VA has a duty to assist the Veteran in obtaining all potentially relevant documents to substantiate a claim, including medical evidence to verify the claim. 38 U.S.C.A. § 5103A(a)(1), (b) (West 2002); 38 C.F.R.§ 3.159(c) (2008); Talley v. Brown, 6 Vet. App. 72, 74 (1993).
Key Point: VA (the Federal Government) has a heightened duty to assist given several actions by US Government (VA and USAF:)
1. USAF identified hazardous materials in the C-123 but failed to properly protect occupants from 1979 on (date of the first C-123 "Patches" contamination test [Conway]) 2. USAF determined Patches (a relevant sample aircraft and the only one so tested) to be "heavily contaminated with dioxin on all test surfaces" in 1994 but failed to inform exposed veterans (Porter/Weisman) 3. In 1996 USAF decontaminated Patches but later destroyed all other former Agent Orange spray aircraft in 2010, stopping planned contamination tests, and depriving veterans of evidence vital to exposure claims, as was noted by AF officials at the time as one of the justifications for their destruction 4. The official recommending the C-123 destruction ("the strongest proponent of immediate destruction") was subsequently retained by VA to address and dismiss, the C-123 veterans' exposure claims; In 2012, $600,000 ($300,000 for Sept 2012-2013, $300,000 for Sept 2013-2014) was spent by VA with the same consultant to establish arguments or hypotheses against C-123 veterans exposure claims but no funds spent were by VA to substantiate veterans' proofs and arguments. I guess that'll get the desired results.
VA has ordered an examination of the issue by the Institute of Medicine but issued a charge to the committee not addressing legal requirement for veterans' claims for presumptive eligibility. The consultant, stating he was not representing VA but explaining its science, put forward VA's arguments against the veterans' exposure but provided no such expert witness to argue the veterans perspective. I guess that'll get the desired results.
Veterans requested office space, printing and other minor assistance without response in their preparation to the committee. Unlike VA, veterans' meager personal funds proved inadequate to respond to VA's well-paid opposition, especially in the services of the consultant to the Air Force and subsequently, to the VA.
Years ago, the late LtCol Paul Bailey and Major Wes Carter filed Freedom of Information Act requests with the VA, seeing the basis for VA's unbending refusal to permit C-123 claims to be approved. VA then refused even the existence of any relevant materials, but on one response offered to provide some items for over $4000 in fees. Finally, VA simply refused until the C-123 veterans filed suit against it, and in complicated court maneuvers the US Justice Department, representing the VA before the US District Court of Washington DC.
VA promised to try to flow documents to us as soon as possible, given the May 15 and June 16 Institute of Medicine C-123 hearings. However, the first we saw anything was when the IOM let us purchase a CD with selected VA documents on it...VA certainly left a lot out, including everything which might support the veterans' which we didn't already have. Then, when the IOM public meetings concluded, VA has returned to its original sop, "we ain't got nothing" perspective, refusing everything we sought. Legal actions continue in the US District Court for Washington D.C.
From VA 21-1MR: "(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."
The important points here are that the government is to assist gathering such records, and the government is to include as applicable records from "a Federal department or agency," as well as records from State or local governments...and other non-Federal governmental sources.
How did VA meet its responsibilities? It shirked its duty in the case of C-123 exposure claims, VBA has even held that input from the CDC/Agency for Toxic Substances and Disease Registry, the NIH/National Institutes of Environmental Health Sciences, the US Public Health Service, and numerous State agencies is unacceptable and has made no effort to fulfill its duty to assist. Neither, has VA notified veterans of its failure to locate relevant documents, by simply predetermining that such documents are not relevant. In fact, their relevance is clearly spelled out here, proof prevented by the VA.
38 USC §5103, and 38 CFR §3.159, implemented with VA 21-1MR describes the relationship between the Joint Services Records Research Center (JSRRC) and the VA when addressing exposure claim of individuals. VA must make "reasonable efforts" to obtain non-federal records identified by the veteran. Not only does this describe the VA's duty to assist, it infers that such non-federal evidence may be applicable and considered.
VA must make at least a single request plus a follow-up, and must notify the veteran of failure to locate and what follow-up efforts might be made. Summary: a veteran need only indicate existence of a relevant source of proof and the government must make "reasonable efforts" to acquire it, and notify the veteran if unable to do so.
So far, VA defines its reasonable efforts to help us by refusing our FOIA. Also:
– By reinventing fundamental terms of science.
– By disregarding other federal agencies' input.
– By disregarding private & VA physicians' input
– By dismissing university experts (physicians & scientists)
– By cherry-picking and paying consultants who've expressed great distain for us, and predetermined no exposures were possible to any Vietnam ground soldier and certainly not us
– By constructing illogical and unscientific arguments against us.
– By failing for many years to obey the law as now written, hoping for some action by IOM to permit VA to construct new barriers.
– By wording their IOM charge so nothing of direct consequence will help.
– By deceiving Congress, the veterans and the public by ignoring three separate commitments posted in the Federal Register (8 May 2001, 15 April 2008, 31 August 2010) to care for exposed veterans.
– By its General Counsel ignoring systemic problems formally brought to his attention.
– By systemic refusal to consider C-123 claims, including stating that none will ever be permitted, and that "a line must be drawn," training adjudicators to deny exposure claims, all while also assuring Congress that all claims are considered on a case-by-case basis, but only to be uniformly denied.
– By its Inspector General ignoring systemic problems brought to its attention.
– By speaking and writing to us very politely, very respectfully, while insuring we are kept out of their hospitals.
– And regardless of any IOM actions, VA will wait us out...delay, delay until we die! And as they know that won't be long, now. I guess that'll get the desired results.