30 September 2014

VA Blocks C-123 Veterans' Exposure Claims: A Summary of VA's Methods

There are several ways in which VA arranges the denial of C-123 veterans' Agent Orange exposure claims. And that's not counting their fundamental "not on my watch" mentality that our claims must be prevented by any means, fair or foul. Rather than find a way to help within the law, VA instead twists the law and regulations to squeeze out illogical and unfair...and unconstitutional barriers against us.

I'm not trying to have a shrill or radical voice about this, but readers have to understand the impact of VA engineering ways to avoid providing care for our ill veterans. Waiting for a claim to be processed is long enough, but being slammed with their an automatic denial is very depressing...this is not the right way to treat service-connected cancers, heart disease, ALS and the other ailments associated with Agent Orange exposure.

Here we'll show five of the basic "slight of hand" tricks used by VA to block our claims. Of course, denied C-123 exposure claims can be appealed to the BVA where we are always successful, but VA wins there, too. A denied claim saves VA years and years of patient care, because they refuse care until a claim is awarded. Veterans cannot recover medical costs for trying to survive while a claim awaits justice. Clearly, VA views approved claims as a loss to their department. (Note: we did request VA to permit veterans with substantial proofs of their claim to receive care during the claims and appeal process, but were refused.)

1. VA claims adjudicator originally dismissed the vet's claim for absence of "boots on the ground" service. The CAVC determined that every veteran with proof of service elsewhere that resulted in proven exposure, that veteran will be treated with the same presumptive service connection as the Vietnam veteran. CAVC also noted the Federal Register statement by VA to that affirmation. However, VA regional offices universally ignore the three Federal Register assurances from VA to C-123 veterans that our exposures are to be recognized. In the case cited below, the veteran's claim is awarded, but the problem is he had to wait three-five years to get justice from CAVC instead of his local regional office.
Citation Nr: 1420702:
"The Board notes that the Veteran did not have any service in Vietnam during his period of military service, nor does he claim such service.  See 38 C.F.R. § 3.307(a)(6)(iii).  However, that does not preclude the Veteran from establishing entitlement to service connection for diabetes mellitus or prostatectomy status post carcinoma due to exposure to herbicides.  In the final regulations published in the Federal Register, which established diabetes mellitus and prostatectomy status post carcinoma as diseases on the list for presumptive service connection based on herbicide exposure, VA re-affirmed that, if a Veteran did not serve in Vietnam but was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during service and has a disease that is on the list of diseases subject to presumptive service connection, then VA will presume that the disease is due to the exposure to herbicides.  See 66 Fed. Reg. 23,166-69 (May 8, 2001); 38 C.F.R. § 3.309(e)."

2. Many C-123 claims are denied with the claims official insisting that regulations forbid our claims' approval, not only at the VARO but even at the BVA where both the administrative law judges and the VA counsel should be more expert. The fact is, no such regulation exists. The governing regulation is VA21-1MR which spells out the management of non-Vietnam exposure claims. The regulation, according to the Court of Appeals for Veterans Claims, "has the force of law" so we are puzzled that VA ignores it...but we can't demand its protection. VA21-1MR says VA will inquire with the Joint Services Records Research Center for confirmation of our Agent Orange exposure incident. JSRRC now provides that confirmation. Before JSRRC was able to confirm, VA denied claims because of that. Now that JSRRC does confirm, VA ignores that proof which should have been persuasive.

3. VHA and VBA training materials instruct VAROs that no amount of veteran's scientific and medical information will be considered to weigh against the VA's existing "scientific evidence" formed from decades-old materials, Dow & Monsanto letters and contractor's monographs. In fact, this violates the promises made by dozens of VA executives for "case by case evaluation" of claims and this predetermination that veterans' evidence is insufficient amounts to a denial of the right of due process, guaranteed in the Fifth Amendment – but not by VA!
.
A Supreme Court decision referred to as "Cushman" found that the VA must evaluate a veteran's claim in accordance with VA's own regulations and the duties of the adjudicators to perform their duties as public servants...raters' job descriptions describe evaluating claims, not dismissing claim evidence upon HQ instructions which are clearly improper.
The following paragraph's instructions that veterans' claims are predetermined to be "insufficient" is the core of VA's assault on the Due Process Clause. We also note that the questionable "opinions by scientists" are from Dow, Monsanto, the VA contractor who called us freeloaders, and a handful of articles from the early days of VA opposing Agent Orange claims. Current science, including the only peer-reviewed article addressing C-123 exposures, holds that C-123 veterans were exposed, and were harmed aboard our aircraft.
"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"
4. VA officials are comfortable repeating frequently their decisions, both by VHA and VBA, that C-123 veterans' claims are unacceptable to them. The Deputy Chief Consultant Post Deployment Health told Major Terry Rudd, US Army Chemical Corps in March 2012 that "VA cannot permit C-123 claims." She told me the same thing in a telephone interview, phrasing it that none of the C-123 veterans were exposed (and neither were any of the Vietnam ground veterans) and therefore claims will not be approved.
The Director Compensation and Pension refused to permit expert toxicologist evidence, including from the CDC and National Institutes of Health, He also recommended claims be denied on his own belief that TCDD (the carcinogen in Agent Orange) "hasn't been shown to impact health." (Perhaps so, but only if one excludes cancer, heart disease, ALS, etc., and also ignores the 1991 Agent Orange Act and the multiple IOM reports.)
Post Deployment Health, part of VHA, told the Associated Press, "We have to draw the line somewhere." We just don't see "hold the line" in the law, nor in the US Constitution, nor in VA leaders' oaths of office, nor in the Federal Register publications assuring veterans and the Congress that VA will treat non-Vietnam veterans with proof of exposure with presumptive eligibility.

