26 July 2017

VA acts to correct new regulation that "forgot" about C-123 veterans' Agent Orange benefits

It is a brand-new core document: "VHA Directive 1601A.02, ELIGIBILITY DETERMINATION."

It is important. VHA issued the newly revised directive to its offices nationwide, with the stated purpose:
"This Veterans Health Administration (VHA) directive updates Department of Veterans Affairs (VA) information on determining eligibility for VA health care benefits."

So it's pretty important because VA personnel will refer to it when deciding whether or not someone needing care is an eligible veteran or not.

Important, but flawed...they forgot about us C-123 veterans! For whatever reason, VHA didn't include our thousands of C-123 Agent Orange veterans in the description of vets having presumptive eligibility.

Solution? On Sunday afternoon I dropped a note to Acting Deputy Secretary Scott Blackburn and by Wednesday morning, Dr. Ralph Erickson called to acknowledge the problem and promise a quick fix. Erickson is VHA's Chief Consultant for Post Deployment Health Services and a retired Army doc.

And very importantly, Dr. Erickson was an Army flight surgeon who understands us when we seek his help!

What a change in his function: for four years his predecessor led VA's efforts to block our exposure claims. But now, he oversees VA's efforts to ensure vets like us are properly cared for as per law and regulation.

Thanks, VA and Dr. Erickson!

22 June 2017

C-123 Work in DC: June 19-21

Thanks to generous burden sharing by other C-123 vets on the travel expenses ($1731) involved, I was able to meet for two days with the VA Advisory Committee on Disability Compensation in Washington DC.

This committee reports directly to the Secretary of Veterans Affairs. Even if items not specifically on their agenda are being discussed, getting our information into the minutes of their meetings is a way to directly inform the Secretary of our issues.I call this my "grain of salt" trip.

My speech was prompted by an article in ProPublica published on June 12. In it, the manager of the VA Agent Orange desk spoke negatively about me and about our C-123 issues. I felt he needed correction so I had an appointment with the Committee to make presentations on Tuesday and Wednesday.

I began by placing one-pound Morton salt bags at each end of their conference table. I said they would be wise to take anything the VA said with a grain of salt. But the containers are sealed this morning and they should stay sealed because everything I say is as truthful as I can make it...We don't pick and choose the facts to support our arguments, and we tell the whole truth.

VA, on the other hand, has carefully selected facts and figures to support their policy and disregards everything else. That's why I said at the beginning of my talk and at the end, the committee would have to take everything the VA says with that grain of salt plus a healthy amount of skepticism.

But that is totally wrong! We need to be able to trust VA to give the complete and balanced presentation about an issue plus their conclusion. However, at the March 7 meeting of the committee, VA told a completely distorted and misleading story about Agent Orange and the dangers to veterans.

My point was made to the committee when I reviewed how the VA on March 7 told them the "hysteria" about Agent Orange was due only to an opinion from "some Harvard scientist or somebody" and "hardly anybody bought that," VA said.

Actually, the speaker knew perfectly well that In addition to the Harvard scientist, the CDC, US Public Health Service, National Institute of Environmental Health Sciences, NIH, and dozens of university medical schools and schools of public health had already informed him four years earlier in 2011 that our aircrews and maintainers were exposed and harmed by duties aboard the C-123s. 

But cheating a little to make his point, the VA Agent Orange
subject matter expert opted to avoid mentioning all that pro-veteran and vital scientific information to the committee. Simply put, he was deceptive, and for that, the committee needed "a grain of salt"...needed to listen with skepticism rather than the trust one would hope to offer a government "expert."

The VA fellow had described Agent Orange to the committee as nothing more than – his words – hype and hysteria. He exhibited once again the VA tendency to ignore evidence supporting veterans' claims and instead construct his own negative view on their claims.

That was Tuesday's talk, and on Wednesday I had the opportunity to discuss VA ethics. They've been in free-fall for quite some time. I offered examples where our medical information had been shared inappropriately and our claims discussed sarcastically.

Interesting: Before the committee began work on Wednesday, a letter of apology from the VA Agent Orange Desk manager about his statements in March 2017 was read aloud.

