24 May 2015

VA Has Submitted Rule Covering C-123 Vets to Office of Management & Budget for Analysis

On May 13, Secretary McDonald submitted to the Office of Management and Budget VA's proposed rule to cover C-123 exposures.

Now, we're all awaiting OMB's action to move things forward. The current state is "interim final rule" and is titled "Presumption of Herbicide Exposure and Presumption of Disability During Service For Reservists Presumed Exposed to Herbicide"

23 May 2015

USA Today Covers C-123 Agent Orange Exposure Saga

Appearing in Friday's USA Today edition, Patricia Kime's report on C-123 Agent Orange contamination and aircrew exposure, noting the fact that the VA has yet to act nearly six months after the Institute of Medicine reported its conclusions to him. The IOM confirmed our exposure and resultant illnesses, and the Secretary acknowledged VA's intention to act

But it hasn't. Week after week, we keep reading press releases from VA assuring Congress and our veterans that VA will act "next week." The first time we heard this was late February, and that promise was followed by many more from many VA executives...but VA still keeps its hospital doors locked, keeps us out!

22 May 2015

How VBA & VHA control "independent and objective" Board of Veterans Appeals

It's so easy for the VA! They make the rules, interpret the rules, but seem free to ignore the rules as it suits them. (click for file of this report)

Rules oblige cooperation from veterans, but the VA freely twists, reinvents, ignores and bludgeons veterans with their rules. And when ignoring their own rules isn't enough to block claims, VA staff can simply hide vital evidence necessary to establish disability claims from the veterans. And, VBA is quite comfortable and accomplished at hiding the same vital pro-veteran evidence from the Board of Veterans Appeals (BVA.)

Does the Tenth Floor know about this??

Above, I wrote "attacks" because any process whereby a government employee pursues a personal vendetta of preventing medical care and other earned benefits from aiding qualified veterans is clearly an attack upon the veterans and their families. It forces upon them financial hardship, suffering and in some cases, death.

The law obliges VA to a "duty to assist." What we have seen, however, is four years of revisionist policy web pages described as science, a policy against veterans' claims which VA describes as "case-by-case" consideration, and even Agent Orange exposure claims denied by VA insisting Agent Orange (specifically, the toxin dioxin in it) hasn't been shown to be harmful. VA still stands behind that – his Compensation and Pension opinion was reviewed with the C&P director and he has allowed his opinion to stand for three years without correction. VA's Dr. Terry Walters did describe it as "an unfortunate choice of words" but apparently, not unfortunate enough to correct.

While the VA Manual VAM21-1MR has "the force of law" according to federal courts, the only force is applied against veterans' claims. Rarely has the VA had its hand spanked for disregarding VAM21-MR, and then, only in court criticism of the event as in the Fort Ord decision. Worse, never is even the mildest punishment given VA personnel who twist the rules to fulfill their personal extra-legal whims or prejudices against categories of servicemembers.

"Personal whims" are the proper words to use, because when VA denies Agent Orange claims on the basis that the toxin (dioxin) inside the herbicide isn't harmful, that's contrary to science, medicine, the Veterans Claims Assistance Act of 2000, and VA rules. But that 2012 VBA Compensation Service advisory opinion still stands as the kiss of death for the veteran's claim it was used against.

Sure, the claim can be appealed. And in this case, probably to be resolved after the C-123 veteran's death. Even though it is a "clear and unmistakable error" it still stands to empower VA to refuse all care and benefits for not only the year processing the claim but an additional three to five years to process the appeal at the Board of Veterans Appeals.

But even there VA brings its own deck of cards, seal broken and already stacked against veterans, despite the department's mission statement of being the principal advocate for America's warriors.

The BVA judges simply repeat wrong-headed VBA or VHA websites or memoranda to turn the facts and the law against claimants. Nowhere is this clearer than in VA's tortured C-123 claims and appeals process (AKA "automatic denial process.") First example: In 2011 VHA developed its web pages to obstruct C-123 veterans Agent Orange exposure claims. (Note: Most pages were updated by March 2015 from their 2011-2015 incorrect and very negative perspectives.)

Claimed as having "reviewed all scientific evidence," perhaps but probably not – VA has not been able to provide a list of what evidence was reviewed, despite US District Court supervision of our FOIA. We saw that VA's pages avoided all references and citations proving exposure, and cherry-picked and cited only references to use against the claims. No mention is even made of input from CDC/ATSDR, NIH, public universities or the Department of Defense Joint Services Records Research Center – all of whom actually confirmed the veterans' exposure. VBA then cited the VBA web pages for years to deny claims.

Those denied claims ended up years later at BVA. But here, too, VA controlled everything. VBA judges simply cited the imperfect VA web pages as perfect authority against veterans. Even though the VA web pages were unscientific and not peer-reviewed, and even though other federal agencies challenged them as error-laden, BVA rubber-stamped the same DENIED result the veteran began with.

