31 May 2015

Veterans' Rights Violated – VA Ignores Veterans Claims Assistance Act of 2000

 Ultimately, “[t]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006).

There's a law for that but too often VA ignores it, breaching the government's duty to claimants. For the veteran it can be a great loss, but for the VA, it is never a problem when that law is violated. Specifically, the law is the Veterans Claims Assistance Act of 2000 (VCAA.) It reinforced and detailed a range of pro-veteran steps the VA must take to assist a claimant or appellant for VA benefits.

Key is the law's requirement that VA disability claims system be non-adversarial and pro-veteran. Congress has imposed on VA a duty to assist claimants. VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. One significant part of the law imposes on VA the duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties on VA are supposed to significantly ease the burden on veterans in assembling the evidence needed to support a claim.

At least, that's the law. In practice, it's a law the VA obeys or violates at its pleasure. Abusing a veteran's VCAA rights and prejudicial errors per 38 U.S.C. § 7261(b)(2) also directly abuses rights under the US Constitution's Fifth Amendment and the Due Process Clause. Veterans and other citizens must obey laws or endure consequences. Violate a law, and once faces civil penalties, fines, loss of property, loss of civil liberties, imprisonment.

For VA and its officials, however, violating the Veterans Claims Assistance Act of 2000 carried no such penalties. When VA, in wrongly opposing a veteran, is slapped down by a Board of Veterans Appeals ALJ or the Court of Appeals for Veterans Claims, all that happens is punishment of the veteran! The worst thing for VA is a nasty comment from BVA or a CAVC judge. This is because when VA violates a veteran's rights under VCAA, rather than the vet's claim being corrected for VA's errors the claim is "remanded," – simply left unresolved and sent back to the same VA staffers who committed the violation to start the claims process all over again with a three to five year wait wasted.

So the veteran ups up "punished" by the claim being delayed yet further when the VA abuses the VCAA. There are no penalties for VA or its folks who deliberately failed the veteran. In fact, the VA actually benefits by delaying any medical care or other benefits. It denies or at least postpones paying any disability compensation, and it keeps veterans out of VA hospitals which helps keep existing appointment lines shorter.

In the case of C-123 veterans, VA ignores the VCAA, creating an adversarial rather than the statutory non-adversarial process, following the requirements of the law when and if it wanted to. Generally, VA has helped locate Social Security records (although it twice lost mine.) It generally locates service medical records (although it ignores mine from Bethesda Naval Hospital.) VA generally locates and acts on military service records (although it ignored my line-of-duty determinations, ignored details on my separation physical, and ignored both medical and military details on my PEB hearing, and ignored details of my Air Force Board of Correction of Military Records.)

But that's just me. VA also abused the VCAA rights of every other C-123 veteran. Their abuse cost us four years delay in getting our veterans into VA hospitals and able to use other VA benefits, such as CHAMPVA family medical care, nursing home, primary care, pharmacy, dental, audiology, prosthetics, survivor benefits and other vital services. Veterans pay the price for VA's abuse of us, but VA and its staffers have absolutely no consequences at all.

VA hasn't acted to honor its statutory duty to assist, and operate in a pro-veteran, non-adversarial manner with a low threshold for the burden of proof. Here's how VA ignores the VCAA.

How VA violates VCAA and trashes C-123 veterans' rights:

I. The worst violations were VA's determined avoidance of official input from the DOD Joint Services Records Research Center (JSRRC) and suppression of  that input for two years for two years after receipt. JSRRC informed VA's JSRRC Coordinator in March 2013 that the government had official records confirming C-123 veterans' Agent Orange exposures. Among other records, JSRRC provided Air Force and Center for Disease Control/Agency for Toxic Substances and Disease Registry reports identifying the C-123's as "heavily contaminated with dioxin on all test surfaces" and "a danger to public health." The ATSDR's director informed JSRRC that C-123 veterans experienced a 200-fold greater cancer risk...but VA's JSRRC coordinator sat on these official government records for two years.

