Westover Maintainer Wins C-123 Orange Award & 12 months of retroactive benefits!

March was a lucky month for one 439th maintainer, a C-123 veteran whose claim for Agent Orange-related diabetes was granted back in 2015 BUT who wisely pressed further.

His persistence was recognized in January by the VA Board of Veterans Appeals. In Citation A21006352 BVA backdated his claim by a year and gave him twelve more months of retroactive compensation.

You might remember that VA granted C-123 vets our Agent Orange presumptive benefits in June 2015. The legal process was called a "liberalizing regulation," and ordinarily there is no retroactive compensation possible for claims ...almost all C-123 claims date from June 19 2015 on.

But not our happy maintainer! He took advantage of VA making a "clear and unmistakeable error" in his initial claim, and often when a CUE is involved, many date restrictions are waived in the interest of fairness to the veteran. 

Here's the judge's reasoning about the diabetes, the C-123 and the disability claim:

When C-123 related exposure occurs during reserve or guard service during a period of non-active duty, the effective date is June 19, 2015, the date 38 C.F.R. § 3.307 (a)(6)(v) became effective, which is what allows VA to consider C-123 related herbicide exposure as an “injury” thereby allowing service connection.  The law under 38 C.F.R. § 3.307 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 C.F.R. § 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.

When C-123 related herbicide exposure occurs during a period of active duty, regular effective date rules apply under 38 C.F.R. § 3.400, because herbicide exposure is being conceded and applied under 38 C.F.R. §§ 3.6, 3.309 (a), and 3.307 (a)(6)(iii) & (iv).  

In the October 2015 rating decision, the RO recognized the Veteran’s exposure to C123K aircraft while stationed at Westover Air Force Base as part of the 439th Tactical Airlift Wing and working as an aircraft maintenance specialist in the Air Force Reserves from July 18, 1979 through September 3, 1981, based on military personnel records.  However, the RO erroneously failed to apply 38 C.F.R. § 3.400 (b)(2)(ii), which provides the effective date is the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later.  

A review of the evidence of record reflects that on February 24, 2014, the Veteran filed both a formal claim for service connection for diabetes mellitus due to Agent Orange exposure.  Military personnel records added to the Veteran’s claims file in March 2014 reflect that the Veteran was assigned to 436th Original Maintenance Squad as an aircraft mechanic during his military service.  An April 2013 VA examination report reflects a diagnosis of diabetes mellitus, which was confirmed in November 2013. See Capri, June 2013; Medical Treatment Record-Non-Government Facility, February 2014.  Additionally, the evidence of record contained documentation, provided by the Veteran, showing contaminated C-123 located at Westover AFB being worked on by servicemembers assigned to 439th. 

It is undebatable, that at the time of the October 2015 rating decision, 38 C.F.R. § 3.400 (b)(2)(ii) was applicable and the regulation providing a presumption of exposure to herbicide was in effect.  

The correct facts, as they were known at the time, were before the RO in October 2015, the regulatory provision then extant was not applied, and the failure to correctly apply the regulation manifestly changed the outcome of the October rating decision.  This is not a case of a claim for retroactive benefits but rather the direct application of regulations in effect and evidence of record at the time of the decision.  The criteria for service connection was satisfied.  The record had evidence of a diagnosis of diabetes in April 2013, and the regulation establishing the presumption of exposure which established an injury during Reserve duty that is presumed to have been caused by that exposure.  

The Board finds that the clear and unmistakable error of law committed by the RO in the October 2015 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the error not been made and the effective date of February 24, 2014 (the date VA received the claim) would have been assigned.  Therefore, the Veteran’s request for revision is granted and the October 2015 rating decision is revised to reflect an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus II associated with herbicide exposure. 

 

C-123 VETERANS ASSOCIATION FILES ANOTHER VA IG COMPLAINT ABOUT VBA PUBLICATIONS AND WEB PAGES

Several months ago we brought several problems to the attention of VA staff regarding their publications. Problems like not listing C-123 units, or enlisted AFSCS, but specifically not properly describing eligible veterans.

Today, because of their inaction, we've filed an IG complaint. Typically the VA IG won't get involved in something like this but just as often, they'll forward the issue to responsible officials to resolve.  L:et's hope for the best here, because we're all tired of C-123 claim being denied by regional offices, or even the Board of Veterans Appeals, by VA citing their own inaccurate literature as justification.