Here's a BVA example from late 2013:
Of note, the Department of Veterans Affairs did addressee 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 thoroughly 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 www.publichealth.va.gov/exposures/agentorange.)  Otherwise, other than his unsubstantiated allegations, there simply is no evidence that the Veteran was exposed to Agent Orange or other herbicides. 
The paragraph above, taken from a BVA denial of a veteran's claim, has two fatal flaws:

1. The original Office of Public Health web page BVA cites is now proven to be faulty, given the January 9 2015 Institute of Medicine report which confirmed C-123 veterans' exposures. The web pages were typed up by VHA Public Health Post Deployment Health to fulfill their policy of obstructing C-123 claims, and are not any kind of "scientific review. Challenged, VA has not been able to produce any evidence that such a review even took place.
2. Worse, because when this paragraph doomed the veteran's claim, March 2013 VBA had in its possession confirmation of C-123 veterans' exposures sent by the Department of Defense Joint Services Records Research Center (JSRRC.) But this evidence lay hidden from the veteran and his attorney's in submitting the claim, and hidden from the BVA when the appeal was denied. It is hard to imagine a more offensive violation of the government's failure to reveal evidence in its possession (Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). JSRRC began providing an even firmer confirmation of exposures in early 2014.

This was quite wrong but quite standard...VA did it all the time. Here's a parallel claim in which VA obstructed veteran justice. This is a 2014 claim, a year after VBA began hiding the JSRRC information:
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.
Hiding evidence is improper in most criminal and civil procedures, and probably frowned on even at VA, given the possibility of getting caught. It is hard to see anything in their published core values (below) suggesting or permitting evidence favorable to a veteran's claim being hidden, but perhaps "Integrity, Commitment, Advocacy, Respect and Excellence" are given different definitions at Compensation and Pension Service. I can testify that I have not been accorded "advocacy" by VBA in dealing with my claim, other than the gracious communications with the Under Secretary.
§ 0.601 Core Values.VA's Core Values define VA employees. They describe the organization's culture and character, and serve as the foundation for the way VA employees should interact with each other, as well as with people outside the organization. They also serve as a common bond between all employees regardless of their grade, specialty area, or location. These Core Values are Integrity, Commitment, Advocacy, Respect, and Excellence. Together, the first letters of the Core Values spell “I CARE,” and VA employees should adopt this motto and these Core Values in their day-to-day operations.
(a) Integrity. VA employees will act with high moral principle, adhere to the highest professional standards, and maintain the trust and confidence of all with whom they engage.(b) Commitment. VA employees will work diligently to serve veterans and other beneficiaries, be driven by an earnest belief in VA's mission, and fulfill their individual responsibilities and organizational responsibilities.(c) Advocacy. VA employees will be truly veteran-centric by identifying, fully considering, and appropriately advancing the interests of veterans and other beneficiaries.(d) Respect. VA employees will treat all those they serve and with whom they work with dignity and respect, and they will show respect to earn it.(e) Excellence. VA employees will strive for the highest quality and continuous improvement, and be thoughtful and decisive in leadership, accountable for their actions, willing to admit mistakes, and rigorous in correcting them.
Let's look at the other principal means by which VHA and VBA prevent Agent Orange exposure claims from justice at the Board of Veterans Appeals. As mentioned above, VA is guided by its regulation VAM21-1MR. The regulation provides that non-Vietnam exposure claims are checked against the Department of Defense Tactical Herbicide Sites list published in 2006 and written by Dr. Al Young on a DOD contract.

However accurate DOD's report might have been nine years ago, its hopelessly outdated in 2015 as even its author concedes. Out efforts to get it updated were stalled for a year merely trying to find out who had responsibility for it. Initially, we were told by the Senate to approach Lieutenant General J. Fedder in the Pentagon, but she declined several requests, referring us back to VA, which was one of the agencies telling us to deal with DOD. Eventually, we discovered the Armed Forces Pest Management Board which is now "owner' of the DOD list. They, too, declined to get involved updating anything in the report, once again referring us back to VHA.

The cycle is hopeless. Neither DOD nor VA has any interest in updating their 2006 report, knowing they're certain to be faced with unintended consequences of all sorts. In any case, the list is not accurate, and still BVA routinely dooms veterans' claims by citing the fact that the exposure situation claimed by the veteran is not included in the 2006 list. Despite the fact that an absence of a proof (here, a site missing from the list) does not make a statement false, VBA denies claims citing the 2006 list even though they prevent making it accurate with proper updating.

A DOD Inspector General complaint was filed, however the IG declined to investigate...too touchy a problem? A principal component of the complaint was VA's disregard for the interpretation of absent evidence. According to the Court of Appeals for Veterans Claims and summarized by the Congressional Research Service, VA must  consider “the absence of actual evidence is not substantive negative evidence” against a veteran's assertions. Thus VA uses a report it knows to be inaccurate to deny exposure claims insisting that because the site claimed by the veteran isn't in the flawed DOD list, the veteran is in error. Wrong, according to the federal court!

