12 June 2015

VBA explains to VHA why it decided to pretend DOD confirmation of C-123 veterans' exposures never existed

VA Claims Processing Violates VCAA
On 12 March 2013 Veterans Benefits Administration (Agent Orange Desk) received the first Department of Defense/Joint Services Records Research Center (JSRRC) confirmation of C-123 veterans' Agent Orange exposure.

And then VA cheated us. Determined for our exposure claims to fail, VBA Agent Orange desk breached both its duty to assist and duty to notify (of the JSRRC records) by personally waiving the VA duty to follow VAM21-1MR. The U.S. Supreme Court has stated that, "[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. VA hasn't.

 Like every other piece of evidence confirming C-123 veterans' exposures, the JSRRC message was disregarded. VBA acknowledges only arguments against the veterans' claims, as one can still see on their web pages.

VBA cited input to substantiate its position from Dr. Al Young (the VA $600,000 no-bid sole source contractor,) plus two scientists sponsored by Dow and Monsanto for their input. Their input (all paid for) plus the VA web page stating the veterans weren't exposed, amounted to VBA "overwhelming preponderance of evidence" against input confirming the veterans' exposures submitted by CDC, DOD/ATSDR, NIH, USPHS, NIEHS, VA physicians, university researchers and dozens of scientists and physicians, all unpaid and voluntarily offered.

On 12 March 2013, VBA answered the Veterans Health Administration Post Deployment Health Section question about why the Agent Orange Desk decided to disregard the DOD input, considered vital for confirmation of veterans' exposure claims.

The VA has a statutory duty to gather government records for a veteran's use substantiating a claim ("duty to assist.") Here, VA opts to disregard that duty, as well as its other duties under the Veterans Claims Assistance Act, as well as disregard VA's own VAM21-1MR which has statutory requirements for compliance. "[T]he Secretary must adhere to his own policies when adjudicating veterans' claims." (Morton, 415 U.S. at 235 (1974)). 

Compliance with the M21-1MR by the VA is mandatory for all VA staffers in any VBA or VHA position. A regional office's failure to follow the M21-1MR and the BVA s failure to identify such issues frustrates judicial review, warranting remand: 
See Tucker v. West, 11 Vet. App. 369, 374 (1998) (where "the Board has incorrectly applied the law, failed to provide an adequate statement of its reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."); Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court").
No explanation was offered by VBA – it simply exempted itself from these tiresome legal requirements, and directed veterans' claims and appeals to be denied for want of the very evidence kept hidden by VBA. As of today and since the first of our claims in 2007, not a single one has been permitted despite VBA assurances to all that it has no blanket policy against them.

Follow the VA's papers! See how VBA disregards Veterans Claims Assistance Act of 2000:
Standard VBA C-123 claim denial, citing "unable to verify your exposure." This is the need for JSRRC verification of the C-123 veteran's exposure. This is LtCol Paul Bailey's denied claim, Feb 2013, despite two pages of confirmation from several physicians, fellow officers, commanders, scientists, federal agencies, and researchers. This claim was reversed and awarded in August 2013 via Decision Review Officer. 
1. DOD-JSRRC confirmed C-123 veterans' Agent Orange exposure to VBA March 2013. Veterans never learned of this document's existence until May 2015 FOIA releases.
1a. AF confirmation of AF Museum C-123 (Patches, Tail # 362) "heavily contaminated" with Agent Orange
1b. Director CDC Agency for Toxic Substances & Disease Registry confirms C-123 veterans' TCDD exposures = 200/fold increased cancer risk, 182-times military TCDD exposure standards
1b. (continued, signed by Dr. C. Portier, Director, CDC/ATSDR. Later, another email followed with next ATSDR director (Rear Admiral R. Ikeda MD USPHS) concurrence with Sinks' C-123 ATSDR finding.
2. VHS apparently aware of #1, properly inquires about use in claims file for JSRRC message per VAM21-1MR.  VBA says no, and states his refusal to let JSRRC "dictate policy issues to VHA on health care issues." Apparently, referring to JSRRC confirming veterans' exposure to prove their disability claims was seen as DOD "dictating" VA policy."
3. In 2013 VBA Agent Orange desk establishes internal policy to disregard JSRRC input until 2015, in violation of VAM21-1MR procedures on JSRRC input and in violation of VCAA. Of course, had this input from JSRRC  agreed with VBA policy rather than disagree, it would have been  perfectly acceptable as evidence against veterans' claims. VBA is highly selective about what C-123 evidence it recognizes, and acknowledges only evidence that fits VA policies and disputes everything else. 
4. Without bothering to reveal JSRRC confirmation of C-123 exposures received five months earlier, VBA assures Compensation & Pension that VA somewhow has an overwhelming preponderance of evidence against C-123 veterans. Describes other proofs of the C-123 veteran's exposure as "the real problem." Proof is a problem for VA? LtCol Paul Bailey's claim award made via DRO August 2013; SECVA disagreed with decision and tried to reverse the award but didn't; decided "it would be politically unwise."
5a. VHA quoted by the Associated Pressn insisting VA "must draw the line somewhere" to stop Agent Orange exposure claims, May 2014, more than a year after JSRRC exposure confirmation, three years after the Sinks CDC/ATSDR exposure confirmation
5b. Dr. Walters quoted in AP page 2
5c. Dr. Walters' "draw the line" quoted in AP, page 3
From: Kruse, John (VACO)

