01 June 2015

VA's Empty Promises to Senate & Veterans: "Case-by-Case C-123 Claim Evaluation"

Challenged by veterans, veterans service organizations and the media, VA has assured all who would listen that C-123 veterans aren't (from the VA perspective) eligible for presumptive service connection. Veterans argued that VA simply has a 100% VA blanket denial policy for C-123 exposure claims.

To which VA assured the veterans, veterans service organizations and the veterans' legislators that VA carefully considers each C-123 claim on "case by case basis." VA's actual intent, and result,  was to deny all C-123 veterans' claims but deny any accusation of a blanket denial policy.
(Cambridge University English Language Dictionary)
A "case by case" disability claim, decided on its merits, free from external pressures sounded perfectly reasonable. Reading into the phrase, one expects that VA will consider each claim's particular situation and proofs, making a just and fair decision on the facts. Especially considering VA's statutory duty to approach the claim on a pro-veteran basis!

Wrong. Never going to happen! Not on their watch.

Wrong because VA's decision against the C-123 veterans' claims was already made in early 2011 at 810 Vermont Avenue NW, Washington DC. The decision against the veterans was virtually automatic..."no more Agent Orange claims." We acknowledge that many, probably most folks in VA want to do right by veterans like us, but the VA itself certainly did not! VBA did this without specific denial language but instead their words of advice to the regional offices carried the message in several different formats:

From VA's JSRRC Coordinator:
– "Until such time as the IOM review is completed, VA will continue to evaluate post‐Vietnam C‐123 claims on a case‐by‐case basis."
"Therefore, exposure to tactical herbicides for crewmembers that served aboard post-Vietnam C-123 aircraft cannot be conceded."
"No legal basis for providing this disability benefit."
"Alice, there is no VA acknowledgement of AO 'remote' or 'secondary' exposure for post-Vietnam aircrews of C-123 aircraft used for Operation Ranch Hand."
– "The problem here is that there is some evidence from "scientific sources" supporting the claimed post-Vietnam Agent Orange exposure. However, the overwhelming preponderance of evidence is against any such exposure, including a VHA website stating that such exposure could not have occurred."
"The real problem here is that Senator Burr and others have claimed that VA is denying these claims in a "blanket" and not following our stated "case-by-case" policy."
– "If you get a positive response from JSRRC on the direct claim, you can move forward with granting the claim (assuming all other requirements are met). (email regarding Navy veteran's claim, but Sampsel refused to "go forward' with C-123 claims also having positive JSRRC response.)
"I can try to work on some guidance for the field on this issue that will walk a line between preponderance of the evidence and case-by-case evaluations."
• From Senior Advisor for Benefits, Veterans Benefits Administration: 
- " Unfortunately, there is evidence from credible sources, including ATSDR, noting the presence of Agent Orange in the C123 aircraft, so it would be difficult to sever service connection, not to mention politically unpopular." Mr. Flohr found it "unfortunate" that other government experts confirmed C-123 veterans' exposure and Unfortunately allowed the veteran's claim to be approved.
"This does, however, present a problem for us as, although there is no precedent set by the RO decision, it is public knowledge and others may file claims citing it." Flohr thought it a problem other veterans might also apply, rather than seeing the Bailey decision as helpful to other veterans.
• From Director Compensation & Pension Service:
"Per discussions with Jim Sampsel, the evidence the DRO relied on was lay statement and NOT sufficient to grant SC." (re: Manchester NH VA reconsideration & award of LtCol Paul Bailey claim) Suggestion was that VA rule itself in error to withdraw the only C-123 award ever made. Murphy states Sampsel categorized expert input from CDC/ATSDR, DOD, NIH, US Public Health Service, Columbia University, Oregon Health Sciences University, and the veteran's physician as "lay statement."
"In light of all the evidence in the claims folder and referenced above, exposure to Agent Orange cannot be presumed or accepted for this Veteran or any other crewmembers of post-Vietnam C-123 aircraft. The Veteran did not serve in Vietnam and has not served in any other area that would allow for presumption of Agent Orange exposure or direct occupational exposure to be accepted. Medical studies showed that it was unlikely the human body was able to absorb any dioxins from residual Agent Orange on aircraft surfaces, or that any exposure would lead to adverse health effects. Therefore, the Veteran's claims associated with Agent Orange exposure should be denied service- connection." Compensation & Pension ordered Portland to deny a C-123 claim the VARO wanted to approve.
."In summary there is no conclusive evidence that TCDD exposure causes any adverse health effects." Claim denied, although TCDD is considered, even by VA, as a human carcinogen.
From VHA Post Deployment Health Section:
"The potential for exposure to TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially nonexistent. As a result, there is no scientific basis for VA to establish the presumption of Agent Orange exposure among this group of Veterans."
From Deputy Chief Consultant VHA Post Deployment Health Section:
– "We have to draw the line somewhere." Statement to the Associated Press.
"Please see attached. I hope it is useful." Attachment to USAF C-123 investigation team was set of articles by Dow and Monsanto-sponsored scientists, plus Dr. Al Young, VA & USAF Agent Orange consultant who opposed Agent Orange exposure claims. Violated rules keeping agencies apart.
• From Under Secretary for Veterans Benefits Administration:
– "Exposure to tactical herbicides for crewmembers that served aboard post-Vietnam C-123 aircraft cannot be conceded." Letter to Oregon's Governor, June 2013. VBA had had in its possession the JSRRC confirmation of C-123 veterans' exposures since March 2013 but did not reveal that information.

Not one of these VA officials ever follows their public "case-by-case" assurances, verbal or in print, of proper C-123 claims processing with the well-known fact (inside VA) that Veterans Benefits Administration and Veterans Health Administration together ordered that no C-123 claims be approved. 

This was done by incorrectly instructing VBA's regional offices that "no basis exists for service connection for post-Vietnam C-123 veterans' exposure claims." That's why not a single C-123 claim has ever been approved. VA simply told their regional offices "exposure cannot be conceeded." 

This is VA-speak for deny.

At VA, "case-by-case" equals denied claims...100% of the time.

The January 9 2015 report of the Institute of Medicine to the Secretary confirmed the C-123 veterans' exposures, and proved that VA had been wrong on the science, medicine and law all along. NEVER did VA obey requirements in the Veterans Claims Assistance Act to be pro-veteran, non-adversarial and insure that "benefit of the doubt" rests with the veterans.

VA was wrong. 
Veterans paid the price.

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