Here are examples of BVA use of the flawed DOD 2006 Agent Orange list denied the claimant justice. In each, and in others not shown here, VBA turned down appeals by citing the incomplete DOD list, knowing that neither DOD nor VA considers thelist accurate. Quotes are from actual BVA claims citations:
1. Consistent with M21-1MR procedures, in October 2007, the RO furnished the Veteran's detailed description of exposure to C&P Service via e-mail and requested a review of the DoD's inventory of herbicide operations to determine whether herbicides were used, as alleged. In a November 2007 response, the C&P Service indicated that a list of herbicide use and test sites outside of the Republic of Vietnam from the Department of Defense (DOD), "does not show any use, testing, or storage of herbicides  
2. In an April 2013 Memorandum, the Armed Forces Pest Management Board (U.S. Army Garrison Forest Glen) responded that a recently published report by Dr. Alvin Young titled "Investigations into Allegations of Herbicide Orange on Okinawa, Japan" provides the most complete data available on this subject. Dr. Young's findings were that there were no documents or records to validate that Herbicide Orange was shipped to or through, unloaded, used or buried on Okinawa. The internet link to the full report was provided
 3. VA has developed specific procedures to determine whether a Veteran was exposed to herbicides other than in the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the inventory of herbicide operations maintained by the Department of Defense (DoD) to determine whether herbicides were used or tested as alleged.
 As claimed in the beginning of this article, VBA and VHA tightly control decisions at their Board of Veterans Appeals. This is done by withholding evidence, by creating artificial policy-driven "evidence" like their VHA web pages, by preventing any update to the nine-year-old DOD list of sites, and by permitting an absence of proof to support veterans' exposure assertions to be evidence against the assertion, which is contrary to law (McLendon, 20 Vet. App. at 85.)  These failings have been pointed out to the VA, along with complaints about VA ignoring the requirement for a "low threshold of proof" and "benefit of the doubt" requirements with disdain and silence VA's only response.

Veterans insist that three things must happen:
1. VA must hold its staff accountable for action (or inaction) on evidence having potential effect on veterans' claims and appeals, and must drop the unofficial blanket policy of C-123 denials.
2. Either the DOD 2006 list must be updated, or at a minimum, VBA must never cite this or any other incomplete document once its errors are evident.
3. VA must be held to the statutory responsibility of being pro-veteran, non-adversarial, imposing a low threshold of proof for claims, and must conclude BVA appeals within a year or award the claim.

Air Force Boneyard Commander Fired

—AMY MCCULLOUGH, Air Force Association

Col. Margaret Romero, commander of the 309th Aerospace Maintenance and Regeneration Group at
Davis-Monthan AFB, Ariz., was relieved of command "due to a loss of confidence" in her "ability to effectively lead the organization," according to an Air Force statement. Brig. Gen. Carl Buhler, commander of the Ogden Air Logistics Complex, which oversees the group, made the decision on May 11, according to the short statement. However, officials did not say what caused him to lose confidence in Romero, who led the 309th since last June. The AMARG is most commonly referred to as the "boneyard" because it is the Air Force's main storage site for aircraft. Col. Matthew Powell, deputy commander for maintenance at the Ogden Air Logistics Complex, has been appointed the new commander, according to the statement.

21 May 2015

Active Duty C-123 Vet's Family Wins Claim After 16 Years

 William H. McMichael, The News Journal4:20 p.m. EDT May 17, 2015
Art Chadwell had been back from Vietnam for 18 months when he and his wife-to-be Kathryn first met. Even then, in 1967, she noticed he had problems with peeling skin, hard lumps and a lot of joint pain. He trembled all the time, she recalled.
"He knew something was going on," Kathryn said. "But he didn't know what it was."
Chadwell, who moved from Tacoma, Washington, to Dover in 1956, was a loadmaster on a variety of airplanes, including the C-123. The prop-driven cargo plane was a major player in the Vietnam War's Operation Ranch Hand, an 11-year program of chemical defoliation aimed at denying the enemy cover and food. One of the chemical defoliants sprayed across the jungle came to be known as Agent Orange, named for the orange stripe painted on the 55-gallon containers.
As a loadmaster, Chadwell had a lot of contact with the military-grade herbicide, which contained the highly toxic compound dioxin, an unintentional byproduct of the manufacturing process that causes skin lesions in the short term and is classified by the World Health Organization as a "known human carcinogen."
"He was heavily exposed to the Agent Orange in the aircraft and on the ground," Kathryn said in her soft Tennessee drawl. "But they told him it was safe. He told me that the men even took rags and used the Agent Orange to clean their tools, with their bare hands. That's how heavily exposed he was to it."

Over the years – the couple spent most of their 28 years together in Bridgeville – Chadwell's condition sometimes improved, though he suffered frequent skin infections, some of which had to be cut away. Losing weight and becoming jaundiced, he visited a Department of Veterans Affairs doctor in April 1996. The news was heart-stopping: Chadwell had developed pancreatic cancer. Six months later, he was dead. Arthur C. Chadwell was 51.
For much of the next two decades, Kathryn tried and failed to get the government to acknowledge that Agent Orange had caused his cancer, despite the efforts of the Vietnam Veterans of America and, beginning in 2012, a Bethesda, Maryland, national law firm that specializes in compensation cases before VA.
Then, in April, she opened a letter from the VA containing a copy of a decision by the Board of Veterans' Appeals, or BVA. She could hardly believe what she read: "The Board finds that service connection for the cause of this Veteran's death due to herbicide exposure in service is warranted."
"After 181/2 years, I was so stunned that I had to read it, like, six times before I believed it," Kathryn said during a recent interview. "I just knew there was something in the verbiage that I was missing."
For Kathryn, who'd never worked outside their home and suffered financial hardship following Art's death, the decision should mean the ability to live out her life more comfortably, said Joe Moore, an attorney with Bergmann & Moore, the firm that took up her case. The decision is also important news for others who have been similarly afflicted, or who lost a spouse to the disease, he said.
"This case isn't precedential," Moore said. "This case doesn't, unfortunately, add this cancer to the presumptive list. But if veterans and their families hear about the fact that pancreatic cancer can be service-connected due to Agent Orange exposure, they won't give up."