For two years VA blithely ignored the VCAA and doomed claims at the regional VA offices as well as claims appealed to the Board of Veterans Appeals. Withholding official government records (here, the JSRRC March 2013 report) directly abused veterans' rights under VCAA. No problem at all for VA. Big problem for veterans who were forbidden VA medical care merely because of the preferences of VA staffers. The veteran and the VA are subject to VAM21-1MR which has the force of law (Evidentiary development procedures provided in the Adjudication Procedure Manual are binding.  See Patton v. West, 12 Vet. App. 272, 282  (1999))

Below is VBA's Agent Orange Desk explaining to other VA staff why VA opted to ignore JSRRC proof of C-123 claims, although no mention is made of why VA kept the evidence from claimants and the BVA considering such issues. Apparently a point was made that VA would only accept JSRRC reports which referenced military documents. No mention was made of VA having rejected Rear Admiral R. Ikeda (MD USPHS) and Captain A. Miller (MD USPHS) input, which was military because USPHS commissioned officers are by statute military officers. Further, VA regulations describe JSRRC as inputting to VA relevant "primary" evidence, not just evidence selected by the Agent Orange desk.

In this case, it was not USPHS evidence, but appropriately USPHS expert analysis of contemporary (1979-2010) military toxicology reports. As Admiral Ikeda was then Acting Director CDC/Agency for Toxic Substances and Disease Registry, such input seems both accurate and relevant, as well as military in nature. The question screams out..."how much proof does the Agent Orange desk demand to permit 'benefit of the doubt? Why set uniquely high standards for C-123 claims, rejecting JSRRC, DOD, CDC, NIH, USPHS, dozens of physicians and scientists, university researchers and VA physicians?'

II. Rather than be non-adversarial and even-handed in evaluating exposure claims per the law, VBA issued a 2012-2014 $600,000 no-bid sole source contract for monographs supporting VHA and VBA current policies and perspectives on herbicide exposures. That consultant's largest single target in two years was C-123 veterans' hopes with the Institute of Medicine C-123 committee. VA spent hundreds of thousands of dollars on its favored outside consultant specifically for his coaching against against and to target C-123 veterans' exposure proofs.

There were no studies allowed to support C-123 veterans' scientific position (we asked VBA for funding to prepare a pro-C-123 study but they didn't respond.) Veterans never could have funded the research provided pro bono by Columbia University, Oregon Health Sciences University, University of Texas Medical School and the many federal agencies like CDC.

All expert input supporting the C-123 veterans' scientific argument was unpaid – besides, the veterans had no source of funding and didn't spend a penny to counter the government's hundreds of thousands of dollars. On the other hand, all input used by VA to obstruct the C-123 veterans was paid either by VA, Dow or Monsanto. When peer-reviewed articles were published confirming the veterans' exposures, VA immediately opposed their findings.

The scientists and physicians in Veterans Health Administration represent a huge body of knowledge, skill and talent, none of which came to help us. They followed their company line, which was no more Agent Orange claims. All of those experts opposed C-123 veterans' service connection. They must have seen the totality of the evidence and realized there was no "overwhelming preponderance of evidence" against us, but more likely, for us. It is easy to look at the past four years and see that these professionals should have established service connection for C-123 veterans within existing law and science. The law sets a low threshold of proof for veterans, but no amount of proof would make VBA honor our claims (as Mr. Murphy confirmed at his office on 28 Feb 2013.)

Some of the many adversarial studies funded by VBA to oppose veterans were titled:
A. "Discussion Points Supporting Compensation Services' UC-123K Claims"
B.  "Investigations into the Allegations Concerning 2-4-5-T Herbicide"
C. "Investigative Report: Assessment of New Information on the Former UC-123Ks Post-Vietnam Issue"
D.  "Investigations into the Allegations of Agent Orange/Dioxin Exposure from Former Ranch Hand Aircraft"
E. "Supplement to Investigative Report: New Information on Former UC-123K Post-Vietnam Issue"
F. "Al Young Letter to Acting Secretary Gibson requesting reversal of IOM report conclusions"
G. "Al Young Letter to Dr. Mary Paxton, Institute of Medicine C-123 Committee Staff Director arguing scientific failure of committee report"
H. "Al Young Letter to Dr. Terra Irons to answer questions put to VA by Institute of Medicine C-123 committee."
• Some of the studies or efforts by VA to consider possible merit to the veterans' claims:
Oh...there weren't any. VA permitted no such effort. Actually, there was one, the IOM C-123 report. Although VA argued hard and spent huge funds against the veterans through its proxy consultant, IOM, contracted with VA's hopes of finally blocking C-123 claims, instead independently concluded VA had been wrong all along and veterans had been correct all along. The real preponderance of evidence agreed with the C-123 veterans.