5. As detailed elsewhere in this blog, the Federal Register clearly and repeatedly stated the Secretary's commitment to Congress and veterans to consider non-Vietnam vets with proof of exposure with presumptive service connection for the recognized Agent Orange illnesses. Yale Law School's finding clearly supported the C-123 veterans in this. Which is why VA opted to simply redefine the word "exposure" so that exposure claims could be refused, redefined away by linguistic trick. It is like redefining "swallow" or "blink" or some other standard word in medicine or science...and VA OGC helped arrange the redefinition strictly to prevent C-123 claims.

Conclusion: the system seems rigged against veterans, regardless of the merit of their claims, because it permits individual VA staffers to implement their personal agendas. VA staff are able to feed the Secretary misleading responses to Senate and House inquiries, just as Secretary Shinseki claimed at his resignation. VBA staff even managed to scrape up an unscheduled $600,000 for a unique no-bid, sole-source consulting contract to develop post-Vietnam monographs opposing C-123 and other veterans' claims. No other group of veterans have submitted such substantial proofs, including military documentation of the contamination situation and findings from other federal agencies, yet faced such determined VA opposition.

29 September 2014

VHA Contracting Official: Scandal AGAIN!

October 2 Update: Today the Washington Post reported that FedBid, mentioned below, also "leaned on" Secretary Shinseki before his resignation, sending a retired Army Chief of Staff and others with significant influence...to influence, to turn a buck, and to corrupt.

By Bruce Alpert, NOLA.com | Times-Picayune 
Bruce Alpert, NOLA.com | Times-PicayuneEmail the author | Follow on Twitter 
on September 29, 2014 at 2:58 PM, updated September 29, 2014 at 3:33 PM
More VA contracting complaints, following on our concerns over VBA's sole-source, no-bid unsolicited proposal for an even larger $600,000 contract on post-Vietnam War Agent Orange studies.

WASHINGTON -- A secret affair, an attempt to "assassinate" the character of an official who got in the way of a contract, and blatant conflicts of interests: This isn't a TV soap opera, but a report from the inspector general for the Department of Veterans Affairs about a contracting scandal at the agency's health services agency.

The report, issued Monday, doesn't read like any routine federal audit. It centers on Susan Taylor, deputy chief procurement officer at the Department of Veterans Affairs.

For starters, the report notes, Taylor "allowed her subordinate, to award a purchase order with an annual value of $80,000 to William Dobryzkowski's private business.

Sounds like a routine contract. But the report discloses that Taylor and Dobrzykowski were lovers, and the contract enabled him to work directly with Taylor as a consultant, and travel with her on government related trips.

It quotes from an email found in Taylor's government account. It was addressed to Dobrzykowski's wife

"I am sorry to have to inform you that your Bill has been having an affair for over 18 years," and "I will share with you as much of the details as I know." Further down, the email indicates that "Bill" asked the woman to marry her, and on 'Christmas Eve 2007 "he gave her a diamond engagement ring."

Taylor admitted in subsequent interviews, the IG report said, that she had a relationship with Dobrzykowski since 1994 when both worked for the Department of Housing and Urban Affairs.

27 September 2014

Joint Services Records Research Center Confirms C-123 Veterans' Agent Orange Exposures

After years of effort, and countless documents submitted to both VA and the Joint Services Records Research Center from other government agencies, the USAF and civilian authorities, JSRRC has finally been permitted by VA to update C-123 veterans' exposure claims.

JSRRC will now reply to VA with the statement below, citing CDC/Agency for Toxic Substances and Disease Registry reports which VA itself had since 2011...but chose to disregard until now. Even with this evidence to satisfy all requirements, VA has ordered its regional offices to delay or all deny C-123 claims until the current IOM C-123 committee report is released. Regional offices thus are to ignore the JSRRC report despite their own VA21-1MR which "has the force of law" according to the Federal Circuit Court. But...VA views laws as requirements upon veterans, not their Department.

VA's regulation VA21-1MR states that for non-Vietnam exposure claims VARO adjudicators should inquire at the US Army Joint Services Records Research Center for military documentation. Since 2011, VA has hindered JSRRC in what can be fed back to VA, with VA authorities insisting on only military source documents.

This was impossible, because the C-123s were not known to be contaminated with Agent Orange during the years we flew (1972-1982) so naturally there are no contemporary documents about ant contamination. This May, however, VA relented under Congressional pressure and permitted JSRRC to reveal its documents. The documents make the case rock-solid: C-123 vets were exposed!

It is unacceptable for VA to continue ordering is regional offices to dismiss all medical and scientific evidence C-123 veterans submit, because this action denies us due process. We can't expect adjudicators to be experts in Constitutional law, but Cushman is easily Googled and after reading that, every claims official should realize his/her individual duty to obey his/her oath of office..."to support and defend the Constitution of the United States."

Here is the current JSRRC response to VA inquiries regarding C-123 veterans' claims:

"In the course of our research, we located additional information that could be relevant to Mr. Carter's Agent Orange claim and appeal, and therefore, are forwarding this information to your office:

The Center for Disease Control (CDC) of the Department
of Health and Human Resources communicated its opinion
regarding the Agent Orange contamination and exposure
issue surrounding UC-123K planes utilized in the United
States, post-Vietnam, by Air Force Reserve units. The
opinion of the CDC regarding these aircraft and the
AF Reserve aircrew and maintenance personnel that served
on these aircraft includes the following findings:
a. Based on the information reported in a Department of
the Air Force Armstrong Laboratory consultative letter
dated December 19, 1994, (a review of dioxin sampling
results from a UC-123K aircraft) aircrew operating in
this environment were exposed to TCDD (dioxin).
b. Inhalation exposure to TCDD while working on contam-
inated aircraft could not be excluded.
c. TCDD levels on-board these aircraft were likely even higher
in 1972 through 1982 than in 1994 when the samples were
taken.

