01 February 2016

VA to Me: "Why Did Your VA Claim File Grow to Twelve Volumes?"

Over the years, VA claims folks have often commented on my own C-file growing and growing, into what I last heard was twelve volumes. Their inference was "why?" 

Reason 1: appeals necessitated by denials and the support documentation for those appeals, over five years of effort that Senator Richard Burr said "shouldn't have taken this long or been this hard."

Reason 2: because I was uncovering the materials necessary to prove our scientific and legal arguments about Agent Orange on the C-123 (our "boots on the airplane" work.) Freedom of Information Act requests, news articles, correspondence, technical and scientific reports, experts' findings and much, much more.

Reason 3: to prove the key point that no amount of proof from whatever source would move C&P to approve a C-123 claim (this is before the Interim Final Rule) because unofficial policies were in play against this group of veterans. Example: Portland VARO wanted to approve my claim in 2012 and cited a "plethora of evidence" but C&P minimized the evidence, dismissing it in their denial advisory opinion as "a few documents."

Strategy: to eventually get to the Court of Appeals for Veterans Claims and not only argue the particular claim should be granted as fact-proven but also prove that VA had systematically abused VCAA*, JSRRC, VAM21-1MR, and always withheld "benefit of the doubt," holding us to an impossibly higher standard of proof to substantiate claims.

Result: it worked by moving to an IOM study. Also worked by showing the growing body of materials from credible sources persuaded legislators that there was a reasonable technical argument in our favor. It also showed that VA had established an improper barrier against granting C-123 claims while wrongly assuring Congress that claims were fairly evaluated – which was not the case. VA responses also showed serious technical errors, such as in the C&P-drafted Secretary Shinseki "C-123 Fact Sheet" sent to answer Senator Burr's letters and the Senate Veterans Affairs Committee.

Background: at our first teleconference with VHA/VBA in early 2011, Dr. Walters made the point that no possibility existed for C-123 vets' exposure. She later told the Associated Press she "had to draw the line somewhere." At our first meeting with Tom Murphy in his office, he stated no amount of proof from whatever source would permit C&P to approve a C-123 claim. 

He based that on Dr. Walter's position, and told us the issue was solved with her conclusion. We again asked what proof from CDC, ATSDR or other authorities would bring C&P to reconsider and he answered "nothing. The issue is decided." At about that time, Dr. Walters prohibited C-123 veterans from the Agent Orange Registry exam**, even though a Secretarial policy was in place that any veteran could seek the exam.

This was while Secretary Shinseki and others were insisting VA had no regulation against C-123 grants (although it was frequently stated as such on denials) and evaluated claims on a "case-by-case basis" even though 100% of the claims were denied except a handful through BVA and two DROs.

We had to argue two separate issues: the fact of contamination on the aircraft, and the fact of potential exposure. VA denied both. Eventually VA also threw up the veteran status challenge...that proved to be a barrier resolved only through the Interim Final Rule.

VA insisted there was no C-123 herbicide contamination because had that been conceded, VA was bound by three separate Federal Register assurances that any veteran with exposure outside Vietnam would still be treated with the same presumptive service connection. Thus, in VA-speak, no contamination meant no presumptive service connection.

VA abused this point yet further by insisting that even if there was contamination, there could have been no exposure. Toxicologically, that is impossible. Exposure to a toxin occurs via inhalation, ingestion or dermal contact. We sought expert opinions on exposure from Dr Linda Birnbaum, Director, NIH National Institute of Environmental Health Sciences and others which directly challenged VA

To further VA's struggle against conceding exposure, VA redefined exposure. Using the 2012 Society of Toxicology annual conference, VHA Post Deployment Health presented a poster which included Dr. Iron's line (as though it was scientific fact) "exposure = contamination field + bioavailability.Dr. Walters then used that redefinition to insist that because in later years C-123 veterans years later could prove bioavailability to her satisfaction, no exposure occurred and therefore, no presumptive service connection and no consideration for direct proof either. 

Other scientists took umbrage at VHA's Post Deployment Health redefinition of exposure, and as a result I was sponsored by the Director, NIESH in challenging VA at the 2014 Society of Toxicology conference. I presented an argument against the redefinition as well as VA ethics.

VHA redefining such a fundamental scientific term for use only by VHA and VBA for C-123 herbicide claims (and not elsewhere in VA) got quite a bit of notice elsewhere and moved more scientists and agencies to help us. It also helped that all of VA uses Dorland's Illustrated Medical Dictionary for official terminology, and VBA's unique redefinition contrasted with Dorland's.

* (note: as regards VCAA, none of the government documents addressing C-123 Agent Orange exposure has ever been provided other veterans by VA, despite requirements that all available government materials be made available.)

**On May 13, 2013, Dr. Walters kindly clarified her change in her email to me, although Post Deployment Health hasn't yet spelled out on the VA page for some reason:
"Other potential Agent Orange exposures:
Veterans who may have been exposed to herbicides during a military operation or as a result of testing, transporting, or spraying herbicides for military purposes. Learn about herbicide tests and storage outside Vietnam. Agent Orange or Dioxin dried on surfaces does not present a significant threat to human health. Veterans are eligible if they were in the presence of liquid Agent Orange such as when Agent Orange was sprayed, tested or transported."

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