I was privileged to give these presentations on behalf of our C-123 Association, the Vietnam Veterans of America and Colorado's 460,000 members of the United Veterans Committee. The Wednesday presentation on ethics had not been discussed with these other organizations and thus I spoke solely as a member of the C-123 Veterans Association.

After getting my appointments with ACDC, on Monday once I'd arrived in DC I asked the other groups if they would lend their voices to mine for greater impact...a helpful last minute idea. I spoke representing nearly a million veterans.

We're coming to the view that one individual in VA has been an extremely negative impact on our years of Agent Orange claims. This person, VBA's Agent Orange Desk manager, can be fairly considered anti-veteran. We find him unacceptable as a key decision maker on our claims and we must bring to the Secretary’s attention his many shortfalls. This fellow was the principal roadblock between 2007-2017, and even on some of our remaining issues.

When I finished, I asked if anyone on the committee felt my presentation and handouts needed "a grain of salt" or if they believed me. The salt bags remained closed, so I guess they trusted me.

On Tuesday morning I had a meeting with Katrina Eagle, the prominent veterans legal representative. That was followed by a meeting with Perkins Cole, the national law firm providing us pro bono assistance on our lawsuit against the Air Force where we seek a line of duty determination covering our exposures back before 1982.

A busy three-day trip!

07 June 2017

03 June 2017

The 1448 Day Stall for Claims at Board of Veterans Appeals – why VA must adopt an initial "presumption of eligibility" on certain claims.

When a vet believes VA has made a mistake on his/her claim, VA welcomes an appeal its Board of Veterans Appeals (BVA) to set things straight. GREAT, but the only problem is the VA delay in the process leaves vets "twisting in the wind" – abandoned for four years until the system even considers righting the wrong done the vet. Actually, the delay is even longer if we include the year-long initial disability claim process. REMEMBER, this lengthy process gets started with a vet's claim for cancer, ALS, heart disease or whatever is the issue, and until VA finishes its final decision at BVA, all medical care and other essential benefits are refused the vet (unless otherwise eligible for some reason.) That's the unhappy "twisting in the wind" time. The time a vet has to get by somehow on his/her own. One of VA's most unforgivable delays is in its "Statement of the Case and Certification," which VA says takes under three hours work. Yet the most recent statistics show that this task takes the VA on average 537 days after receiving the Notice of Appeal and that it takes another 222 days before the BVA actually receives the certified appeal, for a total of 759 days. Over two years, with VA hospital doors locked as the process continues. Refusing care for cancers and heart disease...as VA did on my claim by postponing a decision for four years...can be a death sentence. A final decision from VA might come with retroactive compensation but there is no retroactive adjustment for medical care denied or family benefits like CHAMP-VA withheld. That's why VA must adopt a scheme of initial consideration of claims for PRESUMPTIVE ELIGIBILITY FOR CARE. Perhaps not all claims, but at least claims with substantial merit and instances where denying care would endanger life or limb.

26 May 2017

This C-123 Veteran's Agent Orange Essays: Five Years of Honest writing

Honesty and accuracy throughout. Right there is the distinction between VA and us. They mislead, manipulated, prevaricated. VA "Lacked candor."

That is how I characterize our long effort to earn VA benefits. It took 1515 days before VA approved my Agent Orange exposure claim for cancers and heart disease. I was already 100% service-connected disabled from the Gulf War and medically retired, so my Agent Orange illnesses became the “poster-child” C-123 Veterans Association test case. VA rules wouldn’t let me manage anyone else’s claim so I focused on mine and Paul Bailey’s...his claim was purely Agent Orange issues, and we wanted just this little variety in two amazingly identical claims.*

The objective: Work one case through the VA system, do the research, get scientific and government support, resolve problems and make all our eligible aircrews and maintenance folks (or survivors) able to submit VA disability claims for fair consideration. We did not seek “presumptive eligibility,” although that advantageous status was eventually granted by Secretary McDonald on June 18, 2015.

For 1515 days, I wrote. It sometimes felt like both day and night, I wrote. With no budget to do much else, I wrote. The blog alone eventually ran to seven volumes. I wrote and wrote and wrote. When I wasn't writing I did research for the next piece I'd write.

