Our association's second response to proposed new VA regulation on veterans' hazardous exposure issues.

Our association has posted a second response to the proposed new VA regulation covering veterans' hazardous exposure issues. (First response here.)

The proposed regulation does much to address a wide range of exposure locations and does finally address members of the Reserve Components. It does not mention three earlier failed assurances by the Department of Veterans Affairs in the Federal Register that it would care for veterans who did not serve in the Republic of Vietnam, but were exposed to herbicide agents. Pages from the Federal Register are attached (Federal Register Vol. 66, No. 89, May 8, 2001 and Vol. 73, No. 74, April 16, 2008 and Vol. 75, No. 168, August 31, 2010.)

Instead, Veterans Benefits Administration took steps to insure veterans were refused all care and benefits they should have received for their exposures,  dishonoring VA responses published in the Federal Register.

Between 2001 and 2010, the Department of Veterans Affairs proposed important regulatory changes in the care offered veterans exposed to military herbicides. Responding to public concern for veterans exposed in situations outside the Republic of Vietnam, in three separate and deceptive answers, the VA specifically said no regulatory changes were needed or would be made because:

"If a veteran who did not serve in the Republic of Vietnam, but was
to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e)). 

We therefore believe that there is no need to revise the regulation based on this comment."

By implication, these three deceptive VA responses it also assured Congress that no legislation would be necessary for protection of the affected veterans because the VA had already arranged to offer the same full range of exposure benefits provided Vietnam War veterans.

VA was deceptive between 2001 and 2015 in that, despite assuring the public and Congress that veterans exposed to military herbicides would receive benefits, it instead routinely refused to honor virtually all such claims. A VBA physician and Agent Orange subject matter expert with the "Agent Orange Desk" stated to the Associated Press, "We have to draw the line somewhere." 

The C-123 Veterans Association believes any such "line" may only be drawn in accord with law and regulation, not the preference of VBA staffers determined to block veterans' valid herbicide exposure claims.

VA Regulation M21-1 required it check with the Joint Services Records Research Agency for support of non-Vietnam exposures, but then refused confirmation when offered unless the Agent Orange Desk first requested such confirmation. In many instances, the Agent Orange Desk either refused to make such a request or wouldn't accept JSRRC confirmation even when offered.

This is not ancient history. Veterans and their families were assured of exposure benefits by theVA with empty, dishonored promises made in the Federal Register but were denied those benefits. Note must be made as VA seeks to publish this newest regulation to address earlier failures and deceptions on the same subject.

Respectfully submitted,

W. Carter, The C-123 Veterans Association

Federal Register posts our comment on the VA's new Agent Orange regulation

https://www.regulations.gov/comment/VA-2024-VBA-0006-0044

VA proposes vast new coverage for non-Vietnam Agent Orange exposures. We offered comment on the new regulation.

AR10-Proposed Rule-Adjudication Regulations for Disability or Death Benefit Claims Related to Exposure to Certain Herbicide Agents

COMMENT BY THE C-123 VETERANS ASSOCIATION:

We commend the Department of Veterans Affairs for advancing benefits to affected veterans in this manner and, on the whole, this change is comprehensive and in accord with current law and regulations. There are some flaws. This proposed regulation is not in accord with numerous earlier entries by VA regarding non-Vietnam Agent Orange exposures 

The proposal fails to reference prior commitments made in the Federal Register by VA on this issue. The Department repeatedly assured Congress over the decades that every veteran who did not serve in the Republic of Vietnam but was exposed to Agent Orange during active military service would, upon proof, be offered presumptive service connection for the list of diseases associated with that herbicide. (see Federal Register Vol. 66, No. 89, May 8, 2001 and Vol. 73, No. 74 April 16, 2008 and Vol. 75, No. 168, August 31, 2010). It never met this obligation and denied virtually all such claims.

When affected veterans sought presumptive service connection, even when citing VA promises in the Federal Register, the Department’s Veterans Health Administration Post-Deployment Public Health Section and its Agent Orange Veterans Benefit Administration Agent Orange Desk blocked claims specifically because exposed veterans lacked Vietnam service or, in some cases, because veterans failed to scientifically prove an exposure plus subsequent “bioavailability.” Per the Federal Register entries, proof of exposure alone was all that was required. Redefining the concept of exposure to require “bioavailability” was never in accord with any law or regulation dealing with veterans and Agent Orange. Rather, it was an unofficial office policy. It was also bad science. 