Also, the Air Force Armstrong Laboratory consultative
letter reported the following information regarding
the UC-123K aircraft sampled:
a. The interior of the aircraft was heavily contaminated
with PCDDs (dioxin).
b. All four samples tested positive for dioxin congeners.
The source was likely from Agent Orange.
c. Once the aircraft is restored, viewing should be
limited to the exterior of the aircraft only"

The JSRRC point of contact is Mr. Dominic Baldini, Chief Joint Services Records Research Center, Fort Belvoir, VA. The VBA liaison officer to JSRRC is Mr. James Sampsel, Compensation and Pension Service. We do not know the name of the VBA or VHA official who permitted C-123 veterans' to be denied Due Process in the adjudication of our claims.

25 September 2014

Court Questions VA Conduct in FOIA Lawsuit

BY MICHAEL DOYLE
McClatchy Washington Bureau, September 24
WASHINGTON — The often-embattled Department of Veterans Affairs won the war but may lose an embarrassing battle over its handling of Freedom of Information Act litigation.

In what seems a rather noteworthy ruling Wednesday, U.S. District Judge Paul Friedman first sided with the VA in rejecting a FOIA challenge by Citizens for Responsibility and Ethics in Washington, but then raised the possibility of sanctioning the VA for its actions.

“This Court...is deeply troubled by the VA’s litigation conduct in the case: inaccurate declarations were left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic,” Friedman stated.

Friedman further ordered the VA to “show cause why a sanction under 28 U.S.C. § 1927, in the form of attorneys’ fees and costs, should not be awarded for the additional time and effort CREW’s attorneys were required to expend due to the VA’s tactics.”

The underlying FOIA request dealt with documents that could shed light on allegations that the VA discouraged staff from diagnosing veterans with post-traumatic stress disorder.

The VA’s precise legal conduct that’s in question is spelled out in Friedman’s decision, and in an earlier decision in which the judge declared that “counsel for the VA decided as a matter of litigation tactics not to be forthcoming by withholding relevant evidence until after the limited discovery ordered by this Court was concluded.”

 note: C-123 veterans have sought documents from VA under the FOIA for over two years so far.

Institute of Medicine Announces C-123 Agent Orange Exposure Report is Delayed

Yesterday the IOM Agent Orange committee reported that their C-123 report, expected by the end of
this month, has been delayed into October. This is regrettable because the Department of Veterans Affairs has since January put all C-123 veterans’ claims on hold, awaiting the IOM report.

Until the IOM report is released VA will continue to refuse medical care for over 2100 affected veterans. Further, however conclusive it may be regarding the aircrew’s exposures, the Secretary of Veterans Affairs may still accept the advice of Post Deployment Health and not implement the report’s recommendations.

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" 

22 September 2014

Compensation & Pension Service Orders ALL C-123 Claims Denied

Assurances from the Secretary of Veterans Affairs to the Senate, and assurances by the Under Secretary for Benefits, that "C-123 veterans' claims will be considered on a case-by-case" basis have proved to be empty promises.

Every veteran has the right to have a disability claim considered on the merits of the situation, and not dismissed by some broad pronouncement of a VA official's personal agenda. Falsely, C-123 veterans are assured on VA web pages that our Agent Orange exposure claims will be evaluated on the facts and the law.

But in four separate situations VA has clearly demonstrated how they denied us due process, and blocked medical care needed by our veterans. We claim protection under the Due Process Clause because we've established that we are veterans, that we have Agent Orange-recognized illnesses and we have a large body of evidence to persuade. At this point, according to Cushing and other decisions, Due Process applies!

1. In 2012 the VA's Agent Orange consultant summarized the perspective of Compensation and Pension in his report, "Investigations into the Allegations of Agent Orange/Dioxin Exposure from Former Ranch Hand Aircraft." On page 25 he confirms VA's decision to order all C-123 claims denied, writing, "The Compensation Service recommended that such claims associated with Agent Orange exposure be denied service-connection." Then he reveals the contradiction VA created by concluding that paragraph with VA's own empty promise, "Veterans who believe they have exposure- related health problems may file a claim for disability compensation. These claims will be decided on a “case-by-case basis”  These statements are at opposite ends of the logic spectrum.

2. The VA arranged to have post-Vietnam Agent Orange issues reviewed by a contractor (Contract VA-101-12-C-0006.) That contractor was already of the firm opinion that our claims for service connection were without merit. In 2011 he described those of us seeking VA medical care as "trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman."
His contempt for us was reflected in the effort he and VA spent, with his unique sole-source no-bid $600,000 contract resulting in four separate reports attacking the basis of our claims, plus his appearance before the Institute of Medicine on June 16 to detail the VA's basis for refusing our claims. Nothing wrong with him getting business wherever he may find it, but completely inappropriate for VA to use this particular prejudiced individual's services against us.
All six major veterans service organizations have complained to the Secretary of Veterans Affairs, objecting to the relationship between VA and this contractor.
The contractor is welcome to his business wherever he can find it, and he certainly has an unequaled historical grasp of Agent Orange issues. His previously-expressed distain for C-123 veterans, however, makes his input completely unacceptable as regards our VA health care.

3. As shown in VA training materials released via our lawsuit to enforce Freedom of Information Act requests, Veterans Health Administration instructs claims officials that no amount of scientific information supporting C-123 veterans' exposure claims will be permitted to weigh against VHA's decision that it is insufficient. Dozens of experts from other federal agencies, universities, medical schools, schools of public health and state governments agree that C-123 veterans have been exposed and harmed...but VA prefers the opinions of its Agent Orange contractor and the two scientists sponsored by Dow and Monsanto.

