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
 

Appeals court finds VA wronged veterans – twisted VA regulation to prevent payment of civilian emergency medical care

What offends me most here are the VA's attorneys. Knowing the deception, they still went before the Court of Appeals for Veterans Claims to defend the wrongful practice. In conscience, they should have stood before the Secretary and explained the proper action and not gone to court hoping for a win over veterans!

A three-judge panel on the U.S. Court of Appeals for Veterans Claims has ruled unanimously that the Department of Veterans Affairs ignored “plain language” of a 2010 statute meant to protect VA-enrolled veterans from out-of-pocket costs when forced to use non-VA emergency medical care.

The panel ordered the Board of Veterans' Appeals to vacate its decision to deny Air Force veteran Richard W. Staab roughly $48,000 in health care costs he was forced to pay following open-heart surgery in December 2010. The board “failed to properly apply the statute and relied on an invalid regulation” to deny Staab's claim, the court ruled.

The decision benefits only Staab, for now. But hundreds of other VA-enrolled veterans who had alternative health insurance, and so got stuck paying some of their outside emergency care costs since Feb. 1, 2010, when the ignored law took effect, have new legal ground on which to refile claims for VA reimbursement, said Bart Stichman, one of Staab's attorneys.

These vets should cite the appeals courts' April 8 Staab v. McDonald decision to argue “clear and unmistakable error” in deciding previous claims, said Stichman, forcing VA claim adjudicators to determine if there was error.

Stichman also is joint executive director of the National Veterans Legal Services Program, a nonprofit veterans service organization that brought Staab's case to the appeals court as it often does on critical benefit issues.

The court, in effect, agreed Staab had been victimized by the VA's convoluted interpretation of a law regarding its obligation to cover non-VA emergency care costs when veterans have other health insurance, including Medicare.

The VA long has maintained it is obligated to pay emergency costs only for veterans who have no alternative health coverage. The consequence of that logic is that VA-enrolled veterans are better off having no other insurance when a health emergency arises then in having some coverage.

For those without insurance, the VA agrees it must cover all costs. For those with insurance, the VA will cover no costs, forcing veterans to pay whatever expenses Medicare or their health insurance plans will not pay.

Recognizing how unfair that is, Congress voted in 2009 to clarify the law, specifically to “allow the VA to reimburse veterans for treatment in a non-VA facility if they have a third-party insurance that would pay a portion of the emergency care.”

To be sure colleagues understood the purpose of the change, Sen. Daniel Akaka, then-chairman of the Senate Veterans Affairs Committee, made a floor speech that it would “modify current law so that a veteran who has outside insurance would be eligible for reimbursement in the event that the outside insurance does not cover the full amount of the emergency care.”

The clarifying statute took effect in February 2010. Yet while rewriting regulations to implement the law, VA officials opted for language that would preserve their former interpretation. Reimbursements for emergency care would be allowed under the revised rule only if the “veteran has no coverage under a health-plan contract” for payment of such care.

In a notice of final rulemaking published April 20, 2012, the VA reinforced the point, stating that any entitlement to care or services under an outside health plan, “even a partial one, bars eligibility” for VA reimbursement.

That was wrong, the appeals court found. The “plain language” of the revised statute, it wrote, shows Congress “intended VA to reimburse a veteran for that portion of expenses not covered by a health plan contract.”

Given the clear meaning, the appeals court deemed the 2012 regulation invalid and ordered it set aside. It also remanded Staab's case to the appeals board to be readjudicated by “properly” applying the law.

Staab, 83, learned of the decision Monday.

“I thought it was great,” he said in a phone interview

A resident of St. Cloud, Minnesota, Staab only enrolled in VA care a decade ago after a foot and ankle injury sustained while offloading cargo in the Pacific in 1953 worsened. The VA rated him 30 percent disabled.

Staab suffered his 2010 heart attack while helping his wife, who had multiple sclerosis, out of their specially equipped van. He recalled being unable to catch his breath and agreed to get in an ambulance only if someone would tend to his wife. He had emergency heart surgery and soon also a stroke that would require a long rehabilitation. He was six months in hospital and nursing home, learning to speak again, as medical bills piled up.

Because Medicare Part A covered only a portion of the rising costs, Staab went home months sooner than his doctors had advised. He forwarded unpaid bills to the VA but it denied payment, explaining that because Medicare had paid some of the cost, the VA couldn't cover what remained.

“I don't think that made any sense,” Staab told me. He was forced draw down his savings, but he did pay all his medical costs, what he estimated for the court were $48,000 in charges.