Today's specific complaint deals with "C-123 Airplanes and Agent Orange Residue" published by the Veterans Benefits Administration. VBA has a terribly misleading paragraph towards the end of the document:

Both points in this paragraph are false. The VA's own manual VA M21-1MR as well as 38 CFR § 3.307 (Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicides) makes clear that EVERY C-123 veteran who served in a squadron known to have had C-123 aircraft after Vietnam is considered presumptively exposed and need not prove anything except the unit assigned to, and presence of an Agent Orange illness. And there is no "case-by-case' evaluation any different than any other Agent Orange claim, other than the fact all of our claims have to be directed ONLY to the VA St Paul Regional Office That's in their regulation also!

VA Fails Another C-123 Veteran's Claim

Veteran's VA Experience

Not again!

But yes, VA has screwed yet another C-123 claim beyond all recognition. In this case, an aeromedical evacuation technician from Pittsburgh's 33rd AES died while his claim was in process, so his widow continued the application.

It took quite a bit of detective work, but enough documentation was uncovered to establish the veteran's AFSC, his unit, and flying status with the 33rd during the years the C-123 was in service at Pittsburgh. I had the opportunity to provide a supporting statement, the VA Form 41-2138 to explain enough of the facts that the claim should have succeeded.

But that was not to be. For some reason, the regional claims office disregarded all the veteran's supporting documentation and also disregarded my own input, calling it "unqualified lay input."

We were lucky in this case to get support from the National Veterans Legal Services Project, and they rebuilt the claim for submission to the Board of Veterans Appeals. Once again, VA pretended everything in the claim was inadequate to satisfy their critical eye. BVA denied the widow's claim on two reasons. The judge wrote that the veteran was assigned to the 33rd AES, but VA forms explaining the C-123 program only specified the 911th AES.

Somehow, it got past these "experts" that the 33rd is the same as the 911th! Some years after the C-123 era, the squadron's name was updated to the 911th.

The other thing that got past the "experts" was the veteran's AFSC of 90210 and 90250. VA's various C-123 publications failed to list enlisted aeromedical evacuation technicians' AFSCs, and had only flight nurses listed. Ordinarily this isn't a problem because all C-123 claims are supposed to be processed by the VA St. Paul office where experts can drill down to the real facts.

Unfortunately, this claim drifted to some other regional office and there, was denied, and then prepared for resubmission the the Board of Veterans Appeals. The BVA also denied, and we found about it by reading the monthly BVA decision summaries.

The BVA errors were obvious and fatal to the claim. It was wrongly denied, for the two reasons named above. The last few days we've tried to alert every contact we know at VA to see if reason can prevail, to get the claim reconsidered without having to await the next higher level of appeal, the US Court of Appeals for Veterans Claims.

Will it work? There's a chance, and we've succeeded before when VA's mistakes were so glaring. NVLSP has continued their involvement and won't let this go unchallenged. We sure could use help from Pennsylvania's legislators to pressure VA to reconsider the denied claim and to update the publications that caused these problems.

Stay tuned!

Flight Nurse Wins Unique C-123 Agent Orange Claim

The VA Board of Veterans Appeals recently published their decision on a Westover C-123 veteran's Agent Orange claim, and it granted full benefits. There was no question about this veteran's eligibility for Agent Orange benefits but the disability claimed was not one VA presumes associated with exposure. The claim was submitted in August 2015, denied in October 2015, and finally won on appeal effective retroactive to the date first submitted.

Winning a claim for a disability VA doesn't associate with Agent Orange exposure is difficult. I won my claim for, among other things, avascular necrosis, and here VA accepted a type of cancer not on their list. It can be done but requires persistence and lots of skillful argument.

Congratulations are due here for the years this veteran invested in pursuit of the justice due C-123 veterans for our Agent Orange exposure!

Retiring Veterans Court judge calls VA appeals system a 'tragedy'

(Note: Appeals to the VA Board of Veterans Appeals now take between three and seven years. The Court of Appeals for Veterans Claims can take another three or more years to hear a case. Most often, cases decided in the veteran's favor are returned to regional offices where more delay eats up yet more time.)

By NIKKI WENTLING | Stars and Stripes | Published: March 12, 2019

WASHINGTON — The retiring chief judge for the U.S. Court of Appeals for Veterans Claims told lawmakers Tuesday that the Department of Veterans Affairs appeals system is “ancient” and “inefficient” and in need of drastic change.