4. BVA attorneys have been successful fighting Agent Orange appeals by somehow convincing the administrative law judges that VA regulations forbid recognizing exposure claims other than Vietnam, Korean DMZ, certain Blue Water ships and Thai base perimieter. Statements like the following, used by BVA attorneys to keep veterans out of VA hospitals, are just plain false!
 "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."
"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 

VA Orders Claims Officials to Ignore C-123 Scientific Evidence

​The undated document shown below, titled C-123 Agent Orange Talking Points, was released on September 19 by VA Office of General Counsel under our FOIA lawsuit. It is a virtual dismissal order from VA leadership of any and all scientific evidence a veteran can submit to prove a C-123 exposure claim. That's right...in advance, VA tells its staff nothing a C-123 veteran submits can help a claim.

No due process. No notice even of VA's own rules and regulations. No honoring assurances from VA to the Senate that claims will be evaluated, if not with presumptive eligibility, at least for their own merits.

We note with dismay VHA's instructions that no amount of scientific evidence can be considered to overcome...or balance, "VHA scientific data showing no bioavailability." "Insufficient" is VA's judgement, even before the veteran's claim is submitted.

We note that VA did not remind its readers that the law makes no mention of bioavailability, but only of exposure. This amounts to denial of our rights to, as the empty promises put it, "a case-by-case evaluation."

21 September 2014

Secretary of VA Deceives Congressman Todd Young on C-123 Veteran's Claim

The Secretary's letter to Congressman Todd Young of Indiana began honestly enough:
"Dear Congressman Young:

I am responding to the letter you submitted on behalf of your constituent who expressed concern that Department of Veterans Affairs (VA) regulations do not provide a presumption of herbicide exposure for Veterans who served aboard C-123 aircraft... "
But the errors which followed the polite introduction by the Secretary of Veterans Affairs were a deliberate deception of this member of Congress and a disservice to his constituent and all veterans.

Worried about a veteran from his district, Congressman Young had inquired about VA policies toward C-123 veterans. Rather than any correction of the VA's errors, Congressman Young was fed two pages of VA misstatements and deceptions, twisted around a handful of facts.

This undated copy of the letter from Secretary Shinseki to Congressman Young was released by the VA Office of General Counsel on Friday, September 19, forced by lawsuits in the US District Court of Washington compelling VA to respond to inquiries under the Freedom of Information Act.

Obviously, in a huge organization like VA, it is unlikely that Secretary Shinseki authored this letter himself and more probable that the Congressman's inquiry was assigned to the responsible staffer. Others correspondence tainted with similar deceptions, such as the VA response to Senator Bur, were drafted by Veterans Benefits Administration for the Secretary's signature. Trusting in subordinates to share his sense of honor and integrity, as the Secretary said just before his resignation, was something he never should have done at the Department of Veterans Affairs.

This letter, and others such as his response to Senator Burr, are telling examples of staff failure and sabotage of their leader. These staffers pursued their own agenda, thus interfering with the Secretary's Constitutional duties and relationship with the Congress.
"A number of scientific reports were reviewed, including: Environmental Fate of Agent Orange and Its Associated Dioxin in the Vietnam War (Alvin L. Young, et al., 2004) and Environmental Fate of TCDD and Agent Orange and Bioavailabilty to Troops in Vietnam (Nathan J. Karsh, et al. 2004)."
Great! Secretary Shinseki relied on eleven year old articles by its paid consultant ($300,000 per year from VA) who wrote the 2004 articles on behalf of Dow and Monsanto. VA relied on its consultant, whose views on the "innocence" of Agent Orange have remained unchanged for over 30 years. The Secretary even cited the consultant's eleven year old publications, pointedly ignoring all more recent proofs offered by the ATSDR, NIH and dozens of scientists and physicians whose views support the veterans. Little wonder, then, that all six major veterans organizations demanded the VA reconsider any relationship with this consultant!

This is the consultant who in 2009 personally recommended all toxic C-123s be destroyed because veterans might learn of their exposures and seek VA care for Agent Orange illnesses. This is the consultant who denigrated C-123 veterans, calling them "trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman. I have no respect." "If not that, what is their motive?"


VA Secretary...his staff's loyal support!
Simple answer, Sir. We need VA medical treatment for our cancers and other Agent Orange-related illnesses. But we can't get that life-saving care because VA relies on your input and shares your attitude. We can't get that care with the Secretary relying on his staff whose disloyalty fed him false and incomplete information, like the letter to Congressman Young and the  2013 letter to Senator Burr, in this careful deception of both the Senate and the House.

We can't get that care with the VA ignoring the issue of exposure as the sole qualification for Agent Orange illnesses treatment, and instead inventing bioavailability as an extra-legal barrier. Why has VA abandoned its obligations the Department itself stated repeatedly in the Federal Register?  Why does the Secretary not act when he is told Veterans Benefits Administration is denying Agent Orange claims on the ridiculous basis of Agent Orange being harmless?

20 September 2014

"CASE BY CASE" Claims Processing: VA Empty Promises to C-123 Veterans

VBA C-123 Training Program
• "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 means, in fact and in practice, is that C-123 claims are DENIED automatically. There is no true case by case evaluation, as VA’s own training materials have made clear.

No matter how often repeated, no matter who repeats the promise – these are shown to be empty VA promises, meant only to deceive. Proper case by case claim evaluation, particularly to weigh each veteran's disability claim individually, is a deception. The duty to consider cases on the merits of the situation is spelled out in the VA's own regulations, as well as numerous CAVC rulings. It is a duty which shouldn't be ignored by those responsible, even forgetting it amounts to Clear and Unmistakable Error.