The Chadwell decision, he said, will show them the way.
"This is a road map right here," Moore said. "It's telling someone else exactly what they have to do to win service connection for pancreatic cancer."
VA presumes exposure to herbicides for all who served in Vietnam from 1962 to 1975. The agency recognizes only 14 diseases – Parkinson's disease is one – as being associated with Agent Orange exposure and eligible for compensation benefits.
Pancreatic cancer is not on the list. The Institute of Medicine has found there is "inadequate or insufficient evidence" of an association between the defoliant and pancreatic cancer.
Still, exposed veterans with diseases not on the list have the right to argue their case and may be eligible for compensation "if they show on a factual basis that they were exposed," VA says. Prevailing in this case, the BVA said, required medical evidence or, in some circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death; and a "competent medical evidence" connecting the two.
The key to the Chadwell decision, Moore said, was the oncologist who provided the expert medical opinion for the case. Maxwell M. Krem, a board-certified VA physician, pointed out that no epidemiologic studies of Agent Orange and pancreatic cancer have been conducted. Instead, he based his opinion on published studies that "strongly suggest" the herbicide increases pancreatic cancer risk.
"It is at least as likely as not, and possibly more likely than not, that Agent Orange actively promotes the [development] of pancreatic cancer," Krem wrote, adding that Chadwell's heavy smoking, which began in the service, "definitely contributed" to the cancer and his death. He also noted that another VA doctor's 2009 opinion that led to the initial VA rejection of the claim, less than half a page long, did not discuss the literature reviewed, did not provide a rationale and failed to note Chadwell's history of smoking. The BVA agreed, calling it "less probative" than Krem's report.
Chadwell had no family history of pancreatic cancer.

A big, strong man who drove semis for a living, Chadwell's condition seemed to improve about five years after he met Kathryn, she said. Despite his physical problems, she said, he never lost his sense of humor. "Always jokin'," she said. "Kept us laughing."
He was also "very patriotic," she said. But in the early 1980s, with the joint pain becoming more acute, particularly in his ankles and knees, she said Art came to suspect his issues might be related to heavy exposure to Agent Orange. In 1982, he signed up with the VA's Agent Orange Registry, established in 1978 to index medical exams of veterans who were exposed to the defoliant.
"They told him at the time that they couldn't really find anything wrong with him," she said.
Pancreatic cancer is rarely diagnosed early and spreads rapidly; more than 83 percent of those diagnosed with the disease in 2015 will die, the American Cancer Society said. After he was diagnosed in April 1996, Chadwell underwent a series of procedures. In late August, doctors performed a bypass operation and looked to see if the tumor could be removed.
It was too late. "It had already spread to the liver and the lymph nodes," Kathryn said. "He never came home from the surgery."
She had no idea, she said, that she'd spend the next 16 years trying to resolve the true cause of his death. Moore said he was astounded by her perseverance.
"Amazing," he said. "She's an amazing woman. And doing that after losing her husband ... she's been through so much for something that her country pretty obviously owed her."
Contact William H. McMichael at (302) 324-2812 or bmcmichael@delawareonline.com. On Twitter: @billmcmichael

Memorial Day 2015 for C-123 Veterans and Our Families

Our family honors and mourns Brigadier General John W. Carter, Captain John Carter Jr, Chief Warrant Officer Henry Carter Sr, Lieutenant Colonel Jessie W. Britt, Master Sergeant George Gadbois, Specialist Walter Rogers, Major Cliff Turcotte, Lieutenant Colonel Paul Bailey, Master Sergeant Robert Boyd, Brigadier General Mike Walker, Acting Sergeant John Carne Sr, Major John Carne Jr, Colonel Warner Jones, Airman Maleine Adams, LtCol Pam Cluwe, Colonel Lou Pascovitz, Sergeant First Class Willy Chiquina, Lieutenant Colonel Tim Olmsted, Master Sergeant Mike Lieb, Master Sergeant William Schindler and Senior Master Sergeant Ed Galvin.
 I felt like this little fellow when I was handed my father's flag.

19 May 2015

VA Hid DOD Confirmation of C-123 Veterans' Exposures for Two Years – concealed evidence vital to veterans' Agent Orange claims

VBA Agent Orange Desk Policy??

VBA's Agent Orange desk hid evidence from the Board of Veterans Appeals and US Court of Appeals for Veterans Claims! The personnel involved (staffers in the Veterans Benefits Administration) violated every trust a veteran is asked to have with the Department of Veterans Affairs. VA let valid C-123 veterans' claims be denied by withholding official DOD information which would have established service connection. VA thus insured through this arbitrary and capricious abuse of authority that all our claims were denied.

Revealed in VA emails and other correspondence released last week under the Freedom of Information Act are proofs of the intensity and creativity, as well as total disregard for veterans' rights, with which VA's Agent Orange desk in Veterans Benefits Administration fought all C-123 veterans' Agent Orange exposure claims.

This was done not as matter of law, nor even VA's own regulations, but because of the personal policy preferences of a few individual staffers.
"Quick...hide the Agent Orange evidence!"