While testifying before a House Appropriations subcommittee, Chief Judge Robert Davis said the pressure on VA employees to get through a large backlog of benefits claims leads to poor decision-making and a high number of appeals. Davis, a Navy veteran, has held a seat on the Court of Appeals for Veterans Claims for nearly 15 years. The court, often referred to as “Veterans Court,” provides veterans an impartial review of decisions made by the VA Board of Veterans’ Appeals.

“I think it’s a tragedy, the way the system operates currently,” Davis said. “I think we’ve been tied to a structure that is ancient and inefficient. The sooner Congress and all of us in this area look at this system from a 50,000-foot level and say, ‘We need to make these kinds of adjustments,’ the sooner we’ll be able to meet the needs of our veterans in a much better way.”

Davis has been critical of the VA system. The topic was brought up Tuesday by Rep. Matt Cartwright, D-Penn., who cited an August article by the Wall Street Journal in which Davis criticized the appeals process as “horribly flawed.” “We can’t ignore that when you come here to testify, chief judge,” Cartwright said.

‘Cautiously optimistic’ about new law

Davis elaborated Tuesday on his comments to the Wall Street Journal. He said he remains skeptical of a new law implemented last month that VA officials promised would allow veterans to receive decisions on their benefits claims in days or months, instead of years.

The new law, titled the Veterans Appeals Improvement and Modernization Act, was approved by Congress in 2017 and went into effect Feb. 19. It involves multiple avenues for veterans to appeal their claims, including an option to get a review from a higher-level adjudicator or go directly to the Board of Veterans’ Appeals.

Under the old system, veterans waited three to seven years to reconcile their appeals. The new one could get veterans through the process in as few as 125 days, VA officials vowed. Officials also said the new system would help cut down the backlog of appeals, which included 402,000 cases as of last month.

“I’m cautiously optimistic that this modernization act may help the system, but in my view, congressman, it is tinkering around the edges, when a larger fix is needed,” Davis said. “And it’s a fix that might be viewed as radical by some.”

When pressed for specifics, Davis suggested using mediation to negotiate a settlement between the VA and veterans or providing them general pensions. He said there were “a lot of possibilities” that he believed should be discussed with the VA secretary.

Once he retires from the court, Davis agreed to discuss the issue further with Rep. Debbie Wasserman-Schultz, D-Fla., who is chairwoman of the House Appropriations Subcommittee on Military Construction, Veterans Affairs and Related Agencies.

Court experiences a ‘second surge’

Davis appeared before the subcommittee Tuesday to discuss the court’s budget request for fiscal year 2020, which totals $35.4 million. The proposed amount — released Monday as part of President Donald Trump’s budget plan — didn’t increase from the fiscal year 2019, though Davis said the court experienced a surge of work in 2018.

The court had its first surge in 2009, when its case load increased from about 2,000 cases each year to more than 4,000. That year, Congress temporarily approved two more judges to join the court, bringing it from seven judges to nine.

Davis described a “second surge” last year, during which the case load rose from about 4,000 to more than 6,800.

The VA touted last year that the Board of Veterans’ Appeals had worked through a record number of cases – about 85,000, up from 52,000 cases the previous year. Davis attributed the surge at the Court of Appeals for Veterans Claims to the board’s increased pace.

He warned appropriators Tuesday that the court might soon need congressional approval for an additional two judges, bringing the total to 11. Of the nine judges now on the court, two – including Davis – are scheduled to retire at the end of their 15-year terms in December 2019.

“We’re watching our numbers carefully to track the very real possibility that nine judges may not be sufficient to keep pace with this growth trend,” Davis said.

wentling.nikki@stripes.com
Twitter: @nikkiwentling
 

Review: Our two goals for C-123 Veterans' Agent Orange Benefits

Simple. A mostly successful seven-year effort. Many folks chipped in funds to help and I never wrote thank-you cards. That is because all I did was work and the contributors know it and know their help was vital.

GOAL ONE. VA designation of C-123 veterans as "presumptively exposed" to Agent Orange, thus entitling us to VA medical care and other benefits.
STATUS: MET ON JUNE 19 2015

GOAL TWO: Get our VA disability claims honored from the earliest date submitted, if earlier than what VA limits for retroactivity (June 19 2015 at the earliest.) This is because many C-123 vets had claims in prior to that date, but were met with the then-automatic VA denial. And VA did deny...100% of all our claims were refused.

