Harvard Business School reports significant VA improvement under Secretary McDonald

The VA, to be sure, was a national embarrassment a few years ago. So why has it every national veterans organization asked President-elect Trump to retain VA Secretary Robert McDonald?

In 2014 a wave of revelations found administrators falsifying documents in order to create the impression that they were compliant with departmental requirements regarding wait times. Veterans died while waiting for care, and overworked doctors began leaving the system in droves.

However, that was before President Obama tapped Army veteran and former Proctor and Gamble chairman and CEO Robert McDonald to take over the system in an attempt to turn it around. McDonald stepped into the role of VA secretary in July 2014, and since then, according to two recent reports by outside groups, the results have been dramatic.

ProPublica Files Lawsuit Seeking Agent Orange Documents From the VA

The suit claims the VA failed to promptly process a FOIA request for correspondence with a consultant about the defoliant used during the Vietnam War.

by Charles Ornstein
ProPublica, Dec. 20, 2016, 10:15 a.m.

ProPublica has sued the U.S. Department of Veterans Affairs, claiming the agency failed to promptly process a request for correspondence with a consultant about Agent Orange, a toxic defoliant used during the Vietnam War.

The lawsuit, filed late Friday in U.S. District Court in Washington, D.C., alleges that the delays violated the Freedom of Information Act, a 50-year-old law whose mission is to provide the public with information about government operations.

 ProPublica submitted a FOIA request in May, requesting correspondence between various VA officials and scientist Alvin Young, who has guided the stance of the military and VA on Agent Orange and whether it has harmed service members. The request also sought internal correspondence about any contracts awarded to Young or his consulting firm.

To date, the VA has not provided any of the requested documents.

“We always try, as we did in this case, to resolve records issues without filing a lawsuit.” said Stephen Engelberg, ProPublica’s editor in chief. “The documents that relate to Dr. Young’s government-paid work are exactly the sort of material the Freedom of Information Act covers. We look forward to reporting on their contents as soon as possible.”

"OBE?" C-123 Vets' struggles are now mostly OBE and we need to give thanks to new faces of VA that got us here

"OBE." Except for our concern about retroactivity, years of my writing on this blog and arguing with the VA have been OBE since June 2015

No, I'm not referring to the Order the British Empire but I am explaining the acronym OBE to mean overcome by events.

OBE basically says that while you may have had a beef or a problem or perhaps been screwed over by the system in the past, things are different now and the basic problem mostly resolved. The things that caused the trouble or allowed it to fester are no longer relevant.

Honest writing and advocacy means I have to distinguish between the years before Secretary McDonald in the years after his arrival at the VA.

Before Secretary McDonald took office we were being kicked around fiercely by the VBA Agent Orange desk and the VHA Post-Deployment Health Services. Individuals in those departments fought our exposure claims and did so with total success. They implemented their own policy of "holding the line" (their words!) against our claims.

That would've gone on forever but for the installation of Mr. McDonald at 810 Avenue, and the arrival of other fair-minded leaders like Assistant Secretary Linda Schwartz and Dr. Ralph Erickson.

Agent Orange – Its Legacy Endures

Posted: December 9, 2016
Norman Stockwell



Forty years ago, on December 10, 1976, the United Nations General Assembly passed the “Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques” by a vote of 96 to 8. It was the first time the international body had addressed the issue of the use of defoliants in military conflicts. Article One of the document broadly states: “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”

Agent Orange was one of a series of chemical defoliants used by the U.S. military in the war in Vietnam. From 1962 to 1971, over 20 million gallons of herbicides were sprayed on jungle and agricultural land in Vietnam and the surrounding countries of Laos and Cambodia. The spraying was ostensibly to eliminate foliage providing cover for enemy troops. It was called Operation Ranch Hand. Reaching its peak between 1967-69, Operation Ranch Hand sprayed toxic chemicals over more than one fifth of all the forests in what was then South Vietnam.

Of the 2.7 million U.S. troops who served in Vietnam, more than 39,000 have filed claims with the Veteran’s Administration (VA) for Agent Orange related health issues and, according to the Vietnamese government, more than 4 million of its citizens were victims of the spraying. The VA acknowledges more than 14 forms of cancer and other nerve and heart diseases to be directly associated with Agent Orange exposure. Birth defects in children of those exposed carry the toxic legacy forward into the next generation on both sides.

The Progressive first covered concerns over the toxic effects of Agent Orange in a May 1973 column noting: “…two Harvard scientists reported that a chemical defoliant widely used by the United States in South Vietnam during the recent unpleasantness has contaminated that nation's food chain. The scientists—chemist Robert Baugham and geneticist Matthew Meselson, who have made previous ecological surveys of Indochina—found the chemical, dioxin, in shrimp and five species of fish taken from various waters in South Vietnam. Dioxin, an ingredient of the defoliant known as Agent Orange, was present in amounts known to cause disease, genetic damage, and death in animals. The effect on humans has not yet been determined, but we are likely to find out before too long.”

