VA Makes Its Rules...Then Ignores Them

VA Ignores Its Rules & Blocks C-123 Veterans'
Agent Orange Exposure Claims

The VA follows through on delivery of laws passed by Congress through the United States Code, for most veterans meaning Title 38 C.F.R. VA creates rules and regulations whereby it defines how it will implement the laws, procedures by which claims are to be addressed. They also publish in the Federal Register those rules and regulations, as well as explanations of issues, procedures and unusual situations.

VA's manual addressing veterans' claims is VA 21-1MR. But VA has been picking and choosing which parts of it their agency will implement and which it will ignore, for the purpose of blocking C-123 veterans' claims.

In our case, VA opted not to follow its own published regulation nor adhere to the explanations of its rules and regulations repeatedly published in the Federal Register. Together with numerous other steps by VA, a convincing picture forms of the department's program to block C-123 veterans' exposure claims.

Let's look at how courts have said VA is supposed to respect its own rules, rules by which it determines veterans' eligibility for care and compensation:

The U.S. Supreme Court has stated that, "[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.  This is so even where the internal procedures are possibly more rigorous than otherwise would be required" by statute or regulation.  Morton v. Ruiz, 415 U.S. 199, 235 (1974).  This is important when VA takes a "short cut" to save time or effort and then denies a claim.  The law is that even if a regulation requires less effort than a procedure used by VA in similar circumstances, VA cannot pick and choose when to follow its own rules and when not to do so.  See Castellano v. Shinseki, 25 Vet. App. 146, 151 n.2 (2011) ("[T]he Secretary must adhere to his own policies when adjudicating veterans' claims." (citing Morton, 415 U.S. at 235 (1974)).  Yet, 38 C.F.R. § 19.5 states that "[t]he Board is not bound by Department manuals, circulars, or similar administrative issues."

Compliance with the M21-1MR can also be reasonably raised by the record such that the Board should address the issue.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (Board must discuss provisions of law and regulation where they are made "potentially applicable through the assertions and issues raised in the record").  A regional office's failure to follow the M21-1MR and the Board's failure to identify such issues frustrates judicial review, warranting remand.  See Tucker v. West, 11 Vet. App. 369, 374 (1998) (where "the Board has incorrectly applied the law, failed to provide an adequate statement of its reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."); Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court").

That's the law. So why doesn't VA strictly obey it, as we must? Because they don't have to. Failure to perform as the law or its regulations demand have no consequence for the VA or any of its employees. If a claim goes to the BVA or Court of Appeals for Veterans Claims (CAVC) with clear violations of VA's rules, the worst that can happen is the claim gets remanded for reconsideration, with some comment from the judge if VA has been particularly outrageous. Nothing more.

No fines, No punishment, no nothing.  The only consequence is the veteran faces even more delay as the until the regional office gets around to reworking the claim and then its back in line again for reconsideration of the appeal. In some cases, this has happened three or four times with the CAVC becoming more and more irritated, and the regional office probably going "ho-hum." And the poor veteran waits years and years past when VA should, if following its own regulations, have awarded the claim.

So what's happening with C-123 veterans? For us, the regulation states that VA will follow a section of VA 21-1MR which addresses non-Vietnam War "Boots on the Ground" claims.

Violations of the its procedures set forth in the VA's claims manual (VA 21-1MR) are reversible errors on appeal to BVA or Court of Appeals for Veterans Claims. The CAVC has declared the M21-1MR manual has “the force of law” and if not followed by VARO raters and DROs violates both procedural and constitutional due process right of veterans. A case from Fort Ord had VA severely criticized for failing the "duty to assist" both stated and implied in VA 21-1MR when VA fails to follow its own rules. But the only penalty was paid by the veteran whose claim was remanded for further delay in the hopes of justice. (Eventually, the claim was successful.)

Legal experts advise us that the three Federal Register statements VA published regarding non-Vietnam exposures constitute VA rules published by the Secretary and VA is compelled to follow them. This is why OGC quickly opted to redefine exposure, different than other government agencies and even differently than VA's standard dictionary of medical terminology and its court-accepted definition of "exposure." Redefining standard terms differently than other federal agencies (CDC/ATSDR, ) to prevent claims, and predetermining our claims to be without merit, denies us due process.