These promises are deceptions, feints, misleading diversions...prevarications and dishonorable utterances. Dishonorable because most of the folks repeating the statements know VA has no intention of doing anything of the sort.

Proof of this was revealed yesterday, when VA's Office of General Counsel finally released a few of the documents C-123 Veterans had demanded under the FOIA. The fundamental VA deception regarding "case by case" claims evaluation was shown in the statements that no amount of scientific or medical proof would permit a C-123 claim to be approved...that VA had already predetermined none of the C-123 vets eligible for exposure benefits

Denied. Before claims are even submitted. Denied. While claims sit a year at the regional office before automatic rejection. Denied, forcing a three-five year appeal to the Board of Veterans Appeals where all C-123 claims have been awarded the veteran because there, at least, a sense of justice is working.

In this, and in other documents, VA makes clear its determination to block any C-123 exposure claims through legal or even extra-legal means. VA tosses off all obligations to be pro-veteran and non-adversarial, and pretends it never heard of Colvin, and tells the claims adjudicator his/her duty to evaluate all evidence has somehow been set aside. No.

Why? One suggestion is Slide 6 in VA's C-123 Slide presentation; please note the last point. Rather than focus on our needs and eligibility, VA worries instead about the impact on other Agent Orange controversies.

And throws us under the bus!

Above: Slide #Six, VBA Training Presentation on C-123 Claims






19 September 2014

VA's Partial Response to Freedom of Information Act Request for C-123 Documents - deception revealed

Today, VA released just a small, incomplete set of of documents in response to a series of veterans' Freedom of Information Act requests, taking years to meet this legal requirement. More documents have been promised by VA’s Office of General Counsel.

These materials, incomplete though they are, clearly validate C-123 veterans' assertions that Veterans Health Administration has for three years conducted an inappropriate agenda of frustrating claims for illnesses associated with Agent Orange exposure.

Most telling is VA's instruction to Decision Review Officers to deny all claims from these veterans, while at the same time VA was telling veterans and their Congressional representatives that claims "are evaluated on a case-by-case basis." The only such claim to ever be approved (LtCol Paul Bailey, by Manchester VARO DRO) is cited as an example of what VBA and VHA want prevented.

This is the kind of deception by VA staff intent on their agenda, as the Associated Press reported, of "drawing the line somewhere" to prevent perfectly correct Agent Orange exposure claims. We'd thought the scheme was unofficial, until reading these documents which show that Veterans Health Administration as promised, "will never permit C-123 claims." (Deputy Chief Consultant, Post Deployment Health.)
Below is the "C-123 AO Talking Points" memo VHA distributed to summarize VA's position against C-123 veterans. The most offensive, and most telling of VA's determination to deny exposure claims is the last point: VA says no matter how much scientific opinion and data, and findings from other federal agencies or any other evidence the veterans submit, none of it is to be permitted to "overcome VHA scientific data." However, that "scientific data" was merely a set of old publications, carefully selected to prevent any support of the veterans' side of the issue.
"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" 
It is vital to note that both VHA and VBA are deceptive in C-123 claims processing. Veterans are assured repeatedly that our claims are considered on a case-by-case basis, yet VAROs are given instructions that claims are to be automatically denied. VBA even explains in "C-123 AO Slides," #Six" that this is because otherwise,
"BVA post-Vietnam C-123 grants can lead to a public perception that the “US Government” has verified such exposure. [e.g. BVA grants of AO exposure on Okinawa, despite no valid evidence, has generated investigations by
the Japanese Government] "
Translation: American veterans' disability claims are to be denied to prevent any misunderstanding or "public perception" disagreeable to VBA, however faulty and deceptive such a leap.

The same C-123 AO Slides document shows the errors which VA inserts to guarantee veterans' claims are denied. Slide Four states:
  One scientific advocate supporting post-Vietnam C-123 AO “exposure” points to percentage of TCDD in wipe samples from “Patches” as exceeding a military standard  for direct environmental exposure.
 The majority of scientists on record, including those with VHA, state that any solidified TCDD in post-Vietnam aircraft is not active in the environment and cannot biologically enter the human body in any significant amount; therefore no TCDD “exposure.
Both points in Slide Four are in error. The first because it is deceptive, and to the point of being disingenuous. "One scientific advocate" was actually many.  They were not mere "advocates" but authoritative federal agencies with statutory responsibility in this issue. Principal was Dr. Tom Sinks, Deputy Director CDC/Agency for Toxic Substances and Disease Registry. His official finding on behalf of ATSDR, not of him as an "advocate," was later repeated by Director Dr. Christopher Portier, and then again by Acting Director Rear Admiral R. Ikeda MD (US Public Health Service.) His finding was supported by Dr. Linda Birnbaum, Director, National Toxicology Program (she is also Director, National Institute of Environmental Health Sciences.)  CAPTAIN A. Miller MD, US Public Health Service also reached the same conclusion, as did Oregon Health Sciences University.

VHA's second point is also in error because it is deceptive. "The majority of scientists on record" consisted of just three...one a paid VA consultant and the other two, paid by Dow and Monsanto. These VA three were opposed by dozens of unpaid scientists and physicians from universities and other federal agencies, through Dr. Jeanne Stellman of Columbia University as their Corresponding Scientist.

17 September 2014

VA IG Changes Story – Delays in Phoenix "CONTRIBUTED" to Patient Deaths

Patient Scheduling Delays: They did, they didn't, and now...they did again.
Remember IOM C-123 Committee: You can trust everything the VA tells you.

