23 June 2013

VA Cheats On Toxicologists' Expert Evidence - defies 8th & 9th Circuit Courts!

In its energetic denial of claims for service connection regarding C-123 Agent Orange exposures, Compensation & Pension's director dismisses expert findings provided about C-123 veterans by some of the field's leading toxicologists. 

The director explained to PVARO that as toxicologists, these scientists lacked medical credentials to establish medical nexus. C&P perhaps passed over the fact that medical nexus was not the issue but EXPOSURE was, medical nexus not being a veteran's responsibility to establish if claiming an Agent Orange presumptive illness. When arguing against veterans, however, VA has no trouble citing toxicologists as experts! 

     VA's own toxicologists are welcome to oppose veterans' claims - but unacceptable to VA in presenting veterans' claims? This VA perspective defies logic.

     In any case, C&P was in error in dismissing the toxicologists' findings. I refer readers to Marmo v. Tyson Fresh Meats, Inc. Decided by the 8th Circuit in 2006, the Court decided that  toxicologists are allowed to testify that exposure to a certain chemical is the cause of particular injuries. While I respect C&P's dedication in preventing our claims' approval, it is misplaced fervor. 

      It is also inappropriate and discriminatory, failing to permit the applicable portions of the 1991 Agent Orange Act, Title 38 CFR and other promulgations of Agent Orange and veterans issues protect C-123 veterans. VA's verbal shell
game, switching exposure discussed by the scientists with medical nexus which was not addressed by them, was meant to confuse and misdirect. In fact, toxicologists are uniquely QUALIFIED to address questions of toxin exposure. Here, especially, with several federal agencies as well as the most reputable scientists in their field offering findings in our favor. For whatever reason C&P felt appropriate, they did not address but ignored the MEDICAL opinions provided by physicians to better doom the claims.
      In a decision earlier this year, the 9th Federal District found in Whitlock v. Pepsi Americas that such baseless dismissal of expert testimony of toxicologists and chemists regarding exposure issues was an an abuse of discretion by lower courts, and presumably, decision-making bodies such as VAROS making such blanket dismissals would also be illegal.

     I am not sure of the law, but if a federal court cannot
freely disregard expert testimony of toxicologists and chemists addressing exposure questions without earning criticism for abuse of discretion, I cannot imagine greater privilege in doing so by the Department of Veterans Affairs, especially when those opinions are from other federal agencies with the statutory responsibility for determining issues of toxicological exposure. 

     The National Academies Press "Reference Manual on Scientific Evidence: Third Edition" (2011) provides an excellent narration of the generally accepted role of toxicology in addressing exposure questions and the acceptance of toxicological testimony in legal proceedings.

      C&P is skilled and creative in preventing fair and legal evaluation of C-123 veterans' exposure claims, but I ask that VA consider actually basing our claims on law and science, not individuals' preferences.

     Finally, as many BVA citations such as 0634583 and 1110601 make clear, the VA itself has no reservations using VA's own toxicologists in making claims determinations regarding exposures. Is the C&P' suggestion that veterans can't be protected by expert toxicologists' evidence but the VA is free to do take advantage of their professional qualifications necessary to deny claims? 

    It is also amusing (no...actually it hurts!) that VA BVA decisions frequently dismiss PHYSICIAN evidence from veterans because the doctor lacks toxicological expertise - but here C&P opts to dismiss toxicologists instead! Anything to deny a claim. Are they making up the rules as they go along??

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