Another VA Publication Error: Wrong Dates on C-123 Eligibility

Will it ever stop? Another error has been spotted on VA web pages and publications that slams the hopes of C-123 veterans hoping to quality for Agent Orange exposure benefits.

This time the error is with dates: A VA web page titled "Agent Orange exposure" specifies the dates for C-123 exposure eligibility as "On C-123 airplanes: Between January 9, 1962, and May 7, 1975." Their error, of course, was using the dates for general Vietnam War eligibility and not our post-Vietnam C-123 service dates of 1972-1986.

The mistake has been pointed out to them but this morning I repeated myself by filing another VA Inspector General report...the fourth so far asking VA to clean up their publications.

Here's a clip of their error:

https://drive.google.com/file/d/1Rlco4Rptc-7SphAcQst8MB4Q1WMv54wG/view?usp=sharing

C-123 Veterans Association Challenges VA to Correct Agent Orange Exposure Publications

Our C-123 Veterans Association has identified numerous errors by which VA denies our aircrews and maintenance veterans earned Agent Orange benefits.

So, we today submitted a 68-page detailed analysis of these errors to as many VA managers for whom we have email addresses.

Here's what we've addressed about VA's C-123 literature:

OUR REPORT

1. 905 CAMS maintainers cross-trained on the C-123 at Westover and should have their exposure claims honored.
2. Rickenbacker's 67th Aeromedical Evacuation squadron flew their base C-123s between 1972-1986 and their exposure claims should be honored.
3. VA has failed to specify enlisted medical crew AFSCs and has for five years simply denied most of their applications, even when submitted with ample evidence.
4. Certain aerial port units at the three C-123 bases should have claims honored, particularly for ramp and fleet service staff.
5. VA failed to see the 911th AES at Pittsburgh IAP was previously named the 33rd AES, and has let the confusion lead to denied veterans benefits.

VA has had most of this sent their way for two years and has failed to act. Perhaps there is hope this time. Worth the try!

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.

LtCol Al Young earned Legion of Merit in 1984, helping VA block veterans' Agent Orange disability claims

In the 1983-84 time frame, VA firmly opposed all veterans' Agent Orange disability claims, insisting the only possible ailment was chloracne. Dr. Al Young was on loan to VA from the Air Force where he'd spent years defending and promoting the infamous herbicide. At VA he labored mightily to continue its defense, but it was an uphill struggle because science and Congress sided with the vets. Still...Dr. Young gets fair credit for blocking veterans as long as they were.

Let's be clear...earning one of the military's most senior decorations shows how faithful and successful Dr. Young (then a lieutenant colonel) was in fulfilling his duties. It was his sduty at VA, not the faithfulness with which he performed his duty, that has a stigma.  Young was assigned (81-83)  to head up VHA's Agent Orange Projects Office.

It may hard to credit Dr. Young with personally obstructing the claims of tens of thousands of sick Vietnam veterans...perhaps full credit doesn't fall on him, but his inventiveness, contemporary comments and writings on Agent Orange are quite suggestive.

I find it impossible to accept that "Dr. Orange" would have earned his Legion of Merit for advancing veterans' claims of illnesses due to Agent Orange exposure. He, and the VA through his leadership were suggesting sick vets were mental cases or trying to exploit pensions, or merely suffering the results of aging and poor health choices. Anything but Agent Orange! Young suggested that at least "a few" sought "public recognition for their sacrifices in Vietnam" and "financial compensation during economically depressed times."

Dr. Young, who was considered the government's ranking expert on Agent Orange, said the VA had not found any adverse health effects "clearly related" to dioxin exposure among 85,000 veterans. He was not one to be swayed by statistics suggesting otherwise, not even in recent years. He seems to never waive from his mantra about Agent Orange issues arising solely because of social, legal or political reasons, not science and medicine. At the time, VA savored such words as reinforcement to their wall against exposure claims. Young's message spread far and wide, thanks to events such as his Nightline interview, Air Force book and point-man influence throughout the VA.