“That puts a lot of strain on you,” he recalled. His wife died last May.

Jacqueline M. Schuh, a former military attorney in St. Cloud, began to help Staab on a pro bono basis through three levels of administrative appeals. By the time the Board of Veterans' Appeals rejected their case, Stichman and the NVLSP also were involved. Stichman said he has three other cases before the appeals court that, based on the precedence now set by the three-judge panel, are also likely to be decided for the veteran.

“They could have taken any of them but picked Staab first. It's not uncommon that this (faulty regulation) is used as grounds for denial. As you can imagine, a lot of people are partly covered by some other insurance.

“Partly our job is to try to get word out to veterans who were denied in the past on this ground that there is a pathway (to reimbursement). It's not a 100 percent certain pathway. But if they file a claim challenging the previous denial based on clear and unmistakable error, then the VA is required to take a look … (T)here's a very good argument that the regs were clear and unmistakably wrong, given the forcefulness of the court's decision.”

“I hope it will help a lot of people,” Staab said.

The VA can appeal, Stichman said, but he suggested that would be an embarrassment for the department

 Tom Philpott @Military_Update.

C-123 Vets Meet With Secretary McDonald

Secretary McDonald generously gave me over an hour yesterday afternoon for our private conversation tat the Denver DAV National Convention.
He was aware that our initial alarm about VA's statement to HuffPo about widows not being protected by the interim final rule was resolved by VA last Friday in their "reinterpretation" of the issue...in other words, the VA was led to do the right thing regarding widows/widowers' DIC but acted as though that was their intention all along.

Discussion:
1. VA disregarded years of confirmation from other federal agencies, failing to act when there was more than adequate "benefit of the doubt" evidence. The two VA C-123 Fact Sheets were discussed with the important point that errors littered the June 2013 letter to Senator Burr and VA failed to reveal the JSRRC information received four months earlier. VA failed their duty to be pro-veteran and non-adversarial and would be seen to have done so by the CAVC when appeals reach that forum.
2. VA disregarded (another word could be "suppressed") that 2013 Joint Services Records Research Center exposure confirmation from veterans, their attorneys, legislators, claims offices and BVA, as well as the May 2014 confirmation JSRRC began providing on individual C-123 veterans. This violated VCAA and VAM21-1MR.
I said the CAVC would find this a compelling argument in our favor and that unless retroactivity were provided appeals would be inevitable. We reviewed dates of interest, such as the May 2011 general "awakening" of C-123 vets to our exposures, and the fact all scientific information had been provided VA by the end of 2011 – all of which they ignored. We discussed the famous VA phrase, "VA has an overwhelming preponderance of evidence against C-123 claims."
3. I raised the VA OGC precedential opinions and how they should have led to veteran status per Title 38. He was already familiar with the "liberalizing" issue, and also with the fact that retroactivity had been recognized for the active duty C-123 vets, but not us. I pointed out that the DRO C-123 awards and the BVA decisions thus far had all recognized the retroactive claims. In the end, he promised to read all three essays.
I also reviewed the surprisingly small number of claims predating the June 19 2015 effective date, which if each were awarded 100% SC back to May 2011 would only total $1.2M additional cost to VA assuming the same average SC % on claims processed thus far, added to the VA OGC $47M forecast for C-123 issues (excluding medical costs)
4. I discussed my concerns about physician recruiting and retention, the need for skilled former military medics to conduct "sick calls" at VA day clinics as a physician force multiplier, acceptability of board credentials from the American Board of Physician Specialties, DO recruiting, and formation of a "VA Physician Reserve Corps" of departing docs to continue a lower level of service.

In conclusion, I was given twice the time than scheduled for our discussion and we ended only because I had to leave. He was sincere and agreed that VA could have acted sooner, and he'd review our request carefully. Thus far, I'm satisfied and now we'll wait to see if VA delivers any changes to the interim final rule.

VA Hid DOD Confirmation of C-123 Veterans' Exposures for Two Years – concealed evidence vital to veterans' Agent Orange claims

VBA Agent Orange Desk Policy??

VA HID VITAL DEPARTMENT OF DEFENSE OFFICIAL CONFIRMATION OF AGENT ORANGE EXPOSURE EVIDENCE FROM C-123 VETERANS. (click for full source file of this report)

VBA's Agent Orange desk hid evidence from the Board of Veterans Appeals and US Court of Appeals for Veterans Claims! The personnel involved (staffers in the Veterans Benefits Administration) violated every trust a veteran is asked to have with the Department of Veterans Affairs. VA let valid C-123 veterans' claims be denied by withholding official DOD information which would have established service connection. VA thus insured through this arbitrary and capricious abuse of authority that all our claims were denied.

