30 August 2016

C-123 Vet with Defective BVA Decision: Joe Collins

(Note 23 Sept 2016: VA leadership resolved this thru BVA, and Joe's claim is being expedited! Problem solved, but still a question left unanswered – how could the Boston regional claims office and the Boston BVA have screwed this up so completely?)

Thanks to our community of C-123 veterans, we were able to identify the C-123 vet whose claim was so terribly screwed up. Joe Collins is our guy, and today I had the pleasure of speaking with Joe and jhis wife.

We got his name and SSAN to authorities in VA to reconsider his claim and June 2016 denial.

Let's hope VA moves on this one: Joe's claim dates from 2007!

29 August 2016

It needs to be repeated: From the very beginning, VA science and policy were 100% WRONG on C-123 Agent Orange

In fact, VA was wrong and was determined to prevent our disability claims as a matter of policy regardless of the science involved. From the very beginning our search for help, VA ignored it's fundamental obligation to us as veterans.

No other veteran or veterans organization, supported in the scientific claims for harmful Agent Orange exposure by the CDC and other federal agencies as well as dozens of independent positions and university based scientists, has faced such an automatic VA opposition.  Today's perspective, 18 months after the release of the Institute of Medicine C-123 Report, clearly shows VA opposition was policy-based. VA simply had no scientific or legal basis to oppose the claims – yet they did.

Rather than permit us the benefit of the doubt required by law and M21-1MR they immediately took an adversarial position. That was most perfectly expressed by Mr. Thomas Murphy (Director, VBA Pension and Compensation) when on February 28 2013 he insisted no amount of proof from whatever source would be accepted by VA to support our claims.

Mr. Murphy explained that Veterans Health Administration Public Health decided upon our first inquiries back in early 2011 that, no matter what, C-123 vets were not exposed and VA would deny every claim. VA would do this while insisting that every claim would be considered on a case-by-case basis... and then automatically denied.

As regards the requirement to give us benefit of the doubt, VA reserved it for itself and denied it to the veterans. Even after support for our exposures was submitted to the VA by the CDC ATSDR as well as the National Institute of Environmental Health Sciences, DoD JSRRC and dozens of independent physicians and researchers VA stuck to its illogical and unscientific as well as blatantly anti-veteran position

Nothing illustrates the deception VA used against us better than the simple comparison of the May 2011 VA position statement (below, formulated by Dr. Terry Walters and her colleagues in VHA Public Health) and the final report on us published by the Institute of Medicine in January 2015.

Let's look at VA's five bullet points:
1) Correct, but irrelevant. The 1991 Agent Orange Act requires VA to treat all veterans exposed to Agent Orange if they have relevant illnesses. VA repeatedly assured Congress and the public via the Federal Register that it would do so.
2) Deceptive. There is only the issue of exposure, not the kind of exposure. For the purpose of opposing our claims, VA introduced the idea of remote/secondary exposure and claimed it made proven contamination of our aircraft no different than the theoretical contamination of the equipment used in Vietnam.
3) Ridiculous! VA stated it would ignore all proof of exposure from whatever source such as the CDC. We did not know it for years but VA had unscientifically redefined the word exposure to require bioavailability for exposure to be recognized. VA created its own unique redefinition of exposure to block our exposure claims, and were criticized for doing so by leaders in other federal health agencies. Even under this redefined exposure, VA should have acknowledged the bioavailability of the C-123 Agent Orange contamination when the CDC informed of them that veterans had a 200 times greater risk of cancer. VA uses Dorland's  Illustrated Medical Dictionary as the standard text of definitions... except for the word exposure.
4) Deceptive. The 1991 Agent Orange Act eliminated the requirement that a veteran establish medical nexus of illnesses associated with Agent Orange and instead provided a presumption. The scientific evidence suggested as missing was already established by the Institute of Medicine and it's numerous earlier reports. Further, as with the first point, VA have a legal obligation as well as the duty under its own regulations to treat all veterans with a proven Agent Orange exposure.
5) The last bullet point is perhaps the VA's most blatant policy driven deception. The opinions referenced as supporting our claims came from the CDC ATSDR, National Institute of Environmental Health Sciences, and dozens of university scientists and independent physicians. Rather than acknowledging this volume of proof, the VA Agent Orange desk in Veterans Benefits Administration simply asserted that it had "an overwhelming preponderance of proof" against our exposures. In fact there was no such proof against our exposure claims and VA insistence otherwise was merely a policy statement. The IOM C-123 Agent Orange Report relied on the same body of evidence to reach an opposite conclusion – veterans were indeed exposed!