By Jim Avila@JimAvilaABC
Serena Marshall@SerenaMarsh
Sep 17, 2014 6:16pm

Delays caused by secret waiting lists “contributed” to deaths at the Phoenix VA earlier this year, an assistant inspector general who helped draft a controversial Inspector General report admitted today under intense questioning by the House Veterans Affairs Committee.
The assertion by Dr. John Daigh comes less than a month after the Office of the Inspector General proclaimed in its official report that it is “unable to conclusively assert that the absence of timely care caused the deaths of these veteran.”
Rep. David Jolly, R-Fla., asked Daigh whether he could “conclusively assert that wait-lists did not contribute to the deaths of veterans?”
“No,” Daigh replied.
When asked whether he’d be “willing to say wait-lists contributed to the deaths,” Daigh responded,  “Yes.”
It was a startling admission, following complaints that the OIG softened the report at the VA’s request.  The sentence about being “unable to conclusively assert that the absence of timely care caused the deaths of these veterans” was not in the first draft of the report and only appeared in the final draft after the VA had a chance to review and comment privately on it.
Daigh also said that while he could not say “the delays caused the deaths,” he also could not say they didn’t.
That caused Jolly to ask him whether such was the case, and why put one assertion in the report but not the other.
“The issue is cause or, of course, a direct relationship, how tight of a relationship do you want? That’s where the difficulty is here,” Daigh said.
Daigh said earlier in the testimony “I’m not clairvoyant. It’s very difficult to know how someone died.”
The acting inspector general, Richard J. Griffin, added “We don’t know how they died or why. Nor do you, I would say that it may have contributed to their death, but we can’t say, conclusively, it caused their death.”
The Inspector General’s Office also suffered severe criticism from two whistle-blowers testifying before the Veterans Affairs committee. Dr. Samuel Foote and Dr. Katherine Mitchell scolded the OIG for downplaying the causation and link between wait times and deaths.
“I would like to use this statement to comment on what I view as the foot-dragging, downplaying and, frankly, inadequacy of the Inspector General’s Office,” Foote said.

"Toxicity" - great name for a great little group. Good listen.

(This is mostly off-topic) "Toxicity" is unique and great listening. Three young women created a fantastic original sound and the coincidence of their name only adds to the enjoyment. Have some fun today - Take a listen...click and enjoy.
    RSW

16 September 2014

Dr. Linda Schwartz, Former Flight Nurse, Confirmed as Assistant Secretary of Veterans Affairs!

From all who flew with her, our warmest congratulations!
 Veteran, Connecticut Veterans Commissioner, Nominated by President Obama in August 2013
Secretary of Veterans Affairs Robert A. McDonald today welcomed the confirmation of Connecticut Veterans Commissioner Linda S. Schwartz as Assistant Secretary of Veterans Affairs for Policy and Planning. 
In this post, Dr. Schwartz will help develop and review VA departmental policy, analyze Veteran trends and statistics, and evaluate VA transformation initiatives. She will play a critical role in guiding VA’s strategic planning and work to implement Secretary McDonald’s vision to transform VA into a nimble, high-performing and responsive organization.
“I welcome Dr. Schwartz to our leadership team,” said Secretary McDonald. “Based on her decades of devotion and hard work on behalf of Veterans and Veterans’ causes, I know she will have an immediate impact in the Agency’s continued mission of serving the great men and women who have proudly worn this Nation’s uniform.”
Dr. Schwartz, a disabled veteran, is currently the Commissioner of the Connecticut Department of Veterans Affairs, a position she has held since 2003.  She concurrently serves as an Associate Clinical Professor of Nursing at the Yale School of Nursing, where she has been on Faculty since 1999, and was appointed Associate Research Scientist and Scholar.  

From 1980 to 1993, she taught at several University and College Schools of Nursing and held leadership roles in nursing organizations in Connecticut.  From 1979 to 1980, she was a caseworker in the Office of the Field Director of the American Red Cross at Rhein-Main Air Base in Germany. 
Dr. Linda Schwartz
Dr. Schwartz also served in the United States Air Force (USAF) Nurse Corps from 1968 to 1986, both on Active Duty and as a Reservist. She retired as a Flight Nurse Instructor, with the rank of Major after sustaining injuries in a USAF aircraft accident.  

She received her Bachelors of Science degree in nursing from the University of Maryland School Of Nursing; a Master’s of Science degree from Yale University School of Nursing; and a Dr. PH from the Yale University School of Medicine.

13 September 2014

VA Invents (But Ignores) Rules About Agent Orange Exposure

Faced with disability claims from C-123 veterans exposed to Agent Orange aboard our former Agent Orange spray aircraft, officials in Veterans Health Administration and Veterans Benefits Administration have been energetic in barring veterans from essential health care. And also very selective about which rules VA follows, when they ignore those rules, and how to create new ones as the occasion warrants.

Not only does VA's Office of General Counsel and VHA Post Deployment Health create unscientific redefinitions of exposure to block exposure claims, but they simply ignore the law and their own rules and regulations. Of course, at some point, justice prevails and claims are appealed and corrected...but the veterans are forced wait years while somehow finding health care elsewhere. 

Here's how VA ignores the law and breaks the President's and the Secretary's promises to veterans, forcing vets into the black hole of appeals...three to four years waiting, with a 25% chance of the claim being approved (so far, all C-123 claim reaching BVA have won,) but a 45% chance of the claims having errors forcing the claim to be remanded for more work and still more delays by the regional office.

