Under the leadership of James Ridgeway, Chief Counsel for Policy and Procedure with the VA Board of Veterans Appeals, new and creative anti-veteran strategies have been introduced by his attorneys specifically to prevent C-123 exposure claims.
BVA attorneys are responsible for prevention of appealed claims, and represent their client, the VA Veterans Benefits Administration, in front of the BVA administrative law judges with gusto, creativity and zeal.
But not with complete honesty or accuracy. In 2007 LtCol Aaron Olmsted's exposure claim was denied when VA's ignored, withheld, or pointedly did not seek or provide to Olmsted's representative) proof that the C-123s he piloted for thousands of hours had sprayed Agent Orange in Vietnam. Even when that Air Force evidence (it took three minutes on the Internet) was provided after the fact, BVA attorneys and the ALJ and the VA regional administrator and the Secretary (even the BVA attorneys' association's ethics chairman) insured his widow Diane's claim remained denied. After all, to BVA counsel, success is found only in a denied claim, or at least one delayed past the veteran's death.
More recently, to prevent C-123 veterans' claims from approval, BVA attorneys have begun citing completely non-existent "scientific studies" by Veterans Health Administration. Please note: these proofs don't exist – VA made them up!
The only scientific studies ever done concluded the opposite – that C-123 veterans were exposed and have a greatly increased cancer risk (CDC/ATSDR.) The only peer reviewed study reached the same conclusion...veterans were exposed.
In fact, VA's references to "scientific studies" amount to nothing more than several web pages which mention carefully selected (and most pointedly, carefully avoided everything pro-claimant) references, and a one-page policy statement VA Issue paper in 2011. There have been no scientific studies completed which found the veterans were not exposed – even the 2012 USAF C-123 Consultative Letter and follow-on explanations to the Senate said VA should not use for rejecting C-123 veterans' claims and that individual exposures could not be calculated. This report has since been repudiated by some of its contributors.
Clearly, it is important, indeed Job One, for BVA attorneys opposing veterans to appease VBA. This seems to mean preventing helpful documentation falling into the hands of opposing representatives. So much for the legal requirement, but phony pro-veteran, non-adversarial and veteran-friendly VA treatment of veterans' claims. Faced with the possibility of a defeat by veterans having the full facts and by reference to actual scientific studies, VBA's victories against the veteran trumps the profession's expectations of this staff.
The Deputy Chief Consultant at VHA's Post Deployment Health Public Health section published a single page in preparation to oppose veterans' concerns in an upcoming teleconference with non-VA scientists and C-123 veterans. Together with her colleagues they explained in the October 2011 teleconference that most likely none of the C-123 veterans' claims would ever be approved.
Then on February 28, 2013, VBA Compensation & Pension, which denies claims on the basis that "TCDD hasn't been shown to be harmful") explained to me and Major Marlene Wilson USAF NC that none of the C-123 claims would ever be approved because VHA had already determined that none of the veterans were ever exposed. Thus VHA Post-Deployment Health overruled the Secretary's and General Hickey's assurances to veterans that all C-123 claims would be handled on a "case-by-case" basis.
This opposition to C-123 veterans claims was based on a theory VHA and VBA accepted in 2011 and formed upon the writings of its Agent Orange consultant. Apparently, he was the scientist who apparently first insisted that none of the Vietnam ground troops were exposed to Agent Orange in his 2004 article sponsored by Dow and Monsanto (manufacturers of Agent Orange,) and in his July 2011 article in Military Medicine. He expounded on his theories which were music to the ears of VBA and VHA executives who, as reported in the Associated Press, were determined "to draw the line somewhere" regarding claims of exposed veterans. The consultant did so by disputing decades of more current research presented to the IOM and instead citing work decades old. The consultant argues that the 1991 Agent Orange Act was an inappropriate response to veterans' needs, even dismissing statistical evidence of Vietnam veterans' illnesses.
Perhaps BVA isn't aware of the fact that VA's entire foundation for opposing C-123 veterans relies on its Agent Orange consultant who, in 2011 described us, the veterans Ridgeway seeks to keep out of VA hospitals, as "trash-haulers, freeloaders looking for a tax-free dollar. I have no respect." Apparently BVA is okay with such distain from its experts but not with experts whose opinions are respectful and in favor of our exposure claims. The current $300,000/year no-bid, sole-source Agent Orange consulting contract has created such useful ammo for Ridgeway's case work.