I find it more likely that VA so appreciated Dr. Young's years successfully spent opposing our claims that the Legion of Merit was his proper due. At most, as he told the New York Times, "We just don't know," and the issue is only a "controversy." Thus his opposition to AO disability claims then, and ever since. Another quote from Young fits well here: "I was wrong." (as he said following Harvard's disproving Young's critical hypothesis that dioxin quickly degrades in soil.)

Back in those years he spent at VA, a staff member of the Senate Veterans' Affairs Committee derided Dr. Young as "a glorified weed-killer" who is "not qualified to discuss the health effects of exposure to Agent Orange."

So congratulations are due for his demonstrably successful years of hard work in service to the USAF and the VA. It took an act of Congress in the form of the 1991 Agent Orange Law to overturn VA's obstruction of vets' claims. LtCol Young's qualification for the Legion of Merit..." senior leadership/command positions or other senior positions of significant responsibility" is obvious, but it grates to consider he earned it by working against Vietnam veterans' claims.

From the Agent Orange Review Feb 1985 (ironic, right?)

• Here's a contemporary article: what role did Dr. Young and his position on Agent Orange have on the type of systemic anti-veteran VBA rules overturned by the US District Court? Why did 31,000 vets have to suffer, finding relief not at the VA but in the courtroom?

Institute of Medicine Criticizes VA & Air Force

In its C-123 Agent Orange Report, published under consulting contract to the Department of Veterans Affairs, the National Academy of Sciences Institute of Medicine made a startling accusation. Startling, because of the obvious intrinsic and extrinsic failures of which the IOM was accusing both the Department of Veterans Affairs and the United States Air Force. 

Citing numerous examples, the IOM broadly condemned these authorities for failure to accurately and objectively report, and then utilize, information about military toxic exposures and veterans' illnesses. From page 5:

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

The IOM made clear the fact that veterans' exposures were treated by the VA in a manner calculated to either dismiss altogether or at least minimize the harm done military personnel whose duties presented toxic hazards.

This certainly made clear the VA failure to be pro-veteran and non-adversarial. Get the picture? Our VA doctors and scientists (including its consultant with his $600,000 no-bid sole source VA contract) were saying we were not exposed when they had facts in hand that we were exposed.

An analogy would be your doctor saying your arm isn't broken while both of you look at the x-ray of your broken arm. Plus, other medical experts and federal health agencies had already told your doctor the arm was broken. But the doctor and your insurance company had decided that they don't cover broken arms. Especially from you.

And for four years, our VA doctors in Post Deployment Public Health were determined to send us on our way untreated for our cancers and other illnesses because they had already reached a policy decision not to acknowledge any exposures. Especially from us.

In fact, as we were repeatedly told to our faces by VA officials, no amount of proof from whatever source would ever permit our claims even to come up to the minimum standard of "as likely to us not." And this was after the CDC/ATSDR had already informed the VA that we had a 200 times greater risk of cancer then screening standards. This was after dozens of university scientists and medical experts to Agent Orange aboard our old airplanes. But still, the VA Agent Orange Desk insisted to one and all, both inside and outside the VA, that VA had "an overwhelming preponderance of evidence" against us... But it didn't!

Remember, a veteran's claim is to be assumed truthful and factual on its face, but in case of a question the claim need only arise to equipoise – a level of "as likely to has not," or a 50-50 balance of the question. In fact, every benefit of the doubt is to be given the veteran in the claim. We know now, however, that no amount of proof would be accepted to support these claims – VA policy, rather than VA regulations and science had already been implemented at both VHA and VBA against the veterans.

Our association made accusations of ethical failures, all supported with documentation, against the Department of Veterans Affairs in our presentation to the Society of Toxicology at its 2014 Phoenix convention. Sponsored by a former president of the society ,we addressed the scheme by the VHA Post-Deployment Public Health Section which used a similar presentation to the SOT in 2012 which attempted to redefine the medical-scientific term "exposure." The VA presenters reinvented their use of the word exposure as "exposure = contamination field +bioavailability."