When claims like ours have persuasive supporting evidence dismissed in advance, when VARO staff is trained that C-123 claims are baseless, and when VA fails to follow its own manual as well as the specific commitments made in the Federal Register, due process is denied and, as the CAVC and other courts have said, our Constitutional rights abused.

When VHA executives state "We cannot permit C-123 claims" or tell the Associated Press, "We have to draw the line somewhere" or "No C-123 veterans were ever exposed," our rights are abused. Not a little, but in direct trashing of our Right to Due Process under the Fifth Amendment to the United States Constitution. In case you're not familiar with it, that's one of the "Bill of Rights." VA trashes it, destroying personal liberties guaranteed us under the Constitution. That's a pretty big deal.

VA doesn't care. No problem for them, either as an agency or for the individual doing the trashing.

The VA has created a C-123 process like this:
1. Veteran files exposure claim (assuming he/she isn't dissuaded by the VA web pages stating somehow, no exposure occurred) or told by VSOs and VA staff there is no eligibility and therefore, no need for vets to apply as the process is hopeless
2. Claim gathers input from JSRRC if available, but claim is usually denied at the VARO on the strength of VHA/VBA instructions, training to dismiss/disregard veteran's proofs
3. Non-Vietnam AO claim is supposed to be routed to VBA Agent Orange desk, Mr. James Sampsel, the gentleman who drafted Secretary Shinseki's deceptive, error-laden letter to Senator Burr
4. Agent Orange desk issues Advisory Opinion directing the VARO to deny the claim
5. Claim is appealed and BVA correctly interprets scientific evidence; thus far all appealed C-123 claims are successful and our Fifth Amendment rights restored, albeit with great delay
6. Trend developing in non-C-123 Agent Orange situations where BVA is stating claims for exposure are not authorized for other than VN, DMZ, some ships, etc – this is a great error because every claim should be permitted to stand on the evidence of proven exposure, as VBA Under Secretary Hickey has stressed so many times, but without VA follow-through because instead, each claim is ordered denied
7. VA has spent $600,000 with an outside consultant for creation of monographs challenging C-123 veterans' claims, but not a penny was spent to support the claims. VA even invited Dow and Monsanto to submit a letter arguing against veterans' exposure claims. These "experts" continue to assert that dioxin has not been shown to be harmful, which is shown to be a false statement: the VA itself, EPA, NIH, CDC, FDA, WHO and virtually all other regulatory and scientific organizations recognize dioxin as a potent human carcinogen.

Why? We don't know. There aren't enough of us (about 2100 crew and maintenance veterans) to warrant such a continuing (1331 days) campaign to bar us from VA hospitals. Probably, admitting our exposures would trigger something else which we're unaware of but which VA is so determined to prevent.

We're waiting for the Institute of Medicine C-123 Agent Orange report, although it is months late from its anticipated September 30 release. Probably VA is fighting that report as well in the review process before publication, but perhaps we are just off base and the IOM is taking more time to make its report comply better with the VA's charge to the committee.

In any case, VA rating officials have ordered all C-123 claims postponed until results of the IOM are clear and implemented by the VA. This has meant eleven months thus far with more to come, in delaying VA from obeying the regulations it published for itself...and for us...to follow regarding Agent Orange claims.

Even in the most positive review of what's happened and what is to come in this process, VA wins, defeating our access to VA care for over 1331 days since we first sought their help. No catch-up check for delayed compensation makes up for denied medical care, denied family benefits, refused state benefits due vets with acknowledged VA disabilities, and the misery of having to fight this fight for years when our focus should instead be on family and resolving medical issues.

We fought our wars. We didn't expect to come home to do combat with the VA.

Time is of the essence once a veteran becomes ill and files a claim. Life-saving care won't be permitted until the vet's claim is processed and (hopefully) approved.