A website, a daily blog. Briefs, letters, proposals, VA 41-2138 statements, PowerPoint presentations, handouts, essays, press releases, YouTube videos, general correspondence. I kept writing. I wrote things like these essays and other papers.

Today is has been 2220 days since starting this campaign and I look back on complete honesty, consistently accurate writing. Nearly everything I wrote is still available to evaluate. I wrote expecting to be challenged; perhaps even in court so I tried very hard for accuracy. I certainly was an assertive advocate and that was wholly proper.

What wasn't at all proper was 1515 days of VA push-back. VA was antagonistic, unfair and not completely accurate in their resistance...sometimes plain deceptive. In the end, though, it didn’t seem to matter how much material I uncovered, nor how smart I was digging out and honestly writing about the truth, the only thing that mattered was VA denying us for four years, dismissing all the facts by insisting VA had an unspecified “overwhelming preponderance of evidence” against us, based on their imaginary “scientific study.”

22 May 2017

How VA Obstructed C-123 Agent Orange Claims, 2007-2015

Maybe it was foolish, or maybe too naïve of us to expect that once we had Agent Orange (AO) contamination proof of our C-123s, we would give it to VA and approval of our disability claims would quickly follow.

That foolish expectation of approved claims died a sudden death! As soon VA heard our first inquiries their barriers went up. VHA’s Dr. Terry Walters told the Associated Press, “We have to draw the line somewhere.” This was in addition to VA ignoring its duties under VCAA and the VA’s regulation VAM21-1MR

Those “lines” she spoke of were all firmly set against our claims. VA kept adding to their list of objections to our claims. VA denied every C-123 claim, all while claiming a “case-by-case” evaluation. The Institute of Medicine C-123 report finally moved the VA to do right by us in June 2015!

Let’s look at the many twists and turns VA put us through, the baseless barriers created to block our claims. It only took a small handful of VA opponents …Compensation & Pension in VBA plus Post-Deployment Health in VHA…maybe seven folks at VA who believed it their mission to refuse our claims. 

In the end, only one VA objection threw at us had any merit: they said, as reservists, we weren’t “veterans” and thus weren’t covered for exposure benefits. This point we're still debating in the courts.

VA issued their interim final rule to provide that veteran status and presumptive eligibility in June 2015. That rule finally protected our vets with Agent Orange-recognized illnesses.

VA’s Long List of empty excuses to block our Agent Orange claims:
1. No Agent Orange on C-123s
2. No medical nexus between C-123 residues and our illnesses
3. VA only considers exposure if to liquid Agent Orange, not dust or solid
4. Exposure threat based on only one airplane (“Patches.”)
5. VA studies show insignificant harm to Vietnam Agent Orange spray crews from Agent Orange, so the less-exposed C-123 crews have no basis for claims.
 6. C-123s may have been AO contaminated but was in a form harmless to crews, requiring special chemicals and hard scrubbing to dislodge.
7. No Joint Services Records Research Center exposure event confirmation
Not statutory veterans.
8. VA regulations prohibit acknowledging C-123 exposure claims.
9. VA does not acknowledge C-123 exposures.
10. Post-Deployment redefined “exposure” in a unique way, requiring proof of “bioavailability” of the toxin to acknowledge exposure. They said,  “Exposure = contamination + bioavailability.” “No proof of bioavailability = no exposure.”
11. VBA Compensation and Pension claimed, “most scientists” disagreed with C-123 exposures (“Most” meant Dow, Monsanto, VHA Post-Deployment Health) Opposing them were CDC/ATSDR, NIH, USPHS, NIEHS, Concerned Scientists & Physicians.
12. Post-deployment health already decided veterans were not exposed
13. VA is unable to document which airplanes contaminated & which veterans flew
14. C-123 reservists aren’t veterans (for the period flying C-123s, 1972-1982.)
15. In addition to typical wait of one-two years to decide a claim and five more before a BVA decision, VA opted to not work C-123 claims until IOM report even after JSRRC exposure verifications in 2013 and 2014.
16. Then-Secretary Shinseki “felt non-Vietnam claims shouldn’t be approved.”
17. VA misled Senate Veterans Affairs Committee with error-laden C-123 “Fact Sheets”
18. VBA paid a consultant $600,000 to “investigate allegations” of Agent Orange exposure; that consultant wrote vets claiming Agent Orange exposure were “trash-haulers, freeloaders” for whom he “had no respect.”
19. VHA told Associated Press “a line had to be drawn somewhere” on C-123 Agent Orange claims
20. Per Compensation & Pension Service, VHA had already decided no C-123 vets were exposed and no amount of proof would permit claims to be approved.