VA's operations manual VAM21-1MR states that VA will ask DOD's Joint Services Records Research Center (JSRRC) to verify non-Vietnam War veterans' Agent Orange exposures. Vietnam War veterans are considered by law to have been exposed, but veterans exposed elsewhere have the assertions investigated by JSRRC. And JSRRC affirmed the C-123 exposures.

VA has had all this proof from JSRRC for over two years (March 13 2013 and perhaps earlier from veteran-submitted documents which VA ignored.) The agency never revealed anything to its regional claims adjudicators, Decision Review Officers, veterans, veterans service organizations, or VA's Board of Veterans Appeals where denied claims are reconsidered. 

Once the C-123 issue arose, VA was overly selective about what evidence it would accept from JSRRC, insisting it had to be contemporary military material only. In effect, VA was cherrypicking evidence from what JSRRC provided, accepting anything against the veterans, refusing anything helping the veterans. 

After VHA informed VBA of its position against honoring any C-123 veterans' claims, VHA Public Health staffers put out a web page (click...pre-2015 page) insisting their review of "all available scientific information" (actually, cherrypicked information to prove their own point) was against the exposure claims. VA then cited their own web page as proof in subsequent claims and BVA decisions. "It's true because we say it is, and the proof is that we said it." Simply put, this was policy-driven (non)scientific deception.

VA's web pages were false, and were finally modified to a more neutral tone on March 15, 2015. The Institute of Medicine confirmed the veterans' Agent Orange exposure and harmful effects on January 9, 2015 in its report to Secretary McDonald. VHA and BVA opposition to C-123 veterans' claims since 2011 was wrong. The dozens of reports from the CDC/ATSDR, NIH, universities, physicians and USPHS all were ignored or disputed by VA, but in the end VA was proven wrong.

Many federal agencies (including the deputy director and two successive directors of the CDC/ATSDR) and independent scientists had provided expert federal agency input to JSRRC hoping to get it to VA for proper evaluation of C-123 veterans' claims. To ignore these proofs, VA insisted to JSRRC the materials that only DOD materials offered were acceptable: No input from other federal agencies, universities, state governments or scientific associations would be acceptable to VA. 

We thought that senseless barrier had been resolved when two US Public Health Service physicians informed JSRRC...and USPHS commissioned corps physicians are military officers by statute. One was Rear Admiral Robin Ikeda (MD, USPHS) at that time Acting Director CDC/ATSDR. Another was Captain Aubrey Miller (MD USPHS) assigned to the NIH/National Institute of Environmental Health Sciences.

VA's Secretary Hickey was also visited by the Director National Institute of Environmental Health Sciences who discussed the science and veterans' exposure proofs. 

Mountains of legitimate, persuasive, and expert input, but VBA and its Agent Orange desk ignored it all.

•at JSRRC, Mr. Dominic Baldini, Chief
• at VA, Manager, Agent Orange Desk, Veterans Benefits Administration

• 2013 email between JSRRC and VBA's Agent Orange desk; JSRRC's chief provides confirmation documents adequate to approve claims. VA never acts on these and over years permits claims to be denied without providing them in fulfillment of VA's duty to assist every veteran's claim.
• JSRRC response on a C-123 veteran's exposure assertion; happens to be mine because I have no access to any others due to privacy protections. 

VA's VAM21-1MR states that VA will inquire at JSRRC for a veteran's exposure to be substantiated. It says nothing about whether VA must act on that but implies it. Nothing is said about VA not acting, however that clearly violates VA's statutory obligation to assist the veteran. 

For years, VBA callously permitted sick C-123 vets' claims to be denied, and their appeals to the BVA denied, without providing these readily available and affirming JSRRC materials which would have been so decisive in any fair forum. Amazing that DOD ad  "yes" but VA still chose to interpret that as the "no" VBA's Agent Orange desk prefered.

VBA repeatedly (2011 through late 2014) advised regional offices and VA personnel everywhere that there was no basis for VA to "concede" C-123 veterans' Agent Orange exposure. Because the Agent Orange desk refused to "concede" the veteran's exposure, that amounts to directions to regional offices to deny the claims, and many simply wrote, as on the Paul Bailey initial denial, "VA regulations forbid...

With Senate inquiries heating up the issue, VA later admitted it has no such regulation and no "blanket policy" against C-123 claims. Even today, VBA insists C-123 claims are handled on a case-by-case basis, yet on a case-by-case basis every single one is denied. Still, it certainly sounds like a blanket denial of all claims!

We ask our fellow citizens and legislators to remember that despite all the controversy and VA-pushback, C-123 veterans were eventually proven correct by the IOM C-123 report. VA was shown to be in scientific and procedural error in opposing reasonable claims. VA all this JSRRC and other federal agencies' proof in its possession since 2011, yet allowed exposed veterans to sicken and die by hiding the evidence.

VA treatment of veterans' rights
They had all the DOD evidence necessary for the benefit of the doubt, pro-veteran, non-adversarial confirmation of our exposures from 2011 on, but chose to ignore, denigrate or simply hide that evidence to insure their policy of "no C-123 claims will be approved" as per statements by VHA Post Deployment Health. VA used its rules against veterans' interests where desired, but freely ignored the rules when staffers had their anti-veteran personal agendas to pursue. These staffers should re-read opinions by federal courts that emphasis VA's regulation VAM21-1MR has the force of law...adhering to it is a veteran's responsibility and also VA's.

