29 August 2016

It needs to be repeated: From the very beginning, VA science and policy was 100% WRONG on C-123 Agent Orange

In fact, VA was wrong and was determined to prevent our disability claims as a matter of policy regardless of the science involved. From the very beginning our search for help, VA ignored it's fundamental obligation to us as veterans.

No other veteran or veterans organization, supported in the scientific claims for harmful Agent Orange exposure by the CDC and other federal agencies as well as dozens of independent positions and university based scientists, has faced such an automatic VA opposition.  Today's perspective, 18 months after the release of the Institute of Medicine C-123 Report, clearly shows VA opposition was policy-based. VA simply had no scientific or legal basis to oppose the claims – yet they did.

Rather than permit us the benefit of the doubt required by law and M21-1MR they immediately took an adversarial position. That was most perfectly expressed by Mr. Thomas Murphy (Director, VBA Pension and Compensation) when on February 28 2013 he insisted no amount of proof from whatever source would be accepted by VA to support our claims.

Mr. Murphy explained that Veterans Health Administration Public Health decided upon our first inquiries back in early 2011 that, no matter what, C-123 vets were not exposed and VA would deny every claim. VA would do this while insisting that every claim would be considered on a case-by-case basis... and then automatically denied.

As regards the requirement to give us benefit of the doubt, VA reserved it for itself and denied it to the veterans. Even after support for our exposures was submitted to the VA by the CDC ATSDR as well as the National Institute of Environmental Health Sciences, DoD JSRRC and dozens of independent physicians and researchers VA stuck to its illogical and unscientific as well as blatantly anti-veteran position

Nothing illustrates the deception VA used against us better than the simple comparison of the May 2011 VA position statement (below, formulated by Dr. Terry Walters and her colleagues in VHA Public Health) and the final report on us published by the Institute of Medicine in January 2015.


Let's look at these five bullet points:
1) Correct, but irrelevant. The 1991 Agent Orange Act requires VA to treat all veterans exposed to Agent Orange if they have relevant illnesses. VA repeatedly assured Congress and the public via the Federal Register that it would do so.
2) Deceptive. There is only the issue of exposure, not the kind of exposure. For the purpose of opposing our claims, VA introduced the idea of remote/secondary exposure and claimed it made proven contamination of our aircraft no different than the theoretical contamination of the equipment used in Vietnam.
3) Ridiculous! VA stated it would ignore all proof of exposure from whatever source such as the CDC. We did not know it for years but VA had unscientifically redefined the word exposure to require bioavailability for exposure to be recognized. VA created its own unique redefinition of exposure to block our exposure claims, and were criticized for doing so by leaders in other federal health agencies. Even under this redefined exposure, VA should have acknowledged the bioavailability of the C-123 Agent Orange contamination when the CDC informed of them that veterans had a 200 times greater risk of cancer. VA uses Dorland's  Illustrated Medical Dictionary as the standard text of definitions... except for the word exposure.
4) Deceptive. The 1991 Agent Orange Act eliminated the requirement that a veteran establish medical nexus of illnesses associated with Agent Orange and instead provided a presumption. The scientific evidence suggested as missing was already established by the Institute of Medicine and it's numerous earlier reports. Further, as with the first point, VA have a legal obligation as well as the duty under its own regulations to treat all veterans with a proven Agent Orange exposure.
5) The last bullet point is perhaps the VA's most blatant policy driven deception. The opinions referenced as supporting our claims came from the CDC ATSDR, National Institute of Environmental Health Sciences, and dozens of university scientists and independent physicians. Rather than acknowledging this volume of proof, the VA Agent Orange desk in Veterans Benefits Administration simply asserted that it had "an overwhelming preponderance of proof" against our exposures. In fact there was no such proof against our exposure claims and VA insistence otherwise was merely a policy statement. The IOM C-123 Agent Orange Report relied on the same body of evidence to reach an opposite conclusion – veterans were indeed exposed!

VA Conclusions Used To Deny Claims For Five Years:
1) "Even though residual Agent Orange may be detected in C-123 aircraft by laboratory techniques years after Agent Orange use, it must be remembered that there is no bio-availability of TCDD in these aircraft. "
2) "The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially zero."
Terry J, Walters, MD MPH: Director, Environmental Health, VHA

BUT, the Institute of Medicine concluded after studying the same data:
1)  Veterans suffered bioavailability of the dioxin aboard the aircraft by all three possible routes (dermal, inhalation, and ingestion.) IOM specifically disproved the VA theory of no bioavailability of dried dioxin advanced by VHA Post-Deployment Public Health. That flawed concept was earlier advanced by Dr. Alvin Young who actually argued against any hazards of Agent Orange in his article "Environmental fate of TCDD and Agent orange and Bioavailability To Troops in Vietnam."  A frequent VA and DoD consultant, Young was beneficiary of a no-bid sole source $600,000 consulting contract most of which focused on our aircraft.
2) "Reservists experienced increases in their risks of adverse health outcomes." In fact, the CDC told VA veterans had a 200 fold greater risk of cancer.