VA denying the fact of an exposure by also requiring proof of bioavailability was deceptive. Bioavailability is a related but separate concept in toxicology, as confirmed by the Director, National Institute for Environmental Health Sciences. Specifically addressing VA using the issue of bioavailability to deny Agent Orange exposure claims, she wrote, “In all my years as a toxicologist, I have never heard bioavailability as part of the exposure definition.” 

The Department’s failure with firm commitments first made in 2001 has been to the great disservice of affected veterans and their families. VA repeatedly assured Congress that it needed no new legislation or revision to regulations to meet its obligation. VA withstood Congressional concern with Agent Orange claims for veterans’ exposures outside the Republic of Vietnam using deceptive assurances while at the same time denying virtually all such claims. The Federal Register must account for earlier entries from the Department of Veterans Affairs in its submission of this newer regulation or else muddy the Register’s historical record. Clearly, “exposure” was the sole requirement for presumptive service connection, yet VA failed to honor the three assurances made to Congress. Cited below is the Federal Register Vol. 66, No. 89, May 8, 2001, the first of these failed assurances:

“…if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e).”

Respectfully submitted,

The C-123 Veterans Association

THREE MORE BROKEN VA PROMISES

Camp Lejeune Marines Get Toxic Exposure Protection At Last! C-123 Veterans Helped!

WE HELPED! The example of the way VA addressed our Agent Orange toxic exposures in 2015 was looked at very carefully by the VA in its approach to the terrible water contamination problem at Camp Lejeune.

Late last year, acting on advice from the Institute of Medicine and the Agency for Toxic Substances and Disease Registry,  Secretary McDonald and the Department of Veterans Affairs proposed a series of protections for Marines and other personnel stationed at Camp Lejeune before 1987. Included are members of the Reserve Components serving there a minimum of 30 days in total. Compensation for their illnesses could reach several billions dollars.

I read the proposed new rules and on behalf of our association commented throughout as you will see in the summary copied from the Federal Register. We especially note the role of the ATSDR in helping Marines just as they helped us, and express our thanks to them for the great job done helping the Corps this day.

SUMMARY:

The Department of Veterans Affairs (VA) amends its adjudication regulations regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune (Camp Lejeune), North Carolina, from August 1, 1953, to December 31, 1987. This final rule establishes that veterans, former reservists, and former National Guard members, who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) during this period, and who have been diagnosed with any of eight associated diseases, are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. In addition, this final rule establishes a presumption that these individuals were disabled during the relevant period of service for purposes of establishing active military service for benefits purposes. Under this presumption, affected former reservists and National Guard members have veteran status for purposes of entitlement to some VA benefits. This amendment implements a decision by the Secretary of Veterans Affairs that service connection on a presumptive basis is warranted for claimants who served at Camp Lejeune during the relevant period and for the requisite amount of time and later develop certain diseases.

C-123 Veterans Association Comment – VA Proposed Rule for Camp Lejeune Exposure Victims

Submitted today to the Federal Register:

"The C-123 Veterans Association congratulates Secretary McDonald on his decision to propose a new "final rule" for the Camp Lejeune exposure victims. We urge it's prompt enactment to prevent further deaths and suffering of Camp Lejeune victims thus far so unfairly treated. We note the sense of urgency conveyed in the press release concerning gravely ill potential beneficiaries of this rule.

Our own exposures to Agent Orange aboard our aircraft left us contesting with the Department of Veterans Affairs over whether our aircraft were contaminated, then whether we were exposed, and finally whether we were harmed. At each step we found VA opposition, rather than support. VA insisted it had "an overwhelming preponderance of evidence" against our claims, but in fact all it had was the preference by handful of employees to tolerate no more Agent Orange claims, facts and VA M21-1MR be damned.

It took a review by the Institute of Medicine of the National Academy of Sciences to show the VA and the Air Force that their science and mathematics were mistaken and clearly policy driven. The same IOM report made clear VA had all the science in hand from DoD, other federal agencies and several universities to make the proper decision years before they were moved to final action. Those four years left our aircrew in maintainers denied disability compensation, medical care and other benefits.

Like us, Camp Lejeune victims had confirmation of their situation from ATSDR but faced a hesitant VA monolith. Such hesitation beles the department's oft-stated commitment to be pro-veteran and non-adversarial. Observers of the Camp Lejeune CAP Committee see this quite clearly. VA was most certainly adversarial!