​Related topic:

As part of his 2012-2014 $600,000 no-bid sole source contract with VBA, the contractor submitted a report, citing himself, which generally concluded no changes were necessary in his 2006 report. Each of his monographs produced under the contract confirmed VA policy, perspectives, opposition to various veterans' claims, etc. None challenged or suggested changes, improvements, nothing.

DOD (Armed Forces Pest Management Board apparently has responsibility) has refused per the AFPMB director to amend this list even with IOM, ATSDR and other proofs of additional sites, yet VA continues to cite it in denying claims and denying appeals at BVA.  (example one)  (example two) Both VA and DOD have refused to update this nine-year-old list.

Any "proof" cited by the government to provide or deny a citizen's rights should be accurate. This DOD list is not accurate and is fatally flawed, yet VA employs it to block claims.

CLICK TO READ JSRRC to VBA C-123 Exposure Confirmation:

15 May 2015

Why has no C-123 veteran's claim ever been honored by VA?

AGENT ORANGE DESK           Regional Claims office         
Easy answer: because with encouragement from its outside consultant and instructions from VHA Public Health, the VA HQ Agent Orange desk orders all our claims to be denied.

Here's VA's deception.

For years, VA has insisted on their website, in communications with Congress and the media, and with all the veterans' organizations, that C-123 claims are evaluated on a"case-by-case basis." VA objected to our use of the phrase "blanket denial," insisting each claim receives a full, fair, impartial evaluation.

Nuts. VA bosses might somehow consider ours a case-by-case evaluation only in that each C-123 claim is individually stamped "DENIED" and then tossed into VA's trash heap with 100% of all other C-123 applications. Vigilant VA gatekeepers have insured that not a single C-123 claim got approved on their watch!

VA's rule book VAM21-1MR, requires claims from veterans who didn't serve in Vietnam but who claim Agent Orange exposure to be forwarded from the regional offices to VBA's Agent Orange desk.

And that's where all C-123 veterans' claims are denied through an automatic negative "advisory opinion." VA's Agent Orange desk has already determined that none of the C-123 veterans were exposed. They misinterpreted the 1991 Agent Orange Act and the burden veterans no longer have regarding proving medical nexus for illnesses already recognized by the Institute of Medicine and the Secretary of Veterans Affairs as among the "presumptive illnesses."

Here, VA's Agent Orange consultant is respected, very highly thought of, and his influence clearly seen. In fact, the consultant while an Air Force officer was assigned to VA's Agent Orange desk. The consultant's no-bid sole source $600,000 VA contract (2012-2014) would have its greatest impact on encouraging the Agent Orange Desk to continue rejecting C-123 claims.

Thus, personal policy at the VBA Agent Orange desk where administrators predetermined all C-123 claims were to be denied trumped the VA's assurance to Congress, veterans, and the media that each claim is evaluated on "a case by case basis."

How can this be when the evidence shows 100% of C-123 veterans' claims are denied?

How can this be true when VA's own paperwork trail shows, as in the Agent Orange Desk email below, that VA's Agent Orange desk informs VBA, VHA and the regional offices that "there is no basis for service connecting AO disabilities" for our veterans? Golly...why bother applying?

How VA avoids its duty for "case by case" C-123 claims decisions (& also violates patient privacy at the same time*)

Here's how they do it. Here's how Veterans Benefits Administration and Veterans Health Administration/Public Health Section dooms a veteran's claim to denial followed by three to five years waiting for the Board of Veterans Appeals (BVA) to "remand" the claim for minor errors to be corrected...all adding up to years in which the Department of Veterans Affairs prevents all medical care and other benefits.

Below is an email between VA employees in their Veterans Benefits Administration and Veterans Health Administration. It was released last week through the Freedom of Information Act and under supervision of the US District Court/Washington DC. The court got involved because VA fought tooth and nail to prevent these things coming to light, and only the court's intervention forced VA to comply with the law.

VA's VAM21-1MR explains that regional offices will forward to the VA's Agent Orange Desk in Washington all Agent Orange disability applications for its opinion when the veteran claims an exposure but wasn't in Vietnam. VA will inquire through the Department of Defense Joint Services Records Research Center (JSRRC) for any official records which might substantiate the claim.

JSRRC has detailed my Agent Orange exposure proofs to the VA, but VA has ignored that response altogether because such confirming JSRRC responses don't fit with VHA's objective of denying C-123 veterans' claims.

The VA email above explains that VBA will be refusing my own claim for Agent Orange exposure. The law, and VA's published procedures in the Federal Register, clearly state the only requirement of exposure, and not medical nexus. I provided nearly 100 pieces of supporting evidence and expert medical and scientific opinions, which the VA email dismisses as "his PhD supporters."

The VBA writer said he was weighing my supporters against the VHA Public Health website evidence. The website was the product of two VHA physicians, one VHA toxicologist, and a VHA veterinarian also with a PhD in Public Health. VA's references were selected to argue the VHA position and all references which helped prove the veteran's' exposure were disregarded. VA dismissed any peer review.