Revealed in VA emails and other correspondence released last week under the Freedom of Information Act are proofs of the intensity and creativity, as well as total disregard for veterans' rights, with which VA's Agent Orange desk in Veterans Benefits Administration fought all C-123 veterans' Agent Orange exposure claims.

This was done not as matter of law, nor even VA's own regulations, but because of the personal policy preferences of a few individual staffers.

"Quick...hide the Agent Orange evidence!"

VA's operations manual VAM21-1MR states that VA will ask DOD's Joint Services Records Research Center (JSRRC) to verify non-Vietnam War veterans' Agent Orange exposures. Vietnam War veterans are considered by law to have been exposed, but veterans exposed elsewhere have the assertions investigated by JSRRC. And JSRRC affirmed the C-123 exposures.

VA has had all this proof from JSRRC for over two years (March 13 2013 and perhaps earlier from veteran-submitted documents which VA ignored.) The agency never revealed anything to its regional claims adjudicators, Decision Review Officers, veterans, veterans service organizations, or VA's Board of Veterans Appeals where denied claims are reconsidered. 

Once the C-123 issue arose, VA was overly selective about what evidence it would accept from JSRRC, insisting it had to be contemporary military material only. In effect, VA was cherrypicking evidence from what JSRRC provided, accepting anything against the veterans, refusing anything helping the veterans. 

After VHA informed VBA of its position against honoring any C-123 veterans' claims, VHA Public Health staffers put out a web page (click...pre-2015 page) insisting their review of "all available scientific information" (actually, cherrypicked information to prove their own point) was against the exposure claims. VA then cited their own web page as proof in subsequent claims and BVA decisions. "It's true because we say it is, and the proof is that we said it." Simply put, this was policy-driven (non)scientific deception.

VA's web pages were false, and were finally modified to a more neutral tone on March 15, 2015. The Institute of Medicine confirmed the veterans' Agent Orange exposure and harmful effects on January 9, 2015 in its report to Secretary McDonald. VHA and BVA opposition to C-123 veterans' claims since 2011 was wrong. The dozens of reports from the CDC/ATSDR, NIH, universities, physicians and USPHS all were ignored or disputed by VA, but in the end VA was proven wrong.

Many federal agencies (including the deputy director and two successive directors of the CDC/ATSDR) and independent scientists had provided expert federal agency input to JSRRC hoping to get it to VA for proper evaluation of C-123 veterans' claims. To ignore these proofs, VA insisted to JSRRC the materials that only DOD materials offered were acceptable: No input from other federal agencies, universities, state governments or scientific associations would be acceptable to VA. 

We thought that senseless barrier had been resolved when two US Public Health Service physicians informed JSRRC...and USPHS commissioned corps physicians are military officers by statute. One was Rear Admiral Robin Ikeda (MD, USPHS) at that time Acting Director CDC/ATSDR. Another was Captain Aubrey Miller (MD USPHS) assigned to the NIH/National Institute of Environmental Health Sciences.

VA's Secretary Hickey was also visited by the Director National Institute of Environmental Health Sciences who discussed the science and veterans' exposure proofs. 

Mountains of legitimate, persuasive, and expert input, but VBA and its Agent Orange desk ignored it all.

Players: 

•at JSRRC, Mr. Dominic Baldini, Chief

• at VA, Manager, Agent Orange Desk, Veterans Benefits Administration

Documents:

• 2013 email between JSRRC and VBA's Agent Orange desk; JSRRC's chief provides confirmation documents adequate to approve claims. VA never acts on these and over years permits claims to be denied without providing them in fulfillment of VA's duty to assist every veteran's claim.

• JSRRC response on a C-123 veteran's exposure assertion; happens to be mine because I have no access to any others due to privacy protections. 

VA's VAM21-1MR states that VA will inquire at JSRRC for a veteran's exposure to be substantiated. It says nothing about whether VA must act on that but implies it. Nothing is said about VA not acting, however that clearly violates VA's statutory obligation to assist the veteran. 

For years, VBA callously permitted sick C-123 vets' claims to be denied, and their appeals to the BVA denied, without providing these readily available and affirming JSRRC materials which would have been so decisive in any fair forum. Amazing that DOD ad  "yes" but VA still chose to interpret that as the "no" VBA's Agent Orange desk prefered.