Sent: Friday, June 06, 2014 2:21 PM 
To: Tucker, Brooks (Burr)
Cc: Lindsay, Jason; OCLA Benefits Team 
Subject: jk2427: Sen Burr ATDSR Question 
Good afternoon.  VBA has provided the following response.  Please let me know if you  have additional questions.Regards 
John E. Kruse, Director, Benefits Legislative Service Office of Congressional and Legislative Affairs June 6, 2014 (202) 461-xxxx  
Burr Request: I understand the procedural requirement for JSRRC to provide VA with only "DoD documents", however, if VA has addressed this matter in good faith for veterans, it would seem incumbent upon VA to insist that DoD turn over all relevant information in its file regarding C-123 exposure concerns that could potentially assist VA's knowledge of the issue or at least request documents DoD has received from within the Federal government from subject matter experts familiar with the C-123 issue.The attached letter from ATSDR sent to JSRRC Director last year is clearly such information. Relative to the prior RFI and this ongoing issue, please let us know, before 9 June 2014,if the attached letter been received at VBA from JSRRC and if it has not been, has VBA requested the letter from JSRRC?  
VA Response:  VBA is committed to a fair and impartial evaluation of all disability claims, including those from Veterans associated with post-Vietnam C-123 aircraft.  The letters referred to by Mr. Tucker and Mr. Carter were provided to VBA by the Agency for Toxic Substances and Disease Registry (ATSDR) and by Mr. Carter and were evaluated by Veterans Health Administration (VHA) medical scientists and public health experts.   
6a.  June 2014, Email answer from VA Congressional Liaison to Senator Burr’s questions. VA still denies JSRRC confirmation and disputes ATSDR finings by simply not mentioning C-123 200-fold greater cancer risk. One year later claims remain denied even with IOM report. VBA simply avoids answering Burr's inquiry about why JSRRC materials were not provided veterans for their claims or acted upon by C&P. 
(continued)This evaluation contributed to VA’s decision to create the current VHA C-123 website
http://www.publichealth.va.gov/exposures/agentorange/locations/residue-c123-aircraft/index.asp), which explains that dried and solidified TCDD cannot be absorbed by the human body in any significant amount, and that there is no scientific evidence supporting long-term health effects from association with an environment containing such dried and solidified TCDD. 
The letters under consideration were solicited by Mr. Carter from government agencies and refer to an amount of TCDD that was obtained from one C-123 aircraft by vigorous rubbing with a strong solvent.  This amount was then compared to an industry standard for exposure to environmentally “active” TCDD and, as described in the
Letter Mr. Tucker forwarded, ATSDR concluded that this solvent-extracted amount exceeded the active TCDD industrial safety standard and therefore “TCDD exposure” occurred.  Due to the conflicting scientific opinions on this issue, VA contracted with the Institute of Medicine to review all available studies and literature and report its findings later this year. 
However, Compensation Service has been notified that JSRRC has begun providing these letters, or summaries of their content, to VBA regional offices for consideration in claims based on association with post-Vietnam C-123 aircraft.  In particular, information from these letters was provided to the Portland VA Regional Office for consideration of an appeal filed by Mr. Carter.  
6b. (Continued.)

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