04 December 2015

Department of Justice Confirms...AND DISMISSES...VA Errors on C-123 Vet's Claim


Both VA and the Justice Department casually dismiss VA's refusal to permit years of vital medical care legally due C-123 veterans.

This week the Department of Justice officially informed via email the C-123 Veterans Association that VA's Compensation and Pension Service was in error denying a C-123 vet's Agent Orange exposure claim. Let's look at this in two separate reports, beginning here with why VA took extraordinary steps to dismiss a veteran's exposure claim, an exposure confirmed by the CDC.

C&P was summarizing (poorly, unscientifically, dishonestly) the opinion of Dr. Tom Sinks, Deputy Director of the CDC Agency for Toxic Substances and Disease Registry. Sinks' opinion was that C-123 vets had a 182-times greater exposure to TCDD than military standards permit, and consequently will experience a 200-fold increase in cancer screening values. To make certain VA got the point, Dr. Christopher Portier, Director of the CDC ATSDR also affirmed the report. So did the director after him, Rear Admiral (MD, US Public Health Service) R. Ikeda. All of this did no good, even coming from the CDC.

Pretty gruesome, but just to make certain the C-123 veteran's claim was denied, C&P made all this evidence disappear by stating, "In summary there is no conclusive evidence that TCDD exposure causes any adverse health effects."

Read that ridiculous statement again very carefully: VA was saying that TCDD (the toxin which makes Agent Orange toxic) is harmless. Somehow, VA insisted that this known human carcinogen, the most toxic of the toxins, causes "no adverse health effects." Here's how Justice weakly defended VA's missteps:
"VA states as follows: The statement regarding TCDD exposure and adverse health effects was written in error and was incomplete.  It was referring to a statement submitted to VA by ATSDR, which was vague on potential exposure and health effects.  The TCDD statement should have read that ATSDR did not provide conclusive evidence that (the veteran's) claimed exposure to dried and solidified TCDD caused his claimed adverse health effects".
But DOJ missed much of the impact of VA's errors and even repeated those errors in its statement!

1. Not only was the scientific opinion of another federal health agency dismissed improperly by VA, but C&P did so by insisting ATSDR didn't provide "conclusive" evidence. The problem is that conclusive evidence isn't required at all in VA disability claims! The law states a veteran need only produce proofs "as likely to as not" or 50/50, with the benefit of the doubt always resting with the veteran.

But C&P quietly raised the bar to insure this claim was denied. C&P rejected the CDC opinion because it wasn't deemed to be "conclusive." In fact, few exposure illnesses are "conclusive." And how many federal agencies did VA require to support the veteran's claim? Here, VA rejected not only the CDC but also the National Institutes of Health and the US Public Health Service...three federal health agencies insisting this C-123 veteran was exposed to Agent Orange but the VA dismissed them all! Not for any legal or scientific reason but instead because, as VA's Post Deployment Public Health Section told the Associated Press, "we have to draw the line somewhere" against C-123 claims.

2. VA's clear obligation is to provide presumptive service connection to any veteran who either is "boots on the ground" during Vietnam, or along the Korean DMZ during certain years, or who is otherwise able to establish factual Agent Orange exposure. There is no requirement that the veteran prove the "adverse health effects" in the DOJ statement. NEVER must a veteran prove that Agent Orange is harmful...that is assumed in the law and repeatedly promised by VA in its Federal Register postings. If a veteran is exposed, the veteran's Agent Orange injury, if present, is required to be presumed...automatically.

But not here. The VARO adjudicator initially wanted to approve this claim on the basis of what she described as "the plethora of evidence," but VA C&P torpedoed the vet's claim.  C&P injected phony extra-legal requirements in its advisory opinion of the C-123 veteran's claim to insure the vet's failure. And DOJ took no notice, so busy were those attorneys defending the VA rather than the veterans who'd been wronged.

DOJ's attorney's should read their own report and consider the VA's very serious errors.

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