VBA repeatedly (2011 through late 2014) advised regional offices and VA personnel everywhere that there was no basis for VA to "concede" C-123 veterans' Agent Orange exposure. Because the Agent Orange desk refused to "concede" the veteran's exposure, that amounts to directions to regional offices to deny the claims, and many simply wrote, as on the Paul Bailey initial denial, "VA regulations forbid..." 

With Senate inquiries heating up the issue, VA later admitted it has no such regulation and no "blanket policy" against C-123 claims. Even today, VBA insists C-123 claims are handled on a case-by-case basis, yet on a case-by-case basis every single one is denied. Still, it certainly sounds like a blanket denial of all claims!

We ask our fellow citizens and legislators to remember that despite all the controversy and VA-pushback, C-123 veterans were eventually proven correct by the IOM C-123 report. VA was shown to be in scientific and procedural error in opposing reasonable claims. VA all this JSRRC and other federal agencies' proof in its possession since 2011, yet allowed exposed veterans to sicken and die by hiding the evidence.

VA treatment of veterans' rights

They had all the DOD evidence necessary for the benefit of the doubt, pro-veteran, non-adversarial confirmation of our exposures from 2011 on, but chose to ignore, denigrate or simply hide that evidence to insure their policy of "no C-123 claims will be approved" as per statements by VHA Post Deployment Health. VA used its rules against veterans' interests where desired, but freely ignored the rules when staffers had their anti-veteran personal agendas to pursue. These staffers should re-read opinions by federal courts that emphasis VA's regulation VAM21-1MR has the force of law...adhering to it is a veteran's responsibility and also VA's.

​Related topic:

DOD's Agent Orange contractor produced their 2006 list of Agent Orange storage, transport, manufacture and testing sites outside of Vietnam. DOD was asked by VA to provide this. VA cites it when confirming or denying veterans' claims for exposure in other than the Vietnam "boots on the ground" basis.

As part of his 2012-2014 $600,000 no-bid sole source contract with VBA, the contractor submitted a report, citing himself, which generally concluded no changes were necessary in his 2006 report. Each of his monographs produced under the contract confirmed VA policy, perspectives, opposition to various veterans' claims, etc. None challenged or suggested changes, improvements, nothing.

DOD (Armed Forces Pest Management Board apparently has responsibility) has refused per the AFPMB director to amend this list even with IOM, ATSDR and other proofs of additional sites, yet VA continues to cite it in denying claims and denying appeals at BVA.  (example one)  (example two) Both VA and DOD have refused to update this nine-year-old list.

Any "proof" cited by the government to provide or deny a citizen's rights should be accurate. This DOD list is not accurate and is fatally flawed, yet VA employs it to block claims.

VA Blocks C-123 Veterans' Exposure Claims: A Summary of VA's Methods

There are several ways in which VA arranges the denial of C-123 veterans' Agent Orange exposure claims. And that's not counting their fundamental "not on my watch" mentality that our claims must be prevented by any means, fair or foul. Rather than find a way to help within the law, VA instead twists the law and regulations to squeeze out illogical and unfair...and unconstitutional barriers against us.

I'm not trying to have a shrill or radical voice about this, but readers have to understand the impact of VA engineering ways to avoid providing care for our ill veterans. Waiting for a claim to be processed is long enough, but being slammed with their an automatic denial is very depressing...this is not the right way to treat service-connected cancers, heart disease, ALS and the other ailments associated with Agent Orange exposure.

Here we'll show five of the basic "slight of hand" tricks used by VA to block our claims. Of course, denied C-123 exposure claims can be appealed to the BVA where we are always successful, but VA wins there, too. A denied claim saves VA years and years of patient care, because they refuse care until a claim is awarded. Veterans cannot recover medical costs for trying to survive while a claim awaits justice. Clearly, VA views approved claims as a loss to their department. (Note: we did request VA to permit veterans with substantial proofs of their claim to receive care during the claims and appeal process, but were refused.)

1. VA claims adjudicator originally dismissed the vet's claim for absence of "boots on the ground" service. The CAVC determined that every veteran with proof of service elsewhere that resulted in proven exposure, that veteran will be treated with the same presumptive service connection as the Vietnam veteran. CAVC also noted the Federal Register statement by VA to that affirmation. However, VA regional offices universally ignore the three Federal Register assurances from VA to C-123 veterans that our exposures are to be recognized. In the case cited below, the veteran's claim is awarded, but the problem is he had to wait three-five years to get justice from CAVC instead of his local regional office.

