VBA's duty to assist arises from a variety of sources, including the Due Process Clause in the Fifth Amendment to the US Constitution, the Veterans Claims Assistance Act, and VA's own regulation VAM21-1MR. VBA errs when it fails to consider a M21-1MR provision's possible relevance with respect to VA's compliance with the duty to assist. See 38 U.S.C. § 7104(a). But here VBA simply excused itself from compliance with all of these mandates.
Here's the statutory language requiring VA to assist veterans in presenting disability claims:
§21.1032 VA has a duty to assist claimants in obtaining evidence.VA is specifically charged by VCAA with locating records from other Federal agencies as well as state and municipal governments. But the record shows VA elected not to search for these materials when needed for C-123 veterans' claims. Even when such vital documents for proving veterans' claims were in already in VA's possession, individuals in VA disputed them, failed to provide them to veterans and their attorneys, and failed to inform senior VA leaders of their existence.
(a) VA’s duty to assist begins when VA receives a complete or substantially complete application.
(1) Except as provided in paragraph (d) of this section, upon receipt of a complete or substantially complete application for educational assistance under subpart C, D, G, H, K, L, or P of this part, VA will:
(i) Make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and
(ii) Give the assistance described in paragraphs (b) and (c) of this section to an individual attempting to reopen a finally decided claim.
(2) VA will not pay any fees a custodian of records may charge to provide the records VA requests. (Authority: 38 U.S.C. 5103A)
(b) Obtaining records not in the custody of a Federal department or agency.
But what's a little thing like the US Constitution to VA staffers determined to block C-123 veterans' claims? Well, it is quite a big thing, and such abuse quickly invites questions as is happening now.
What proofs did VA suppress or otherwise abuse?
1. March 2013 Joint Services Records Research Center confirmation of C-123 veterans' exposure per VAM21-1MR, with DOD specifically suggesting use of the confirmation by VA claims officials
2. CDC/Agency for Toxic Substances and Disease Registry confirmation of C-123 veterans' exposures. The deputy director (Dr. Tom Sinks,) the director (Dr. Christopher Portier,) and the interim director (Rear Admiral R. Ikeda MD USPHS) each informed VBA that CDC concluded C-123 veterans were exposed to 182-times military thresholds for dioxin exposure and suffered a 200-fold greater cancer risk. This information was disputed and not provided claimants who didn't already have it. VA also had but failed to act upon input from the National Toxicology Program, the US Public Health Service, the EPA (which concurred with the CDC finding but did not conduct its own investigation,) and multiple state agencies including medical schools, toxicology centers and even VA physician researchers.
3. May 2014 Joint Services Records Research Center began individual confirmation reports on C-123 veterans. Instead of accepting this proof and others as reaching the VA's low threshold of proof required of veterans, VA insisted it would continue with the ongoing IOM study thus delaying eventual claim approvals and blocking VA medical care for over one more year.
4. Faced with a growing body of evidence submitted by veterans, VA's Director of Compensation and Pension minimized it as "a few items" when the total was over one hundred different proofs from multiple federal agencies, state governments, scientists and physicians. VA then characterized the small body of evidence it had as "an overwhelming preponderance of evidence," principally VA staff, VA web pages, a Dow-sponsored scientist's letter, a Monsanto-sponsored scientist's letter, and own VA's $600,000 no bid sole source Agent Orange consultant who had earlier denigrated the C-123 veterans as "trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman," telling his VA customers to "hold the line" against C-123 veterans' claims.
5. Faced with a large body of veterans' evidence, VA responded with a contract for its consultant to prepare monographs with a principal focus of blocking C-123 exposure claims. The contractor was paid $600,000 on his no-bid sole source contract to obstruct C-123 claims. Veterans sought but were permitted no VA assistance preparing their claims. and were left to their own means.
6. VBA characterized all non-physician scientists as unqualified to comment in support of C-123
veterans' claims, instead citing its own VA non-physician scientists as the only proper authorities. Federal courts have ruled that toxicologists are qualified to comment on medical nexus and excluding their input is an abuse of agency discretion and unfair to claimants.
7. Faced with one veteran's numerous proofs for exposure (the local VA office termed it a "plethora of evidence" but VA minimized the dozens of documents as "a few") VBA Director of Compensation and Pension directed a denial by stating, "In conclusion there is no conclusive evidence of TCDD (the toxin in Agent Orange) causing adverse health effects." VA later termed this "an unfortunate choice of words" but allowed it to serve for denying the claim. VA thus denied the Agent Orange claim under the Agent Orange Act with its response that Agent Orange is harmless.
8. In the years C-123 veterans have sought assistance proving their claims, not a single offer of help or suggestion or assistance in any form has been permitted by VA.
9. VA withheld its internal documents in denial of Freedom of Information Act requests. Ignoring requests for years finally had VA end up in the US District Court of Washington DC, where agreement was reached to finally release most of the materials. This release was minimal before the Institute of Medicine conducted its C-123 committee work, and only began in earnest after the IOM report was concluded and the VA information of less use to the veterans. As VA is specifically charged with helping veterans locate government documents helpful to claims, this specifically abused the veterans' rights to Due Process as well as under the Veterans Claims Assistance Act.
10. Because the issue of exposure was pivotal, VA redefined "exposure" in a unique and unscientific manner differing even from other VA agencies and Federal health and science agencies, as well as in conflict with VA's standard medical dictionary. The new VA definition of exposure would exclude virtually every exposure from VA coverage, such as Ebola.
Finally, veterans should have only had to submit their claims, and not argue against the VA for these past four years. VA should have been and was charged with being the veterans' advocate, handling claims in a paternalistic and pro-veteran manner. Instead, as VA told the Associated Press, "We have to draw the line somewhere," and that "somewhere" was over the bodies of C-123 exposure victims.
Why such push-back against just 2100 men and women C-123 veterans? Because VA had an attitude of no more Agent Orange claims, plus perhaps a prejudice against Reserve Component servicemembers. Certainly, veterans blocked from VA medical care for so many years saved millions in hospital costs and other benefits, and prevented even more veterans from swamping the already-limited VA patient care capacity. VA even managed to block retroactive disability compensation by setting the effective date of its new C-123 regulation as June 19, 2015 rather than the date of claim submission as with other disability claims.
Veterans now can hope that VA will process their C-123 exposure claims sometime soon, but every C-123 veteran not otherwise eligible is still forbidden all VA medical care and other benefits until then. Not a single C-123 veteran's claim has ever been honored, even though the Institute of Medicine C-123 Committee determined in January 2015 that their claims were correct from the very beginning.
This wasn't David against Goliath: This was David against hordes of the Philistine giants! "We have to draw the line somewhere," they were shouting!