24 February 2018


That's how I read it. 

And if I'm right, it means retroactive disability for some Reservists who happen to satisfy requirements for statutory veteran status. Translation: If a Reservist has some other service-connected disability dating from before the June 2015 liberalizing rule, such as tinnitus, the law's requirement for being a proper "veteran" for benefits is met. VA "will presume that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service."

The earlier injury for tinnitus or whatever satisfies requirements for veteran status without having to rely on the liberalizing rule's effective date of June 19, 2015. Ideas?

Here's the Federal Register C-123 posting:

Further, in consideration of the reserve component members with such service, VA will consider this presumed herbicide exposure to be an “injury” under section 101(24)(B) and (C). In turn, if such individual develops a presumptive disease listed in 38 CFR 3.309(e), as specified in 38 CFR 3.307(a)(6)(ii), “it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service.” 

23 February 2018


WHAT THE HECK? As a lifetime DAV member, I'm outraged! DAV has just debased itself and honored the administrator who bottled up our C-123 claims for four years, Mr. Thomas Murphy of the Veterans Benefit Administration. DAV forgets it was Mr. Murphy who approved the infamous no-bid sole-source $600,000 contract to Al Young to oppose Agent Orange claims. DAV forgets its own powerful denunciation of VA and that contract. Only with a blank memory could DAV or any other veterans organization lower itself to "honor" Mr. Murphy. Background: Along with Major Marlene Wentworth, I sat in front of Mr. Murphy in his office the afternoon of February 28, 2013 and read back to him his toxic September 25, 2012 advisory opinion in which he personally denied a C-123 veteran’s disability claim that the regional office had wanted to approve.Each of the four pages of Murphy’s opinion reeked of mistakes and revealed his passion in preventing C-123 claims. He excelled in that passion by denying 100% of our claims for over four years. For this disservice to thousands of C-123 veterans DAV now chooses to honor him? Outrageous! The thrust of that advisory opinion back in 2012 was his dismissal of all expert input establishing a veteran’s exposure from our Agent Orange-contaminated C-123 aircraft. Supporting the claim were reports from federal agencies, including the CDC/ATSDR, NIH, US Public Health Service, the National Institute of Environmental Health Sciences. Dozens of experts of the Committee of Concerned Scientists and Physicians also confirmed C-123 veterans’ exposure injuries. 
It is my understanding this particular application had more supporting evidence than any other VA disability claim ever submitted. Where typically a doctor’s note, some proof of service and perhaps an outside expert opinion would accompany a disability claim, this C-123 claim had a full-court press of government and independent experts, all making clear the fact of C-123 Agent Orange exposure. It was, in VA terms, “an overwhelming preponderance of evidence.”
None of which sufficed for Mr. Murphy. Determined to maintain the zero-approval stone wall he and others built against C-123 claims, he simply dismissed everything. He said these scientists and physicians, many of whom previously were VA and IOM experts, weren’t even qualified to comment.
Most outrageous was his dismissal of the report by Dr. Thomas Sinks, Deputy Director of the CDC/ATSDR. Dr. Sinks’ opinion on C-123 Agent Orange was dramatic: C-123 vets had exposure 182-times military safety limits and face a 200-fold greater risk of cancers. Later, Sinks' report would prove pivotal in the final IOM report confirming C-123 exposure injuries.
The Sinks report was also affirmed by the CDC/ATSDR director Dr. Christopher Portier and other NIH executives, including Rear Admiral R.Ikeda MD, US Public Health Service.
Not nearly enough for Mr. Murphy, who trashed the CDC/ATSDR report:

Read carefully Mr. Murphy’s last sentence: "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects."  Read that he did not repeat the frightening CDC/ATSDR details about exposures 182-times safety limits, or increased cancer risks.
Agent Orange is harmless? No health effects? Mr. Murphy summarized the CDC/ATSDR report about our 200-fold greater risk of cancers as “no adverse health effects?”
Later, a VA spokesperson called that “an unfortunate choice of words,” but it sufficed for Mr. Murphy’s purpose of ensuring that no C-123 claims would get past his desk. Years would pass before the first claim did succeed in 2015.
With his staff also present, I read his statement to him during our meeting on February 28, 2013 and Mr. Murphy said it would stand. He also said no evidence from whatever expert would permit C-123 claim approval because VHA had already decided we were never exposed. Meanwhile. on the other side of its official mouth, VA was falsely insisting that all our claims were evaluated on a case-by-case facts-proven basis. 
For Mr. Murphy’s mistreatment of thousands of C-123 veterans and his failure to follow his own VAM21-1MR regulation, DAV now stoops to “honor” this Agent Orange claim opponent. Totally disgraceful!