It needs to be repeated: From the very beginning, VA science and policy was 100% WRONG on C-123 Agent Orange

In fact, VA was wrong and was determined to prevent our disability claims as a matter of policy regardless of the science involved. From the very beginning our search for help, VA ignored it's fundamental obligation to us as veterans.

No other veteran or veterans organization, supported in the scientific claims for harmful Agent Orange exposure by the CDC and other federal agencies as well as dozens of independent positions and university based scientists, has faced such an automatic VA opposition.  Today's perspective, 18 months after the release of the Institute of Medicine C-123 Report, clearly shows VA opposition was policy-based. VA simply had no scientific or legal basis to oppose the claims – yet they did.

Rather than permit us the benefit of the doubt required by law and M21-1MR they immediately took an adversarial position. That was most perfectly expressed by Mr. Thomas Murphy (Director, VBA Pension and Compensation) when on February 28 2013 he insisted no amount of proof from whatever source would be accepted by VA to support our claims.

Mr. Murphy explained that Veterans Health Administration Public Health decided upon our first inquiries back in early 2011 that, no matter what, C-123 vets were not exposed and VA would deny every claim. VA would do this while insisting that every claim would be considered on a case-by-case basis... and then automatically denied.

As regards the requirement to give us benefit of the doubt, VA reserved it for itself and denied it to the veterans. Even after support for our exposures was submitted to the VA by the CDC ATSDR as well as the National Institute of Environmental Health Sciences, DoD JSRRC and dozens of independent physicians and researchers VA stuck to its illogical and unscientific as well as blatantly anti-veteran position

Nothing illustrates the deception VA used against us better than the simple comparison of the May 2011 VA position statement (below, formulated by Dr. Terry Walters and her colleagues in VHA Public Health) and the final report on us published by the Institute of Medicine in January 2015.
VA Conclusions Used To Deny Claims For Five Years:
1) "Even though residual Agent Orange may be detected in C-123 aircraft by laboratory techniques years after Agent Orange use, it must be remembered that there is no bio-availability of TCDD in these aircraft. "
2) "The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially zero."
Terry J, Walters, MD MPH: Director, Environmental Health, VHA

BUT, the Institute of Medicine concluded after studying the same data:
1)  Veterans suffered bioavailability of the dioxin aboard the aircraft by all three possible routes (dermal, inhalation, and ingestion.) IOM specifically disproved the VA theory of no bioavailability of dried dioxin advanced by VHA Post-Deployment Public Health. That flawed concept was earlier advanced by Dr. Alvin Young who actually argued against any hazards of Agent Orange in his article "Environmental fate of TCDD and Agent orange and Bioavailability To Troops in Vietnam."  A frequent VA and DoD consultant, Young was beneficiary of a no-bid sole source $600,000 consulting contract most of which focused on our aircraft.
2) "Reservists experienced increases in their risks of adverse health outcomes." In fact, the CDC told VA veterans had a 200 fold greater risk of cancer.

27 August 2016

ANOTHER C-123 VETERAN'S AGENT ORANGE APPEAL TRASHED BY UNCARING BVA

WHAT A MESS! This elderly Massachusetts C-123 veteran served at Hanscom AFB before the 731st moved to Westover. His cancer claim was submitted years ago, and on appeal was heard in June...but was denied!

Read through it below. Look how the BVA and its aggressive attorney trashed this qualified veteran's appeal by simply ignoring everything the VA did last year in recognizing our Agent Orange veterans' benefits.

Their tact was to pretend the man wasn't a veteran...an issue resolved by Secretary McDonald's June 19 2015 Interim Final Rule which the BVA judge and the BVA attorney ignored, despite their duty under VCAA.




Citation Nr: 1622153 
Decision Date: 06/02/16    Archive Date: 06/13/16

DOCKET NO.  15-34 922 ) DATE
 )
 )

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lymphocytic leukemia (CLL).


REPRESENTATION

Appellant represented by: Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty with the United States Navy from April 1946 to April 1948, and on active duty as a member of the United States Navy Reserves from October 1950 to August 1952.  It appears that he had an additional period of active duty from August 1959 to August 1962 and a verified period of active duty for training (ACDUTRA) with the United States Air Force Reserves from October 28, 1962, to November 28, 1962.  Effective June 18, 1976, he was removed from Reserves status and assigned to the Retired Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of entitlement to service connection for CLL.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in April 2016.  A transcript of his hearing has been associated with the record.


FINDINGS OF FACT

1.  In November 2012, the Board denied service connection for CLL.

2.  Evidence added to the record since the November 2012 Board decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for CLL.


CONCLUSIONS OF LAW

1.  The November 2012 Board decision is final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 3.160(d), 20.1103 (2015).

2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for CLL.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  

The Veteran's petition to reopen the claim of entitlement to service connection for CLL was filed as a Fully Developed Claim (FDC), as a part of a VA program to expedite VA claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.   When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to the claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA.  Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  The notice that accompanies the FDC form informs a Veteran what evidence is required to substantiate a claim for service connection, a Veteran's and VA's respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the Board finds that VA's duty to notify has been met.