VA know this, which is exactly why VHA considers 1331 days of delay thus far a spectacular victory, a victory of preventing our access to its world-class medical institutions. Why?

The more vets receiving care, the longer the waiting lists which draw such attention from the media, and the more VA's budget is impacted in providing essential care. VHA sees prevention of our care their greatest cost-saving opportunity...the longer they hold off claims or keep them denied, the more money saved for VA.

Ah, the smell! Malathion or Dioxin? Does it even matter?

One of the first lessons our C-123 veterans learned about Agent Orange contamination in the airplanes, especially in Patches, was that dioxin is odorless. What we were smelling wasn't dioxin but instead, malathion residue from Patches' insecticide spray missions over Vietnam.

Thus, many "experts" dismissed our dioxin exposure claims when we brought up the foul smell by pointing out this error. However...the smell indeed does indicate the persistence of the Agent Orange contamination.

Why, or how? We veterans don't dispute the lesson learned regarding where the terrible smells came from...it was very probably the malathion. We contend, however, that if the malathion persisted to the point of sickening the crew as it did so often, and if it forced us to fly with the heat off or even the cockpit windows open, or even avoid scheduling the aircraft altogether, that dioxin had to be present in significant quantities.

Our maintenance folks like Charlie Fusco remind us of countless efforts at cleaning Patches. Of scraping that black or dark brown "goop" with putty knives and screwdrivers to get rid of it. Of tech bulletins from Warner-Robins detailing cleaning instructions with specific detergents and even the recommendation in 1979 by Air Force toxicologists that it would probably be necessary to remove the wings and remove the cargo deck to get out enough of the "goop" to improve the situation.

We are also reminded that, in Vietnam, the malathion missions by Patches were after her years of spraying Agent Orange.

It is clear that Agent Orange "goop" got mixed in with malathion "goop". The Air Force tests on Patches in 1979 and 1994 confirmed, in the words of the toxicologists, that the airplane remained "heavily contaminated" with dioxin despite all efforts over the ten years we flew her, and despite all the efforts of the Ranch Hand crews to keep her clean, and despite at least one depot-level maintenance and cleaning cycle that we know of...there were perhaps more. It even took three decontamination efforts on Patches at Wright-Patterson before the airplane was reasonably safe to enter.

How can any VA administrator or physician fail to see we were exposed?

Eventually one of our veteran's claims will reach the Board of Veterans Appeals or the US Court of Appeals for Veterans Claims! There, the justice of our exposure claim will be clear. The Air Force tests over several decades. The Air Force efforts by AFMC JAG to restrict the contamination information to "official channels only." The Air Force decision to quarantine the contaminated airplanes at the Davis-Monthan Bone Yard. The Air Force decision, approved by the Air Staff, to destroy the remaining airplanes because of the lingering contamination and the threat of an EPA $3.4 billion fine. The multitude of independent scientific opinions confirming our exposure. The finding by the CDC/ATSDR that aircrews were exposed to 200x the Army's TG312 cancer screening threshold. The finding by Dr. Jeanne Stellman that our aircrews were exposed to as much or more dioxin than ground troops during Vietnam. It will be clear that our aircrews have met the VA's "as likely to as not" exposure requirement with more evidence than any veterans population except the guys in Ranch Hand.

It will be quite revealing - and frightening - when one of our veteran's claims before the court is from a female crewmember. Remember that dioxin accumulates in body fat, and has a half-life of about seven to ten years. Remember, dear VA, that once a woman is exposed to dioxin as in our airplanes, the dioxin is concentrated and can be passed on via lactation after childbirth. Remember that numerous scientific studies establish the dermal route of dioxin exposure, despite the VA pretense of the human skin being a 'near-perfect barrier." Washington State University's recent study revealed:

Dioxin builds up in the body and has up to a decade-long half-life in humans, so scientists say a woman who becomes pregnant even 20 years after exposure is at risk of transmitting the consequences of her exposure to later generations.

So we must ask, "why can't the VA permit the individual veteran's claim to be accepted without challenge to the issue of exposure?"