It was exactly four years later in June 1977, that Maude DeVictor, an employee at the VA in Chicago first began to document the cases of cancer clustered in veterans who had been exposed to Agent Orange. A June 1978 article in The Progressive by Michael Uhl and Tod Ensign told her story: “Maude DeVictor works behind a cold, steel gray desk in the Benefits Section of the Veterans Administration regional office in Chicago. She is not your average paper shuffler. In recent months, Maude DeVictor has joined the select ranks of whistle blowers — those heroic individuals who discover an outrage and, in defiance of bureaucracy or suppression, bring it to public notice. The outrage Maude DeVictor discovered was the shocking effect of dioxin poisoning on American veterans who came into contact with the herbicides that were used to defoliate more than five million acres of the Vietnamese countryside between 1962 and 1970. Her efforts have not only focused attention on the plight of these latest victims of the Vietnam war, but have also raised new warnings against the domestic hazards posed by the herbicides.”

C-123 Veterans Ethical Concerns

VA Ethical Failures:

The “Hard Wrong” of C-123 Agent Orange claims, 2007 – 2015     (CLICK FOR FULL ARTICLE)

An examination of worrisome ethical failures involving Veterans Benefit Administration and Veterans Health Administration is warranted. I am just a Veteran badly served for years by VBA ethical missteps. I’m no student of ethics. I looked up the definition of ethics: Gaymon's definition of ethics:  “viewing decisions through a lens of values, and determining the better alternative course of action.”

 In this paper I look at ethical problems in the light of that reasonable definition but also in the light of the VA mission statement. I believe too many decisions about C-123 Veterans were made without holding up any lens of values and without seeking any better alternative course of action.

Rickenbacker's Col. Bob Shondel passes

Obituary:

Robert George Shondel, 68, of Newport, KY, passed away on November 30, 2016 at the Cincinnati VA Hospital. 

He was a pilot with United States Air Force Reserves, serving in Desert Storm. He was the former Wing Vice Commander of the 445th Airlift Wing and former Squadron Commander of the 356th Airlift Squadron; He was inducted into the Order of the Rhino. 

Bob was a member of St. Catherine of Siena Church and a member of the Catholic Order of Foresters. He was a graduate of The Ohio State University with a degree in computer engineering and a master's of business; he retired from various leadership roles at the IBM Corporation. He was a member of the National Ski Patrol, active with the Boy Scouts of America Troop 86 and a member of the Cincinnati War Birds. 

Bob also enjoyed sailing, boating and camping. He was preceded in death by his parents, John Robert and Helen (Bidinger) Shondel. Bob is survived by his wife, Lynn (Joseph) Shondel; sons; Brandon (Rachel) Shondel and Robert C. Shondel; daughters, Cassandra (Benjamin) Greenwell and Bridget (Jordan) Sammons; brothers, William Shondel and Edward Shondel; sister, Kathleen (Dean) Blair, cousins, John (Dee) Shondel, Joe Shondel, Joyce (Paul) Oeschle and Ann Layer and many other family members. 

Help! Somebody else needs to run our association!

Help. Somebody needs to take over management of our C-123 Veterans Association. PLEASE!!
I started it and have been running it for five years but it is somebody else's turn at the helm. I say "We" a lot in the paragraph below but actually, nobody else is doing the work that needs to be done..Whoever leads our group pretty much has to do it by himself or herself.
Further, there is some expense getting this work done, mostly for travel and communications. When we started back in 2011 some very welcome financial help was offered by guys from the 731st, a couple windows and a few folks like Alan and Gail Harrington. Those of us who already had veterans benefits appreciated how important benefits are. What was chipped in was generous but was only a fraction of what we needed. I'm glad my wife wasn't watching our checkbook too closely.
There is nothing to do regarding membership, But everything to do regarding advocacy with the VA for the remaining issues on our plate. You will need a firm grasp of VA benefit programs, you should enjoy strategizing and have a bent for creative writing and negotiating. And of course, a detailed background on the C-123 and Agent Orange.
Let me explain:
A. Retroactivity:
1. Principally, we are working with our law firm with the goal of retroactive compensation for those veterans whose claims were submitted prior to June 2015. The VA only recognizes that as a start date and that is simply unacceptable. Besides our law firm generously providing pro bono assistance we are helpED by the National Veterans Legal Services Project.
2. We have further assistance from the principal veterans organizations, all of whom have signaled their support in writing directly to the Secretary of Veterans Affairs... VFW, DAV, Vietnam Veterans of America, ROA, Air Force Association, American Legion and Jewish War Veterans.
3. Senators Burr and Merkley have supported us from the start and continue to do so with their very energetic staffs.
B. Ongoing support for members claims:
1. We need to locate survivors to help them initiate claims for Dependents Indemnity Compensation. This is been very rewarding to reach out to folks like Cliff Turcotte's wife and others to get them the benefits we want for our families. We need to find others like Bob Boyd's wife
2. . It seems like every week or so one of our folks gets messed over by the VA on acclaim an opportunity presents itself to straighten things out. Sec. McDonald gave us a contact in the VA regional office in St. Paul Minnesota who provides excellent support in every way possible.
3. We need to keep up our efforts getting the word out to veterans from Westover, Pittsburgh and Richenbacher who have yet to hear that they have Agent Orange benefits available.
4. maintain the blog to inform our members and keep pressure on VA
I've done this for five years now, and it's simply time for somebody else to do this work. It is very rewarding every time I've had a phone call from a veteran whose claim just went through, but I want to share the joy and walk away from this as soon as possible.
Who's next? Give me a call.

