VA Issues Internal Regulation to Change Agent Orange Act?

Mon Dieu!  Screwed Again!

VA must have changed the law and not let Congress, the public, the National Archives, the Library of Congress, VSOs, or Paul Bailey know about it! We know this, because Lt Col Paul Bailey's two-year old claim for Agent Orange benefits was denied effective 28 February 2013 by the Manchester NH Regional Office,  in which the statement was made:

"Although you submitted numerous amounts of evidence to support your claim, VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals."

Now, Paul wasn't asking the VA to "concede" anything, but was hoping that the Manchester VA would lean toward obeying the law (1991 Agent Orange Act as well as Title 38) and the 2001 promulgation of various issues narrated in the Federal Register in which the VA detailed that veterans exposed outside Vietnam, with Agent Orange illnesses, would be treated the same as veterans exposed with "boots on the ground."

It is clear from the denial of his claim and the statement above that the VA now employs some regulation which prohibits this adherence to the law, a VA "private" regulation employed to trump everything else otherwise protective of veterans' rights.

I spent half a day in the Library of Congress with a dedicated researcher, and all we could find applicable is Title 38 itself and the May 2001 Federal Register (Volume 66, Number 89, Tuesday May 8, 2001, page 23166). This is the material cited by judges making various BVA decisions awarding other C-123 veterans from Paul's own unit, with the same airplanes, in the same time frame, their Agent Orange claims. The skilled researcher assured me nothing publicly available is known to supersede these references, so I take it that the VA's regulation cited in Paul's claim denial is somehow classified or otherwise unavailable outside the VA, and used as their special trump card to insure claims are refused regardless of all legal, scientific, medical, or moral merit. 

Understand, Paul's claim was justified on each of those merits - but not to the satisfaction of the Manchester Veterans Affairs Regional Office which follows special VA procedures about which the rest of us are kept unaware.

The VA regulation (or whatever it is) being unavailable, it makes things kinda hard for C-123 veterans to present our claims, given that the VBA isn't even permitted to approve them. Other veterans need merely reach the famously reasonable threshold of "as likely to as not", but in the case of C-123 veterans, with Compensation Services already explaining that VA Veterans Health Administration findings prohibit evaluation of evidence supporting our exposure claims, we veterans have hit a mile-high VA brick wall.

Paul, and others of us similarly situated, have made clear our less-than-happy medical picture to the VA. Knowing this, they smile back and assure us that after our two-year wait for these claims to be denied by the VA it is only a five year wait to be heard at the Board of Veterans Appeals. 

A nice, big smile. Not their problem. They've got their secret regulation to back them up. But this kind of secrecy, of uneven treatment, of extra-legal denial of American veterans' rights, invites public attention. Lots of it. In black ink and other media.

And here's one interesting part. Veterans are invited...virtually required...to submit evidence of their claim. Paul submitted official findings that he'd been exposed to Agent Orange while a crewmember aboard the C-123. Included in his package were findings about him from:

1. National Institutes of Health, Dr. L. Birnbaum

2. Center for Disease Control, Agency for Toxic Substances, Dr T. Sinks

3. US Public Health Service/NIH Senior Medical Advisor, CAPT A. Miller MD

4. Columbia University School of Public Health, Dr. J. Stellman

5. University of Texas Medical School, Dr. Arnold Schecter

6. Oregon Health Sciences University Toxicology Department, Dr. Fred Berman

7. Paul's doctors, Dartmouth University Medical Center

8. Peer-reviewed scientific articles re: dioxin and exposure

9. USAF C-123 test reports confirming contamination

10. TG 312, the military "gold standard" for entrepting test results, and which the CDC used to confirm Paul's exposure aboard the C-123

11. Environmental Protection Agency, Dr. Allison Toppler

12. Hatfield Environmental Consultants,  Dr. Wayne Dwernychuk

The Manchester VA dismissed all of these, including input from a member of the National Academy of Sciences and director of the NIH/NEIHS (Dr. Linda Birnbaum) without comment other than to group everything as "lay evidence", to wit:

"The lay evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional."

Actually, all was predicable, because on the same day LtCol Bailey's claim was denied, we were hosted to a conference at the VA Compensation and Pensions Division offices, 1800 G Street, Washington, where we were assured that no amount of proofs, from whatever source, from whatever physician or federal agency or university or whatever...would be permitted to apply in proof of a C-123 veteran's Agent Orange exposure claim. This was because Veterans Health Administration had already formed an official opinion against such exposure and VBA is compelled to adhere to VHA input and not consider anything else. 

Judging from Paul's claim denial, and my own claim which was denied in Portland, Oregon on 14 March, I guess they meant it!