BVA's team seems to have begun misleading judges at the Board of Veterans Appeals with citations of VHA's non-existent "scientific studies" approach in 2013. A search of BVA decisions shows the frequent reference, and reliance by BVA judges upon these non-existent references. This is despite truly scientific studies which conclude the C-123 veterans were indeed exposed. Those are never mentioned by VA.
Ridgeway's staff clearly ignores, and of course avoids informing the veterans' representatives, about similar findings by other federal agencies which have reached the same conclusion that C-123 vets were exposed...National Institutes of Health, the Agency for Toxic Substances and Disease Registry, and the US Public Health Service. Proofs of veterans' exposure claims are ignored or dismissed by Ridgeway's skilled attorneys.
BVA also ignores the Yale Law C-123 conclusion that the veterans are presumptively service connected for recognized Agent Orange illnesses. BVA's motivated staff of attorneys finds it best to dismiss any such legal or scientific proofs arguing for the veteran.
The first BVA citation below is for a Navy, not C-123 veteran, but the inclusion of such language is terrifically wrong! VBA did not "review all available scientific evidence" but instead VHA Post Deployment Health selected references it felt best blocked exposure claims to fulfil VHA policy. This can be seen from their cited references, paid-for opinions, Dow/Monsanto opinions but avoidance of unpaid and independent expert input from ATSDR, NIH, USPHS, Columbia, OHSU, etc., all of which argue in the C-123 veterans' favor.
Further, this policy by BVA defies statements from VA leaders, including Secretary Shinseki and Under Secretary Hickey, that each claim will be considered on a case-by-case basis, as instead VA automates the denials not only at BVA but directs RO denials as well. We see some BVA decisions against veterans with this language about non-existent "guidance:"
"The VA and DOD have specifically provided guidance that such secondary exposure cannot be granted service connection, to include working on planes that carried or sprayed, or being stationed on vessels which transported the herbicide."More troubling examples:
"Citation Nr: 1426689: the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have reviewed all available scientific information (?) regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. See http://www.publichealth.va.gov/exposures/agentorange."And from an April 2014 BVA decision, also reflecting VBA's damage. (Actually, these studies and findings have repeatedly been brought to VA's attention.)
"Citation Nr: 1413377: there are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred."From others:
"An undated Compensation Service Memorandum indicates that there was no presumption of secondary exposure based upon being near or working on aircraft that had flown over Vietnam or handling equipment once used in Vietnam, noting that the aerial spraying of tactical herbicides in Vietnam did not occur everywhere and that it was inaccurate to think that herbicides covered every aircraft and piece of equipment with Vietnam. Additionally, the undated Memorandum notes that the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation Ranch Hand. The Memorandum also reflects a comment that there were no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. "
"Citation Nr: 1337387: note, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have thoroughly reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. (See www.publichealth.va.gov/exposures/agentorange.) Otherwise, other than his unsubstantiated allegations, there simply is no evidence that the Veteran was exposed to Agent Orange or other herbicides based on his contact with any military vehicle that may have once been used in Vietnam."Mr. Ridgeway, together with VBA/VHA, has institutionalized the C-123 non-exposure position, citing totally non-existent "scientific" studies on VBA web pages which were policy statements and not scientific studies, and which are contradicted by VA's Federal Register publications and statements by VA leadership. These unscientific positions then become cited by BVA in refusing care to exposed veterans.
Nothing supporting the veterans' claims, although proofs are present in the files of VA's Office of General Counsel, VBA Under Secretary Allison Hickey, and VHA's Dr. Victoria Daveys, is made available to veterans by the VA during claims, appeals or cases before the US Court of Appeals for Veterans Claims. According to FOIA responses from VA, nothing about C-123s even exists, other than its web pages.
It seems to BVA and Mr. Ridgeway's staff that VHA web pages citing non-existent "scientific studies" by Post Deployment Health trump repeated VA Federal Register publications addressing non-Vietnam herbicide exposures.
As the President told the American Legion On August 26, " That's how we will uphold the sacred trust with all who've served in our name."
BVA sees upholding the "sacred trust" much differently than do the veterans before the board.
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