VA failure in its "duty to assist" veterans claims, particularly with C-123 Agent Orange

Guest article follows: 
My own experience with the VA duty to assist gathering evidence to support veterans' claim was quite painful. For verification of Agent Orange claims the VA turns to the Department of Defense Joint Services Records Research Center (JSRRC) for confirmation of exposures outside Vietnam. Despite the fact that JSRRC serves as the VA research authority, for years VA succeeded in blocking JSRRC input vital to confirm our exposures aboard C-123s. Fortunately, in 2013 VA was provided proof which was made more substantial in 2014 by the JSRRC.

FACT: VA would not accept the JSRRC input, even though it is required to per the VA Adjudication Manual M 21 – 1MR.
FACT: JSRRC was willing to submit the confirmation to VA and Mr. Sampsel but what is required to wait for his request which he never issued, even with my requests.

FACT: even though JSRRC confirmation eventually reached the VA, VA failed to act on it in violation of its own regulations, because individuals at VA were determined to, in the words of its consultant Dr. Alvin Young, "hold the line" against our disability claims. This was on their personal prejudice and their office unofficial personal policy of blocking our claims.

When I first learned that the JSRRC did not have all the material it needed about our aircraft, I had it sent to them by the Air Force Office of Historical Records Research, by the CDC, by the US Public Health Service, by the National Institute of Environmental Health Sciences, by medical schools and schools of public health all across the country. I visited the director of the JSRRC, Mr. Dominic Baldini (a Coast Guard veteran) and was impressed by his desire to serve the needs of America's veterans. That is, if VA would allow him to do so.

The JSRRC is in Fort Belvoir Virginia and I wanted to get there so badly I had to take my wheelchair four miles from the bus drop off point to his office where I was warmly received by Mr. Baldini and his staff. And four wheelchair miles back to my bus after that meeting. 

The VA contact for the JSRRC was Mr. James Sampsel who ran the VA Agent Orange desk, and it was his responsibility to liaise between the two agencies. The problem was Mr. Sampsel kept telling the JSRRC he would not accept input about our exposures for a variety of reasons cited in different ways over the years.

When Mr. Sampsel said he would not accept scientist or physician input except from military officers, we had it provided by commissioned officers of the US Public Health Service who are considered by law serving military officers, including Rear Admiral R. Ikeda MD USPHS. Repeatedly, Mr. Sampsel agreed to internal VA authorities that our veterans proof was persuasive (by law that should have settled things in our favor) yet he failed permit permit himself to be moved, contrary to the pro-veteran responsibility he had.

Then Mr. Sampsel wouldn't accept input because he hadn't specifically requested it from the JSRRC. And he wouldn't, for years. Another method Mr. Sampsel used to block JSRRC confirmation of our exposures was to insist only federal government documentation would suffice. This is despite VA Adjudication Manual 21 – 1MR stating JSRRC is responsible for gathering evidence from all the federal government agencies. Regardless, in his zeal to block C-123 veterans' claims, Mr. Sampsel apparently decided the CDC, USPHS, NIEHS and other federal sources would not suffice because they too directly confirmed the veterans exposures and abused his intent to deny VA medical care and compensation.

Further, although JSRRC and VA are to consider any credible source of scientific and medical information regarding a veteran's exposure, Mr. Baldini was forbidden by Mr. Sampsel to submit evidence from dozens of university medical schools and schools of public health as well as the independent experts VA itself had utilized for such studies. Amazingly, Mr. Sampsel's department even refused to accept input from toxicologists and other scientists from CDC and other federal agencies by stating only physician input would be accepted. This was a blatant abuse of rulings from the US Ninth Circuit Court but was also quite amusing because VA itself frequently used PhD experts whereever appropriate including veterans claims.

By 2013 the JSRRC and poor  Mr. Baldini had suffered enough grief for me about this that they simply force-fed confirmation of my exposure to Mr. Baldini by sending him an email. This didn't seem to help much because Mr. Sampsel simply refused to act on it. The issue finally was resolved only by Secretary McDonald and his interim final rule published in June 2015.