STATUS: ONLY VERY PARTLY MET

At least the VA barrier to our retroactive claims has been broken down a little. A handful of C-123 vets had claims approved via BVA appeals (Paul Bailey, Dick Matte) but VA has been firm in limiting retroactive claims to June 19 2015 and no earlier. It has to do with Reservists not being entitled to disability benefits unless disabled during the Reserve duty.

For some, this has cost tens of thousands in anticipated, but denied, "catch-up" checks. An example: a claim submitted in 2007 but denied at the time, then honored by VA once its C-123 rule was published on June 19 2015. If the vet was due a 100% disability rating, that's eight years of compensation VA won't pay...about $200,000 lost by the vet because of VA's limit of retroactivity set at June 2015.

The good news: at least one claim has been awarded retroactive Agent Orange benefits from the date submitted (in this case, March 2011. On the vet's appeal the BVA determined that C-123 exposure itself was a disabling injury that would date from "back in the day" while flying the Provider. That decision meant the affected Reservist satisfied the law's requirements regarding a disabling injury to trigger statutory veteran status, and the claim was honored back to the date the vet first filed for Agent Orange disabilities. That was a lot of money, with thanks due to the National Veterans Legal Services Project and their cooperating pro bono attorneys!

A PARTIAL VICTORY: Retroactive C-123 benefits for claims AFTER June 19, 2015!

ARE YOU A C-123 VETERAN WHO FILED AN AGENT ORANGE CLAIM AFTER JUNE 2015 BUT YOUR ILLNESS WAS DIAGNOSED BEFORE THEN?

Most likely, the VA started your disability compensation effective on the date you filed, not when you became ill. That may have cost you months or years of lost compensation.

I think I found a solution to recover those lost months and years of compensation, based on language a BVA veterans law judge used in a recent C-123 decision. There is a way to backdate to June 2015 some or all of the compensation due you.

Once it finishes processing an application, the VA provides disability compensation for claims based on the date filed. Many of our C-123 veterans were diagnosed with Agent Orange related illnesses before the VA rules took effect for us on June 18 2015.

Many of our vets submitted claims after that date but have Agent Orange illnesses diagnosed before then. In that situation, there is a way you can argue for compensation not based on whenever you filed after June 2015 but instead, all the way back to the June 2015, for a maximum of twelve months compensation. As an example, twelve months of prostate cancer at 100% is over $30,000, so you'll want to consider this carefully with any claim submitted after June 2015.

Read the following paragraph (taken from a C-123 retroactive compensation decision) very carefully.  1. Note that it specifies Agent Orange illnesses diagnosed prior to the date of the liberalizing law VA used to grant benefits, which for C-123 claims is June 19 2015.
2. Also, that illness must have been evident from the diagnosis to the date whenever you filed. If your prostate cancer was diagnosed in 2011 and cured in 2014, this won't apply to you. If, however, you remained on "watchful waiting" up to June 19 2016 and beyond, this rule could apply. Same thing for any of the other Agent Orange illnesses like diabetes, IHD, peripheral neuropathy, etc.
3. If your claim was submitted after June 19 2016, and your diagnosed illness continued from before June 18 2015 to the date your claim was filed, say June of 2017, could argue retroactivity only to June 19, 2015. That is because VA limits this situation to one year of back pay.

However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. Id.

I'll summarize:.

1. This is for claims for illnesses diagnosed before June 18 2015 and continuing to the date a claim was submitted to VA.

2.  VA limits this retroactive compensation to one year. If you filed after June 2016 or any later date, you may be eligible for one year of retroactive compensation.

If you think this may apply to you, please discuss with your veterans service organization...you will probably have to bring them a clipping of the paragraph I quoted from the C-123 award.

Retroactive Disability Compensation: Today We WON!

–TODAY C-123 VETS WON A BIG ONE FROM THE VA! –

NOTE: I NEED TO HEAR FROM ALL C-123 VETS WITH CLAIMS SUBMITTED PRIOR TO JUNE 2015!

C-123 veterans have been barred from disability compensation for our Agent Orange claims
submitted prior to June 2015. That's when the VA finally started honoring our claims but not going back to the date submitted for those of us who filed before VA's June 2015 decision. TODAY WE BEGAN TO CHANGE THAT AND GET OUR BACKDATED BENEFITS!