• "A veteran who was exposed to herbicides in service and who develops one of these diseases within the applicable presumption period, if any, is presumed to have incurred the disease in service, without the necessity of submitting proof of causation."    Testimony of Dr. Leo McCay, Deputy Secretary  IGNORED

• "Presumption of service connection. VA will presume service connection where a veteran who was exposed to an herbicide agent during active military service is diagnosed with a disease listed in paragraph (e) of this section that becomes manifest to a degree of 10 percent or more within the time period"      Federal Register July 27, 2004  IGNORED


• ‘‘Evaluation of studies relating to health effects of dioxin and radiation exposure."  38 C.F.R. 1.17 IGNORED!

• Finally, we wish to make clear that the presumptions of service connection provided by this rule will apply to any veteran who was exposed during service to the herbicides used in Vietnam, even if exposure occurred outside of Vietnam. A veteran who is not presumed to have been exposed to herbicides, but who is shown by evidence to have been exposed, is eligible for the presumption of service connection for the diseases listed in § 3.309(e), including the three diseases added by this rule.   VA announcement in Federal Register 31 August 2010.    IGNORED, and the reason VHA scrambled to create its redefinition of exposure to block exposure claims.

Does the VA even have the authority to order, and then evaluate, a IOM C-123 Agent Orange study addressing bioavailability, relative to veterans' benefits under the 1991 Agent Orange Act? 

No. C-123 veterans with proof of duty aboard "Patches" or any of the other former Agent Orange spray aircraft are fully eligible right now for presumptive service connection, and for treatment of those illnesses. Indeed, it will take a new law or regulation to disqualify them.

Instead, 38CFR spells out the procedures the VA should employ evaluating outside scientific studies about the association of herbicide exposure with different illnesses, but not of the fact of exposure or the paths by which exposure may occur.  (Chapter 1, Section 1.17 (c), p. 14) Nothing indicates any procedure by which exposure itself may be denied, defined or by which VA can require bioavailability. So VA decided to invent a basis denial and a redefinition to block claims. 

VA has a very aggressive defense, and very anti-veteran. VA seeks out, or simply creates, barriers to claims rather than permitting eligible veterans to receive care for hazardous service and injuries.


• Indeed, based on current statute, the VA is not required to consider evidence on exposure magnitude or duration and all exposures are to be given equal weight when determining health effects. There is no qualification for amount of exposure, bioavailability, color, flavor or even whether it makes one robust and improves the humors – the only qualifications are (1) proof of exposure and (2) a recognized AO illness. That foundation...exposure...is exactly why VHA and the VA Office of General Counsel simply redefined exposure to block claims. Other government agencies more correctly use the CDC definition, by which there is no question as to the C-123 veterans' eligibility. CDC says exposure is contact with a substance by swallowing, breathing, or touching the skin or eyes.     IGNORED

In meeting its pro-veteran, non-adversarial obligation, VA has failed. The Law:      IGNORED

(for background, read the Congressional Research Service "Presumptive Service Connection" report)

Army Times: VA Attorney Testifies on Board of Veterans Appeals Corruption

Army Times: September 10  By Leo Shane III 
Staff writer

A senior attorney at the Board of Veterans Appeals told lawmakers Wednesday that managers at the agency covered up delays in appeals processing and doctored records to protect their performance bonuses.

Lawmakers said they were dismayed not just at the allegations but how closely they echo earlier VA scandals of case manipulation and whistleblower retaliation that have been the source of months of oversight and criticism.

In testimony before the House Veterans’ Affairs Committee, Kelli Kordich, an Army veteran and 15-year employee at the board, described “corruption and blatant disregard for our nation’s veterans” and “a toxic management system that uses a culture of fear and intimidation to attain its goals.”

Leaders at the board denied the charges, saying lengthy delays in processing appeals — an average three year wait — are a result of the complexity of the issues involved and the increasing workload of the board.

But the allegations cast doubt on reports from the board that it’s processing cases at record rates, and represent more headaches for VA officials who are trying to restore public confidence in their work and data.

Kordich detailed problems with cases that sat on senior leaders’ desks awaiting final signatures for hundreds of days. When VA leadership was alerted to the problem, Kordich said, board officials changed records to cover up the wait times.

She also said lawyers were forced to rush through other appeals to help meet annual workload goals, possibly compromising veterans’ cases. And she claimed that when she brought the problems forward, she received retaliation in the form of reassignment to a windowless office with limited responsibilities.

Board of Appeals Executive in Charge Laura Eskenazi denied those charges, saying the problems stem from an increase in appeals and not mismanagement by senior officials. The board has processed more than 50,000 appeals so far this fiscal year, but Eskenazi said another 60,000 are still in the pipeline.

Rep. Mike Coffman, R-Colo., called the delays and allegations “alarming” and said he now questions if any data coming from the board can be trusted.

In recent months, VA employees have come before the committee to testify about manipulation of patient wait time data, claims backlog figures and performance bonus metrics.

New VA Secretary Bob McDonald has promised to have outside auditors review department record keeping practices and instill a veterans-centered culture at the department

12 September 2014

USAF Conceals All C-123 Agent Orange Exposure Information

Yesterday, in response to our suit in the US District Court of Washington DC, the Surgeon General of the Air Force determined which materials relating to C-123 Agent Orange exposures are to be publicly released.

Nothing.

Certainly, a loud echo of the 1996 memo from JAG attorneys in the USAF Office of Environmental Law which directed all C-123 Agent Orange information "be kept in official channels only."


In an action very unusual for involving a lieutenant general, he insisted AF would not release anything explaining his decision. VA recently did the same, releasing blank pages and withholding virtually everything.

You see our conundrum: The VA and the USAF say, without any basis, that C-123 vets were not exposed. Neither will explain anything about their research, references, correspondence, emails, staff contributors, reviews, approvals, reports, manuals, orders, regulations, notes, recordings, conclusions – all restricted from us, other than VA providing a contractor's selected monographs. 