VA Conclusions Rigged Uo To Deny Claims For Five Years:
1) "Even though residual Agent Orange may be detected in C-123 aircraft by laboratory techniques years after Agent Orange use, it must be remembered that there is no bio-availability of TCDD in these aircraft. "
2) "The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially zero."
Terry J, Walters, MD MPH: Director, Environmental Health, VHA

BUT, the Institute of Medicine concluded after studying the same data:
1)  Veterans suffered bioavailability of the dioxin aboard the aircraft by all three possible routes (dermal, inhalation, and ingestion.) IOM specifically disproved the VA theory of no bioavailability of dried dioxin advanced by VHA Post-Deployment Public Health. That flawed concept was earlier advanced by Dr. Alvin Young who actually argued against any hazards of Agent Orange in his article "Environmental fate of TCDD and Agent orange and Bioavailability To Troops in Vietnam."  A frequent VA and DoD consultant, Young was beneficiary of a no-bid sole source $600,000 consulting contract most of which focused on our aircraft.
2) "Reservists experienced increases in their risks of adverse health outcomes." In fact, the CDC told VA veterans had a 200 fold greater risk of cancer.

27 August 2016


WHAT A MESS! This elderly Massachusetts C-123 veteran served at Hanscom AFB before the 731st moved to Westover. His cancer claim was submitted years ago, and on appeal was heard in June...but was denied!

Read through it below. Look how the BVA and its aggressive attorney trashed this qualified veteran's appeal by simply ignoring everything the VA did last year in recognizing our Agent Orange veterans' benefits.

Their tact was to pretend the man wasn't a veteran...an issue resolved by Secretary McDonald's June 19 2015 Interim Final Rule which the BVA judge and the BVA attorney ignored, despite their duty under VCAA.

Citation Nr: 1622153 
Decision Date: 06/02/16    Archive Date: 06/13/16

DOCKET NO.  15-34 922 ) DATE

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lymphocytic leukemia (CLL).


Appellant represented by: Massachusetts Department of Veterans Services




J. Barone, Counsel


This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty with the United States Navy from April 1946 to April 1948, and on active duty as a member of the United States Navy Reserves from October 1950 to August 1952.  It appears that he had an additional period of active duty from August 1959 to August 1962 and a verified period of active duty for training (ACDUTRA) with the United States Air Force Reserves from October 28, 1962, to November 28, 1962.  Effective June 18, 1976, he was removed from Reserves status and assigned to the Retired Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of entitlement to service connection for CLL.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in April 2016.  A transcript of his hearing has been associated with the record.


1.  In November 2012, the Board denied service connection for CLL.

2.  Evidence added to the record since the November 2012 Board decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for CLL.


1.  The November 2012 Board decision is final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 3.160(d), 20.1103 (2015).

2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for CLL.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  

The Veteran's petition to reopen the claim of entitlement to service connection for CLL was filed as a Fully Developed Claim (FDC), as a part of a VA program to expedite VA claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.   When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to the claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA.  Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  The notice that accompanies the FDC form informs a Veteran what evidence is required to substantiate a claim for service connection, a Veteran's and VA's respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the Board finds that VA's duty to notify has been met.

Moreover, there is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

With respect to VA's duty to assist, service, VA, and private treatment records have been associated with the claims file.  

Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.


Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

As noted, the Board denied the Veteran's claim of entitlement to service connection for CLL in a November 2012 decision.  

The record before the Board at the time of the November 2012 decision included evidence of a diagnosis of CLL in 2007.  It also included the Veteran's service records, showing that he performed as an Air Reserve Technician (ART) from 1970 to 1973, and that he participated in ACDUTRA as required by his enlistment in the Air Force Reserves.  