The VA's Board of Veterans Appeals, acting on a vet's C-123 claim first submitted back in 2011, on Thursday approved his appeal that sought retroactive benefits to the date first filed, thus picking up four years of retroactive disability compensation due him.

How was this done? I'd read about the restrictions on retroactive benefits with liberalizing rules and was a party to the negotiations with Secretary McDonald that left us so dismayed by loss of benefits for which we'd waited years.

An idea formed: I'd also read that reservists with line-of-duty injuries can achieve legal veteran status. It was easy to find a couple citations on the BVA web site, so it seemed possible to anchor a C-123 Agent Orange claim or appeal with a C-123 hearing loss disability. The claim would be on a "fact-proven" basis because VA already recognizes our exposures and there would be no need for the liberalizing rule to convey veteran status via presumptive service connection. We owe sincere thanks to the C-123 pro bono team (Chicago and Denver) at Faegre Baker Daniels, plus the National Veterans Legal Services Project for their input.

Most of us have some hearing loss, and this particular vet had earlier submitted a straightforward hearing loss claim, earning the small disability VA typically grants for hearing loss and tinnitus, based on the vet's flying activities. Those activities included C-123 duty, so the hearing loss triggered legal veteran status during the 1972-1980 period he was also being exposed to Agent Orange.

With legal veteran status established by his hearing injury, the Agent Orange illnesses for this vet simply became additional illnesses that VA covered.

Although this particular vet was already 100% disabled for other issues besides Agent Orange, if he hadn't already been receiving a VA check this decision would give him compensation from 2011 to June 2015, or about $110,000...serious pocket change, indeed! His claim was meant to be our association's "poster-child" claim to try to pave the way for others.

What's this mean for you? If your claim was submitted to VA on or after June 19, 2019, nothing. If it was submitted before and you are neither retired military nor already on VA disability, it means your claim can be appealed, or re-appealed, citing this decision, so long as you have a claim you can also make for hearing loss or some other disability. BVA decisions don't set precedent, but VA administrative law judges do give them great weight on similar claims.

I emphasize the issue of hearing loss...most flyers (or infantry, artillery, EOD) have it to some degree. Many of us have tinnitus, for which there is no test and a veteran need only state that ringing in the ears has become a problem. That hearing loss (or any other LOD injury) having its origins back in our C-123 days, is a disability that satisfies the law's requirements for full legal veteran status...and opens the door for your Agent Orange claim being backdated!

This appeal is in my Facebook NOTES section and HERE IS THE ACTUAL DECISION

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."

Stations[edit]
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
Aircraft[edit]
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!!

The 1448 Day Stall for Claims at Board of Veterans Appeals – why VA must adopt an initial "presumption of eligibility" on certain claims.

When a vet believes VA has made a mistake on his/her claim, VA welcomes an appeal its Board of Veterans Appeals (BVA) to set things straight. GREAT, but the only problem is the VA delay in the process leaves vets "twisting in the wind" – abandoned for four years until the system even considers righting the wrong done the vet. Actually, the delay is even longer if we include the year-long initial disability claim process. REMEMBER, this lengthy process gets started with a vet's claim for cancer, ALS, heart disease or whatever is the issue, and until VA finishes its final decision at BVA, all medical care and other essential benefits are refused the vet (unless otherwise eligible for some reason.) That's the unhappy "twisting in the wind" time. The time a vet has to get by somehow on his/her own. One of VA's most unforgivable delays is in its "Statement of the Case and Certification," which VA says takes under three hours work. Yet the most recent statistics show that this task takes the VA on average 537 days after receiving the Notice of Appeal and that it takes another 222 days before the BVA actually receives the certified appeal, for a total of 759 days. Over two years, with VA hospital doors locked as the process continues. Refusing care for cancers and heart disease...as VA did on my claim by postponing a decision for four years...can be a death sentence. A final decision from VA might come with retroactive compensation but there is no retroactive adjustment for medical care denied or family benefits like CHAMP-VA withheld. That's why VA must adopt a scheme of initial consideration of claims for PRESUMPTIVE ELIGIBILITY FOR CARE. Perhaps not all claims, but at least claims with substantial merit and instances where denying care would endanger life or limb.

