09 August 2015

C-123 Vets Meet With Secretary McDonald

Secretary McDonald generously gave me over an hour yesterday afternoon for our private conversation tat the Denver DAV National Convention.
He was aware that our initial alarm about VA's statement to HuffPo about widows not being protected by the interim final rule was resolved by VA last Friday in their "reinterpretation" of the issue...in other words, the VA was led to do the right thing regarding widows/widowers' DIC but acted as though that was their intention all along.
1. VA disregarded years of confirmation from other federal agencies, failing to act when there was more than adequate "benefit of the doubt" evidence. The two VA C-123 Fact Sheets were discussed with the important point that errors littered the June 2013 letter to Senator Burr and VA failed to reveal the JSRRC information received four months earlier. VA failed their duty to be pro-veteran and non-adversarial and would be seen to have done so by the CAVC when appeals reach that forum.
2. VA disregarded (another word could be "suppressed") that 2013 Joint Services Records Research Center exposure confirmation from veterans, their attorneys, legislators, claims offices and BVA, as well as the May 2014 confirmation JSRRC began providing on individual C-123 veterans. This violated VCAA and VAM21-1MR.
I said the CAVC would find this a compelling argument in our favor and that unless retroactivity were provided appeals would be inevitable. We reviewed dates of interest, such as the May 2011 general "awakening" of C-123 vets to our exposures, and the fact all scientific information had been provided VA by the end of 2011 – all of which they ignored. We discussed the famous VA phrase, "VA has an overwhelming preponderance of evidence against C-123 claims."
3. I raised the VA OGC precedential opinions and how they should have led to veteran status per Title 38. He was already familiar with the "liberalizing" issue, and also with the fact that retroactivity had been recognized for the active duty C-123 vets, but not us. I pointed out that the DRO C-123 awards and the BVA decisions thus far had all recognized the retroactive claims. In the end, he promised to read all three essays.
I also reviewed the surprisingly small number of claims predating the June 19 2015 effective date, which if each were awarded 100% SC back to May 2011 would only total $1.2M additional cost to VA assuming the same average SC % on claims processed thus far, added to the VA OGC $47M forecast for C-123 issues (excluding medical costs)
4. I discussed my concerns about physician recruiting and retention, the need for skilled former military medics to conduct "sick calls" at VA day clinics as a physician force multiplier, acceptability of board credentials from the American Board of Physician Specialties, DO recruiting, and formation of a "VA Physician Reserve Corps" of departing docs to continue a lower level of service.
In conclusion, I was given twice the time than scheduled for our discussion and we ended only because I had to leave. He was sincere and agreed that VA could have acted sooner, and he'd review our request carefully. Thus far, I'm satisfied and now we'll wait to see if VA delivers any changes to the interim final rule.

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