28 June 2015

Clear & Unmistakable Errors (CUE) Taint VA's C-123 Claims Processing

CUE has been committed on numerous occasions by the Department of Veterans Affairs in processing C-123 claims. We'll point out some CUEs of major significance.

CUE means that a veteran’s claim has been mishandled or unjustly processed to the point that the errors are so apparent and so prejudicial that the injustice is plain for all to see. 

VA commits CUE frequently and resists admitting it. The BVA and CAVC don't often recognize it either. VA's standards to acknowledge its own CUE are very high.

But their C-123 CUE record is both obvious and terrible. Let's look at some of their most painful examples of CUE violations all flowing from a single incident – and there are dozens more we don't have time to detail here.

The Incident: March 2013 receipt by Veterans Benefits Administration Agent Orange Desk of an email from Mr. Dominic Baldini, Chief, DOD Joint Services Records Research Center (JSRRC), confirming C-123 veterans' Agent Orange exposures. VBA did nothing with the JSRRC report, which came to light only in May 2015 through Federal court-supervised Freedom of Information Act releases by the VA.

Further, the JSRRC began issuing individual veterans' C-123 exposure confirmations in May 2014, none of which have been acted on by the VA, which instead ordered all C-123 claims "postponed" as they remained until June 2015. Thus, VBA improperly ordered claims to be denied, forbidding medical care and other benefits for two years after the first JSRRC confirmation and one year after the second JSRRC confirmation.

1. VA abused C-123 veterans rights to Due Process by denying claims and withholding compensation ("property") when VBA received, but failed to reveal, Department of Defense Joint Services Records Research Center (JSRRC) confirmation in March 2013 of our Agent Orange exposures. That confirmation was backed up with HQ Air Force Reserve Command tail number records of our former Operation Ranch Hand aircraft, with CDC confirmation of the harm caused by our exposures, and by the original and subsequent Air Force tests in 1979, 1994, 1996, 1977, 2000 and 2009. 

2. The same misstep regarding the March 2013 JSRRC confirmation had another CUE. VA's own regulation VAM21-1MR, requires that VA provide such information to claimants but VBA failed to do so. Federal courts have ruled the VA regulation to have the force of law, and VA's violation of its regulation was a clear and obviously prejudicial error.

3. VA is required by the Veterans Claims Assistance Act (VCAA) to provide all available government, as well as readily available non-government, records helpful to a veteran's claim. VA failed to do that with C-123 vets when they withheld the JSRRC exposure information.

4. Very specifically, 38 C.F.R. § 3.156(c) provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back. No C-123 veteran whose claim was denied was permitted this protection. The March 2013 JSRRC confirmation (from DoD, "the relevant service department") had no VBA reaction, which should have been to permit all denied claims to be reconsidered. Instead, VA took no action at all, other than to dispute the JSRRC input, and not reveal it to veterans.

A single example of VA action, tied to four or more Clear and Unmistakeable Errors. A perfect example of how VBA fought off C-123 veterans' claims for four years, regardless of the merit of our arguments...merit finally confirmed by VA but only after the January 2015 release of the Institute of Medicine C-123 Agent Orange report.

No veteran such be the subject of such determined VBA CUE, but over 2100 men and women were abused by staffers in VA determined to block any and all C-123 claims. CUE didn't seem to deter them at all. 

Not a problem, at least from the VA's perspective. We paid the price for their erroneous and unconstitutional actions. 

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