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

C-123 Vet Joe Collins Wins VA Agent Orange Claim First Submitted in 2007

Joe Collins, one of the C-123 maintainers from the Hanscom AFB days ('71-'73) whose denied Agent Orange exposure claim and denied appeal I wrote about last month, phoned this morning to say that VA had approved his disability claim! What great news. Joe's exposure claim had been wrongly denied in June by the Boston BVA which cited his service at Hanscom as an air reserve technician as somehow disqualifying him from legal veteran status and thus all Agent Orange benefits.Please...read it yourself at http://www.va.gov/vetapp16/Files3/1622153.txt This was a monster screw up because the denial also discussed his duty as a reservist aircrew member on the C-123. The VA regulations specify that all C-123 veterans claims must be handled only by St. Paul VA regional office which has exclusive jurisdiction. Still, the Boston BVA somehow overlooked that and many other important points, wrongly denying Joe's exposure claim which he first submitted way back in 2007. Joe got great help from the Agawam Town veterans service officer. However, he was poorly served by the Massachusetts Division of Veteran Services which handled his appeal before the BVA on behalf of the American Legion which Joe selected to represent him. VA will award retroactive compensation to Joe but only back to June 2015. Still, it is a worthwhile victory for us, and satisfactory to Joe. In mid-September I happened to spot his denial online in the BVA listing of that month's decisions, without any identification as to who it was about because veterans names are removed for privacy reasons before posting on the Internet. I could see the problem and believed I had a solution but didn't know who try try to help! Our geezers network was able to put different facts together from the claim and appeal, and realized it was about Joe. I tracked him down and with his permission got VA leadership involved – at that point it only took a couple weeks to set the record straight. Joe says this means a lot to him because it will help his wife now and in the future. Other families from the Wing and from the 74th have also benefited, including Paul Bailey, Dick Matte, Bob Ranck, Cliff Turcotte and others from our C-123 days between 1972-1984. The largest retroactive compensation payments have been over $130,000, although most with a total disability rating and claims on or before June 2015 have received around $30,000. Of course, monthly payments from VA continue once the veteran has received "service connection' for whatever Agent Orange ailments exist. Our work to get VA to recognize our Agent Orange exposures began in 2011 and also resulted in these benefits to Pittsburgh Air Force Reserve Station and Rickenbacker Air Force Base C-123 veterans and many active duty troops from Howard Air Base and Clark Air Base. In all, approximately 2100 veterans and our families benefit. Joe's next step? He should apply for Combat Related Special Compensation, disabled veteran property tax exemption, disabled veteran automobile benefits, free VA insurance, and medical care for every medical issue on top of his Agent Orange illnesses. He can get care such as audiology, dental service, optometry and pharmacy. Many vets have full VA coverage for medical issues and yet select there care elsewhere but returned to the VA for these unique benefits.

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!

C-123 Vet with Defective BVA Decision: Joe Collins

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

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

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

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

VA caught shredding veterans' claims documents –INCLUDING MINE!

Its happened again. VA caught shredding veterans' claims documents, either purposefully or accidentally. How matters little to a vet who waited from months to a year for the local VARO to decide his claim, or the veteran who has waited three to five years for the Board of Veterans Appeals to review his denied claim: If VA blocks a vet's medical care and other benefits because the facts and proofs originally sent to VA weren't in the C-file, he's screwed!

And I believe I've been screwed. Not only have parts of my 2011 Agent Orange claim remained denied or unresolved for five years, but there's lots of stuff missing from my C-file! By comparing two VA reports available through eBenefits. I can't say whether missing documents were actually shredded but I don't care – they're gone!

I send in most materials for my claim by using eBenefit's SUBMIT DOCUMENTS function available by navigating down from the OPEN CLAIM to VIEW DOCUMENTS. I got the idea to compare the list of materials there to my activity log. The log shows what I did on each visit to rBenefits.

If the activity log showed I submitted something when logged in on a date, that should show up in OPEN CLAIM VIEW DOCUMENTS.

But that wasn't happening.

In fact, dozens of visits showed I submitted documents to help prove my claim but they never were posted to the C-file. Dozens of proofs to my claim were missing, and there was no way to tell which specific items were absent. Still, the list itself should have interested VA in resolving  a serious problem so I brought it to VBA's attention.

And never heard back. So the problem exists today and I'll just have to hope that evidence elsewhere in my C-file will suffice to win claims and appeals. We'll see. I've waited over a year but no answer to my letter.

