22 February 2015

Early VA Actions "Stacked the Deck" Against C-123 Veterans For Years

"Overwhelming preponderance of evidence against veteran"...

(VA Claims Motto??)
Wow. An "overwhelming preponderance of evidence "against a veteran's claim for Agent Orange certainly spells defeat for the vet. But it was a deception and there was no such "preponderance," much less an overwhelming one.

In fact, it was the reverse, with veterans' evidence being truly overwhelming but sneared at by VA.

Reading it aloud even now, it sounds like a VA must have had a tidal wave of facts and proofs to outweigh anything the veteran submits to substantiate a disability claim, rendering the claim completely without merit.

VA was aggressively opposed to C-123 claims, and annoyed that veterans continued to press their case and gather even more support...yet no matter how much proof veterans presented to VA, nothing budged its predetermination that anything conflicting with VA policy is useless, no more than a trifling and unpersuasive treatise.

That "overwhelming preponderance" catch phrase is one which stands out...shouts out... in reading hundreds of documents forced from VA's records via court action enforcing several Freedom of Information Act requests. VA initially denied all access to these records, then tried to deny access by charging thousands of dollars, and then simply refused to release anything.

"Overwhelming" prejudice would be a valid characterization of VA's approach to C-123 claims.

Finally, the C-123 Veterans Association suit in the US District Court of Washington DC prompted some cooperation. Over the past several months VA has given our attorneys at least some of the materials we sought.

"Overwhelming preponderance of evidence" is a thread running through many of these FOIA documents. Apparently the phrase was created by VBA's Agent Orange desk, and used by VA's Post Deployment Health Section in Veterans Health Administration as well as throughout VBA. It referred to, and summarized the conclusion of VA's facts against C-123 veterans' evidence about Agent Orange contamination and exposure.

But there was no such tidal wave of VA evidence. Rather, there was an "overwhelming preponderance of evidence" confirming C-123 veterans' arguments, all ignored by VA. Rather than permit evidence submitted by C-123 veterans to be fairly evaluated, Post Deployment Health trivialized it into insignificance against VA's evidence, using that characterization to assure senior VA leaders that C-123 veterans were completely in error and must be opposed.

To better avoid its non-adversarial, pro-veteran obligations, Post Deployment Health dismissed completely...even calling it "unfortunate, " all expert input from:
• US Public Health Service
• "Concerned Scientists & Physicians," Dr. Jeanne Stellman, Corresponding Scientist
• VA physicians
• Veterans private physicians
• Independent researchers with peer-reviewed articles establishing veterans' exposure

What was Post Deployment Health referring to with that phrase "overwhelming preponderance of evidence?"
• A letter from a Dow-sponsored scientist
• A letter from a Monsanto-sponsored scientist
• A VA contractor who had earlier denigrated C-123 veterans and who tailored reports to VA policy
• VA's own web pages, cited as their own authority, and which referenced only materials fitted to VA policy
• An inconclusive USAF report, later determined to have relied in part on poor math to reach its conclusions

Now that the Institute of Medicine C-123 report is on the Secretary's desk, VA should examine its initial knee-jerk reaction against the veterans' exposure claims, a position hard fought by VA from 2007 until January 2015. From the very first interaction with veterans in 2011, VA Post Deployment Health has clearly had a policy...perhaps a policy only among certain staff...that these claims were to be opposed.

The FOIA documents, and incidents through the years, show that VA predetermines veterans' claims to be denied yet still claim to offer a "case by case" evaluation. The record shows that such an evaluation actually means VA won't deny a claim until it is submitted,  and then it will deny it. Deny all such claims. But on a case by case basis, of course.

Statements were made by VA staff that C-123 claims would not be approved. The Associated Press was told, "We have to draw the line somewhere." Disability claims were denied – VA medical care refused to veterans seeking help – with language:
 "VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals"
In fact no such regulations exist. When veterans' legislators challenged this, VA conceded that no regulations actually exist, but that claims denied using that language were still denied. VA ordered claims adjudicators to use different phrases...but continue denying the claims.

VA even cited "scientific studies" by VA Public Health which turn out to be a handful of staffers selecting literature to fit their policy of blocking all claims. Finally, even the Secretary of Veterans Affairs tried to reverse the only C-123 veteran's award ever permitted by VA, looking for CUE as a basis even though every single requirement in VAM21-1MR was met, and continues to be met, by all such claims.

"Overwhelming preponderance" was used and repeated throughout VA to the point the entire agency was convinced that C-123 claims were to be denied. The phrase became its own proof, cited to refuse veterans vital medical and other benefits.

Due Process was ignored, and didn't factor into VA's "overwhelming preponderance of evidence" because VA predetermined all veterans' materials worthless and claims were ordered denied. So much for VA's own regulation VA M21-1MR...ignored by VA in its blanket denial of C-123 veterans' claims. The creators of "overwhelming preponderance" were successful in their goal of 100% blanket denial...on a case by case basis, of course!

We're not making this up: read the hyperlinked references, call VA leadership, ask the reporters, scientists and veterans.

This was a skillful, deliberate, persistent (the word VA used to describe me...I'm credited with being "persistent") exercise in denial of the Fifth Amendment's Due Process Clause as regards VA's refusal to fairly evaluate veterans' qualified claims.

The question still on the table...what about other veterans' issues where VA does the same thing but without persistent self-advocacy by the vets? Dirty water, burn pits, immunizations, radiation, toxins, blast injuries, and all the other joys attendant to military service...what about them? Will VA reach out to veterans, or sit back and deride vet's claims with its all-too-prevalent "not on my watch" attitude?

There are new players in VA today, and we can hope for Due Process and the Constitution of the United States to mean something. We can look for a pro-veteran perspective to return to this essential institution. We can look...and hope to find it, for the sake of all veterans.

As for VA and Agent Orange: Never again can veterans be treated this way.
(C-123 Veterans' Motto)

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