But Mr. Sampsel can still claim victory because he personally blocked 2100 C-123 veterans claims for four years and locked us out of VA hospitals and denied us compensation for our injuries and illnesses. His great respect for his friend Dr. Young have much to do with his motivation and his shouting throughout the VA for many years that he had "an overwhelming preponderance of evidence" against our claims – evidence consisting only of the VA webpage saying so, plus his preference for input from Dr. Young rather than the CDC, US Public Health Service and dozens of other federal, state, and scientific authorities supporting our claims. He wrote that EVERY proof of our exposure was his "real problem."

In the end the Institute of medicine study clearly established our exposure injuries but it was only a partial victory against the clear victory Mr. Sampsel enjoyed in keeping us from the VA hospital for four years. Contrary to law, his department was anti-claimant, adversarial, and obstructionist. He succeeded in "holding the line" against our claims as recommended by his favored consultant, Dr. Al Young.

CONCLUSION: VA hurt us through intrinsic and extrinsic ethical failures, none of which remain addressed today.

================================================================
Guest Article
==========================================================================

By Kevin Courtney November 22, 2016 Updated: November 22, 2016 10:06pm

The Navy’s Blue Angels performed jaw-dropping maneuvers and inspired our next generation’s service members during San Francisco’s Fleet Week last month. Unfortunately, those future sailors and Marines might end up like today’s veterans, suffering from a failing U.S. Department of Veterans Affairs. Thanksgiving is a great opportunity to reflect on how we can best serve our veterans and their families.

Veterans’ benefits claims may go undecided for more than a year, an unimaginably difficult year for those who haven’t experienced it. Our newly elected government leaders should address how the VA can better care for our veterans.

Today, the VA has a duty to assist veterans in preparing their claims by getting complete and relevant records from any federal agency. Congress created this “duty to assist” by passing the Veterans Claims Assistance Act in 2000. Under this standard, the VA must “make reasonable efforts to assist the claimant.” But what happens when a reasonable effort falls short of accurate or complete records? Deciding a claim based on inferior records likely requires an appeal, and the veteran will consequently suffer unnecessary financial and emotional stress.

The U.S. Supreme Court believes the VA should be a “pro claimant” and “non-adversarial” department when deciding claims because it is the sole agency responsible for providing federal benefits to veterans and their families. And there are two features built into the VA’s claim process to help veterans: first is the lack of a statute of limitations for bringing disability claims. A statute of limitations is usually the maximum amount of time after an event a veteran can bring his legal claim. The second feature is the VA’s more liberal burden of proof, which should allow it to decide in the veteran’s favor when the evidence supporting his claim is only 50/50. But are VA employees following these standards?

Congress has increased the VA’s budget every year over the past decade, so insufficient funding is not a reason why the VA fails to be “pro claimant.” While VA executives continue to receive performance bonuses, veterans are left waiting for help. It is important for President-elect Donald Trump’s secretary of veterans affairs to change the ethos found within the VA, improve its efficiency and ingrain compassion in employees. There are thousands of dedicated, caring VA employees, but some require a reminder that behind every claim is a veteran who honorably served this country. And they need the VA’s help before it’s too late.

Twenty veterans commit suicide every day in our country. If the VA streamlined its system, then some of these veterans might get the timely help they need.

The VA has an obligation to realize its mission: “To fulfill President Lincoln’s promise ‘To care for him who shall have borne the battle, and for his widow, and his orphan’ by serving and honoring the men and women who are America’s veterans.”

This Thanksgiving holiday, consider the benefits you enjoy thanks to a veteran. Then consider how you want the VA to treat our veterans.

Kevin M. Courtney is a student judge advocate for the U.S. Marine Corps and a second-year law student at UC Berkeley Hastings College of the Law. When the VA denied his claim for his father’s service-connected death, he spent the next four years trying to understand how the bureaucratic system functioned — or failed to function.

Guest article follows: my own experience with the VA duty to help gather evidence to support

veterans' claim was quite painful. For verification of Agent Orange claims the VA turns to the Department of Defense Joint Services Records Research Center (JSRRC) for confirmation of exposures outside Vietnam. Despite the fact that JSRRC serves as the VA research authority, for years VA succeeded in blocking JSRRC input vital to confirm our exposures aboard C-123s to the VA.

FACT: VA would not accept the JSRRC input, even though it is required to at the VA Adjudication Manual M 21 – 1MR. 

FACT: even though JSRRC confirmation eventually reached the VA, VA failed to act on it in violation of its own regulations, because individuals at VA were determined to, in the words of its consultant Dr. Alvin Young, "hold the line" against our disability claims. This was on their personal prejudice and their office unofficial personal policy of blocking our claims.

When I first learned that the JSRRC did not have all the material it needed about our aircraft, I had it sent to them by the Air Force Office of Historical Records Research, by the CDC, by the US Public Health Service, by the National Institute of Environmental Health Sciences, by medical schools and schools of public health all across the country. I visited the director of the JSRRC, Mr. Dominic Baldini (a Coast Guard veteran) and was impressed by his desire to serve the needs of America's veterans. That is, if VA would allow him to do so.

