09 July 2014

VA Fails C-123 Veterans: Evades "Duty to Assist" Agent Orange Claims

"Duty to assist." It is the law. Not the discretion of VA Veterans Benefits Administration, but the
compulsion of the law and VA's duty to obey.

But this is the VA, and their mission is to care for veterans but also to proven veterans from seeking that care. By denying disability claims and, as we've learned from the media, by postponing access to VA clinics and providers.

VA is required by law to provide veterans "reasonable assistance" in claims and appeals. Generally, this is straight-forward: VA gets the service records, tells the vet what is needed for proof, and sometimes inquires of the Joint Services Records Research Center (JSRRC.) The JSRRC is an Army function supporting all services, and their archivists provide special research into veterans' claims for PTSD and Agent Orange exposures.

So here's what VA regional office or Board of Veterans Appeals is supposed to do if relevant records might be available from other federal agencies:

Get the stuff. If the records are reasonably available and apply to the veteran's claim...get the records. Be veteran-friendly, because that's the law. But remember: veterans must obey the law but the VA is exempt from trifling issues like privacy or FOIA ("a fundamental right in our democracy" per President Obama.)

But what does VA do? They'll order the service records and other VA records. Then VA drops the ball. Heck, they toss the ball out of the court, deliberately.

For years with veterans dying while claims piled up, VA tightly restricted any such helpful information forwarded to them by JSRRC.
For years the VA liaison with JSRRC insisted that only military information was acceptable to the Veterans Administration. That way, VA could hide behind a JSRRC response devoid of input from agencies such as CDC, National Institutes of Health, EPA and other outfits who might have examined the veteran's PTSD or exposure situation and offered official opinions. "Don't tell us about it" ordered the liaison officer putting the earplugs in.
This is the same gentleman who in October 2011 personally informed C-123 veterans they'd "probably never" get an exposure claim approved.

No wonder, with this man telling JSRRC not to permit reams of relevant documentation to cloud the issue. When C-123 veterans asked him directly to request that JSRRC submit evidence from other federal agencies, he was evasive in his answer, saying:
We appreciate your interest in issues related to post-Vietnam C-123 aircraft. However, please understand that JSRRC functions to provide VA with information found in Department of Defense documents to assist with resolution of disability claims. JSRRC does not function to distribute information from other sources to VA." He continues, "Until such time as the IOM review is completed, VA will continue to evaluated post-Vietnam C-123 claims on a case-by-case basis."
This gate keeper, the VA liaison to JSRRC, set up a barrier to relevant claims information, clearly contrary to the requirements of the law and VA's own procedures. For him, Mission Accomplished by helping insure claims would be denied for want of readily available JSRRC input.

And he made things even worse for Agent Orange-exposed C-123 veterans. The law requiring VA to seek out and accept input from other federal agencies continues in its next paragraph:
(1) Obtaining records not in the custody of a Federal department or agency.VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.
Ignoring this requirement of them, VA refused university reports, independent scientists and other expert input, even if that input was an analysis of military archival documents. For instance, Dr. Jeanne Stellman (Columbia University) and Dr. Fred Berman (Oregon Health Sciences University) together analyzed test data of decades of Air Force C-123 toxicology surveys. They provided expert input to the veterans for supporting exposure claims and also participated in the October 2011 teleconference with VA officials (including the VA JSRRC liaison). Useless, said VA, and refused to permit JSRRC to integrate such expert interpretation of military tests. "Useless," it was claimed by the liaison officer, to better obstruct exposure claims.

What's the result? VA stacked the deck and then still looked at our cards, and also decided which cards would be in the dec but up their sleeves instead. So much for being pro-veterans, non-adversarial and veteran-friendly.

It took years to get VA to budge. Only in June 2014 did VA's Congressional Liaison Office inform legislators that VA would permit JSRRC to include a more broadly-interpreted list of acceptable source documents. "Compensation Service has been notified that JSRRC has been notified that JSRRC has begun providing these letters, or summaries of their content, to VBA regional offices for consideration in claims based on association with post-Vietnam C-123 aircraft." Well, that only took two of the last few years of my life.

And the telling point: It was VA, not JSRRC, that was the gate keeper. JSRRC had the information from Wes Carter personally delivering it to Fort Belvoir in February 2013, but was not permitted to use it. Finally, on June 6 2014, the VA Congressional Liaison Office informed our legislators that the rules changed...evidence would be permitted to be considered.

The funny thing is that it was VA insisting that JSRRC rules prohibited non-military input, and JSRRC insisting that it was the VA forming the barrier. Looks like VA was just a little deceptive, right?

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