Needed: someone else to lead The C-123 Veterans Association

Friends, at this point I've become a reluctant conscript. It is been six long years at a time in my life when I'd rather have done other things but this work needed to come first. Six years, however, is plenty long enough.

Isn't there someone who could find the time to take on these modest duties? Most of the legwork and the foundation building has been done so we are left with ongoing chores of helping one another and the remaining objective of retroactive compensation. That I will continue working on thru this year if agreeable but I'm glad to pass it to others as they'd like.

Ideally, one of our C-123 veteran brothers or sisters would like to help run things but I'm certainly open to any veteran of any era who would like to serve our folks and others in the veteran community. How about you folks from Pittsburgh or Richenbacher taking a turn at the helm (sorry, stick?) Flight nurses, maintainers, navs, loads, life support??

the last bag drag

You might've noticed that we're very informal, lacking secret handshakes, membership cards, dues or anything else hinting of organization. This is strictly a volunteer opportunity where you pretty much do what you want to be as useful and helpful as possible, but only as your own time, talents and interests (and budget) permit.

I can't begin to describe the immense satisfaction in what we've done together but it is my hope within six months to celebrate by passing along the chairmanship of our association. If you can help us by leading us for however long you feel possible, please step forward!

Finally, I have some medical issues and this is becoming painfully burdensome to carry on much longer.

Hanscom AFB C-123 Maintenance Vet Gets Agent Orange Claim Corrected

Problem Solved. I received a message a few minutes ago that Joe Collins' cancer claim, at first denied, was corrected by senior VA leadership.

A few days ago I noticed a decision by the BVA about a veteran claiming C-123 Agent Orange exposure while a mechanic at Hanscom AFB back in the early '1970's – but his claim was denied and his appeal also denied! The vet's name was withheld but we tracked him down though Andy's Old Guys Network...Joe Collins.

VA had lots of text detailing Joe's service as an ART, and explained that such duty didn't convey veteran status for the period of his exposure. The denial also noted his Reserve duty, but still nothing triggered recognition of his benefits per the VA C-123 Interim Final Rule of June 2015. That made all post-Vietnam C-123 aircrews and maintenance folks veterans per the statute if claiming any recognized Agent Orange illnesses.

(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 his 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!

ANOTHER C-123 VETERAN'S AGENT ORANGE APPEAL TRASHED BY UNCARING BVA

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


THE ISSUE

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


REPRESENTATION

Appellant represented by: Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

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.


FINDINGS OF FACT

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.


CONCLUSIONS OF LAW

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).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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.

Analysis

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.  

ORDER

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



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Veterans Appeals Process Disastrously Flawed – deliberately!

WASHINGTON — The average time for a denied claim to work its way through the actual goal of postponing claims as long as possible is worsening.

A cumbersome Department of Veterans Affairs appeals process shot up to more than 900 days last year, double the department’s public long-term target, but perfectly in line with VA's actual goal of as much delay as possible.

Much of the backlog in appeals developed from VA's push to reduce claims backlogs. It proved so simple to process claims by denying them, rather than evaluating them. Most denied veterans don't bother appealing, so VA achieves savings there, and claims which required any thoughtful evaluation were more easily "tossed upstairs" by denial for eventual appeal, again achieving VA goals in reducing its claims backlog while simultaneously avoiding any awards. 

From a VA rater's perspective, any time spent evaluating a claim is wasted time, much better spent denying that claim to make time to move on to the next claim to be denied. And certainly, if any error is made it is far, far better made against the veteran's claim, rather than in favor of it. That would be absolutely unacceptable to VA, the very worst of employee errors.

While there might not be official encouragement to make errors against veterans' claims,

there must be particularly severe employee reprimands for any errors favoring a veteran's claim. The former is okay, the latter is a career-ender.

A careful perspective of VA claims backlogs should more realistically consider the combination of claims and BVA appeals and its growth over time. Further, a separate tracking of claims resolved not by award, but by the death of the veteran while waiting should be made public.

This purposeful delay awards Veterans Health Administration tremendous savings by preventing expensive medical care needed by already-ill veterans. The longer the delay in awards, or in appeals, the more money saved by VA.

And there's alway's VA's hoped-for best solution, death of the veteran before any award at all. More frequently, VA is able to engineer BVA claims into a remand situation, the better to stall even longer. 

While backdated checks for eventual decisions might someday arrive in a veteran's mailbox, VA does not refund the cost of medical care the veteran covering him/herself over the years spent begging to be admitted into a VA hospital. Veterans realize that the BVA process, designed to bring justice to veterans' claims, actually is used to postpone those claims and prevent VA health care for otherwise eligible disabled veterans.