The JSRRC is in Fort Belvoir Virginia and I wanted to get there so badly I had to take my wheelchair four miles from the bus drop off point to his office where I was warmly received by Mr. Baldini and his staff. And four miles back to my bus after that meeting.

The VA contact for the JSRRC was Mr. James Samsel who ran the VA Agent Orange desk, and it was his responsibility to liaise between the two agencies. The problem was Mr. Sampsel kept telling the JSRRC it would not accept input about our exposures for a variety of reasons cited in different ways over the years.

When Mr. Sampsel said he would not accept scientist or physician input except for military officers, we had it provided by commissioned officers of the US Public Health Service who are considered by law serving military officers.

Then Mr. Sampsel wouldn't accept input because he hadn't specifically requested it from the JSRRC. Another method Mr. Sampsel used to block JSRRC confirmation of our exposures was to insist only federal government documentation would suffice. This is despite VA Adjudication Manual 21 – 1MR stating JSRRC is responsible for gathering evidence from all the federal government agencies. In his zeal to block C-123 veterans' claims, Mr. Sampsel apparently decided the CDC, US PHS, NIESH and other Federal sources would not suffice because they too directly confirmed the veterans exposures and abused his intent to deny VA medical care and compensation.

By 2013 the JSRRC and Mr. Baldini had had enough grief for me about this that they simply force-fed confirmation of my exposure to Mr. Baldini by sending him an email. This didn't seem to help much because Mr. Samsel simply refused to act on it and the issue finally was resolved only by Secretary McDonald and his interim final rule published in June 2015.

But Mr. Sampsel should still claim victory because he personally blocked 2100 C-123 veterans claims for four years and blocked us out of VA hospitals and denied us compensation for our injuries and illnesses. His great respect for his friend Dr. Young have much to do with his motivation and his shouting throughout the VA for many years that he had "an overwhelming preponderance of evidence" against our claims – evidence consisting only of the VA webpage saying so, plus his preference for input from Dr. Young rather than the CDC, US Public Health Service and all the other authorities supporting our claims.

In the end the Institute of medicine study clearly established our exposure injuries but it was only a partial victory against the clear victory Mr. Sampsel enjoyed in keeping us from the VA hospital for four years. Contrary to law, his department was anti-claimant, adversarial, and obstructionist. He succeeded in "holding the line" against our claims as recommended by his favored consultant, Dr. Al Young.

CONCLUSION: VA hurt us through intrinsic and extrinsic ethical failures, none of which remain addressed today.

----------------------------------------------------------

By Kevin Courtney November 22, 2016 Updated: November 22, 2016 10:06pm

The Navy’s Blue Angels performed jaw-dropping maneuvers and inspired our next generation’s service members during San Francisco’s Fleet Week last month. Unfortunately, those future sailors and Marines might end up like today’s veterans, suffering from a failing U.S. Department of Veterans Affairs. Thanksgiving is a great opportunity to reflect on how we can best serve our veterans and their families.

Veterans’ benefits claims may go undecided for more than a year, an unimaginably difficult year for those who haven’t experienced it. Our newly elected government leaders should address how the VA can better care for our veterans.

Today, the VA has a duty to assist veterans in preparing their claims by getting complete and relevant records from any federal agency. Congress created this “duty to assist” by passing the Veterans Claims Assistance Act in 2000. Under this standard, the VA must “make reasonable efforts to assist the claimant.” But what happens when a reasonable effort falls short of accurate or complete records? Deciding a claim based on inferior records likely requires an appeal, and the veteran will consequently suffer unnecessary financial and emotional stress.

The U.S. Supreme Court believes the VA should be a “pro claimant” and “non-adversarial” department when deciding claims because it is the sole agency responsible for providing federal benefits to veterans and their families. And there are two features built into the VA’s claim process to help veterans: first is the lack of a statute of limitations for bringing disability claims. A statute of limitations is usually the maximum amount of time after an event a veteran can bring his legal claim. The second feature is the VA’s more liberal burden of proof, which should allow it to decide in the veteran’s favor when the evidence supporting his claim is only 50/50. But are VA employees following these standards?

Congress has increased the VA’s budget every year over the past decade, so insufficient funding is not a reason why the VA fails to be “pro claimant.” While VA executives continue to receive performance bonuses, veterans are left waiting for help. It is important for President-elect Donald Trump’s secretary of veterans affairs to change the ethos found within the VA, improve its efficiency and ingrain compassion in employees. There are thousands of dedicated, caring VA employees, but some require a reminder that behind every claim is a veteran who honorably served this country. And they need the VA’s help before it’s too late.

Twenty veterans commit suicide every day in our country. If the VA streamlined its system, then some of these veterans might get the timely help they need.

The VA has an obligation to realize its mission: “To fulfill President Lincoln’s promise ‘To care for him who shall have borne the battle, and for his widow, and his orphan’ by serving and honoring the men and women who are America’s veterans.”