January 22, 2015
VA Compensation and Pension Service: 

Please compare these two documents and note that VA received from me many documents between 4/2014 and 8/2014 which show on my eBenefits activity (#1) but do not show on the claims “unsolicited documents received (2).

Why were they discarded. 

Thank you.
Sincerely, etc.

Here is the comparison I made to see if documents were missing. This doesn't identify which item are missing unless I know what was sent on that day. Yellow highlight means no corresponding post of a submission in the claim file. There's a lot of yellow! I show one page but there are 33 more with varying amounts shown lost...click to expand.

"Never-Ending VA Appeals Process Hurts All Vets" -Yes, but appeals are for VA's errors, not veterans' greed!

Claims at VA Regional Claims Office

By Francis Rose, from Government Executive, December 2015. (Veteran's response at bottom)

One of the deepest questions philosophers have considered over the centuries is the sometimes conflict between the rights and needs of society, and the rights and needs of each individual member of that society.
The latest point in the debate over fixing the Veterans Affairs Department is a microcosm of that debate.

The claims backlog the Veterans Benefits Administration has been dealing with for years is finally below 100,000, according to numbers from late summer. The agency promoted the backlog reduction then as a sign that its management strategy was working, in contrast to scandals inside the agency’s other main branch, the Veterans Health Administration. The timing was unfortunate, though; whatever good publicity the VBA, and its then-leader Alison Hickey, might have gotten out of the news was obliterated by the scandal surrounding two employees who received enormous relocation benefits after engineering jobs for themselves outside Washington, displacing other VA officials who held those jobs.

Those numbers look different, though, in light of a Los Angeles Times article on the backlog. Given what the Times reports, it seems unlikely the agency will ever be able to make it go away. The biggest holdup to making the backlog disappear is the most politically unpalatable element of the claims process to do something about.

The biggest roadblock, the Times story makes it seem, is the veterans themselves.

The major reason the backlog doesn’t shrink any faster, the way the story tells it, is that vets submit appeals over and over again when they get outcomes they don’t agree with, hoping against hope for a different outcome. The article tells the story of one vet who did indeed get a different outcome after many tries. He’s still in the system, though – now trying to get retroactive benefits.

The reason he and the other vets do so? Because they can.

“Unlike U.S. civil courts, the appeals system has no mechanism to prevent endless challenges,” the Times’ Alan Zarembo writes. “Veterans can keep their claims alive either by appealing or by restarting the process from scratch by submitting new evidence: service records, medical reports or witness statements.”

The logistics of the backlog is complicated, and has lots of qualifications. The 100,000 number VA celebrated in August was for initial claims applications that were 125 days old. Since that number was well over half a million when the agency declared war on it two years ago, the progress looks real.

The news isn’t all good, though. The Times reports while the claims backlog has shrunk, the appeals backlog – vets who don’t like the response they get from VA and ask to have it reviewed – has climbed from 167,412 in September 2005 to 425,480 in October 2015.

“VA officials say there are two possible solutions to the bottleneck,” Zarembo writes. Those are “money to hire more lawyers, judges and other staff to process appeals, or a rewrite of the law by Congress.” In essence, the VA has pushed the backlog from claims to appeals by applying its resources to claims. It appears to be playing Whac-A-Mole with the claims/appeals process; one goes down, the other pops up.

Since more money for more staff isn’t likely, a rewrite of laws seems more possible. And that is where the philosophical question of the needs of the many versus the needs of the individual comes in. Cutting the number of appeals vets can file would make sense from a purely logistical perspective. Some vets appeal dozens of times – or more – and never win. Is infinity the right number of allowable appeals? Probably not. Is one the right number of allowable appeals? Probably not. But where in between those two is the right number? And how does Congress make that decision, as it will inevitably have to do?

Everyone in politics today wants to “support the vets.” Certainly doing anything that appears to harm veterans individually is a ticket to political trouble; I can hear the negative ads in my head already.

But endless appeals inevitably mean endless backlogs. And the person who can make the political argument that some limit – however big or small it turns out to be – will help vets collectively, will make a huge difference for the rest of the vets waiting in line for their cases to be decided.

A Veteran's Response:

Ms. Rose's essay basically blames veterans for gaming the VA system via the appeals process. "Why do they do it," she asks. "Because they can."

