22 September 2017

BVA Screws Up Another C-123 Vet's Appeal?

It looks like BVA has trampled over the facts of another veteran's appeal.

In early August 2017, a denied claim was reconsidered by the VA Board of Appeals in West Virginia. The vet claimed service connection for Agent Orange exposure during his assignment to the 327th Tactical Airlift Group at Lockbourne. BVA determined that the vet wasn't exposed to C-123 Agent Orange contamination because the 317th "was nor recorded as having operated or maintained  the ORH (OPERATION RANCHHAND) C-123 aircraft."
EXCEPT: The 317rh did fly assigned C-123 transports!

A two-second Google search showed that the 317th was assigned C-123 transports between 1969-1971,
"Further, the Board's previous remand directed the RO to determine whether the Veteran serviced Operation Ranch Hand (ORH) C-123 aircraft during his military service, which are affected aircraft under the regulation. The RO determined that the Veteran was stationed at one air base, Lockbourne Air Force Base, where ORH C-123 aircraft were stationed while the Veteran was present. However, the Veteran's assigned squadron, the 317th Air Lift Group, was not recorded as having operated or maintained the ORH C-123 aircraft, and he thus was not found to have regularly and repeatedly operated or maintained affected aircraft under the regulation. Therefore, this case turns on whether the Veteran was exposed to herbicide agents as a result of his military service in Thailand."

Tachikawa Airfield, Japan, 18 August 1948 - c. 21 September 1948
Wiesbaden Air Base, Germany, c. 30 September 1948
Celle RAF Station, Germany (later: West Germany), 9 January – 14 September 1949
Rhein-Main Air Base, West Germany, 14 July 1952
Neubiberg Air Base, West Germany, 17 March 1953
Évreux-Fauville Air Base, France, 17 April 1957 – 25 September 1958; 15 April 1963 – 20 June 1964
Lockbourne Air Force Base, Ohio, 20 June 1964
Pope Air Force Base, North Carolina, 31 August 1971 – 20 August 1993
Dyess Air Force Base, Texas, 1 April 1997–present
C-47 Skytrain, 1942–1948
C-46 Commando, 1948
C-54 Skymaster, 1948–1949
C-119 Flying Boxcar, 1952–1957, 1957–1958
C-130 Hercules, 1957–1958, 1963–1964, 1964–1971, 1971–1993, 1997–2012
C-124 Globemaster II, 1963–1964
C-123 Provider, 1969–1971.
Lockheed Martin C-130J Super Hercules, 2010–present

Luckily, this vets' appeal was approved on other justification, but everyone involved let the vet almost get denied. BVA should have checked as should VFW, WHO REPRESENTED THE VETERAN!!

13 September 2017


   Every C-123 Agent Orange claim ever submitted was denied until June 2015, but still, VA insisted it had no blanket denial policy. How else are ten years of 100% denials described? With instructions like the examples below, there clearly was an official blanket denial policy. This denied Due Process, misled Congress when it tried to help us, ignored VAM21-1MR and provisions of US statutes and Federal Regulations. It was deceptive and an amazing abuse of discretion.

    Look at the following list of promises of case-by-case consideration. All of them, however earnestly offered, are shown to be false in the memo authored by VBA's Agent Orange expert, Mr. James Sampsel. He wrote, "If we were to adopt a case-by-case plan, an additional problem would be how to determine whether a particular post-Vietnam C-123 crew member was flying stateside on a former Ranch Hand aircraft." 

    See the point? He's discussing VA adopting a case-by-case plan, making it clear VA never had one! Why? Because VBA wanted to avoid the "slippery slope" his memo warned of.

VA has the means to punish veterans making false claims, but veterans have nothing except outrage to deal with VA's abuse of discretion and false promises.

"Scouts' Honor?"
• "All claims are considered on a case-by-case basis." – former Secretary Shinseki
• "All claims considered on case-by-case basis." – Under Secretary Hickey
• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel
• "All claims are considered on a case-by-case basis." – VA Deputy Chief Consultant Post-Deployment Health
• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26, 2012, May 23, 2014
• "Makes a case-by-case determination..." – VA Office of General Counsel
• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee
• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page
• "These claims will be decided on a “case-by-case basis" – VA Agent Orange consultant
• "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service
    • "Claims are evaluated on a case-by-case basis." – VA Public Affairs

"I cannot tell a lie!...except about C-123s"

     VBA informed regional off
ices how to deny all claims, and when ROs asked CS for they were told how to deny C-123 claims (VBA and VHA leaders made similar statements.)
     Every one of these was eventually shown to be in error, yet VA has never made right the harm done affected veterans.

•  “VHA has already informed CS that no C-123 exposure claims will be approved because there was no exposure” (Mr. Tom Murphy to Wes Carter and Major Marlene Wentworth, NC USAF on 28 Feb 2013, in his office)
•   "No amount of proof from whatever source will permit a C-123 claim approval. Because we've already determined there was no exposure." (Dr. Mike Peterson VHA to Wes Carter and Mr. Brooks Tucker [Senator Burr's staff] at Senate Hart Building meeting, May 2012)

•  "There was no exposure. (Consultant representing VA at June 2014 IOM C-123 hearing)

•  "VA laws and policies related to Agent Orange exposure, whether presumptive or based on fact-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide"*

"TCDD is believed to persist in the metallic (or painted) environment with the lack of direct sunlight; however, its exposure risk is low due to lack of bioavailability and possible routes of exposure."

• "Therefore, it can be concluded that crews who worked on C-123 aircraft after they were used in the Vietnam War were not at risk of developing TCDD/Agent Orange-related health effects"

* Liquid Agent Orange only? A novel concept, but an outrageous one in toxicology. Agent Orange and its contaminant TCDD are deadly as a liquid, gas, solid or anything in between. The IOM concluded that, despite VA's "liquid" slight-of-hand. C-123 veterans were exposed via dermal, inhalation and ingestion routes of exposure.
** Mr. Murphy references the letter to Secretary Hickey from the Committee of Concerned Scientists and Physicians, which sought to satisfy the legal and scientific requirements for veterans' Agent Orange benefits per 38 USC and the VA's three eligibility statements in the Federal Register, i.e. exposure alone.

Here is VA's first position statement from April 2011 addressing C-123 exposure inquiries. 
• The first point is correct: at that time, only Vietnam veterans had "presumptive exposure." The law was that other claimants would have to prove exposure on a fact-proven basis as we proceeded to do.
• The next four VA points were either disproved by the IOM or, with the third point, clearly CUE.