Moreover, there is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

With respect to VA's duty to assist, service, VA, and private treatment records have been associated with the claims file.  

Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

As noted, the Board denied the Veteran's claim of entitlement to service connection for CLL in a November 2012 decision.  

The record before the Board at the time of the November 2012 decision included evidence of a diagnosis of CLL in 2007.  It also included the Veteran's service records, showing that he performed as an Air Reserve Technician (ART) from 1970 to 1973, and that he participated in ACDUTRA as required by his enlistment in the Air Force Reserves.  

The record at the time of the November 2012 decision also included the Veteran's contention that while working as an ART at Hanscom Air Force Base from 1970 to 1973, he was exposed to Agent Orange from C-123 aircraft that had been used to spray the defoliant in Vietnam.  In this regard, the Board noted that certain civilian positions in the military departments were filled by individuals who were members of the active reserves, which, in the case of the Air Force, were known as ART positions.  Jeffries v. Dep't of the Air Force, 999 F.2d 529, 529-30 (Fed.Cir.1993).  Although they are full-time civilian employees, ARTs "are also members of the Air Force Reserve unit in which they are employed.  In addition to their civilian assignments, ARTs are assigned to equivalent positions in the reserve organization with a reserve military rank or grade."  Id. at 530.  ARTs "are required to serve as members of the Air Force Reserve one weekend a month and at least fourteen days a year of annual training."  See http://www.afrc.af.mil/shared/
media/document/AFD-070125-046.pdf.  "On these weekend Unit Training Assemblies (UTAs) and during their annual two-week tour of duty, ARTs train with fellow reservists."  Id.    At all other times, however, ARTs were civilian employees.  Id. (noting that "[d]uring the normal five-day workweek, ARTs perform as civilians-maintaining and operating the Reserve facility in direct support of their unit").

The Board also considered the possibility of service connection on the basis of incurrence of CLL during a period of ACDUTRA as required by the Veteran's Reserves status.  The Board observed that ACDUTRA was defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)  (West 2002); 38 C.F.R. § 3.6(c) (2014).  The Board also noted that inactive duty training is defined, in part, as "duty (other than full time duty) prescribed for Reserves . . . by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A) (West 2014); 38 C.F.R. § 3.6(d)(1).  "The term 'Reserve' means a member of a reserve component of one of the Armed Forces."  38 U.S.C.A. § 101(26). 

The Board indicated that when a claim was based on a period of ACDUTRA, in order to establish entitlement to benefits, there must be some evidence that the disability for which service connection is being sought was "'incurred or aggravated' during the relevant period of service."  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (quoting 38 U.S.C.A. § 101(24)(B); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); and McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 ("if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). 

The Board noted that Veterans who serve on regular active duty are entitled to several presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-to assist them in substantiating their service connection claims.  38 U.S.C.A. §§ 1111, 1112, 1153 (West 2014); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2015).  However, where a claim is based on a period of ACDUTRA, the claimant "can never be entitled to the presumption of service connection" because "[b]y definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service."  Smith, 24 Vet. App. at 47. "By contrast, for a claimant whose claim is based on a period of [ACDUTRA] to establish entitlement to benefits, there must be some evidence that his or her condition was "incurred or aggravated" during the relevant period of service."  Id.  

The Board further observed that while CLL was a disease associated with exposure to herbicide agents and thus subject to the presumption of service connection despite a lack of evidence of the disease in service, see 38 C.F.R. § 3.309(e) (2014), the logic of Smith precluded application of the presumption of service connection provided for by 38 U.S.C.A. § 1116 (West 2014).  The Board pointed out that the Veteran, as an ART, was also a member of the Air Force Reserve, and that his service would have been limited to ACDUTRA.  See http://www.afrc.af.mil/shared/media/document/AFD-070125-046.pdf. (discussing requirements of ARTS Reserve service).  The Board concluded that evidence showing incurrence or aggravation of CLL during any relevant service period was lacking, noting that CLL was not diagnosed until 2007, and that there was no evidence to suggest that the disease first manifested during any required period of ACDUTRA while the Veteran was an ART.  The Board determined that, regardless of whether the Veteran was indeed exposed to herbicides at Hanscom Air Force Base sometime between 1970 and 1973, without a showing that his CLL first manifested itself during a period of ACDUTRA, any ACDUTRA performed while an ART did not qualify as active military service, and Veteran status for purposes of the current claim has not been achieved. 

The Veteran sought to reopen his claim in February 2015.  In support of his petition to reopen, he submitted annual statements of Reserves credits for 1972 and 1973, as well as a July 1973 discharge order.  He also submitted written statements describing his work as an ART, maintaining that he was exposed to Agent Orange during that time, which included active duty.  

Also added to the record is the Veteran's April 2016 hearing testimony.  He reiterated his contention that he was exposed to Agent Orange during his time working at Hanscom Air Force Base as an ART.  He also stated that he worked on contaminated aircraft while on ACDUTRA.