The record at the time of the November 2012 decision also included the Veteran's contention that while working as an ART at Hanscom Air Force Base from 1970 to 1973, he was exposed to Agent Orange from C-123 aircraft that had been used to spray the defoliant in Vietnam.  In this regard, the Board noted that certain civilian positions in the military departments were filled by individuals who were members of the active reserves, which, in the case of the Air Force, were known as ART positions.  Jeffries v. Dep't of the Air Force, 999 F.2d 529, 529-30 (Fed.Cir.1993).  Although they are full-time civilian employees, ARTs "are also members of the Air Force Reserve unit in which they are employed.  In addition to their civilian assignments, ARTs are assigned to equivalent positions in the reserve organization with a reserve military rank or grade."  Id. at 530.  ARTs "are required to serve as members of the Air Force Reserve one weekend a month and at least fourteen days a year of annual training."  See http://www.afrc.af.mil/shared/
media/document/AFD-070125-046.pdf.  "On these weekend Unit Training Assemblies (UTAs) and during their annual two-week tour of duty, ARTs train with fellow reservists."  Id.    At all other times, however, ARTs were civilian employees.  Id. (noting that "[d]uring the normal five-day workweek, ARTs perform as civilians-maintaining and operating the Reserve facility in direct support of their unit").

The Board also considered the possibility of service connection on the basis of incurrence of CLL during a period of ACDUTRA as required by the Veteran's Reserves status.  The Board observed that ACDUTRA was defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)  (West 2002); 38 C.F.R. § 3.6(c) (2014).  The Board also noted that inactive duty training is defined, in part, as "duty (other than full time duty) prescribed for Reserves . . . by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A) (West 2014); 38 C.F.R. § 3.6(d)(1).  "The term 'Reserve' means a member of a reserve component of one of the Armed Forces."  38 U.S.C.A. § 101(26). 

The Board indicated that when a claim was based on a period of ACDUTRA, in order to establish entitlement to benefits, there must be some evidence that the disability for which service connection is being sought was "'incurred or aggravated' during the relevant period of service."  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (quoting 38 U.S.C.A. § 101(24)(B); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); and McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 ("if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). 

The Board noted that Veterans who serve on regular active duty are entitled to several presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-to assist them in substantiating their service connection claims.  38 U.S.C.A. §§ 1111, 1112, 1153 (West 2014); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2015).  However, where a claim is based on a period of ACDUTRA, the claimant "can never be entitled to the presumption of service connection" because "[b]y definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service."  Smith, 24 Vet. App. at 47. "By contrast, for a claimant whose claim is based on a period of [ACDUTRA] to establish entitlement to benefits, there must be some evidence that his or her condition was "incurred or aggravated" during the relevant period of service."  Id.  

The Board further observed that while CLL was a disease associated with exposure to herbicide agents and thus subject to the presumption of service connection despite a lack of evidence of the disease in service, see 38 C.F.R. § 3.309(e) (2014), the logic of Smith precluded application of the presumption of service connection provided for by 38 U.S.C.A. § 1116 (West 2014).  The Board pointed out that the Veteran, as an ART, was also a member of the Air Force Reserve, and that his service would have been limited to ACDUTRA.  See http://www.afrc.af.mil/shared/media/document/AFD-070125-046.pdf. (discussing requirements of ARTS Reserve service).  The Board concluded that evidence showing incurrence or aggravation of CLL during any relevant service period was lacking, noting that CLL was not diagnosed until 2007, and that there was no evidence to suggest that the disease first manifested during any required period of ACDUTRA while the Veteran was an ART.  The Board determined that, regardless of whether the Veteran was indeed exposed to herbicides at Hanscom Air Force Base sometime between 1970 and 1973, without a showing that his CLL first manifested itself during a period of ACDUTRA, any ACDUTRA performed while an ART did not qualify as active military service, and Veteran status for purposes of the current claim has not been achieved. 

The Veteran sought to reopen his claim in February 2015.  In support of his petition to reopen, he submitted annual statements of Reserves credits for 1972 and 1973, as well as a July 1973 discharge order.  He also submitted written statements describing his work as an ART, maintaining that he was exposed to Agent Orange during that time, which included active duty.  

Also added to the record is the Veteran's April 2016 hearing testimony.  He reiterated his contention that he was exposed to Agent Orange during his time working at Hanscom Air Force Base as an ART.  He also stated that he worked on contaminated aircraft while on ACDUTRA.

As discussed, service connection for CLL was denied because the Veteran's employment as an ART did not qualify as active service, and because there was no evidence that CLL first manifested during any period of ACDUTRA.  Since the November 2012 Board decision, evidence added to the record includes the appellant's contentions that he was exposed to Agent Orange during his employment as an ART at Hanscom Air Force Base, and that he was also exposed during periods of ACDUTRA.  These contentions and theories of entitlement were before the Board at the time of its November 2012 decision and are therefore cumulative.  In consideration of the foregoing, the Board finds that as no new and material evidence has been submitted, the claim of entitlement to service connection for CLL may not be reopened.  


New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for CLL is denied.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs