19 December 2015

VBA Violated 38 United States Code 5103A(b)(2) – and more!

VBA Motto?
For nearly three years, Veterans Benefits Administration sat on vital evidence supporting C-123 veterans' claims for Agent Orange exposure injuries. Our inquiry about this, with copies of VA documents establishing our allegations, was provided the VA Office of General Counsel as well as VA IG and VA National Center for Ethics in Healthcare, without response. Actually, the Ethics Center did respond but said the issues are so serious it is outside their purview.

Input from (1) CDC, (2) National Institutes of Health, (3) US Public Health Service (4) The Concerned Scientists and Physicians and other agencies was received by VA as those agencies sought to confirm C-123 veterans' exposures. (5) Input was even submitted by the Department of Defense Joint Services Records Research Center (JSRRC) beginning in March 2013, but ignored by VA Agent Orange Desk other than in internal discussions about how to disregard it. JSRRC proofs weren't released to C-123 claimants. (6) Even VA physicians who are acknowledged cancer researchers were disregarded (Dr. Mark Garzotto, Cancer Society researcher and author, professor at Oregon Health Sciences University and my urology oncologist at VA Portland.) VA's Mr. Tom Murphy, Director of Compensation and Pension, disregarded every other physician and scientist who submitted evidence on my own exposure to Agent Orange.

Lots of evidence. Evidence even VA described as "credible." Yet for years, VA ignored every bit of it for every one of us. Even today, neutral observers cannot fathom VA having disregarding solid evidence, raising the barrier for C-123 veterans' claims far past its fundamental standard of "as likely to as not." Indeed, VBA's Mr. Tom Murphy, Director of Compensation and Pension, even stated to us and his staff that no amount of proof from whatever source would be permitted to let a C-123 claim be approved.

There's law about such things. VA is required under the Veterans Claims Assistance Act (VCAA) to assist veterans in obtaining records from all other government agencies. It is clear that VA's use of these laws and regulations is primarily procedural but the only enforcement seems to be against veterans and not to compel VA to be correct and legal. Until recently I hadn't found the specific language in the United States Code, but happened upon it today:
(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records.
(Authority: 38 U.S.C. 5103A(b)(2)) 
 That's pretty clear. If VA "becomes aware" it will notify the veteran. One can assume that if VA has "relevant records" in its own possession, it will "notify the claimant."

But the Veterans Benefits Administration neither notified the veterans of available relevant records nor provided those records once in possession of the VA. Instead, VA decided that input from DOD, CDC and other relevant agencies wasn't adequate for VA's purpose...which was to obstruct the C-123 exposure claims. VA even dismissed JSRRC input, writing that it wasn't the role of JSRRC to dictate VA policy.

There's more. VA's Manual M21-1 states:
    Federal records are any documents in the custody of a Federal department or agency. Federal records include but are not limited to:
 ·  service treatment records (STRs)
·  other service department records (such as personnel records, line-of-duty determinations, inpatient treatment records or behavioral health records) that are not included with the STRs
·  VA medical and other records (including Vet Center records and authorized VA medical treatment or examinations at a non-VA facility)
·  Social Security Administration (SSA) records
·  Public Health Service records, and
·  Department of Labor records.
Somehow, VBA opted not to provide C-123 veterans conclusive evidence of their exposures, preferring to simply deny the claims by insisting no evidence existed. Further, VA's manual has specific instructions for VA claims adjudicattors about JSRRC reports of veterans' exposures:
Has the veteran provided sufficient information to permit a search by the JSRRC?
● If yes, send a request to the JSRRC for verification of exposure to herbicides.
● If no, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. (Note: For a sample of a formal finding, see M21-1MR, Part IV,
Subpart ii, 1.D.16.c.),
● decide the claim based on the evidence of record.
(VA21-1, Part IV, Subpart ii, Chapter 2, Section C) 

Here's an actual example of how VBA avoided its duties under VCAA, 38 U.S.C. and Due Process. In June 2014 VBA denied a C-123 veteran's claim for various Agent Orange presumptive illnesses, including prostate cancer and heart disease. In its denial, VBA wrote,
"JSRRC is unable to verify or document that aircrew members were exposed to Agent Orange residue or dioxin contaminated aircraft or aircraft parts. (JSRRC response dated May 2012.)"
But that's not correct! JSRRC had specifically informed VBA's Agent Orange desk (Mr. James Sampsel) in March 2013 that C-123 veterans had, per credible government scientific documents (as VBA itself described them,) been exposed to Agent Orange aboard their aircraft. Mr. Sampsel's emails circulated throughout VBA and VHA, yet nobody took exception to VA characterizing the information in an anti-veteran manner or staffers' decision to disregard the JSRRC input.

It is important to follow the dates. In 2012 JSRRC did provide VA an initial negative report but updated that with its confirmation in March 2013, yet VBA denied the veteran's claim in June 2014 citing old information and withholding the newer JSRRC response. VBA even termed the current JSRRC and other information as "unfortunate and credible scientific information."

"Credible scientific information" plus JSRRC confirmation...all vital, primary evidence to support all C-123 veterans' claims. All of it, however, withheld by VBA as it stalled C-123 claims until forced by the Institute of Medicine report to finally recognize the issue in June 2015. And then, VBA even found a way to block retroactive benefits for the years it stalled and violated veterans' rights.

No comments:

Post a Comment

Got something to share? Nothing commercial or off-topic, please.