As discussed, service connection for CLL was denied because the Veteran's employment as an ART did not qualify as active service, and because there was no evidence that CLL first manifested during any period of ACDUTRA.  Since the November 2012 Board decision, evidence added to the record includes the appellant's contentions that he was exposed to Agent Orange during his employment as an ART at Hanscom Air Force Base, and that he was also exposed during periods of ACDUTRA.  These contentions and theories of entitlement were before the Board at the time of its November 2012 decision and are therefore cumulative.  In consideration of the foregoing, the Board finds that as no new and material evidence has been submitted, the claim of entitlement to service connection for CLL may not be reopened.  

ORDER

New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for CLL is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

23 July 2016

Lt Col Ed Kosakoski Passed Friday, July 22

My former commanding officer and best man at my wedding has died.

Lieut. Col. Ed Kosakowski passed away Friday evening after a long battle with Alzheimer's and other ailments. Ingrid called with the sad news. Arrangements thus far are for services to be on August 1 including graveside military honors. I will post more here as I get news.

Ed's long service to the country began as an army private. He advanced to master sergeant and then joined the Air Force.  He was eventually commissioned as a Medical Service Corps officer. Ed's civilian career was as a pharmacist followed by civil service as an air reserve technician. His last assignment was as commander of the 74th Aeromedical Evacuation Squadron, Westover Air Force Base Massachusetts.

There are a great number of Air Force officers grateful to "Colonel K" for his influence on our careers. So many squadron NCOs were commissioned under his leadership that we jokingly called his efforts "Colonel K's OCS."

Ed married Ingrid and they had one son, Eddie Junior. Both Eddie Junior and Ingrid showed their lasting love for Ed in caring for him during these last difficult years.

Ed happened to be the first C-123 veteran awarded VA benefits in mid 2015 once our battle to win Agent Orange benefits finally succeeded.

God bless the family.

20 June 2016

NEW ACTING VA BENEFITS UNDERSECRETARY SAYS AGENT ORANGE IS HARMLESS!

T. Murphy, VA Acting Undersecretary for Benefits
Problems continue to unfold at the Department of Veterans Affairs. The VA has had a series of recent personnel changes, one of them the departure of the man filling the office of Undersecretary for Veterans Benefits.

So, as a problem topped with another problem, in comes Mr. Thomas Murphy (himself a veteran,, moving up from his Director, Compensation and Pension in less than a year to become Acting Undersecretary for Veterans Benefits. 

Mr. Murphy is a hard worker, and came to his earlier position at Compensation and Pension in 2010 where he oversaw VA's entire program for reviewing veterans' disability claims for approval or disapproval. His business background was at Home Depot.

Why is Mr. Murphy a problem? Because his six years at Compensation and Pension are fairly judged to be a relative failure in serving America's veterans. We'll focus here on two of these failures.

First, his determination and success in "holding the line" on Agent Orange claims. The two most visible groups he's fought on this are the Blue Water Navy Veterans and the C-123 Veterans Association.

In 2012 Mr. Murphy wrote his denial of a C-123 veteran's Agent Orange exposure claims, "In conclusion, there is no conclusive evidence that TCDD exposure causes any adverse health effects." He wrote that to dismiss expert input from the CDC confirming the veteran's exposure.

TCDD, the toxin in Agent Orange, is recognized by science to be the most toxic of the toxins, and definitely causes "adverse health effects." VA itself (but not Mr. Murphy) understands that it is a highly toxic substance.

This was no mere typo. Mr. Murphy's three-page denial blocked compensation and medical benefits to a veteran C-123 aviator. Four years later, VA itself conceded that veteran and other C-123 vets actually had been exposed to Agent Orange and could receive benefits.

At least, those who survived that long despite Mr. Murphy's policy of blanket denial by VA all C-123 claims would receive benefits.

Of course, Mr. Murphy assured veterans and legislators that VA had no such policy of blanket denials and instead promised to review all C-123 claims on a "case-by-case basis" – he just never bothered mentioning his assurance actually meant VA's case-by-case denial of every single claim submitted by every single veteran who flew the C-123.

Mr. Murphy must have been determined to deny this C-123 vet's claim. He rejected input confirming the vet's exposure not only from the CDC, but also from the National Institute of Environmental Health Services, the NIH, and numerous university-based scientists and physicians all supporting the vet's claim.

In conference with the veteran, Mr. Murphy firmly explained that Veterans Benefits Administration had already determined none of the C-123 veterans were ever exposed, and no amount of proof from scientists or government agencies would raise the claim to VA's "as likely as not" threshold. All claims would be denied, he said.

But, of course, only after his "case by case" evaluation and automatic denial! It took four years and the Institute of Medicine study to get VA to begin permitting benefits for surviving C-123 vets. While that may have been a disappointing shift from the blanket denial policy VA still pretended not to exist, at least the department drew satisfaction in the money saved by blocking medical care and benefits for so many years.

A note: if Mr. Murphy's 2012 claim denial letter was written by a staffer for his approval, the staffer was most likely Mr. James Sampsel, manager of VBA's Agent Orange desk and liaison to the Joint Services Records Research Center (JSRRC) in DOD. Mr. Samsel was also the staffer who drafted Secretary Shinseki's error-laden letter and deceptive C-123 Fact Sheet.