…and many more. We had to argue or disprove every one of these and were denied the claims assistance assured us in its Federal Register announcement about non-Vietnam Agent Orange exposures. Their biggest deception:

"VA will assist a veteran in obtaining any relevant information related to a claim for exposure to herbicide agents."
(Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008)

HEY VA: Your “Assist” Never happened!

17 May 2017

Dr. Al Young – paid 55 foot tall stack of $100 bills to block C-123 Agent Orange claims!

Dr. Al Young. Famed Agent Orange apologist. Opposed to C-123 Agent Orange disability claims.

He was paid $600,000 on his most recent VA contract for opposing Agent Orange claims...and he's made millions altogether from VA and DoD...and from Dow and Monsanto. He's doing a contract now for the US Army Public Health Command, even though the Institute of Medicine concluded his input was "conjecture, nor evidence-based." But maybe the Army hasn't heard?

But the question plagued me..."What does $600,000 look like?" I've never seen so much cash. 

So, I checked the internet. A $600,000 stack of $100 bills makes a 55.47 foot tall stack. Used bills are thicker with wrinkles, and would be about 59 feet.

16 May 2017

Reservists Suffering Exposure Injuries Not Eligible for VA Medical Care, Insists VA Official on March 6, 2017!

In his December 2016 and March 2017 presentations to the VA's Advisory Committee on Disability Compensation (ACDC,) Mr. James Sampsel clarified the VA prohibition on reservists and National Guardsmen receiving VA medical care or any other disability benefits for exposure incidents causing illnesses or injuries.

"As to whether somebody actually got exposed to Agent Orange, that's a different matter. There's a presumption of exposure for Vietnam veterans. It goes back to the Agent Orange Act of 1991. That is codified at 38 United States Code 1116."

"We have presumptions for certain groups and, then, we have individual case-by-case-acknowledgments." C-123 veterans know from four years' experience that his promised case-by-case evaluations only meant four years of blanket denials100% – and his instruction to ROs' that VA would not "acknowledge" any C-123 disability claims.
"Reservists do not qualify under VA law for Agent Orange long-term benefits," he assured the committee.  "That's a statutory thing. If you're a reservist, any disability you get has to occur, be directly related to your period of active duty or training, because that's what their service is called. 
Under VA law, that doesn't count for some disability that occurs 20 years later, 30 years later." 
 Or even two weeks, as I learned in 2015 from VA Office of General Counsel. No protection at all for exposure injuries wth delayed onset of symptoms.

The general topic at ACDC was Agent Orange exposure but the same VA answer applies to other biohazard exposures. Reserves and guard are on their own when an on-duty exposure of any sort (toxins, bugs, smoke,  POL, whatever – known or unknown) leads to a subsequent illness after release from duty. For any VA protection, the exposure injury must be evident before taking off the uniform.

Example: an Air Guard unit flies a humanitarian mission to West Africa and the crew returns to CONUS and goes back to civilian status. Two weeks later they develop Ebola. VA will refuse them medical care and deny their families survivors' benefits as well.

Why? Because VA only cares for veterans. It may care about all of us, but it only permits care for veterans meeting statutory definitions.

Guard and Reserve time usually don't convey statutory veteran status so because the law clearly states "veteran," the time of exposure is not a time during which the person isn't serving as a veteran, no benefits. One might have qualified as a veteran before or after the exposure but that might permit only medical care, not disability compensation or family benefits. 