The Air Force will not release any of its correspondence with VA, NIH, or CDC/ATSDR. ATSDR, like the others, continues to insist we were exposed and were harmed aboard our C-123s. Yet the Air Force has told Senator Burr its report was somehow "consistent" with ATSDR.

Exposed (CDC/ATSDR) is "consistent" with not exposed? (USAF)

What is the justification for any secrecy involving a 60-year old airplane, and our duties aboard it three to four decades ago? Since VA has decided in advance to refuse us care for our Agent Orange exposures, don't we have the right to insist they reveal completely their justification?

It seems neither agency is in tune with the President's executive order on transparency in government! The 2009 memo instructed federal officials "to make discretionary FOIA releases of documents that might be technically exempt from release (especially with respect to the "deliberative" b(5) exemption), to proactively post records of interest to the public, and to remove "unnecessary bureaucratic hurdles." General Travis somehow concluded the President did not include the military in his FOIA rule, and on his authority redacted virtually everything that might be relevant.

It is clear that DOD or VA place veterans ahead of whatever policy or hidden agenda they have regarding this problem of C-123 aircrew exposure.

11 September 2014

VA "Cherry Picks" Scientific Definitions Against Veterans' Claims, Invents Others

It is right there for all to read, in three separate statements in the Federal Register, including rule making. VA assures Congress, the public and all veterans it will consider all non-Vietnam exposures to Agent Orange with the same presumptive service connection as it does with "boots on the ground" veterans. "No new legislation needed," says VA.

After all, the Federal Register is an agency's implementation of its own rules and procedures.

But faced with C-123 veterans' claims which VBA insists be denied, the VA Office of General Counsel threw an end run to nullify the Federal Register. VA OGC expects to redefine exposure to prevent exposure claims! VA will develop a unique redefinition of exposure, different than the one used by all other federal agencies such as ATSDR.

In concert with the Veterans Health Administration's Post Deployment Health Section, OGC has opted to challenge VA's own Federal Register postings...not by modification, but by redefinition of the word "exposure."

Presently, Post Deployment Health has invented its special redefinition to block C-123 veterans' Agent Orange exposure claims, stating: "Exposure = contamination field + bioavailability." No other definition of exposure used in science or medicine includes bioavailability as a component. Actually, these are separate toxicological terms.

Here is where creative and anti-veteran "cherry picking" takes place. Throughout its administrative documents, in the Federal Register, the Board of Veterans Appeals and even the United States Court of Appeals for Veterans Claims, VA cites Dorland's Medical Illustrated Dictionary (32nd Edition) in the Federal Register as well as in many other administrative documents. And Dorland's defines exposure as:                                                                        Nowhere is bioavailability mentioned or implied.

Get it? VA uses Dorland as the authority – but VA is just as happy to invent other creative, unscientific definitions as the need arises to better block veterans' claims. VBA even cites Dorland definitions against veterans in appeals, yet drops Dorland when Dorland's definitions enforce the veteran's claim.

Who is the client of VA's Office of General Counsel? Not the veterans!

10 September 2014

VA IG Report: "VA Managers Lied to Federal Investigators"

By Associated Press September 9 at 3:25 PM
"WASHINGTON — Managers at more than a dozen Veterans Affairs medical facilities lied to federal investigators about scheduling practices and other issues, the department’s inspector general said Tuesday. (Altogether, nearly 50% of VHA management lied to federal investigators, which is a crime.)

Richard Griffin, the VA’s acting inspector general, said his office is investigating allegations of wrongdoing at 93 VA sites across the country, including 12 reports that have been completed and submitted to the VA for review."

That was the bad news from September 9. It shows the breakdown of integrity at the VA's Veterans Health Administration. It leaves veterans convinced that Post Deployment Health and VA National Center for Ethics in Heathcare, both components of the Veterans Health Administration, cannot avoid sharing in this scandal. 

For Post Deployment Health, the failure is their dedication and creativity in obstructing veterans' exposure claims, even in the face of "as likely as not" medical and scientific evidence. The result of their actions has been the denial of VA medical care to an unknown number of post-Vietnam C-123 veterans.  

For VA's National Center for Ethics in Healthcare, their failure is avoiding action on ethical concerns brought to them regarding patient privacy and other issues. Instead of careful investigation in line with their mission statement, their response was to defer concerns to VA's IG which the Center knew had no jurisdiction, or other buck-passing non-solutions.

Other VA agencies have also failed veterans. VBA's Compensation and Pension Service failed Secretary Shinseki by drafting a crafty, disingenuous and error-ridden response to Senator Burr's C-123 inquiry. This is a perfect example of what General Shinseki meant by trusting in the honor and integrity of those helping him meet the needs of America's veterans.

For VA's Office of General Counsel, their failure is willingness to support Post Deployment Health in obstructing veterans' exposure claims by seizing non-existent authority to redefine fundamental scientific and toxicological terms. OGC, rather than guiding the Department in using the breadth of law and regulation to include veterans, instead created barriers to exclude otherwise eligible veterans. Responding to the Yale Law School brief on C-123 veterans, OGC attacked rather than welcomed legal research and scholarly confirmation of the veterans' eligibility for VA care.

For Veterans Benefits Administration Compensation and Pension Service, their failure is also obstructing eligible veterans' claims for exposure care. From preventing input to the JSRRC body of knowledge, from denying claims on the basis that TCDD (a known carcinogen) is harmless, to refusing to accept scientific and medical input supporting veterans' disability claims, Compensation and Pension has faithfully kept in step with VHA's insistence that "We cannot permit C-123 claims." Faced with scientific argument supporting C-123 veterans' exposure claims, VBA instead contracted for $600,000 to create obstruction and confusion, and also failed to follow its own regulations and honor commitments published in the Federal Register.