Citation Nr: 1420702:
"The Board notes that the Veteran did not have any service in Vietnam during his period of military service, nor does he claim such service.  See 38 C.F.R. § 3.307(a)(6)(iii).  However, that does not preclude the Veteran from establishing entitlement to service connection for diabetes mellitus or prostatectomy status post carcinoma due to exposure to herbicides.  In the final regulations published in the Federal Register, which established diabetes mellitus and prostatectomy status post carcinoma as diseases on the list for presumptive service connection based on herbicide exposure, VA re-affirmed that, if a Veteran did not serve in Vietnam but was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during service and has a disease that is on the list of diseases subject to presumptive service connection, then VA will presume that the disease is due to the exposure to herbicides.  See 66 Fed. Reg. 23,166-69 (May 8, 2001); 38 C.F.R. § 3.309(e)."

2. Many C-123 claims are denied with the claims official insisting that regulations forbid our claims' approval, not only at the VARO but even at the BVA where both the administrative law judges and the VA counsel should be more expert. The fact is, no such regulation exists. The governing regulation is VA21-1MR which spells out the management of non-Vietnam exposure claims. The regulation, according to the Court of Appeals for Veterans Claims, "has the force of law" so we are puzzled that VA ignores it...but we can't demand its protection. VA21-1MR says VA will inquire with the Joint Services Records Research Center for confirmation of our Agent Orange exposure incident. JSRRC now provides that confirmation. Before JSRRC was able to confirm, VA denied claims because of that. Now that JSRRC does confirm, VA ignores that proof which should have been persuasive.

3. VHA and VBA training materials instruct VAROs that no amount of veteran's scientific and medical information will be considered to weigh against the VA's existing "scientific evidence" formed from decades-old materials, Dow & Monsanto letters and contractor's monographs. In fact, this violates the promises made by dozens of VA executives for "case by case evaluation" of claims and this predetermination that veterans' evidence is insufficient amounts to a denial of the right of due process, guaranteed in the Fifth Amendment – but not by VA!
.
A Supreme Court decision referred to as "Cushman" found that the VA must evaluate a veteran's claim in accordance with VA's own regulations and the duties of the adjudicators to perform their duties as public servants...raters' job descriptions describe evaluating claims, not dismissing claim evidence upon HQ instructions which are clearly improper.
The following paragraph's instructions that veterans' claims are predetermined to be "insufficient" is the core of VA's assault on the Due Process Clause. We also note that the questionable "opinions by scientists" are from Dow, Monsanto, the VA contractor who called us freeloaders, and a handful of articles from the early days of VA opposing Agent Orange claims. Current science, including the only peer-reviewed article addressing C-123 exposures, holds that C-123 veterans were exposed, and were harmed aboard our aircraft.

"Opinions by scientists supporting stateside C-123 Veterans stating that TCDD
was present in the aircraft and that this led to “exposure” is insufficient to
overcome VHA scientific data showing no bioavailability (i.e. no routes for
human body entry) for any TCDD residuals in aircraft"

4. VA officials are comfortable repeating frequently their decisions, both by VHA and VBA, that C-123 veterans' claims are unacceptable to them. The Deputy Chief Consultant Post Deployment Health told Major Terry Rudd, US Army Chemical Corps in March 2012 that "VA cannot permit C-123 claims." She told me the same thing in a telephone interview, phrasing it that none of the C-123 veterans were exposed (and neither were any of the Vietnam ground veterans) and therefore claims will not be approved.
The Director Compensation and Pension refused to permit expert toxicologist evidence, including from the CDC and National Institutes of Health, He also recommended claims be denied on his own belief that TCDD (the carcinogen in Agent Orange) "hasn't been shown to impact health." (Perhaps so, but only if one excludes cancer, heart disease, ALS, etc., and also ignores the 1991 Agent Orange Act and the multiple IOM reports.)
Post Deployment Health, part of VHA, told the Associated Press, "We have to draw the line somewhere." We just don't see "hold the line" in the law, nor in the US Constitution, nor in VA leaders' oaths of office, nor in the Federal Register publications assuring veterans and the Congress that VA will treat non-Vietnam veterans with proof of exposure with presumptive eligibility.