The Secretary's decision to act last week was based on the same science available to VA years ago, so how can VA justify its delay?. The apparent intrinsic and extrinsic ethical failures must be examined on this and all other exposure situations where the VA's action is found hesitant or even downright anti-veteran.

The 2015 Institute of Medicine C-123 Report on our own C-123 veterans' exposures to Agent Orange contained a telling statement just as true for Camp Lejeune victims as for us: 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." In plain language, the VA lowballs their assessments rather than consider "worst case"  or even typical case appraisals. That's not scientific...that's anti-veteran policy.

Examining how the VA treated our air crews and the Camp Lejeune veterans can only lead a critical observer to conclude that the VA is untrustworthy, deceptive, and comfortable refusing life-saving medical care to veterans eventually shown by the facts of the matter to be fully qualified for the appropriate service-connected disability rating. There is no catch-up for denied family benefits, essential medical care, housing and education benefits and all the other programs designed to help a disabled veteran have the quality of life similar to those who opted against service in the defense of the Nation. 

Post-Deployment Public Health in VHA must carefully re-examine its values relative to those expected of the Department of Veterans Affairs by veterans and the public at large. 

To repeat, we offer our strongest support for this measure by the Department of Veterans Affairs on behalf of Camp Lejeune personnel and their families. We further urge the Secretary to do the right thing on retroactive compensation for the reserve component servicemembers."

C-123 Veterans Association Comment – VA Proposed Rule for Camp Lejeune Exposure Victims

Submitted today to the Federal Register:

"The C-123 Veterans Association congratulates Secretary McDonald on his decision to implement an interim final rule for the Camp Lejeune exposure victims. We urge it's prompt enactment to prevent further deaths and suffering of Camp Lejeune victims thus far so unfairly treated. We note the sense of urgency conveyed in the press release concerning gravely ill potential beneficiaries of this rule.

Our own exposures to Agent Orange aboard our aircraft left us contesting with the Department of Veterans Affairs over whether our aircraft were contaminated, then whether we were exposed, and finally whether we were harmed. At each step we found VA opposition, rather than support. VA insisted it had "an overwhelming preponderance of evidence" against our claims, but in fact all it had was the preference by handful of employees to tolerate no more Agent Orange claims, facts and VA M21-1MR be damned.

It took a review by the Institute of Medicine of the National Academy of Sciences to show the VA and the Air Force that their science and mathematics were mistaken and clearly policy driven. The same IOM report made clear VA had all the science in hand from DoD, other federal agencies and several universities to make the proper decision years before they were moved to final action. Those four years left our aircrew in maintainers denied disability compensation, medical care and other benefits.

Like us, Camp Lejeune victims had confirmation of their situation from ATSDR but faced a hesitant VA monolith. Such hesitation beles the department's oft-stated commitment to be pro-veteran and non-adversarial. Observers of the Camp Lejeune CAP Committee see this quite clearly. VA was most certainly adversarial!

The Secretary's decision to act last week was based on the same science available to VA years ago, so how can VA justify its delay?. The apparent intrinsic and extrinsic ethical failures must be examined on this and all other exposure situations where the VA's action is found hesitant or even downright anti-veteran.

The 2015 Institute of Medicine C-123 Report on our own C-123 veterans' exposures to Agent Orange contained a telling statement just as true for Camp Lejeune victims as for us: 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." In plain language, the VA lowballs their assessments rather than consider "worst case"  or even typical case appraisals. That's not scientific...that's anti-veteran policy.

Examining how the VA treated our air crews and the Camp Lejeune veterans can only lead a critical observer to conclude that the VA is untrustworthy, deceptive, and comfortable refusing life-saving medical care to veterans eventually shown by the facts of the matter to be fully qualified for the appropriate service-connected disability rating. There is no catch-up for denied family benefits, essential medical care, housing and education benefits and all the other programs designed to help a disabled veteran have the quality of life similar to those who opted against service in the defense of the Nation. 

Post-Deployment Public Health in VHA must carefully re-examine its values relative to those expected of the Department of Veterans Affairs by veterans and the public at large. 

To repeat, we offer our strongest support for this measure by the Department of Veterans Affairs on behalf of Camp Lejeune personnel and their families. We further urge the Secretary to do the right thing on retroactive compensation for the reserve component servicemembers."