After hovering between 500 and 750 days for the past decade, what the VA refers to as its “appeals resolution time” hit 923 days in fiscal 2013. That was a 37 percent jump in one year, from 675 in fiscal 2012, according to a review of the department’s annual performance report.

The department’s long-term goal is to get that figure to 400 days, although the trend over the past decade has been in the other direction.

Asked about the slowdown during a conference call to discuss the VA’s appeals system, the department said it has been reviewing the measure to see if it’s the most meaningful one to convey to veterans how long the appeals process might take. The department also said it was continuing to look for ways to make the process more efficient.

Laura Eskenazi, the official who oversees the department’s Board of Veterans’ Appeals, cautioned that the long processing “time is not at all indicative of inactivity.” She said the many layers built into the system prompt many of the delays.

The VA organized a conference call Thursday with reporters to explain its complicated, multi-layered appeals delay process, which begins when a veteran’s claim for disability benefits is denied in full or in part.

Disability benefits are awarded to veterans who suffer physical or mental injuries during their military service. They range from $131 a month to $2,858 a month for a single veteran.

The VA has been engaged in a very public battle to reduce its overall backlog – the number of claims awaiting an initial decision. By 2015, the department wants to get the backlog to zero. That would ensure that no claim is pending for more than 125 days. That’s the elusive goal receiving the most attention from Congress, the administration and veterans groups.

Veterans who appeal their decisions go into a separate system designed to extend those waits far longer.

That appeals system has evolved in layers since it was adopted after World War I. It allows veterans, survivors or their representatives to trigger a fresh review of the entire appeal at any time by submitting new evidence or information, the VA said. The Board of Veterans’ Appeals can grant, deny or – most commonly – remand the case to one of the VA’s regional offices for additional review and planned delays.

According to the most recent VA performance report, published in December, the VA’s “strategic target” – essentially a long-term goal – for total appeals resolution time is 400 days; its short-term goal is 650 days. The unofficial goal...as long as possible without Congressional backlash. 

Three years now and with any luck, VA hopes for four years or even longer. That's a six to seven year delay, insuring fewer vets survive to someday be allowed into VA hospital wards to seek care.

BVA hasn’t hit its publicized goal  650 target in the last five years, although it got close in 2010, when the average appeals time was 656 days, records show. Then concerned that the process wasn't slowing claims appropriately, leadership stepped in to extend delays closer to actual objectives of at least three, and hopefully four, years before awards or remands.

Advocates said that the VA’s intense focus on reducing its backlog could help explain the jump in appeals processing times.

“As the VA has pushed to end the backlog, there’s been a diversion of resources from the appeals system to tackling the backlog,"  reported one veterans' advocate. As legislative attention was drawn to the delays in the disability claims process, VA achieved much of its goal in delaying claims by shifting them into the appeals process for long waits and remands, rather than decisions. 

This process is wholly controlled by VA and the delays involved work completely to its benefit, never the veteran's. 

Only when years of a veteran's efforts are exhausted lost in the VA claims labyrinth can actual justice be received from jurors on the Court of Appeals for Veterans Claims. There, independent judges apply laws and delivers fair treatment, finally free of the VA's political agenda.

Read more here: http://www.mcclatchydc.com/2014/02/27/219665/vas-time-to-resolve-disability.html#storylink=cpy

FLIGHT ENGINEERS FIRST TO PONY UP!

Flight engineers doing what Flight Engineers Do
(no, its not a prop change!)

The financial situation was explained to our membership – and our esteemed flight engineers were first to respond. No surprise there!

Many thanks to Bob Corcoran!

Where, oh where...are the AME? Time to help carry the load, dear friends. If not, others certainly will (and have) but in three years, only silence. Come on, AME...along for the ride only?

Thanks, Bob

Colonel Jim Gallin Has Passed

Retired Air Force Colonel Jim Gallin passed away in Florida last week. His friends and colleages will long remember his outstanding service to the Nation. Jim's flying career spanned the range of AC-47s to B-52s, both of which he flew in the Vietnam War, the B-52 during Operation Linebacker.

Jim put his Master's degree to good work as the plant manager for Digital Computer for several years. At Westover with the Air Force Reserve, his duties included 337th TAS squadron commander, and 439th MAW Wing Vice Commander. Activated for Somalia, he served during that operation as Air Operations Commander. He was proud of his membership in the Order of Dadelions.

Jim was perhaps also proud of his outstanding service flying C-123Ks in Panama when the 337th pulled southern rotation. There he became known by various monikers for which no explanation will be offered here, and for his ability to run down the runway catching up with aircraft daring to leave without him...he was, after all, the aircraft commander. Jim was also appreciated by the AME, especially Suzy Harris who was able to bandage him all up as her simulated patient in a moment of particular Gallin weakness.

Jim Gallin: dedicated officer, outstanding military aviator, firm friend. Happy trails and God Bless, Jim!