In fact, their redefinition of exposure by the addition of the word bioavailability as a required part to the concept of exposure made impossible most exposure claims from veterans, especially those like us, exposed years earlier and with illnesses such as prostate cancer or soft tissue sarcoma taking years to evolve after our toxic exposure event.

No expert we could find, insider or out of government, agreed with the VA redefinition. All took exception to it, even the director of the National Toxicology Program who said she had never heard of such a thing. She explained bioavailability is a separate but related term. Inventing its own definition rather than use the standard ATSTR glossary of terms Dorlands Illustrated Medical Dictionary (the VA standard reference,) Post-Deployment Public Health was driven by its unofficial, improper but rigidly applied policy to block C-123 Agent Orange exposure claims.

So one has to ask: Did the medical and scientific errors revealed by the IOM in the VHA Post-Dedeployment Public Health Section ever result in comment or criticism, or did they get their full bonuses? One wonders if questions arose about VHA intrinsic and extrinsic ethical failures as regards veterans health? At least one of the 2012 VA poster team still works in that section of VHA... were there any career implications for her participation in this campaign against C-123 veterans?

Finally one must also ask were these experts more disappointed in their failure to implement VA VHA policy against C-123 vets than in the IOM accusations?

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

VA to Me: "Why Did Your VA Claim File Grow to Twelve Volumes?"

Over the years, VA claims folks have often commented on my own C-file growing and growing, into what I last heard was twelve volumes. Their inference was "why?" 

Reason 1: appeals necessitated by denials and the support documentation for those appeals, over five years of effort that Senator Richard Burr said "shouldn't have taken this long or been this hard."

Reason 2: because I was uncovering the materials necessary to prove our scientific and legal arguments about Agent Orange on the C-123 (our "boots on the airplane" work.) Freedom of Information Act requests, news articles, correspondence, technical and scientific reports, experts' findings and much, much more.

Reason 3: to prove the key point that no amount of proof from whatever source would move C&P to approve a C-123 claim (this is before the Interim Final Rule) because unofficial policies were in play against this group of veterans. Example: Portland VARO wanted to approve my claim in 2012 and cited a "plethora of evidence" but C&P minimized the evidence, dismissing it in their denial advisory opinion as "a few documents."

Strategy: to eventually get to the Court of Appeals for Veterans Claims and not only argue the particular claim should be granted as fact-proven but also prove that VA had systematically abused VCAA*, JSRRC, VAM21-1MR, and always withheld "benefit of the doubt," holding us to an impossibly higher standard of proof to substantiate claims.

Result: it worked by moving to an IOM study. Also worked by showing the growing body of materials from credible sources persuaded legislators that there was a reasonable technical argument in our favor. It also showed that VA had established an improper barrier against granting C-123 claims while wrongly assuring Congress that claims were fairly evaluated – which was not the case. VA responses also showed serious technical errors, such as in the C&P-drafted Secretary Shinseki "C-123 Fact Sheet" sent to answer Senator Burr's letters and the Senate Veterans Affairs Committee.

Background: at our first teleconference with VHA/VBA in early 2011, Dr. Walters made the point that no possibility existed for C-123 vets' exposure. She later told the Associated Press she "had to draw the line somewhere." At our first meeting with Tom Murphy in his office, he stated no amount of proof from whatever source would permit C&P to approve a C-123 claim. 

He based that on Dr. Walter's position, and told us the issue was solved with her conclusion. We again asked what proof from CDC, ATSDR or other authorities would bring C&P to reconsider and he answered "nothing. The issue is decided." At about that time, Dr. Walters prohibited C-123 veterans from the Agent Orange Registry exam**, even though a Secretarial policy was in place that any veteran could seek the exam.

This was while Secretary Shinseki and others were insisting VA had no regulation against C-123 grants (although it was frequently stated as such on denials) and evaluated claims on a "case-by-case basis" even though 100% of the claims were denied except a handful through BVA and two DROs.