Mr. Sampel, a Vietnam veteran himself, made his own perspective quite clear in a related email to Mr. Murphy. Mr. Sampsel determined that "the real problem" in denying C-123 veterans' claims is the amount of evidence confirming those exposures.

Get it? VA's "real problem" is that the veterans' proofs must be ignored by VA so as to deny the C-123 exposure claims. Mr. Sampsel, labeling CDC, NIH, US Public Health Service as "the real problem" in his email to Mr. Murphy, insisted VA had "an overwhelming preponderance of evidence" against the vets. He cited input from the VA consultant and VA's own web site, pretending that VA putting their policy statement online was "overwhelming evidence" sufficient to ignore the other federal agencies and dozens of independent scientists and physicians establishing the veterans'.

No legally required "benefit of the doubt" was even to be permitted. No evidence was acceptable to VBA, Me. Murphy or Mr. Sampsel...their policy overrode every regulation, law, Federal Register statements and assurances to Congress. Their anti-veteran preference overrode everything.

Even the DoD had tried to tell Mr. Samsel it had credible evidence from many sources supporting the veterans. Mr. Sampsel, in response to DoD, put blinders on and was improperly very highly selective about what evidence it would acknowledge – if evidence supported C-123 claims it was immediately ruled unacceptable. As for VA and its campaign against C-123 claims, Mr. Sampsel would not request a JSRRC finding or permit one to be issued on C-123 veterans (note: this violates procedures described in VA's own regulation VAM21-1MR, as well as the Veterans Claims Assistance Act.)

Mr. Murphy thanked Mr. Sampsel for his input.

Mr. Murphy's thanks were for Mr. Sampsel's success in denying all such claims for another three years. It wasn't until the Institute of Medicine's C-123 report was published that VA finally acknowledged the aircraft contamination and the aircrew's exposure.

Just as the CDC had said back in 2012, when more ot the vets were still alive.

11 June 2016

Veterans' Rights Violated – VA Ignored Veterans Claims Assistance Act of 2000

VA stalled my claims for five years, then closed them all without explanation!

 Ultimately, “[t]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006).

There's a law for that but too often VA ignores it, breaching the government's duty to claimants. For the veteran it can be a great loss, but for the VA, it is never a problem when that law is violated. Specifically, the law is the 
Veterans Claims Assistance Act of 2000 (VCAA.) It reinforced and detailed a range of pro-veteran steps the VA must take to assist a claimant or appellant for VA benefits.

Key is the law's requirement that VA disability claims system be non-adversarial and pro-veteran. Congress has imposed on VA a duty to assist claimants. VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. One significant part of the law imposes on VA the duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties on VA are supposed to significantly ease the burden on veterans in assembling the evidence needed to support a claim.

At least, that's the law. In practice, it's a law the VA obeys or violates at its pleasure. Abusing a veteran's VCAA rights and prejudicial errors per 38 U.S.C. § 7261(b)(2) also directly 
abuses rights under the US Constitution's Fifth Amendment and the Due Process Clause. Veterans and other citizens must obey laws or endure consequences. Violate a law, and once faces civil penalties, fines, loss of property, loss of civil liberties, imprisonment.

For VA and its officials, however, violating the Veterans Claims Assistance Act of 2000 carried no such penalties. When VA, in wrongly opposing a veteran, is slapped down by a Board of Veterans Appeals ALJ or the Court of Appeals for Veterans Claims, all that happens is punishment of the veteran! The worst thing for VA is a nasty comment from BVA or a CAVC judge. This is because when VA violates a veteran's rights under VCAA, rather than the vet's claim being corrected for VA's errors the claim is "remanded," – simply left unresolved and sent back to the same VA staffers who committed the violation to start the claims process all over again with a three to five year wait wasted.

So the veteran ends up "punished" by the claim being delayed yet further when the VA abuses the VCAA. There are no penalties for VA or its folks who deliberately failed the veteran. In fact, the VA actually benefits by delaying any medical care or other benefits. It denies or at least postpones paying any disability compensation, and it keeps veterans out of VA hospitals which helps keep existing appointment lines shorter.

In the case of C-123 veterans, VA ignores the VCAA, creating an adversarial rather than the statutory non-adversarial process, following the requirements of the law when and if it wanted to. Generally, VA has helped locate Social Security records (although it twice lost mine.) It generally locates service medical records (although it ignores mine from Bethesda Naval Hospital.) VA generally locates and acts on military service records (although it ignored my line-of-duty determinations, ignored details on my separation physical, and ignored both medical and military details on my PEB hearing, and ignored details of my Air Force Board of Correction of Military Records.)

But that's just me. VA also abused the VCAA rights of every other C-123 veteran. Their abuse cost us four years delay in getting our veterans into VA hospitals and able to use other VA benefits, such as CHAMPVA family medical care, nursing home, primary care, pharmacy, dental, audiology, prosthetics, survivor benefits and other vital services. Veterans pay the price for VA's abuse of us, but VA and its staffers have absolutely no consequences at all.