5. As detailed elsewhere in this blog, the Federal Register clearly and repeatedly stated the Secretary's commitment to Congress and veterans to consider non-Vietnam vets with proof of exposure with presumptive service connection for the recognized Agent Orange illnesses. Yale Law School's finding clearly supported the C-123 veterans in this. Which is why VA opted to simply redefine the word "exposure" so that exposure claims could be refused, redefined away by linguistic trick. It is like redefining "swallow" or "blink" or some other standard word in medicine or science...and VA OGC helped arrange the redefinition strictly to prevent C-123 claims.

Conclusion: the system seems rigged against veterans, regardless of the merit of their claims, because it permits individual VA staffers to implement their personal agendas. VA staff are able to feed the Secretary misleading responses to Senate and House inquiries, just as Secretary Shinseki claimed at his resignation. VBA staff even managed to scrape up an unscheduled $600,000 for a unique no-bid, sole-source consulting contract to develop post-Vietnam monographs opposing C-123 and other veterans' claims. No other group of veterans have submitted such substantial proofs, including military documentation of the contamination situation and findings from other federal agencies, yet faced such determined VA opposition.

How VA "Helps" Veterans' Appointment Lists – By Denying or Delaying Other Veterans' Claims

How VA Games Their Claims System:

 "We have to draw the line somewhere." (VA VHA official quoted by AP)

VA's Veterans Benefits Administration and Veterans Health Administration skillfully developed their own solution to a mutual problem long ago.With hospital appointment lines long, budgets constrained, staff overburdened, and a too-visible claims delay backlog...lightbulbs went off over the heads of staffers from these separate but related functions of the VA.

(note below: advantages favor VA, disadvantages favor veterans)

A. The VA Delayed Claims Solution: Deny claims (as often as possible for whatever reason comes to mind (legal or not) but not right away...wait out as long as possible until the time stamp on the claim starts getting visibility for being too long delayed,) then deny the claim.

• Advantage: many vets give up at this point or die off. 

• Advantage: VA continues to deny all medical care and benefits for a year or more, with great savings and shorter appointment lists

• Disadvantage: some vets will appeal to the Board of Veterans Appeals (VBA)

B. The VA VBA Appeals Delay Solution: Delay for several years, with perhaps three-four years since claim submitted. Then remand to start all over again, deny to force appeal to CAVC or in a few cases, approve.

• Advantage: more years with medical care denied, vets give up, survivors don't know how to proceed, vets die off (VA term:vet deaths = "advantageous wastage"

• Advantage: process looks fair, although designed to prevent rather than approve claims

• Advantage: even if claim is approved for total righteousness, BVA decisions set no precedent so an identical claim five minutes later can be decided totally differently

• Advantage: Few vets have resources to hire representation; most VSOs are less skillful than attorneys

• Disadvantage: denying precedent wastes VA resources as identical cases eat up time, when precedent could instead be cited for denying more claims coming into BVA

C. The VA Court of Appeals for Veterans Claims Delay Solution (CAVC): Additional several years to be heard, often remanded back to rating office for minor details, 

• Advangage: many more vets give up or die off; even their survivors start dying off

• Advantage: VA continues to deny all medical care and benefits for several more years, with fantastic savings and shorter appointment lists and forcing vets onto Medicare, Medicaid.

• Advantage: CAVC decisions are not precedent-setting except by three-judge decisions

• Advantage: few vets have resources to get this far; few have resources to retain counsel

• Advantage: surviving vets after these years generally focus more on health than legal conflicts, either giving up, becoming less competent, or conflicted with other commanding health issues

• Disadvantage: none. Few vets have resources for representation, plus mandatory fees help discourage representation but for the odd pro bono

• Disadvantage: precedent rules requiring three-judges means identical cases often have to keep being heard, wasting Court time but assisting VA in preventing all care to the affected veterans (remember...prevention of care is the priority. Prevent, Prevent until they die. Refusing medical care helps the vets die off faster, saving both money and appointment list scrutiny.)

Veterans Solution: The immediate help for veterans would be a claims process providing immediate overall review to identify "more likely than not" appropriate disability claims and permit those veterans access to VA medical care on a tentative basis. With or without compensation, but at least medical care to survive.

Those claims continue into a "fast track" system of evaluation to be resolved and terminate VA care if appropriate 30 days after denial, with a scheme to either buy into a private plan or an alternate, lower priority VA program. Approved claims join the ranks of approved claims in the normal manner.

VA Solution: Obviously, none of the above. Find more ways to delay. Redefine various obligations for care to further exclude veterans from eligibility. Tell Congress things are working well except for the odd, delusional veterans who whine on about things when they should keep their damn mouths shut!