This Thanksgiving holiday, consider the benefits you enjoy thanks to a veteran. Then consider how you want the VA to treat our veterans.

Kevin M. Courtney is a student judge advocate for the U.S. Marine Corps and a second-year law student at UC Hastings College of the Law. When the VA denied his claim for his father’s service-connected death, he spent the next four years trying to understand how the bureaucratic system functioned — or failed to function.

VA grants 100% disability claim for C-123 Agent Orange Avascular Necrosis

Today I received a VA 100% service-connected disability decision for bilateral hip avascular necrosis, having had three replacements in four years. This disease is not automatically recognized by the VA as associated with Agent Orange exposure so I had to establish medical nexus with three MD letters, three BVA decisions, and two peer-reviewed journals.

This is in addition to earlier decisions of 100% disability for prostate and bladder cancers and 100% for loss of use of both feet, which was also Agent Orange related per diabetes @ 20%. I was also previously service-connected for Agent Orange exposure with 20% for IHD. I already had 60% for cervical spinal cord injury and 40% for lumbar spinal cord injury, 10% for tinnitus, plus 20% for shoulder injuries. What a mess I am!

The VA decision review officer agreed there was Clear and Unmistakable Error on my hypertension claim denied in 1992 because I was on AD when diagnosed in 1991. Correction took 24 years!

Final result: I'm still at the same 100% total disability (even with a total of 460%) because that's the top end of the VA scale. I was already there because of shoulder and spinal injuries but this is a moral victory in getting VA to recognize the exposures and the resultant illnesses. It is my hope that the avascular necrosis decision will help other veterans in their claims.

Our C-123 Agent Orange Freedom of Information Act Lawsuits: $120,000 spent in legal fees

This month I had three questions from other veterans about why our effort to get documents released from the VA and USAF managed to cost over $120,000. Easy answer – because that's all I had to spend; if we'd had more money and more time we would've spent it to get more documents uncovered.

I began filing Freedom of Information Act (FOIA) requests in early 2011. I soon asked Paul Bailey to file some as well to see if the responses produced different results. Initially, these went to Davis-Mothan Air Force Base and Hill Air Force Base where responses were timely and quite revealing. Several CDs were released and on them we found the first test reports showing dioxin contamination, destruction of the aircraft as toxic waste, internal memos from the Air Force consultant in many other documents that focused the next four years of our effort.

We had to study thousands of documents

Eventually we identified two major areas for further investigation. The first was the general manner in which VA initially developed its response to our exposure claims and then the finer details of that VA opposition. There were several damning "gotcha" discoveries revealing the VA deception, such as the VA claim to have an "overwhelming preponderance of evidence" against our claims being mere policy statement, not fact or science. (#1: VA Lawsuit)

The second was the Air Force 2012 C-123 Consultative Letter in which the US Air Force School of Aerospace Medicine examined the aircraft contamination. That report generally concluded the aircraft was contaminated and aircrew exposure possible yet, illogically, somehow unlikely to be harmful. This letter was seized upon by the VA as part of their justification for denying our claims and thus was very important to us. A confidential Air Force source had told us the report was tainted by command interference and was scientifically flawed. (#2: USAF Lawsuit)

These FOIA requests to VA and USAF were submitted properly, acknowledged by the government but never fulfilled. The Air Force initially indicated its cooperation, although two years past and it became clear no substantive response was forthcoming. The VA first refused to waive research fees and then, to stall us, demanded thousands of dollars for only a partial response. Then, that response failed to materialize even though we successfully appealed the estimated fee requirement.

At this point citizens can contact FOIA ombudsman in these departments but there we were also stonewalled. The only option left was federal court action compel the agencies involved to obey the law and meet their requirements. This is where most citizens find themselves helpless because the agencies involved have free legal support from their own staffs and the Department of Justice but a citizen must retain private counsel to go to court.

And that's where $120,000 of legal fees were needed.

We filed FOIA lawsuits in the US District Court of Washington DC and spent nearly three years and all that money to get the documents we required and which we are entitled to at the outset. A few papers were withheld for personal privacy or under the government's concept of "Deliberative Process" which is used to prevent discovery of how they came to conclusions (new FOIA rules enacted this year help correct this.) Interestingly, a part of the USAF FOIA was to the Air Force Surgeon General – that response was about 300 pages what's only 20 pages or so with text, all the rest redacted for one reason or another. We had ask – what the heck did the Air Force want to keep secret about our health and this 60-year-old airplane? We never found out.

Lesson learned #1: Federal agency compliance with FOIA requirements is very poor
throughout the government, but especially the VA and the military departments. Without
hundreds of thousands of dollars to pursue one's rights under the FOIA law there simply is
no way to proceed and our rights are trampled. Both VA and USAF agreed in court we
were right and they were wrong – we'd been entitled by law to the requested materials and
should have been given them years earlier when first sought in our FOIAs. .