And in the weirdest setback concluding the entire claim process for me, last week (June 2016) the VA denied my 2012 claim for Gulf War issues (all veterans claims for Gulf War issues are denied) and somehow closed every other claim. No denial, no remand, no action of any sort!

VA hasn't acted to honor its statutory duty to assist, and operate in a pro-veteran, non-adversarial manner with a low threshold for the burden of proof. Here's how VA ignores the VCAA.

How VA violated VCAA and trashed C-123 veterans' rights:

I. The worst violations were VA's determined avoidance of official input from the DOD Joint Services Records Research Center (JSRRC) and suppression of that input for two years for two years after receipt. JSRRC informed VA's JSRRC Coordinator (Mr. James Sampsel) in March 2013 that the government had official records confirming C-123 veterans' Agent Orange exposures. Among other records, JSRRC provided Air Force and Center for Disease Control/Agency for Toxic Substances and Disease Registry reports identifying the C-123's as "heavily contaminated with dioxin on all test surfaces" and "a danger to public health." The ATSDR's director informed JSRRC that C-123 veterans experienced a 200-fold greater cancer risk...but VA's JSRRC coordinator sat on these official government records for two years.

For two years VA blithely ignored the VCAA and doomed claims at the regional VA offices as well as claims appealed to the Board of Veterans Appeals. Withholding official government records directly abused veterans' rights under VCAA. No problem at all for VA, however a big problem for veterans who were forbidden VA medical care merely because of the preferences of VA staffers. VA has a duty to adhere to VAM21-1MR or invite CUE  (evidentiary development procedures provided in the Adjudication Procedure Manual are binding.  See Patton v. West, 12 Vet. App. 272, 282  [1999].)

Below is VBA's Agent Orange Desk explaining to other VA staff why VA opted to ignore JSRRC proof of C-123 claims, although no mention is made of why VA kept the evidence from claimants and the BVA considering such issues. Apparently a point was made that VA would only accept JSRRC reports which referenced military documents. No mention was made of VA having rejected Rear Admiral R. Ikeda (MD USPHS) and Captain A. Miller (MD USPHS) input, which was military because USPHS commissioned officers are by statute military officers. Further, VA regulations describe JSRRC as inputting to VA relevant "primary" evidence, not just evidence selected by the Agent Orange desk.

In this case, it was not USPHS evidence, but appropriately USPHS expert analysis of contemporary (1979-2010) military toxicology reports. As Admiral Ikeda was then Acting Director CDC/Agency for Toxic Substances and Disease Registry, such input seems both accurate and relevant, as well as military in nature. The question screams out..."how much proof does the Agent Orange desk demand to permit 'benefit of the doubt? Why set uniquely high standards for C-123 claims, rejecting JSRRC, DOD, CDC, NIH, USPHS, dozens of physicians and scientists, university researchers and VA physicians?'

II. Rather than be non-adversarial and even-handed in evaluating exposure claims per the law, VBA issued a 
2012-2014 $600,000 no-bid sole source contract for monographs supporting VHA and VBA current policies and perspectives on herbicide exposures. That consultant's largest single target was C-123 veterans' hopes with the Institute of Medicine C-123 committee. VA spent hundreds of thousands of dollars on its favored outside consultant specifically for his coaching against and targeting of C-123 veterans' exposure proofs.

There were no studies allowed to support C-123 veterans' scientific position (we asked VBA for funding to prepare a pro-C-123 study but they didn't respond.) Veterans never could have funded the research provided pro bono by 
Columbia UniversityOregon Health Sciences UniversityUniversity of Texas Medical School and the many federal agencies like CDC.

All expert input supporting the C-123 veterans' scientific argument was unpaid – besides, the veterans had no source of funding and didn't spend a penny to counter the government's hundreds of thousands of dollars. VA wouldn’t even make copies of documents the C-123 chairman was asked by IOM to provide the committee. On the other hand, all input used by VA to obstruct the C-123 veterans was paid either by VA, Dow or Monsanto. When 
peer-reviewed articles were published confirming the veterans' exposures, VA immediately opposed their findings.

The scientists and physicians in Veterans Health Administration represent a huge body of knowledge, skill and talent, none of which came to help us. They followed their company line, which was “No!” Agent Orange claims. All of those experts opposed C-123 veterans' service connection. They must have seen the totality of the evidence and realized there was no "overwhelming preponderance of evidence" against us, but more likely, for us. It is easy to look at the past four years and see that these professionals should have established service connection for C-123 veterans within existing law and science. The law sets a low threshold of proof for veterans, but no amount of proof would make VBA honor our claims (as Mr. Murphy confirmed at his office on 28 Feb 2013.)

