19 May 2015

VA Hid DOD Confirmation of C-123 Veterans' Exposures for Two Years – concealed evidence vital to veterans' Agent Orange claims

VBA Agent Orange Desk Policy??

VBA's Agent Orange desk hid evidence from the Board of Veterans Appeals and US Court of Appeals for Veterans Claims! The personnel involved (staffers in the Veterans Benefits Administration) violated every trust a veteran is asked to have with the Department of Veterans Affairs. VA let valid C-123 veterans' claims be denied by withholding official DOD information which would have established service connection. VA thus insured through this arbitrary and capricious abuse of authority that all our claims were denied.

Revealed in VA emails and other correspondence released last week under the Freedom of Information Act are proofs of the intensity and creativity, as well as total disregard for veterans' rights, with which VA's Agent Orange desk in Veterans Benefits Administration fought all C-123 veterans' Agent Orange exposure claims.

This was done not as matter of law, nor even VA's own regulations, but because of the personal policy preferences of a few individual staffers.
"Quick...hide the Agent Orange evidence!"

VA's operations manual VAM21-1MR states that VA will ask DOD's Joint Services Records Research Center (JSRRC) to verify non-Vietnam War veterans' Agent Orange exposures. Vietnam War veterans are considered by law to have been exposed, but veterans exposed elsewhere have the assertions investigated by JSRRC. And JSRRC affirmed the C-123 exposures.

VA has had all this proof from JSRRC for over two years (March 13 2013 and perhaps earlier from veteran-submitted documents which VA ignored.) The agency never revealed anything to its regional claims adjudicators, Decision Review Officers, veterans, veterans service organizations, or VA's Board of Veterans Appeals where denied claims are reconsidered. 

Once the C-123 issue arose, VA was overly selective about what evidence it would accept from JSRRC, insisting it had to be contemporary military material only. In effect, VA was cherrypicking evidence from what JSRRC provided, accepting anything against the veterans, refusing anything helping the veterans. 

After VHA informed VBA of its position against honoring any C-123 veterans' claims, VHA Public Health staffers put out a web page (click...pre-2015 page) insisting their review of "all available scientific information" (actually, cherrypicked information to prove their own point) was against the exposure claims. VA then cited their own web page as proof in subsequent claims and BVA decisions. "It's true because we say it is, and the proof is that we said it." Simply put, this was policy-driven (non)scientific deception.

VA's web pages were false, and were finally modified to a more neutral tone on March 15, 2015. The Institute of Medicine confirmed the veterans' Agent Orange exposure and harmful effects on January 9, 2015 in its report to Secretary McDonald. VHA and BVA opposition to C-123 veterans' claims since 2011 was wrong. The dozens of reports from the CDC/ATSDR, NIH, universities, physicians and USPHS all were ignored or disputed by VA, but in the end VA was proven wrong.

Many federal agencies (including the deputy director and two successive directors of the CDC/ATSDR) and independent scientists had provided expert federal agency input to JSRRC hoping to get it to VA for proper evaluation of C-123 veterans' claims. To ignore these proofs, VA insisted to JSRRC the materials that only DOD materials offered were acceptable: No input from other federal agencies, universities, state governments or scientific associations would be acceptable to VA. 

We thought that senseless barrier had been resolved when two US Public Health Service physicians informed JSRRC...and USPHS commissioned corps physicians are military officers by statute. One was Rear Admiral Robin Ikeda (MD, USPHS) at that time Acting Director CDC/ATSDR. Another was Captain Aubrey Miller (MD USPHS) assigned to the NIH/National Institute of Environmental Health Sciences.

VA's Secretary Hickey was also visited by the Director National Institute of Environmental Health Sciences who discussed the science and veterans' exposure proofs. 

Mountains of legitimate, persuasive, and expert input, but VBA and its Agent Orange desk ignored it all.

•at JSRRC, Mr. Dominic Baldini, Chief
• at VA, Manager, Agent Orange Desk, Veterans Benefits Administration

• 2013 email between JSRRC and VBA's Agent Orange desk; JSRRC's chief provides confirmation documents adequate to approve claims. VA never acts on these and over years permits claims to be denied without providing them in fulfillment of VA's duty to assist every veteran's claim.
• JSRRC response on a C-123 veteran's exposure assertion; happens to be mine because I have no access to any others due to privacy protections. 

VA's VAM21-1MR states that VA will inquire at JSRRC for a veteran's exposure to be substantiated. It says nothing about whether VA must act on that but implies it. Nothing is said about VA not acting, however that clearly violates VA's statutory obligation to assist the veteran. 

For years, VBA callously permitted sick C-123 vets' claims to be denied, and their appeals to the BVA denied, without providing these readily available and affirming JSRRC materials which would have been so decisive in any fair forum. Amazing that DOD ad  "yes" but VA still chose to interpret that as the "no" VBA's Agent Orange desk prefered.

VBA repeatedly (2011 through late 2014) advised regional offices and VA personnel everywhere that there was no basis for VA to "concede" C-123 veterans' Agent Orange exposure. Because the Agent Orange desk refused to "concede" the veteran's exposure, that amounts to directions to regional offices to deny the claims, and many simply wrote, as on the Paul Bailey initial denial, "VA regulations forbid...

With Senate inquiries heating up the issue, VA later admitted it has no such regulation and no "blanket policy" against C-123 claims. Even today, VBA insists C-123 claims are handled on a case-by-case basis, yet on a case-by-case basis every single one is denied. Still, it certainly sounds like a blanket denial of all claims!

We ask our fellow citizens and legislators to remember that despite all the controversy and VA-pushback, C-123 veterans were eventually proven correct by the IOM C-123 report. VA was shown to be in scientific and procedural error in opposing reasonable claims. VA all this JSRRC and other federal agencies' proof in its possession since 2011, yet allowed exposed veterans to sicken and die by hiding the evidence.

VA treatment of veterans' rights
They had all the DOD evidence necessary for the benefit of the doubt, pro-veteran, non-adversarial confirmation of our exposures from 2011 on, but chose to ignore, denigrate or simply hide that evidence to insure their policy of "no C-123 claims will be approved" as per statements by VHA Post Deployment Health. VA used its rules against veterans' interests where desired, but freely ignored the rules when staffers had their anti-veteran personal agendas to pursue. These staffers should re-read opinions by federal courts that emphasis VA's regulation VAM21-1MR has the force of law...adhering to it is a veteran's responsibility and also VA's.

​Related topic:

As part of his 2012-2014 $600,000 no-bid sole source contract with VBA, the contractor submitted a report, citing himself, which generally concluded no changes were necessary in his 2006 report. Each of his monographs produced under the contract confirmed VA policy, perspectives, opposition to various veterans' claims, etc. None challenged or suggested changes, improvements, nothing.

DOD (Armed Forces Pest Management Board apparently has responsibility) has refused per the AFPMB director to amend this list even with IOM, ATSDR and other proofs of additional sites, yet VA continues to cite it in denying claims and denying appeals at BVA.  (example one)  (example two) Both VA and DOD have refused to update this nine-year-old list.

Any "proof" cited by the government to provide or deny a citizen's rights should be accurate. This DOD list is not accurate and is fatally flawed, yet VA employs it to block claims.

1 comment:

  1. Hi, I work with ATSDR as a Camp Lejeune community member on the CAP. I just wrote this article below, and it sounds like we should all be comparing notes. You can contact us at camplejeunecap@gmail.com and maybe we can help each other.



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