We had to argue two separate issues: the fact of contamination on the aircraft, and the fact of potential exposure. VA denied both. Eventually VA also threw up the veteran status challenge...that proved to be a barrier resolved only through the Interim Final Rule.

VA insisted there was no C-123 herbicide contamination because had that been conceded, VA was bound by three separate Federal Register assurances that any veteran with exposure outside Vietnam would still be treated with the same presumptive service connection. Thus, in VA-speak, no contamination meant no presumptive service connection.

VA abused this point yet further by insisting that even if there was contamination, there could have been no exposure. Toxicologically, that is impossible. Exposure to a toxin occurs via inhalation, ingestion or dermal contact. We sought expert opinions on exposure from Dr Linda Birnbaum, Director, NIH National Institute of Environmental Health Sciences and others which directly challenged VA. 

To further VA's struggle against conceding exposure, VA redefined exposure. Using the 2012 Society of Toxicology annual conference, VHA Post Deployment Health presented a poster which included Dr. Iron's line (as though it was scientific fact) "exposure = contamination field + bioavailability." Dr. Walters then used that redefinition to insist that because in later years C-123 veterans years later could prove bioavailability to her satisfaction, no exposure occurred and therefore, no presumptive service connection and no consideration for direct proof either. 

Other scientists took umbrage at VHA's Post Deployment Health redefinition of exposure, and as a result I was sponsored by the Director, NIESH in challenging VA at the 2014 Society of Toxicology conference. I presented an argument against the redefinition as well as VA ethics.

VHA redefining such a fundamental scientific term for use only by VHA and VBA for C-123 herbicide claims (and not elsewhere in VA) got quite a bit of notice elsewhere and moved more scientists and agencies to help us. It also helped that all of VA uses Dorland's Illustrated Medical Dictionary for official terminology, and VBA's unique redefinition contrasted with Dorland's.

* (note: as regards VCAA, none of the government documents addressing C-123 Agent Orange exposure has ever been provided other veterans by VA, despite requirements that all available government materials be made available.)

**On May 13, 2013, Dr. Walters kindly clarified her change in her email to me, although Post Deployment Health hasn't yet spelled out on the VA page for some reason:

"Other potential Agent Orange exposures:
Veterans who may have been exposed to herbicides during a military operation or as a result of testing, transporting, or spraying herbicides for military purposes. Learn about herbicide tests and storage outside Vietnam. Agent Orange or Dioxin dried on surfaces does not present a significant threat to human health. Veterans are eligible if they were in the presence of liquid Agent Orange such as when Agent Orange was sprayed, tested or transported."

VBA Violated 38 United States Code 5103A(b)(2) – and more!

VBA Motto?

For nearly three years, Veterans Benefits Administration sat on vital evidence supporting C-123 veterans' claims for Agent Orange exposure injuries. Our inquiry about this, with copies of VA documents establishing our allegations, was provided the VA Office of General Counsel as well as VA IG and VA National Center for Ethics in Healthcare, without response. Actually, the Ethics Center did respond but said the issues are so serious it is outside their purview.

Input from (1) CDC, (2) National Institutes of Health, (3) US Public Health Service (4) The Concerned Scientists and Physicians and other agencies was received by VA as those agencies sought to confirm C-123 veterans' exposures. (5) Input was even submitted by the Department of Defense Joint Services Records Research Center (JSRRC) beginning in March 2013, but ignored by VA Agent Orange Desk other than in internal discussions about how to disregard it. JSRRC proofs weren't released to C-123 claimants. (6) Even VA physicians who are acknowledged cancer researchers were disregarded (Dr. Mark Garzotto, Cancer Society researcher and author, professor at Oregon Health Sciences University and my urology oncologist at VA Portland.) VA's Mr. Tom Murphy, Director of Compensation and Pension, disregarded every other physician and scientist who submitted evidence on my own exposure to Agent Orange.

