07 June 2014

VA Scolded For Ignoring VA Manuals

An Army vet claiming non-Vietnam Agent Orange exposure successfully challenged the VA for failure to follow the Department's own manual of procedures. We didn't catch this 2012 decision until last week.

In a situation paralleling the C-123 vets, this claim asserted exposure outside Vietnam, but the VA was over-eager in denying the application, opting to refuse it without checking with the Joint Services Records Research Center for verification of the facts.

Here is what the Board of Corrections determined: 
"VA has developed specific procedures to determine whether a veteran was exposed to herbicides if such herbicide exposure is claimed to have occurred in a vicinity other that the Republic of Vietnam, the demilitarized zone (DMZ) in Korea, or Thailand. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n) directs that the Veteran should be asked to provide the approximate dates, locations, and nature of the alleged exposure. The paragraph further directs that if the Veteran provides such information, then the Veteran's detailed description of the exposure should be furnished to the Compensation and Pension (C&P) Service via e-mail at VAVBAWAS/CO/211- /AGENTORANGE, and request that they review the Department of Defense's (DOD's) inventory of herbicides operations to determine whether herbicide were used as alleged. The paragraph further directs that if C&P's review confirms that herbicides were used as alleged, then determine whether service connection is otherwise in order. But if that review does not confirm that herbicides were used as alleged, in other words that the exposure is not verified by the C&P Service's review, then the RO is to submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC or USASRRC) for their verification of the Veteran's exposure to herbicides as alleged. With respect to the claimed exposure to herbicides at Fort Ord, California, and at Anderson Air Force Base in Guam, review of the claims file reflects that the RO has not applied the procedure for verification of exposure to herbicides as directed by M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n). Evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1). As such, the Board finds that the RO must develop the claim in a manner consistent with the above provisions. Accordingly, the case is REMANDED."
Congratulations to this veterans and the BVA for a good call on VBA mismanagement! The claim denial was an obvious mistake, revealing VA's determination to block claims whenever possible. To "draw the line" with C-123 vets, VA simply blocked the JSRRC from providing relevant information to keep DOD from confirming our claims. VA also attacked us by classifying our aircraft contamination as unable to have exposed us to the Agent Orange. For insurance, VA promised, then reversed, a decision to refer our issue to the Institute of Medicine.

VA then stalled, letting us fade from the scene through deaths and distractions. Finally, faced with mounting scientific challenges, VA submitted the C-123 problem to the Institute of Medicine which began its investigation in February, and an expected report to the Secretary of Veterans Affairs in September.

But this, too, was just another attack on us. VA carefully worded its assignment to the committee to prevent any possible response which could clarify our right to proper claim evaluation.

The law simply requires that veterans without Vietnam service submit proof of exposure. But the VA asked the IOM to determine the degree of harm, if any, that our duty on the airplanes caused us. Whatever answer the IOM provides is irrelevant: VA is going to continue blocking C-123 exposure claims by insisting we weren't exposed under their definition of that word.

Some good news came Friday. VA was blocking the DOD Joint Services Records Research Center from correcting earlier mistakes about C-123 claims, and from forwarding proofs of our exposure from other federal agencies. Friday, this changed.

Friday, this changed and VA will now accept JSRRC data about veterans along with information about us from the US Public Health Service, CDC, EPA and other authorities. This can help...we'll see over the next few months.

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