10 February 2018

VA’s Three Biggest Failures on C-123 Agent Orange Disability Claims: Early VA errors still hurt our claims

We were abused by a flawed claims system – flawed in that VA staff chose to actively oppose us although their legal duty demanded a non-adversarial pro-veteran process. Numerous federal agencies and independent experts argued for years in support of legal and scientific merits of our exposure claims but instead a handful of VA staff broke their own rules and turned a deaf ear.

Key conclusions regarding the three VA actions against C-123 veterans detailed in this report:
1    By January 2012 VBA had “an overwhelming preponderance of evidence” supporting C-123 veterans’ herbicide exposure claims but instead VA insisted it had a preponderance of evidence against the claims.
2    When C-123 veterans turned for help prior to June 2015, they were told no C-123 claims could be granted and thus very few “fought the system” and bothered to apply for disability benefits. VA staff was trained that C-123 claims could not be approved, so none were.
3    As far as VA records indicate, the only time CDC, NIH and other federal agencies opined in support of exposure claims was for C-123 veterans. VA disputed all such input and denied all claims anyway.
4    VA abused its duties per law and VAM21-1MR for “benefit-of-the doubt, fact-proven, non-adversarial, paternalistic, pro-veteran,” and “case-by-case” claims evaluation, instead imposing a C-123 blanket denial policy.

In the end, with help from CDC and numerous experts, we were proven correct in the law and the science. But, in the end, that meant years wasted while our claims should have been advancing. Years went by while VA refused veterans and families all care and benefits. Survivors couldn’t even get a folded flag. Years went by with VA instructing staff against every C-123 claim, and often discouraging vets from even applying. VBA must now adjudicate C-123 claims and appeals in the most pro-veteran basis, giving every possible benefit of the doubt...and a bit more!

People just can’t help it. Not only are they decades past wanting to hear about Agent Orange, their eyes unusually glaze over if I begin explaining how VA blocked 2100 of our Agent Orange claims for many years. Actually, nobody should be surprised at VA failings with our couple thousand when one remembers VA blocked tens of thousands of sick veterans’ claims until Congress jammed the 1991 Agent Orange Act into their playbook. To anyone who actually listens, my narration seems outrageous, phony or self-serving. If I get into any details I quickly lose my listener. Their expression says it all: “This is outrageous. VA would never even consider such anti-veteran deceptions. Someone’s making it all up.”

Actually, nothing’s made up or imagined, and I hope to make a case that SMCs are appropriate from 3/2011 forward, particularly loss of use of both legs, bilateral avascular necrosis of the hips (with revision in 2012, third replacement 2015 following diagnosis 2011, Hyperlinks in this essay go to the VA’s own source documents. VA resolutely opposed our claims in violation of every legal and moral duty and in total contrast to empty assurances given our elected representatives. In April 2011 I had faith in the VA, faith that they’d carefully check out my claim and weigh the supporting evidence; an approval would be forthcoming.

My trust in the VA lasted years past when I should have been screaming “foul,” but when they rejected all expert evidence from the CDC and NIH, I pretty much knew what so many veterans complained about was true. And when in 2015 I finally got thousands of pages of VA internal documents released thru the Freedom of Information Act there was little trust left.

Rather than dig into the dozen or so worst examples of VA mistreatment, I’ll write about three of their worst tactics that really hurt C-123 veterans, and stalled our disability claims for many years:
     • First, VA insisted in every possible response to veterans, Congress and the press that they had no “blanket policy” against our claims, and rather, each claim was carefully evaluated on a case-by-case basis. Nope!
    Second, VA insisted from the very first it had “an overwhelming preponderance of evidence” against our claims. Nope!
     Third, VA said we could submit claims for “fact-proven” consideration. Yes they said that, but Nope, there never was proper consideration of even a single claim.