Lessons learned #2: The 2014 Institute of Medicine C-123 Committee was provided all these documents and from them, and from other inputs, convinced the VA we'd been exposed and VA soon agreed. An especially alarming and disappointing IOM observation was offered from their review of documents we discovered:

Reports "from those in the military or associated with the VA tend to minimize the possibility of an increased risk of exposure and adverse health outcomes."

It is by such improper manipulation and deception that the VA denies veterans our legally required benefit of the doubt, subjecting veterans to a standard of absolute proof rather than mere equipoise. It was by this manipulation and deception that VA ignored confirmation of our exposures given at years earlier by the CDC and other authorities.

VA Study Links Hypertension to Agent Orange Exposure

Today, ProPublica published another in their outstanding series on Agent Orange, this one reporting the link found by VA researchers between Agent Orange and hypertension. VA itself presently doesn't recognize hypertension among the fourteen ailments for which it provides care and compensation, but the decision to change that now rests with the incoming Trump administration.

And it will cost! Billions upon billions, because so many citizens develop hypertension even without toxic exposures, and hypertension is one of the most cared-for illnesses among today's veterans. If anyone has an accurate estimate about the cost, they're not saying it out loud!

An abstract of the hypertension study can be found here from the Journal of Occupational and Environmental Medicine.

ProPublica's last major article about Agent Orange addressed the C-123 veterans and our five-year struggle to successfully get our members medical care and disability compensation,

VA Reverses Joe Collins' C-123 Agent Orange Claim Denial – grants full benefits at last

I wrote earlier (4 Oct 2016) about reading a June 2016 Board of Veterans Appeals denial of a vet's appeal that had a lot of C-123 info in it, including the years the unnamed vet served at Hanscom AFB and that he'd worked on the C-123s there. With the help of the Westover "old geezers' network we were able to identify the vet as Joe Collins.

The facts were clear...there was no way the denial would hold up, yet there it was, denied and any correction likely to take years. But the vet, according to the denial, had advancing cancer. It couldn't and shouldn't wait.

It only took a couple of phone calls to VA HQ as well as their St Paul C-123 claims center to start correcting this injustice. Three months passed. Yesterday VA posted the "new and improved" BVA decision about Joe Collins' claim, awarding him full disability and calling its error, "a denial of due process of law."

Whatever. What matters is that Joe and his wife are now protected with the benefits due his Agent Orange illnesses, and the event proves we have to keep looking out for each other, especially our elder brothers and sisters who too often get ignored or mistreated by VA.

Here's the text of the BVA re-decision. It states that new evidence was submitted after Joe's June denial, but that's incorrect. All I did was point out the VA's own magnificent error.

Citation Nr: 1637572

Decision Date: 09/23/16   Archive Date: 09/30/16

DOCKET NO. 15-34 922   )       DATE

On appeal from the

Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

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

2.  Entitlement to service connection for chronic lymphocytic leukemia (CLL).

REPRESENTATION

Veteran represented by: Massachusetts Department of Veterans Services

WITNESS AT HEARING ON APPEAL
The Veteran

ATTORNEY FOR THE BOARD

J. J. Tang, Associate Counsel
INTRODUCTION

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, verified periods of active duty for training from October 28, 1962, to November 28, 1962, and additional active duty for training in 1972 and 1973, with the United States Air Force Reserves.

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.

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 2015).

FINDINGS OF FACT

1.     On June 2, 2016, the Board issued a decision that declined to reopen the previously denied claim for service connection for CLL, and in this decision, the Veteran was denied due process of law.

2.     In a November 2012 Board decision, the Board denied a claim for service connection for CLL, based on the determination that such disability was not incurred in or aggravated by active service.

3.    The Veteran did not appeal the November 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court) and did not file a request for reconsideration of the November 2012 Board decision.

4.    The additional evidence received since the November 2012 Board decision is new and raises a reasonable possibility of substantiating the claim for service connection for CLL.

5.    The Veteran has CLL, the Veteran was exposed to an herbicide agent from C-123 aircraft in the line of duty during a period of active duty for training in the Air Force Reserves during the Vietnam era in 1972 and 1973.

CONCLUSIONS OF LAW

1.   The June 2, 2016 decision of the Board is vacated. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015).

2.   The November 2012 Board decision, which denied entitlement to service connection for CLL, is final. 38 U.S.C.A. § 7104(b) (West 2010); 38 C.F.R. § 20.1100 (2012).

3.   The additional evidence received since the November 2012 rating decision is new and material to the claim for service connection for CLL, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).

4.   The criteria for service connection for CLL are met. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Vacatur of Board Decision

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). On June 2, 2016, the Board issued a decision that declined to reopen the previously denied claim for service connection for CLL, and in this decision, the Veteran was denied due process of law. Accordingly, the June 2, 2016 Board decision addressing the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for CLL, is vacated.

Duties to Notify and Assist

Because the Board is reopening the previously denied claim for service connection for CLL and granting the claim on the merits, discussion concerning compliance with the duties to notify and assist is not necessary.

