24 September 2014

VA Denies C-123 Veterans Constitutional Right of Due Process

"Veterans applying for disability benefits do not have an absolute right to "due process, as described in the Fifth Amendment. Rather, veterans must attempt to provide evidence that they meet the "as likely to as not" threshold." In that attempt, the Due Process Clause is clearly applicable.
The Department of Veterans Affairs has its own duties to respect a veteran's right to apply for benefits, and to consider the claim in a pro-veteran, non-adversarial and paternalistic manner. A veteran must submit adequate evidence of entitlement to receive benefits, and at the point adequate evidence has been submitted most interpretations of the Cushman decision holds that the veteran has a right to due process at that point...the Due Process Clause applies and denial of it is unconstitutional.

Implicit in the statute and acknowledged in Cushman is the requirement that a veteran satisfy the burden of persuasion, in that the evidence of military and medical issues be submitted and reach the level of equipoise. Veterans must satisfy this initial burden of proof: Failing that the claim is inadequate. Therefore, a veteran has an absolute right to submit evidence and have it considered, and not simply ignored or careful examination of it denied by improper instructions from VA executives.

But VA has predetermined that C-123 veterans do not have the right to even try to express our argument. VA, through instructions and training and communications from VHA and VBA, directs their claims adjudicators to consider any and all evidence we may submit as failing to meet the burden of persuasion. The issue is already been decided against the claim, per VHA directions.

How can C-123 veterans satisfy the requirement of persuasion when consideration of our evidence from multiple credible sources, including other federal agencies, is predetermined by VHA to be inadequate, regardless of merit? How can a claim be considered properly when VHA restricts the ability of the Joint Services Records Research Center to fully apprise VA of a veteran's exposure history, even while VA 21-1MR specifies a JSRRC inquiry? As CAVC has ruled, VA 21-1MR has the force of law but VA disregards at its whim.

This abuses our rights. This is contrary to public policy and destructive of the public trust in the Department of Veterans Affairs to meet the medical needs of disabled veterans. Veterans have the right to expect public officials and employees to perform their duties in good faith and in accordance with law and governing regulations. By issuing guidance dismissing our effort to persuade and to reach the threshold of "as likely to as not" VA executives deny us Due Process, as do the adjudicators who follow those instructions.

The VA denies our constitutional rights and frustrates the public's expectation of proper treatment of veterans when VA invents special terminology, distinct from its regular authorities such as Dorland's Medical Illustrated Dictionary and the glossary published by the CDC/ATSDR, to obstruct claims. In this instance, VA's Office of General Counsel has opined that VA has the authority to redefine exposure to prevent otherwise qualified claims for Agent Orange exposure.

Altogether, these improper actions by VA deny C-123 veterans our Fifth Amendment right to due process. We call on the VA to consider that the United States Constitution and the collection of veterans' laws applies to them, as well as to us veterans.
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law;
nor shall private property
be taken for public use, without just compensation.
As we read Cushman and other decisions, prior to establishment of entitlement to VA benefits, a claimant is entitled to fair adjudication of the disability application and that the Due Process Clause is violated when the vet shows entitlement to benefits and an adequate solution is not available under VA’s governing statutes and regulations. Here is the key point: Due process applies once a C-123 veteran is shown to meet the eligibility requirements set forth in the governing statutes and regulations – but the VHA denies us the right to have our eligibility argued on the face of the evidence, because VHA has dismissed it in advance of the claim.

Here are their false promises:
• "All claims are considered on a case-by-case basis." former Secretary Shinseki
• "All claims are considered on a case-by-case basis." – Under Secretary Allison Hickey
• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel
• "All claims are considered on a case-by-case basis." VA Deputy Chief Consultant Post Deployment Health
• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26 2012, May 23, 2014
• "Makes a case-by-case determination..." – VA Office of General Counsel
• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee
• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page 
 • "These claims will be decided on a “case-by-case basis” – VA Agent Orange consultant
 • "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service
• “Veterans' claims are evaluated on a case-by-case basis.” – VA Public Affairs spokesperson 

What VA Actually Did in Word and Deed (from VHA Instructions and Training Materials)

"AO exposure based on stateside service aboard C-123 aircraft previously flown in  Vietnam for AO aerial spray missions
 Not covered by VA statutory presumption of AO exposure for Vietnam Veterans 
 No VA statutory or regulatory provisions to acknowledge AO exposure based on “remote” or “secondary” exposure 
 No acknowledgement of direct facts-found exposure because no evidence that any residual TCDD on aircraft was biologically available to crewmembers 
 Insufficient scientific evidence to establish a medical nexus between service on post-Vietnam aircraft and diseases associated by VA with AO exposure 
 Opinions by scientists supporting stateside C-123 Veterans stating that TCDD was present in the aircraft and that this led to “exposure” is insufficient to overcome VHA scientific data showing no bioavailability (i.e. no routes for human body entry) for any TCDD residuals in aircraft" 

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