Lots of evidence. Evidence even VA described as "credible." Yet for years, VA ignored every bit of it for every one of us. Even today, neutral observers cannot fathom VA having disregarding solid evidence, raising the barrier for C-123 veterans' claims far past its fundamental standard of "as likely to as not." Indeed, VBA's Mr. Tom Murphy, Director of Compensation and Pension, even stated to us and his staff that no amount of proof from whatever source would be permitted to let a C-123 claim be approved.

There's law about such things. VA is required under the Veterans Claims Assistance Act (VCAA) to assist veterans in obtaining records from all other government agencies. It is clear that VA's use of these laws and regulations is primarily procedural but the only enforcement seems to be against veterans and not to compel VA to be correct and legal. Until recently I hadn't found the specific language in the United States Code, but happened upon it today:

(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records.
(Authority: 38 U.S.C. 5103A(b)(2)) 

 That's pretty clear. If VA "becomes aware" it will notify the veteran. One can assume that if VA has "relevant records" in its own possession, it will "notify the claimant."

But the Veterans Benefits Administration neither notified the veterans of available relevant records nor provided those records once in possession of the VA. Instead, VA decided that input from DOD, CDC and other relevant agencies wasn't adequate for VA's purpose...which was to obstruct the C-123 exposure claims. VA even dismissed JSRRC input, writing that it wasn't the role of JSRRC to dictate VA policy.

There's more. VA's Manual M21-1 states:

    Federal records are any documents in the custody of a Federal department or agency. Federal records include but are not limited to:

 ·  service treatment records (STRs)
·  other service department records (such as personnel records, line-of-duty determinations, inpatient treatment records or behavioral health records) that are not included with the STRs
·  VA medical and other records (including Vet Center records and authorized VA medical treatment or examinations at a non-VA facility)
·  Social Security Administration (SSA) records
·  Public Health Service records, and
·  Department of Labor records.

Somehow, VBA opted not to provide C-123 veterans conclusive evidence of their exposures, preferring to simply deny the claims by insisting no evidence existed. Further, VA's manual has specific instructions for VA claims adjudicattors about JSRRC reports of veterans' exposures:

Has the veteran provided sufficient information to permit a search by the JSRRC?
● If yes, send a request to the JSRRC for verification of exposure to herbicides.
● If no, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. (Note: For a sample of a formal finding, see M21-1MR, Part IV,
Subpart ii, 1.D.16.c.),
● decide the claim based on the evidence of record.

(VA21-1, Part IV, Subpart ii, Chapter 2, Section C) 

Here's an actual example of how VBA avoided its duties under VCAA, 38 U.S.C. and Due Process. In June 2014 VBA denied a C-123 veteran's claim for various Agent Orange presumptive illnesses, including prostate cancer and heart disease. In its denial, VBA wrote,

"JSRRC is unable to verify or document that aircrew members were exposed to Agent Orange residue or dioxin contaminated aircraft or aircraft parts. (JSRRC response dated May 2012.)"

But that's not correct! JSRRC had specifically informed VBA's Agent Orange desk (Mr. James Sampsel) in March 2013 that C-123 veterans had, per credible government scientific documents (as VBA itself described them,) been exposed to Agent Orange aboard their aircraft. Mr. Sampsel's emails circulated throughout VBA and VHA, yet nobody took exception to VA characterizing the information in an anti-veteran manner or staffers' decision to disregard the JSRRC input.

It is important to follow the dates. In 2012 JSRRC did provide VA an initial negative report but updated that with its confirmation in March 2013, yet VBA denied the veteran's claim in June 2014 citing old information and withholding the newer JSRRC response. VBA even termed the current JSRRC and other information as "unfortunate and credible scientific information."

"Credible scientific information" plus JSRRC confirmation...all vital, primary evidence to support all C-123 veterans' claims. All of it, however, withheld by VBA as it stalled C-123 claims until forced by the Institute of Medicine report to finally recognize the issue in June 2015. And then, VBA even found a way to block retroactive benefits for the years it stalled and violated veterans' rights.

