. Scientific literature regarding dichlorprop and dicamba is limited compared with 2,4-D, picloram and 2,4,5-T, and some contaminants. Exposure and subsequent internal doses of the population at CFB Gagetown would have been widespread.”
I referenced “ER-G8: Report Titled “Genetic Damage in New Zealand Vietnam War Veterans” that showed that every one of the Veterans in the study group who served in Vietnam all had genetic damage as opposed to the New Zealand Veterans who did not serve in Vietnam.
Regarding the attachments, decisions of either the Department or of the Veterans Review and Appeal Board granting entitlement as a result of exposure to Agent Orange, my Advocate acknowledged that each case turns on its own particular facts. However, he drew attention to the fact that the clients in those decisions were not directly involved in the spraying operation. Instead, they performed tasks similar to those performed by me. As well, the panel was referred in particular to the opinion from Hematologist, Dr. Van der Jagt contained in ER-attach-G3 and also cited favorably in ER-G4.
With reference to a requirement upon Veterans to establish direct contact with Agent Orange, Dr. Van der Jagt stated:
“…. I would urge you to reconsider this opinion given clear evidence that once these agents are sprayed, they remain unmetabolized in the environment for prolonged periods of time, given that direct contact has been shown to increase the incidents of some forms of cancer.
Dr.Van der Jagt, in another favorable, oft-quoted comment in VRAB decisions, confirmed that products like Agent Orange stay in the environment for many years after having been sprayed and that direct contact is not necessary in order for it to be considered a cause or predisposition factor for the development of CANCERS. Decision No. Referenced (100001242377)
Dr. Van der Jagt also commented on the Feb. 14th 2007 claim on behalf of the Applicant (Decision No. Referensed (100001084398) where he stated:
“There is no doubt in my mind that the Applicant was placed at increased risk of developing non-Hodgkin’s Lymphoma because of his exposure to Agent Orange. The association has been accepted by Veterans Affairs in the United States of America. U.S. Veterans are not subjected to long appeals and the uncertainty of such appeals as occurs in Canada.
“There are numerous publications on the area of pesticides assessment and their link to Lymphomas and other health disorders. I suggest that you refer to one of my most recent publications which is in the Journal Pediatrics and Child Health, Vol. 11, no. 4, April 2006. Another very strong publication which clearly outlines as a risk of non-Hodgkin’s Lymphoma, people exposed to particular types of herbicides and pesticides is in the Journal of Blood, April 2006 by Chiu et al. This article indicates that farmers who were exposed to pesticides had a risk on average at least three times over those who were never exposed to pesticides or fumigants. Those who were exposed to fumigants were at an overall risk of five times over those who had no exposure to fumigants.
“Agent Orange chemically is related to the insecticides/herbicides and fumigants, which were associated with increased risk of non-Hodgkin’s Lymphoma and this evidence has been repeated in a number of recent publications. I believe the evidence is clear and the time has come for Veterans Affairs to accept this association and to compensate those who served in Gagetown during the period when spraying occurred.”
Just like the two approved VAC pension applications I have sited here I was also able to provide medical documentation from my Thoracic Surgeon, Dr. Bill Nelems, MD, FRCS(C), Med.
From Dr. Nelems:
“The evidence linking Agent Orange and its constituents, hexachlorobenzene and dioxin to cancer can be summarized in the abstracts that I include with this letter. Ambrus in J Med. 2004, reports a case with exposure to Agent Orange who developed cancer. Caino in Mol Pharmacol. 2007, suggest linkage between toxic and lung epithelial cell damage, a potential precursor for malignancy. Walker in Environ Perspect. 2005, documents a significant dose-response relationship between liver, lung and mouth cancers. Michalek in Occup Environ Med. 2008, links toxin exposure to diabetes and cancer.“I am not able to comment on the nature and extent of Mr. Goode’s exposure to Agent Orange. Given the information available with respect to toxin and lung cancer, I would lean in favor of attributing Mr. Goode’s lung cancer, in part, to toxic exposures such as Agent Orange, if such exposure is confirmed.”
The Board’s Decision
The Advocate summarized by noting that the Applicant spent two to three years in close contact with soil and vegetation in areas that had been sprayed with herbicides and which continued to be sprayed with herbicides which would have remained present in the soil for many years thereafter. Noting that the panel has accepted that there has been sufficient evidence in circumstances similar to the Applicants and that the opinion of the Applicant’s Thoracic surgeon supports pension entitlement, the Advocate sought either full or partial entitlement on behalf of the Applicant.
The Panel has taken into consideration all of the evidence presented, including the testimony of the Applicant and considerable documentation recited and described above.
The Panel accepts the Applicant’s testimony that he performed repeated service exercises requiring him to be in continual close contact with dirt and foliage, likely ingesting dust over which there had been previous applications of herbicides.
The Panel has taken into consideration the Merck Manual, 18th Edition, which refers to lung cancer. Smoking is considered the biggest risk factor in the development of lung cancer.
The Panel considers that to determine the risk of contracting a claimed condition from service exposure, evidence must address:
1. The likely nature, intensity and duration of the exposure, including the means the toxic agents ingress into human tissue.
2. The existence of any acute affects immediately following the exposure.
3. The timing of the onset or development of the claimed condition in relation to the time of the exposure.
4. The risk of contracting a disease from other non-service causes identified in the evidence.
5. The attributable risk from the claimed service-related exposure.
The evidence presented does not address the intensity of toxins, which would have been contained in the soil subsequent to herbicide exposure. The Applicant did not indicate any acute effects during or subsequent to his field training. The Applicant condition was diagnosed in 2005, 35 years subsequent to service. The Applicant acknowledged a lengthy smoking history and medical evidence indicates smoking is the biggest risk factor in the development of lung cancer.
The Panel has considered the opinion of Dr. Nelems. However, the doctor gives his opinion contingent upon confirmation that the Applicant was exposed to Agent Orange or other toxic substances.
The Panel concludes that the doctor is unable to give an opinion without evidence of the likely nature, intensity and duration of the Applicant’s exposure to Agent Orange. In consequence, the Panel does not consider the doctor’s letter a credible opinion linking the condition to toxic exposure such as Agent Orange.
In the absence of evidence to indicate that toxic chemicals would continue to exist in the soil of sufficient intensity that they would have a harmful effect upon a person in the Applicant’s circumstances, there is insufficient evidence upon which to determine the attributable risk that the service-related exposure alleged would have had on the Applicant’s condition.
The Panel acknowledges the opinion of Dr. Van DerJagt cited favorably in other decisions, However, the doctor does not speak to the Applicant’s individual circumstances nor does he provide information from which an attributable risk can be calculated.
In the view of the forgoing, the Panel concludes that the Applicant’s condition did not arise out of nor is it directly connected to military service and affirms the Minister’s Decision.