• Some of the many adversarial studies funded by VBA to oppose veterans were titled:
A. "
Discussion Points Supporting Compensation Services' UC-123K Claims"
B.  "
Investigations into the Allegations Concerning 2-4-5-T Herbicide"
C. "
Investigative Report: Assessment of New Information on the Former UC-123Ks Post-Vietnam Issue"
D.  "
Investigations into the Allegations of Agent Orange/Dioxin Exposure from Former Ranch Hand Aircraft"
E. 
"Supplement to Investigative Report: New Information on Former UC-123K Post-Vietnam Issue"
F. "
Al Young Letter to Acting Secretary Gibson requesting reversal of IOM report conclusions"
G. 
"Al Young Letter to Dr. Mary Paxton, Institute of Medicine C-123 Committee Staff Director arguing scientific failure of committee report"
H. "
Al Young Letter to Dr. Terra Irons to answer questions put to VA by Institute of Medicine C-123 committee."
• Some of the studies or efforts by VA to consider possible merit to the veterans' claims:
Oh...there weren't any. VA permitted no such effort. Actually, there was one, the IOM C-123 report. Although VA argued hard and spent huge funds against the veterans through its proxy consultant, IOM, contracted with VA's hopes of finally blocking C-123 claims, instead independently concluded VA had been wrong all along and veterans had been correct all along. The real preponderance of evidence agreed with the C-123 veterans.

VA only sought material to oppose C-123 veterans. VA only recognized material if useful by VA against C-123 veterans. Nearly all material VA had was paid for by VA. Everything supporting C-123 veterans was from other federal and state agencies, and physicians and scientists without any compensation for their input. VA bought input tailored to oppose the veterans or otherwise accepted it from the chemical industry. Veterans didn't buy evidence tailored to their objectives and never had funds to do so anyway. While the VA's consultant frequently referred to his monographs as "peer reviewed" there were not, as it is not acceptable for a researcher or author to select the reviewers himself. 
Peer reviewers should be objective, independent and not laymen or experts pre-selected by the author.

VA deliberately avoided uncovering or acknowledging any evidence or support for C-123 veterans. Their 
web pages discussing the C-123 investigation fail to mention a single resource not pre-selected to meet VA's policy objective. VA characterized all pro-C-123 exposure evidence as unacceptable because it conflicted with VA's predetermined policy objectives. Nearly all outside input VA sought was from its Agent Orange consultant, who previously also consulted with Dow Chemical against Vietnam Veterans' exposure claims, and two other scientists paid by Dow and Monsanto specifically to opine against C-123 exposures.

VBA's consultant also appeared as 
VA's proxy at the June 16 2014 IOM C-123 committee hearing to oppose the veterans' position. Without mention of his VA contract, nor the coordination of his IOM presentation and materials with VA, nor his role in 2009 recommending destruction of the C-123 fleet as toxic waste, he was an extremely authoritative and long-term dedicated opponent of all Agent Orange claims.
III. Acting in bad faith and utilizing resources known to be flawed in order to oppose veterans' claims, VA used without updating and correction the 2006 DOD Agent Orange site report used by VA to verify veterans' claims for non-Vietnam exposures. When a servicemember claims to have been exposed outside Vietnam, VBA checks against the DOD list and approves or denies the application.

The problem is the DOD list is seven years old, yet VA cites it in VARO decisions, and BVA cites it in appeals. It is fundamentally wrong for a government agency to permit use of a reference they know to be inaccurate. 
VA and DOD have rejected numerous entreaties by the C-123 Veterans Association to update their lists.
How does VA know the DOD list is unreliable? Because the list author himself, Dr. Al Young, prepared it for DOD in 2006 and then in 2013 proposed a contract for correcting identified errors and general updating. Nonetheless, VA approves or denies disability claims based on this terribly flawed document. It is as unacceptable error on VA's part.

Thus, VA violates the VCAA by knowingly deciding claims on flawed evidence, a "clear and unmistakable error."

From the first page of the consultant's report, "
Investigations into Sites Where Agent Orange Exposure to Vietnam-era Veterans Has Been Alleged."

IV. Violating its duty to assist as well as performing in an anti-veteran manner, VBA opposed C-123 claims citing potential difficulty verifying aircrew or maintenance veterans' duty aboard specific former Agent Orange spray aircraft. Actually, this information was provided VA in 2011 by Headquarters Air Force Reserve Command and also by the Air Force Historical Records Agency. In any case, VBA in the spring of 2015 was able to identify eligible veterans by cooperating with other agencies such as Social Security and the Air Force

V.VBA and VHA orders to regional claims offices to deny C-123 disability claims violated VCAA by inappropriate guidance to those offices, and failure thereby to notify veterans of evidence needed to establish a claim. Specifically, veterans were not informed of proofs needed to overcome VHA and VHA's order to deny C-123 claims.

Further, VHA and VBA were proven wrong in their science since C-123 claims were first denied in 2007. As the Institute of Medicine C-123 report concluded, the aircraft were contaminated and the veterans were exposed and harmed. There was no new science behind the 
IOM conclusion but rather the proper interpretation of existing material. VA was simply wrong in its leap to construct unscientific arguments to block C-123 claims and was obviously anti-veteran and adversarial. By October 2011 VA had in-hand virtually all materials eventually found to be so persuasive by IOM in 2015 – VA should have been processing claims on a fact-proven basis from October 2011 on.