There's an easy fix for this: the military service involved can issue a simple line-of-duty determination when an exposure event occurs. Only the exposure is specified, and it may or may not lead to subsequent illness. VA respects the LOD for the exposure event and should an illness develop in the normal course of the exposure, statutory veteran status is established: 
LOD (as proof of exposure) + illness ("more likely than not" diagnosis as caused by exposure)
= veteran status necessary for benefits.
Why would the military want to go along with this? Because they recognize that line of duty regulations serve largely to protect the veterans benefits due a servicemember. Also, the pure and simple justice of caring for servicemembers exposed on duty who otherwise are left to bear the burden of the environmental hazards they encountered. 

There is no "freebie" in this, but rather only the government properly caring for those injured in service whose exposure injuries are manifested only in the course of time after exposure.

In the Air Force line-of-duty regulation (AFR 36-2910) key items stand out:
1. "The Secretary of the Air Force, or his or her designee, may revise any determination made under this instruction." 
2.  "An LOD determination protects the interests of both the member and the United States Government"
3. "Veteran Benefits. The Department of Veterans Affairs (VA) may use a member’s official military records, including any LOD determinations when determining veteran benefits (38 U.S.C.)
4. "ARC only. After release from active duty or IDT, members have 180 days to ensure any illness, injury or disease that was incurred or aggravated while in a duty status is reported for LOD determination consideration." "The only avenue for addressing previously unreported illness, injury or disease is through the VA.Medical determinations relating to the etiology and onset of a disease or condition may constitute clear and unmistakable evidence when supported by the weight of medical literature."

How can we make this happen to protect reserve and air guard personnel? Have the Secretary of Veterans Affairs give the Secretary of Defense a phone call. 

Let the two of them duke it out. Until then reservists volunteering for duty where a bioenvironmental hazard might exist must consider the medical and financial consequences when the VA abandons you. Get sick, or even die, and the VA says, "You're on your own."

Whatever happens, just don't let Compensation and Pension Service wade in to do what they do best: Deny Claims!

Note: 38 CFR § 3.301 "Line of duty and misconduct."
("a)Line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs."
1. Were our exposures in the line of duty? Yes.
2. Was there misconduct, drugs or alcohol? No.

10 May 2017

Lack of Oversight Promotes VA Claims Mismanagement at Highest Level

"Lack of Oversight"

 For more than four years, James Sampsel got away with it. Mr. Sampsel was (and still is?) working from his home as manager of the VBA Agent Orange Desk. That's a key position in the Compensation and Pension Service with duties spelled out in VA Adjudication Manual M21-1MR. Every non-Vietnam veteran claiming Agent Orange exposure faces Mr. Sampsel's scrutiny. 

What did Mr. Sampsel get away with?
• Improperly blocked every single C-123 veteran's Agent Orange disability claim that crossed his desk. That denied vital medical care and disability benefits. Unless otherwise eligible, vets with cancers and other deadly ailments were locked out of VA hospitals. 

• He created a brief to the Senate Veterans Affairs Committee that falsely assured legislators C-123 claims were decided on a case-by-case basis, while he simultaneously directed VA rating officials to deny all those claims. This was to block legislative relief for C-123 veterans.
• His friendship with Dr. Alvin Young included supervision of a unique no-bid sole-source unsolicited contract for $600,000, with Dr. Young producing a series of monographs on Agent Orange issues of Mr. Sampsel's choosing. The largest single subject of the monographs was Dr.Young's enthusiastic support for Mr. Sampsel's opposition to C-123 exposure claims. The entire series was designed to buttress VA policies against Agent Orange claims.
• Mr. Sampsel was present at the June 14, 2014 hearing of the Institute of Medicine C-123 Committee at which Dr. Young denied he was representing VA in opposing C-123 exposure claims. In fact, Dr. Young was under his Sept 2012-Sept 2014 Agent Orange consulting contract, receiving $25,000 that month. Mr. Sampsel did nothing to correct Dr. Young's misleading statement to the IOM. Critical because Dr.Young tried to come off as a disinterested expert coming forward to advise the committee. In fact, Dr. Young was a paid VA agent under Mr. Sampsel.
• In one email, Mr. Sampsel even sarcastically shared patient information with an unauthorized colleague. He also recommended VA not respond to a different patient confidentially complaint about him as it would only "encourage" the vet. VA does not want to encourage veterans?
• He misled the Secretary into signing a deceptive and error-laden letter and C-123 Fact Sheet" for the Senate Veterans Affairs Committee.