This is called cherry-picking, not science. It is called policy, not medicine. The VA error is clearly evidenced in the January 8 2015 Institute of Medicine C-123 report to the Secretary of Veterans Affairs, in which the IOM (under VA contract) confirmed the C-123 contamination and the exposure and harm done the veterans who flew and maintained those planes.

Dismissed like my JSRRC confirmation or simply ignored among my submitted proofs were expert opinions (all unpaid) (plus my private physicians, not listed here) including:
Dr. Jeanne Stellman, PhD, Columbia University
Dr. Fred Berman,  DVM PhD, Oregon Health Sciences University
Dr. Arnold Schecter MD, University of Texas
Dr. Tom Sinks, PhD, CDC
• Dr. Linda Birnbaum, PhD, NIH/National Institute of Environmental Health Science
Dr. Christopher Portier, PhD, CDC Director Agency for Toxic Substances & Disease Registry
Dr. Mark Garzotto, MD, Portland VA Medical Center/Oregon Health Sciences University
Captain Aubrey Miller, MD US Public Health Service
Rear Admiral R. Ikeda, MD US Public Health Service
Concerned Scientists and Physicians – dozens of experts who submitted a group letter to VA

The EPA did not provide their own opinion but they concurred in the NIESH opinion of Dr. Birnbaum. Thus agencies represented in affirming my exposure claim were EPA, NIH, NIESH, CDC, and USPHS. Opposing the claim was the Public Health Section, Veterans Health Administration and its staff of four. They did this simply by typing up a web page for the VA's website on which they said, based on their personal views, C-123 vets weren't exposed. Thereafter, rating officials, BVA and even CAVC cited the fault-laden website as somehow proof itself.

The law requires VA to give a veteran's claim every benefit of the doubt. "Resolving all doubt in favor of the veteran" is how VA is supposed to work, yet here and probably in many other unrelated cases VA personnel develop their own policy and bend all science, all rules, all laws to that policy. Here the policy was to prevent C-123 claims, and the policy has worked perfectly from 2007 to this very day.

The same VA players are still in place, feeding the Secretary of Veterans Affairs deceptive reports, having him sign misleading, dishonorable and error-laden letters to the Senate.

It is samo-samo. An uphill struggle where VHA expects veterans to wimp out at trying, discouraged by the barriers VA invents, the landmines used to blow up all protections in VAM21-1MR and other regulatory and statutory protections which should be extended veterans.

They can wait us out...after all, we're the old and ill veterans beating our heads against the wall at 810 Vermont. They simply close the door and lock us out until we die off or go away.

* PS...about the patient privacy. Read the email at the top of this entry. See how casually VBA sends over to VHA staffers information about a veteran's name, claim, disability status and personal medical information. As well as his personal observation that "100% must not be enough." Does this staffer think my spinal cord injuries, cancers and heart disease are "enough?" Is VA annoyed with my claim? Is this why this staffer disapproved my claim by dismissing all proofs and also by insisting that Agent Orange is harmless?

Note: Title 38 USC addresses this issue: (1) Any officer or employee of the Department of Veterans Affairs, who by virtue of his or her employment or official position, has possession of, or access to Veterans Affairs records which contain individually identifiable information the disclosure of which is prohibited by 5 U.S.C. 552a or by § 1.575 series established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $ 5,000

14 May 2015

US Senators – Do I have the RIGHT to demand their assistance?

Yes, of course, if we consider the Constitutional guarantee of freedom of speech and the many ways such as print, video, websites in which that freedom can be exercised. There is nobody who would challenge me for expressing myself, given the understood exception of unlawful extremes.

What I mean is, do I have the RIGHT to demand their assistance in a way beyond the mere exercise of that freedom? Do they have to listen? Do they have to decide whether to respond or can they simply ignore me as they would any other pest?

No – they can't ignore a citizen's voice, although they do. They have to listen, although they often won't. They must respond but seldom do. I still maintain, however, it's their job to listen, their job to care and their oath of office to oblige them to these chores. Below I've listed reasons senators are obliged to listen, and in a perfect world, or in a world where the senator had to account for the resolution of each citizen's complaint...they would listen. Of course, I must emphasize the greater likelihood of them actually listening if good manners are used to conduct a civil discourse!

First reason Senators have to listen to my demands:

I spent the majority of my military career flying aeromedical evacuation. Most of it was years of training for the few days of live medevac missions in an aircraft carrying my fellow soldiers out of harm's way. 
If at any moment in my twenty-six years of service I had failed to do my duty, or failed to correct flaws or errors or mistakes, others could have suffered. 
Neither the Air Force nor our legislators would tolerate any failure on my part which could result in failure of the aeromedical evacuation mission. Too much was at stake, and still is in today's medevac. 
One can imagine the angry roar from the Hill if anybody in the aeromedical evacuation mission simply opted not to do their duty, and allowed patients to suffer and die. Every senator and congressman with patients from their states whom I'd allowed to suffer would be screaming for my head and demanding the most severe penalties under UCMJ. 
Our legislators demand that people like me, people who've taken the military oath to serve and obey, will do so to the best of our abilities and to the point of death if necessary. 
It stands to reason that if they demand that and more of me because I accepted the obligation to serve and obey, and accepted an office in which I was confirmed by the Senate,  I have no less a right to demand they fulfill the duties of their own oaths of office.
Second reason Senators have to listen to my demands:

I got sick doing my duty. The science is no longer in question, having been affirmed by the Institute of Medicine report to Secretary McDonald. The law is clear. 
But still VA refuses to care for men and women like me who flew these airplanes. 
Today I'm old and ill and unable by myself to move the VA to action. I've wasted four of the last years of my life in pursuit of what VA should have offered from Day One. I seek no new legislation, but rather pressure by the Senate on the VA for Secretary McDonald to act. 
Forty-one years have passed since my first flights aboard the former Agent Orange spray airplanes. Twenty-one years have passed since the Air Force identified the heavy TCDD contamination in Patches. Four years have passed since the Air Force Surgeon General elected not to inform our C-123 veterans of our Agent Orange exposures "to prevent undue distress" (his actual words!) And just before his decision the USAF quietly destroyed all remaining C-123s as toxic waste.
Years have passed, and these were years the Senate should have been exercising its oversight in these matters to protect us airmen. Years have passed, and the only action by the Senate has been two two joint letters to the Secretary of Veterans Affairs and terrific staff support from the teams of Senators Brown, Blumenthal, Wyden, Warren, Merkley, Burr and Bennet. Seven voices among the one hundred, all of whom took an oath which obliged them to protect servicemembers, yet nobody did until Senator Burr's first efforts in 2011. 
The law says we should be eligible for VA medical care and benefits. VA says so also, but hasn't gotten around to doing anything to begin caring for surviving our C-123 veterans.  I became ill in a line-of-duty situation, the facts of which have been confirmed by numerous federal agencies, universities, VA physicians, and independent scientists. VA should act but still they hesitate. Still VA keep its hospital doors locked to us.
Members of the United States Senate, ninety-three of whom continue to stand silent when I call for help, owe me a good listen. It's their job, because I did my job. My claim, and those of the 2100 men and women I served with, is just and reasonable, provided for in law but lacking only the VA's plan for implementation.
Members of the United States Senate, I respectfully demand your consideration of our situation. I respectfully insist you show me and the veterans I represent the same loyalty and excellence in serving us as we served you and our fellow citizens. 

It's only right. At least, I can hope and trust.

The Senate owes us at least an evaluation of what VA is putting us through, and hopefully when each senator has seen enough of this mess each of you will join your colleagues in demanding VA action. Thank you.

13 May 2015

Another day waiting for VA to process my claim – Another day wasted.

VA has a neat website called eBenefits. You can find a lot of info there about their various programs, and also learn that any application for them takes months, usually years. Most usually, years.

Widely derided by veterans for its sluggish response to changes even when they do happen, the general advice by claims experts is and always has been, don't bother monitoring your claim process on eBenefits. Or by calling VA's 800-number, either. In fact, there is nothing any more effective than simply watching the postman to see if you get "the big brown envelope" some day years after applying.

Of course, VA's backlog of older claims has been cut and congratulations to Veterans Benefits Administration for that. A combination of forced overtime, retraining, online applications, computer-based awards calculations, "fully developed claims," and increased staff have brought deserved praise for the improvement.

But buried in the applause for VBA's success is the dirty secret: the claims numbers are manipulated by a variety of tricks. The biggest one is denied claims. A denied claim is then either dropped by the veteran or passed along for decision three to five years later by the Board of Veterans Appeals.

BVA then usually "remands" most claims back to the regional offices for whatever VA shortcomings they identify...wrong forms, forgotten physicals, ignored rules or procedures – a whole raft of VA errors and a list of them so long they can't all be mistakes by the original claims adjudicators. About 70% of these denied claims reaching the BVA are remanded...which is no solution as the regional office then takes months or a year to return the claim to BVA where, still, a huge percentage are simply remanded back again. More mistakes, or original mistakes not even attended to.

It can't all be by accident. And it is a terrible cycle, with claims often decided well past the veteran's death.  Another VBA "secret" is stacking difficult or complex claims for future (if ever) consideration while turning to more straightforward claims which are easier to pump out, thus allowing adjudicators to meet production goals. VA even warns veterans that their complex claims or applications with several issues at hand will take longer. Actually...we should print "PROMISES" veterans such a delay.

BVA is famous among veterans principally for the delay involved in getting one's claim before their judges. Regardless of the particulars, claims can take three to five or even more years to cycle from the local claims office through the Board of Veterans Appeals. My 2011 claim, below, has been awaiting appeal for over two years and hasn't been forwarded yet from the regional office to BVA. I can expect two or more years ahead and then odds are against any resolution, but instead, only a remand.
A frequent error committed by VA in processing claims is to deny them without even having ordered a Compensation and Pension exam, or by ordering one for some irrelevant issue not even claimed by the veteran. In either case, the denied claim forces the veteran to appeal, then has the BVA simply remand back to the regional office for the proper exam. Net loss to the veteran: perhaps one year in the basic claim and three more waiting for BVA and then another year at the local office to either award or, more likely deny again.

Fellow citizens, the months and years that VA refuses care to disabled veterans until claims are approved are terribly long periods to do without medical care, hoping to survive. Despite the wonderful people...and there are many...in BVA, too many veterans are faced with what even VA's own inspectors termed a "high risk" medical system. However, the inspectors didn't add the impact of veterans having care denied to the quality of care itself...that would have earned something even worse than "high risk."

Perhaps non-existent would be a good description for care in such a situation.