WHAT? VA can't afford drug for veterans suffering from hepatitis C?

On Tuesday, a Senate report found Gilead Sciences, which makes a cure for a fatal form of hepatitis, is more interested in profits than patients. The cure was invented under the leadership of a celebrated doctor in the Department of Veterans Affairs, but at $1,000 a pill, even the VA can't afford to save the lives of veterans who need it.

In 2013, Vietnam veteran Zion Yisrael was told he had five years to live. He has stage 4 liver disease, caused by hepatitis C -- which has infected as many as 230,000 veterans. Most veterans contracted it in Vietnam where it was spread by battlefield blood transfusions and vaccinations.

"The longer it goes, the harder it is to treat," he said.

Shamed St. Paul VA executive "demoted" to highly desired job at troubled Phoenix VA Regional Office

St Paul Administrator Ms. Kim Graves

By Allison Sherry, Phoenix Star Tribune

WASHINGTON – Embattled former St. Paul veterans benefits director Kim Graves is being moved a lesser (but one still highly desired and richly rewarded) VA job in Phoenix, senior House Veterans Affairs Committee officials said Tuesday.

The U.S. Department of Veterans Affairs said last week that they demoted Graves to assistant director after the department’s Inspector General found she orchestrated a move to Minnesota from the East Coast and received $130,000 in moving expenses. She also kept her high $173,949 salary, even though her VBA responsibilities in St. Paul were greatly diminished.

After the inspector general’s findings, Graves was forced to testify in Washington. She pleaded the Fifth Amendment in front of the committee, in order to avoid making any self-incriminating statements.

The inspector general’s report, which uncovered similar instances of potential misconduct from other administrators, drew intense and bipartisan criticism in Washington, where VA officials have been scrambling to correct the problems.

Top VA officials in Washington reassigned Graves to the assistant director position in Phoenix, a much larger organization, VA officials told the House Committee.

Graves will take a pay cut, too, though will likely make more than $100,000 a year.

Kay Anderson, the current assistant director in St. Paul, has taken over the helm of the regional benefits office.

The VA has not commented on the shuffling and has not taken steps to make Graves pay back her relocation allowance to St. Paul. It was not clear whether she would get another relocation stipend to move to Arizona.

Graves and other administrators identified in the inspector general’s report could still face criminal prosecution.

Allison Sherry • 202-383-6120

Salisbury VA Hospital Given "High Marks" Following Inspection. Justified? I don't think so.

I disagree completely with the satisfactory inspection score...VA termed it "high marks"...given the
Salisbury NC VA Medical Center by a hospital accreditation commission. I'm a former health services administrator so perhaps I was more critical, but I' prefer not to seek care at Salsbury if I could find it elsewhere.

“We are continually striving to provide the best care we possibly can to our Veterans, and we take that obligation and privilege to heart,” stated Salisbury administrators. However, in my visits to that hospital I've seen little to prove it.

My observations:
• a six-hour wait in the Emergency Department for a simple request for prescription refills
• a television in the ED showing nothing but white noise
• hard plastic chairs in the ED, providing very uncomfortable seating for patients having to wait so long to see a physician
• a physician I met stated the services at Salisbury seemed of a lower quality than other North Carolina VA hospitals and suggested it reflected the VA disregard for this facility which I understood to have the state's highest percentage of minority patients
• no refreshments, other than discount colas behind a steel bar security barrier, priced at $1.50/can
• no books or magazines in the ED
• no patient transportation between far-flung buildings
• a patient canteen open only limited hours, and a long walk from most other buildings
• a very worn and tired appearance, older buildings, poor landscaping
• I saw no volunteer services, but such services may have been offered in other areas I didn't visit
• I saw patients in the ED who'd waited hours, and who decided to instead carpool to the Asheville VA hospital (about two hours away) expecting they'd be seen earlier at that better VA hospital
• I couldn't find a cup of coffee, nor could I find the veterans service organizations I needed to visit