VA only sought material to oppose C-123 veterans. VA only recognized material if useful by VA against C-123 veterans. Nearly all material VA had was paid for by VA. Everything supporting C-123 veterans was from other federal and state agencies, and physicians and scientists without any compensation for their input. VA bought materials tailored to oppose or accepted it from the chemical industry. Veterans didn't buy evidence tailored to their objectives and never had funds to do so anyway. While the VA's consultant frequently referred to his monographs as "peer reviewed" there were not, as it is not acceptable for a researcher or author to select the reviewers himself. Peer reviewers should be objective, independent and not pre-selected by the author.

VA deliberately avoided uncovering or acknowledging any evidence or support for C-123 veterans. Their web pages discussing the C-123 investigation fail to mention a single resource not pre-selected to meet VA's policy objective. VA characterized all pro-C-123 exposure evidence as unacceptable because it conflicted with VA's predetermined policy objectives. Nearly all outside input VA sought was from its Agent Orange consultant, who previously also consulted with Dow Chemical against Vietnam Veterans' exposure claims, and two other scientists paid by Dow and Monsanto specifically to opine against C-123 exposures.

VBA's consultant also appeared as VA's proxy at the June 16 2014 IOM C-123 committee hearing to oppose the veterans' position. Without mention of his VA contract, nor the coordination of his IOM presentation and materials with VA, nor his role in 2009 recommending destruction of the C-123 fleet as toxic waste, he was an extremely authoritative and long-term dedicated opponent of all Agent Orange claims.

III. Acting in bad faith and utilizing resources known to be flawed in order to oppose veterans' claims, VA used without updating and correction the 2006 DOD Agent Orange site report used by VA to verify veterans' claims for non-Vietnam exposures. When a servicemember claims to have been exposed outside Vietnam, VBA checks against the DOD list and approves or denies the application.

The problem is the DOD list is seven years old, yet VA cites it in VARO decisions, and BVA cites it in appeals. It is fundamentally wrong for a government agency to permit use of a reference they know to be inaccurate. VA and DOD have rejected numerous entreaties by the C-123 Veterans Association to update their lists.

How does VA know the DOD list is unreliable? Because the list author himself, Dr. Al Young, prepared it for DOD in 2006 and then in 2013 proposed a contract for correcting identified errors and general updating. Nonetheless, VA approves or denies disability claims based on this terribly flawed document. It is as unacceptable error on VA's part.

Thus, VA violates the VCAA by knowingly deciding claims on flawed evidence, a "clear and unmistakable error."

From the first page of the consultant's report, "Investigations into Sites Where Agent Orange Exposure to Vietnam-era Veterans Has Been Alleged."
(From the VA's 2013 Agent Orange site report)

IV. Violating its duty to assist as well as performing in an anti-veteran manner, VBA opposed C-123 claims citing potential difficulty verifying aircrew or maintenance veterans' duty aboard specific former Agent Orange spray aircraft. Actually, this information was provided VA in 2011 by Headquarters Air Force Reserve Command and also by the Air Force Historical Records Agency. In any case, VBA in the spring of 2015 was able to identify eligible veterans by cooperating with other agencies such as Social Security and the Air Force

V.VBA and VHA orders to regional claims offices to deny C-123 disability claims violated VCAA by inappropriate guidance to those offices, and failure thereby to notify veterans of evidence needed to establish a claim. Specifically, veterans were not informed of proofs needed to overcome VHA and VHA's order to deny C-123 claims.

Further, VHA and VBA were wrong in their science since C-123 claims were first denied in 2007. As the Institute of Medicine C-123 report concluded, the aircraft were contaminated and the veterans were exposed and harmed. There was no new science behind the IOM conclusion but rather the proper interpretation of existing material. VA was simply wrong in its leap to construct unscientific arguments to block C-123 claims and was obviously anti-veteran and adversarial.

The proper VCAA pro-veteran approach should have been, if serious question existed as to the scientific foundation of the veteran's claims, to approve all applications until the science made clear the issue one way or the other. This is especially true considering the affirmation provided by ATSDR, NIH, US Public Health Service and the DOD JSRRC report in March 2013. VA clung to every possible negative interpretation it could devise and refused to admit an overwhelming body of evidence proving VA wrong...at the very least all that evidence introduced the "benefit of the doubt" which VA violated, despite the VCAA.