I say, because we must! I can only understand VA's appeals process from my own perspective, and part of that is VA's claims process as well....they cannot be separated.

Veterans currently face an average of 315 days for an initial claim to be processed. In 2012, the Board of Veterans Appeals (BVA) overturned 28.9% of the denials issued for compensation claims, and errors were found in another 46% of appealed claims. These claims were sent back to the original VA Regional Office for an additional review.

Tom Murphy, VBA’s director of compensation services, agreed that initial accuracy has a significant role in keeping down the backlog of both repeated claims and appeals. “If you’re having quality issues, it takes longer to work a case the second or third time than it takes to get it right the first time,” 

An appeal is submitted when a veteran claims VA errored on his/her claim. A claim is an initial application for benefits – medical care as well as compensation, Yes, I agree some of my brothers and sisters do submit an inappropriate number of claims, as also appeal with faint justification VA's inappropriate VA's decisions on the claims.

But: Claims are more typically for illnesses and injuries the veteran legitimately believes tied to military service. Appeals more typically are for errors the veteran believes (correctly or not) VA made in deciding the claim. Appeals mount up because of errors made by the Veterans Benefits Administration (VBA) in evaluating claims and also because veterans and their advocates (veterans service officers from VFW, DAV, etc.) themselves made errors in preparing claims. There are many other reasons, and certainly gaming the system is one of them, but the system's errors are basically to blame.

First among them is the remand procedure. Remands are where the Board of Veterans Appeals finds mistakes by VA in processed the claim. A remand vindicates the veteran but does nothing to resolve the claim, instead squeezing it back into the workload of the regional claims staff. The VA makes mistakes on more than 50%  of all claims it processes, most of which are never appealed.

• First Solution: Better quality initial claims decisions
• Second Solution: Faster preparation by regional offices of appealed claims for forwarding to BVA
• Third Solution: BVA must be given authority to resolve an issue without a useless remand!
• Fourth Solution: Regional offices should be given reconsideration authority when VA errors are noted while preparing appealed claims before forwarding to BVA
• Fifth Solution: VA should impose a token $10 filing fee for subsequent appeals...a vet's very first appeal is free but a $5 threshold is imposed thereafter for all appeals
• Sixth Solution: Some common sense. For instance, once the C-123 issue was resolved for post-Vietnam veterans, BVA began remanding claims with airplane details but completely outside the scope (by years, location, other facts) of the C-123 Agent Orange issue

Why a failed appeals process, choking on nearly a million frustrated claims?

1. An evolving medical situation, or age, presenting additional illnesses or injuries requiring new claims
2. VA decisions which only partially address issues claimed, leaving particulars to be appealed
3. VA's evolving rules. For instance, C-123 veterans were for years denied all benefits but ground rules changed and permitted claims and appeals
4. The veteran learns from the denied claim what proofs or arguments should have been made in the initial application, and either appeals or repeats the claim with new and material evidence
5. VA's errors in deciding claims
6. VA regional offices taking years to prepare an appealed denied claim before forwarding to the BVA; BVA actually decides appeals rather quickly once received, but the majority of the years a veteran must wait for an appeal is wasted at the regional office waiting for the claim to be readied for the BVA
7. VA has an inadequate system for veterans to request reconsideration of denied claims, and veterans too often leap to an appeal rather than a faster reconsideration process
8. VA permits no input from a vet's own VA physician in support of a disability claim or appeal, yet VA staffs the BVA with medical experts to help oppose appeals. Similarly, VA staffs the BVA with attorneys to argue against veterans' claims. An appeal is thus an uphill battle for a veteran with VA bringing in big guns to oppose a claim...and leaving an incentive to appeal
9. VA's regional office Decision Review Officer (DRO) program is overburdened by its DROs working claims and not appeals
10. One need a veteran continues with claims and appeals even after 100% service connection is granted is to address Combat Related Special Compensation requirements
11. Sometimes a veteran believes strongly an important issue is unresolved even with a 100% service connected decision on a separate issue, and seeks VA acknowledgement. Awards for 100% service connection should include language to encompass all remaining but unresolved issues under the one decision
12. Veterans service organizations should exercise judgement in supporting veterans' appeals, rather than rubber-stamping them past all reason; at some point VSOs should decline to represent a veteran any further
13. Legislation is needed to help address a failed appeals system