How did he do that?
• Mr. Sampsel insisted VA had "an overwhelming preponderance of evidence" against C-123 claims but there was no such preponderance. Mr. Sampsel told raters there was no basis for honoring C-123 exposure claims, and even provided boilerplate claim denial language to regional offices. 
• Like others in VA, Mr. Sampsel wrongly promised every C-123 disability claim was addressed on "a case-by-case" basis. Amazingly, this is even while writing memos to Mr. Murphy questioning whether they should adopt a case-by-case basis. He directed VA's blanket denial policy while also denying hs policy existed. Some regional offices like Manchester NH took Mr. Sampsel's denials to be regulatory prohibitions of C-123  awards.
• Thus, every C-123 claim was denied from the earliest known in 2007 until June 2015. Tellingly, once free of Mr. Sampsel's twisted scrutiny, every denied C-123 claim appealed to the Board of Veterans Appeals was honored because the BVA more closely obeyed the law and followed VA regulations. Eventually, years after the Sampsel denials, C-123 vets go a fair deal at VBA...if they'd survived the interim delay.
• He also drafted Secretary Shinseki's error-laden June 2013 response to Senator Burr and the "C-123 Fact Sheet," thus forestalling legislative intervention by veterans' elected representatives
• Despite VAM21-1MR procedures, Mr. Sampsel refused to act on JSRRC confirmation of C-123 exposures. He received input as early as March 2013 yet for years continued to insist on his "overwhelming preponderance of evidence" against C-123 vets. It should be noted that the phrase "overwhelming preponderance" admits virtually no doubt – "there is no reason to believe otherwise"...even with contrary input from CDC, NIH, JSRRC, and dozens of other experts, Mr. Sampsel insisted to vets, legislators and VA itself there was no doubt. He was correct, but only in there was no doubt that all C-123 claims would be automatically denied by Mr. Sampsel's agency.

Who let him get away with it? 
• Mr. Thomas Murphy, at the time Director, Compensation, and Pension Service and now, Acting Under Secretary for Benefits. Mr. Sampsel had a key position under Murphy's organization.

How do we know Mr. Murphy failed to provide effective oversight?
Because Mr. Murphy was personally briefed on these problems by Major Wes Carter. Further, Mr. Murphy was copied on veterans' correspondence to various VA leaders revealing specific failures of the Agent Orange Desk, and was copied by Mr. Sampsel on his internal correspondence. Veterans met with Mr. Murphy at his 1800 office on February 28, 2013 to discuss reasons for VBA blocking C-123 exposure claims. 
• One specific point covered was language in a claim denial that dismissed dioxin's harmful effects. Another was the Agent Orange Desk rejection of all opinions from the CDC/ATSDRNIH and dozens of independent experts.
• Mr. Murphy signed the claim denial in question, and also signed VA responses to Dr. Jeanne Stellman, the Corresponding Scientist of the Concerned Physicians and Scientists. That group detailed scientific errors in the Agent Orange Desk rejection of C-123 claims
• Dr. Young's $600,000 Agent Orange consulting contract produced little if anything of value to VA, and was also pointedly anti-veteran as it obstructed C-123 claims.

What was the impact of Mr. Murphy's Lack of Oversight? 
• Vets were denied VA medical care. Vets were denied compensation for disabilities. Families were denied Champ-VA medical care and other benefits such as educational assistance for children. Veterans without VA certification were denied state benefits. Veterans were denied burial benefits. Overall, a discrediting of the VA benefits system and what one newspaper's editors called "the VA's latest success in embarrassing itself."

What has been done about Mr. Murphy's Lack of Oversight?
• Nothing. Nothing has been done to make right the harm done nor improve VA policies and procedures.

Why still be concerned about this injustice?
• Because vets were denied benefits until June 2015. While presently there is no recovery for medical care and other expenses vets faced without VA benefits, VA needs to honor old claims for retroactive disability compensation just as they do with every other claim situation because compensation is based on the date of application, not when Mr. Sampsel and company get around to doing the right thing.
• Because nothing has been done to address their failures, and the system is free to do this again to other veterans.