VI. VA has never permitted consideration of the possibility C-123 veterans might have been exposed.; no VA document released under FOIA questioned VA's consistent opposition to veterans or questioned whether the veterans might be correct. VA's adversarial as well as anti-veteran approach is quite clear and violated VCAA. Beginning with opposition to C-123 veterans VA never wavered.

VII. VA has never admitted locating any evidence supporting C-123 claims was ever identified by VA. Rejecting everything it disagreed with, VA was unscientific, and prejudicial in the extreme with blinders on regarding any contrary input.

VA denigrated every scientific and medical expert opinion supporting C-123 veterans as unpersuasive, lacking authority. Every scientist's input, even that from CDC and the National Institutes of Health as well as subject matter experts VA and IOM had previously relied upon, was immediately dismissed by VBA. VBA insisted its scientists were far more credible than experts who might not agree with them. VA insisted that its experts concluded that all evidence and expert input supporting veterans' claims of having been exposed to Agent Orange failed to create an element of doubt in favor of the veterans' claims.

"Overwhelming preponderance of evidence" is how VBA quite inaccurately described the VA's position against veterans. Four years of VA opposing C-123 claims eventually made perfectly clear that no matter how substantial the veterans' evidence and how unsubstantial the VA's, VA's was automatically but falsely characterized as an overwhelming preponderance of evidence.

VIII. VA created an in-house, novel and unscientific (per NIEHS) redefinition of "exposure" attempting to disqualify veterans' exposure claims.VHA's Public Health/Post Deployment Section redefined exposure to be "exposure=contamination field+bioavailability." This was introduced as a line in VHA's 2012 Society of Toxicology poster displays.

The redefinition was in contrast to standard definitions used elsewhere in VA, by the CDC, NIH and other authorities. It was even in contrast with VA's standard reference for definitions, Dorlands Illustrated Medical Dictionary.

VHA overlooked the fact that unique, home-made scientific definitions aren't scientific, especially when other federal agencies with statutory authority in the field label VA's exposure definition unscientific. "Whoever invented that certainly is no toxicologist" reported the director of a major federal research program. Veterans were invited by the Society of Toxicology to present a response at its 2014 conference, under sponsorship of the NIEHS.

IX. In a manner similar to VA's rejection of the March 2013 JSRRC exposure confirmation, VA also elected to ignore the expert input of Rear Admiral R. Ikeda, MD US Public Health Service and Acting Director, CDC/ATSDR.  USPHS commissioned officers are military officers, and her concurrence with earlier ATSDR findings of C-123 veterans' Agent Orange exposure was suppressed after its receipt in June 2013. Captain A. Miller, MD US Public Health Service, also submitted an expert medical opinion in March 2013 confirming veterans' exposure but as with all other evidence behind C-123 claims, VA's Agent Orange desk disregarded it and withheld it from VAROs and the BVA. Disregard for and suppression of these two expert military medical opinions was in clear violation of the VCAA.

Violation of the Veterans Claims Assistance Act of 2000 were numerous and unrelenting. It didn't matter how much evidence supported veterans' exposure claims because VA predetermined it had "an overwhelming preponderance of evidence" regardless of all reason. VA's policy of preventing C-123 exposure claims led it to conceal pro-veteran evidence such as the March 2013 JSRRC confirmation. Suppression of any evidence within the government's possession violated VCAA, and the JSRRC email was critical evidence kept from veterans and the BVA.

VCAA was violated more generally with VA's stubborn resistance to any scientific or medical evidence supporting C-123 veterans' exposure claims. This was anti-veteran and adversarial. This deliberately avoided admitting any benefit of the doubt due veterans.

That VA was wrong in all this is clear from the Institute of Medicine C-123 report to Secretary McDonald. Despite all its money spent to oppose veterans, science spoke louder than specie.

The VCAA failed C-123 veterans. Nothing in it prevented violation of C-123 rights by the VHA Post Deployment Health Section and the VBA Agent Orange desk in the Department of Veterans Affairs. Nothing in the law prescribes a remedy for such abuse of office or prevents its abuse again. The same VA staffers perform the same duties, electing whether to obey or disobey the VCAA.

Only veterans were impacted and only veterans paid the price for VA's campaign against us. Still barred from VA hospital and refused VA benefits, we are still paying the price. As for the VA staffers, they're annoyed with our resistance for these four years but nothing more: it's just not their problem.

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