Application to Reopen the Claim for Service Connection

Even if a prior decision becomes final, a claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (applying to claims to reopen that are filed after August 29, 2001). Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide a medical examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In a November 2012 Board decision, the Board denied a claim for service connection for CLL, based on the determination that such disability was not incurred in or aggravated by active service. After the Veteran was notified of the adverse decision, the Veteran did not appeal the November 2012 Board decision to the Court, nor did he file a request for reconsideration of the November 2012 Board decision. Therefore, the Board decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7104(b) (West 2010); 38 C.F.R. § 20.1100 (2012).

At the time of the November 2012 Board decision, the evidence of record included the Veteran's service records, post-service treatment records, and the Veteran's statements. Such evidence showed a diagnosis of CLL, that the Veteran served as an Air Reserve Technician (ART) from 1970 to 1973, and that the Veteran's service as an ART was during a period of active duty for training in the Air Force Reserves at Hanscom Air Force Base.

The additional evidence presented since the November 2012 rating decision includes the Veteran's written statements describing his work as an ART during active duty for training in the Air Force Reserves at Hanscom Air Force Base. The Veteran also submitted annual statements of Reserves credits for 1972 and 1973, in which the Veteran is shown to have had credits for days of active duty for training service during these years. The credibility of the Veteran's statements is presumed for the purposes of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that tends to indicate that the Veteran may have been exposed to an herbicide agent regularly and repeatedly in the line of duty during a period of active duty for training during the requisite time period in the Vietnam era was absent at the time of the November 2012 rating decision, and this evidence, in conjunction with the newly revised regulation pertaining to herbicide exposure for Air Force Reserves crewmen, raises a reasonable possibility of substantiating the claim. Thus, the Board finds that new and material evidence has been submitted. The claim for service connection for CLL is reopened. The merits of the claim for service connection are discussed below.

Service Connection

A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).

"Active military, naval or air service" includes periods of active duty for training (ACDUTRA) during which a disease or injury was incurred or aggravated in the line of duty. See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6; see also Biggins v. Derwinski, 1 Vet. App. 474 (1991).

Generally, to establish entitlement to service connection, the claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran has been diagnosed with CLL, per the medical evidence of record. Thus, the present disability is shown.

The Veteran contends that his CLL is the result of exposure to an herbicide agent during active service. The Veteran contends that he was working as an ART at Hanscom Air Force Base from 1970 to 1973, and as discussed above, his Reserves credits records confirm periods of ACDUTRA in 1972 and 1973. The Veteran reports that he worked on C-123 aircraft that had been used to spray an herbicide agent in Vietnam. In a January 2009 statement, the Veteran reported that though he was not actually removing tanks and equipment from the aircraft, he was around the aircraft on a daily basis. In September 2009, the Veteran submitted a statement from a fellow ART that reported that over a period of several weeks, he and the Veteran physically checked on the status and decontamination of a C-123 aircraft that had arrived at the base for decontamination. The Veteran also testified at the April 2016 Board hearing regarding his specific duties as an ART on the C-123's, including taking floor boards out of the airplanes and doing maintenance inside and outside the airplanes. The Board finds that the Veteran's statements describing his duties as an ART during ACDUTRA and the Veteran's fellow ART's statements regarding their duties as ARTs are credible.

Newly revised 38 C.F.R. § 3.307(a)(6)(v) states, "An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph,'regularly and repeatedly operated, maintained, or served onboard C-123 aircraft' means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service."

In light of the recent revised regulation, and given the credible statements as to the nature and duration of the Veteran's duties as an ART working with C-123 aircraft during these aforementioned periods of ACDUTRA, the Board finds that the Veteran regularly and repeatedly maintained C-123 aircraft during the Vietnam Era as a crewmember of an Air Force Reserve Squadron. Thus, under 38 C.F.R. § 3.307(a)(6)(v), exposure to an herbicide agent in the line of duty during ACDUTRA is shown.

CLL is included in the list under 38 C.F.R. § 3.309(e). There is a presumption of service connection for a Veteran who was exposed to an herbicide agent during active service and is diagnosed with CLL that manifested to a compensable degree at any time after service, unless there is affirmative evidence to show that the disease is not related to exposure to an herbicide agent. 38 C.F.R.

§ 3.307(a); see 38 C.F.R. § 3.307(d).

Here, the Board has found that exposure to an herbicide agent is shown, and such exposure constitutes an injury for purposes of determining whether the Veteran's CLL was incurred in active air service. Further, the Veteran's CLL is presumed to be service-connected on the basis of his exposure to an herbicide agent during his ACDUTRA service in the Vietnam era. For these reasons, the Board concludes that the Veteran's CLL was presumptively incurred in active air service, and service connection for CLL is granted.

ORDER

The June 2, 2016 decision of the Board is vacated.

Because new and material evidence has been received, the claim for service connection for CLL is reopened.

Entitlement to service connection for CLL is granted