The proper VCAA pro-veteran approach should have been, if serious question existed as to the scientific foundation of the veteran's claims, to approve all applications until the science made clear the issue one way or the other. This is especially true considering the affirmation provided by ATSDR, NIH, US Public Health Service and the DOD JSRRC report in March 2013. VA clung to every possible negative interpretation it could devise and refused to admit an overwhelming body of evidence proving VA wrong...at the very least all that evidence introduced the "benefit of the doubt" which VA violated, despite the VCAA.

VI. VA has never permitted consideration of the possibility C-123 veterans might have been exposed.; no VA document released under FOIA questioned VA's consistent opposition to veterans or questioned whether the veterans might be correct. VA's adversarial as well as anti-veteran approach is quite clear and violated VCAA. Beginning with opposition to C-123 veterans VA never wavered.

VII. VA has never admitted locating any evidence supporting C-123 claims was ever identified by VA. Rejecting everything it disagreed with, VA was unscientific, and prejudicial in the extreme with blinders on regarding any contrary input.

VA denigrated every scientific and medical expert opinion supporting C-123 veterans as unpersuasive, lacking authority. Every scientist's input, even that from CDC and the National Institutes of Health as well as subject matter experts VA and IOM had previously relied upon, was immediately dismissed by VBA. VBA insisted its scientists were far more credible than experts who might not agree with them. VA insisted that its experts concluded that all evidence and expert input supporting veterans' claims of having been exposed to Agent Orange failed to create an element of doubt in favor of the veterans' claims.

"Overwhelming preponderance of evidence" is how VBA quite inaccurately described the VA's position against veterans. Four years of VA opposing C-123 claims eventually made perfectly clear that no matter how substantial the veterans' evidence and how unsubstantial the VA's, VA's was automatically but falsely characterized as an overwhelming preponderance of evidence.

VIII. VA created an in-house, novel and unscientific (per NIEHS) redefinition of "exposure" attempting to disqualify veterans' exposure claims. VHA's Public Health/Post Deployment Section redefined exposure to be "
exposure = contamination field + bioavailability." This was introduced as a line in VHA's 2012 Society of Toxicology poster displays.

The redefinition was in contrast to standard definitions used elsewhere in VA, by the 
CDC, NIH and other authorities. It was even in contrast with VA's standard reference for definitions, Dorlands Illustrated Medical Dictionary.

VHA overlooked the fact that unique, home-made scientific definitions aren't scientific, especially when other federal agencies with statutory authority in the field label VA's exposure definition unscientific. "Whoever invented that certainly is no toxicologist" reported the director of a major federal research program. Veterans were
 invited by the Society of Toxicology to present a response at its 2014 conference, under sponsorship of the NIEHS.

IX. In a manner similar to VA's rejection of the March 2013 JSRRC exposure confirmation, VA also elected to i
gnore the expert input of Rear Admiral R. Ikeda, MD US Public Health Service and Acting Director, CDC/ATSDR.  USPHS commissioned officers are military officers, and her concurrence with earlier ATSDR findings of C-123 veterans' Agent Orange exposure was suppressed after its receipt in June 2013. Captain A. Miller, MD US Public Health Service, also submitted an expert medical opinion in March 2013 confirming veterans' exposure but as with all other evidence behind C-123 claims, VA's Agent Orange desk disregarded it and withheld it from VAROs and the BVA. Disregard for and suppression of these two expert military medical opinions was in clear violation of the VCAA.

Conclusion:
Violations of the Veterans Claims Assistance Act of 2000 were numerous and unrelenting. It didn't matter how much evidence supported veterans' exposure claims because VA predetermined it had "an overwhelming preponderance of evidence" regardless of all reason and without any real basis in fact. VA's policy of preventing C-123 exposure claims led it to conceal pro-veteran evidence such as the March 2013 JSRRC confirmation. Suppression of any evidence within the government's possession violated VCAA, and the JSRRC email was critical evidence kept from veterans and the BVA.

VCAA was violated more generally with VA's stubborn resistance to any scientific or medical evidence supporting C-123 veterans' exposure claims. This was anti-veteran and adversarial. This deliberately avoided admitting any benefit of the doubt due veterans.

That VA was wrong in all this is clear from the Institute of Medicine C-123 report to Secretary McDonald. Despite all its money spent to oppose veterans, science spoke louder than specie. Everything C-123 veterans said in 2011, and substantiated with government proofs, was proved valid in the IOM report. The IOM report was based mostly on proofs available to VA since 2011…proofs which should have permitted fact-proven claims except VA had already predetermined all such claims to be denied.

The VCAA failed C-123 veterans. Nothing in it prevented violation of C-123 rights by the VHA Post Deployment Health Section and the VBA Agent Orange desk in the Department of Veterans Affairs. Nothing in the law prescribes a remedy for such abuse of office or prevents its abuse again. The same VA staffers perform the same duties, electing whether to obey or disobey the VCAA.

Only veterans were impacted and only veterans paid the price for VA's campaign against us. Many of us are still barred from VA hospital and refused VA benefits – we are still paying the price.

What materials in government possession have been provided me by VA in meeting its duty under VCAA? NOTHING.