Specific laws and regulations addressing our C-123 Agent Orange benefits

Sometimes I am asked about the specific laws or regulations that address our post-Vietnam agent orange exposures a board to C-123 and the VA benefits we have earned. You can use Google to find the many VA web pages detailing our issue.

Here they are:

• 38 C.F.R. § 3.307
• 80 Fed. Reg. 35,246, 35,248 (June 19, 2015)
• VA regulation M21-1, Part IV, Subpart ii, 1.H.3.(Feb 5, 2016)

C-123 Veterans' Comments Needed on VA Proposed C-123 Agent Orange Rule

BUT WE DO!

Please help protest a particular point in the VA's proposed interim final rule dealing with C-123 Agent Orange claims. Veterans, you can do this by contacting your legislators and by submitting comments online at the Federal Register web page. 

Word your protest as you wish or consider the eight points I've listed below to include. 

The C-123 Veterans Association is trying hard to work with the VA on the issue of retroactive awards of our Agent Orange exposure claims. VA's proposed interim final rule addresses everything needed to provide our folks presumptive service connection for Agent Orange illnesses but it only recognizes claims from June 19 2015 forward.

VA states it will not permit retroactive claims, which VA does with other veterans' claims by back-dating compensation to the date the veteran files the claim with VA. In one instance, that has meant $130,000 to a post-Vietnam C-123 Reservist whose claim was decided before the rule VA now proposes. VA proposes that claims it delayed will be denied that retroactive adjustment, and that's wrong!

If the number of veterans VA expects to care for under the new rule generally have the same general original file dates as mine, for example, our veterans could be surrendering as much as $42,000,000 of back pay due us in this unfair process – that $133,000 apiece (four years times VA 100% SC.)

That is plain wrong! Wrong to punish us just because VA fought our claims which were proven valid by the IOM. Wrong to reward VA for denying us all benefits and compensation when their position against us is acknowledged to have been wrong even in the language of the Secretary's new rule.

So we will work hard on making this right. We have our arguments against VA's arbitrary date of June 19 2015 based on: 

1. Conflicts with earlier VA decisions by DRO & BVA that recognized fact-proven claims

2. Treats new claims differently than claims already awarded by VA

3. Forces veterans to surrender earned retroactive compensation without due process, even though these vets have faced years of denial of all VA care and benefits with claims unfairly denied with all facts now recognized in the Secretary's interim final rule. Everything the Secretary acknowledges in the details of the final rule was available to VA in 2011 yet VA failed to honor its duty to consider claims even on what it termed "a case by case" basis, forcing vets to seek care elsewhere or do without altogether. It would have been even a stronger case for acknowledging the claims had VA revealed the March 2013 report from the DOD Joint Services Records Research Center confirming the veterans' exposure, primary evidence VA officials suppressed contrary to VCAA.

4. Ignores VA OGC opinions' as mandatory precedents

5. Inserts a challenge on the issue veteran status not already raised in denied claims awaiting BVA or DRO - those claims were denied for scientific reasons now resolved by IOM but VA's new rule inserts a previously unvoiced challenge that C-123 folks weren't veterans, a point only possible by disregarding the OGC opinions

6. Ignores the March 2013 DOD JSRRC confirmation of the veterans’ exposures over two years earlier that should have forced recognition of the claims per VCAA and VA regulation VAM21-1MR

7. Fails to consider claims in a pro-veteran, non-adversarial, paternalistic and sympathetic manner as per law. VA fought to construct a barrier rather than letting itself remove one.

8. Abuses veterans rights through VA’s demonstrated intransigence in resolving the C-123 question when all evidence was available years earlier; VA uses the new rule to deny C-123 veterans benefits for the years VA stalled recognizing their claims, indeed, even ordering them postponed until the IOM, despite having all the convincing scientific and medical information in-hand all the years veterans claims were denied or delayed

Please go to the Federal Register web page to enter your comments! Today the VA blocked my comments above, so please lend your voice to the struggle.

C-123 Veterans Comment in Federal Register re: VA C-123 Rules

Thank you for creating a comment, your feedback is important. We have successfully submitted your comment to Regulations.gov for review by the Department of Veterans Affairs. Your comment tracking number is below and is publicly posted by the Department of Veterans Affairs. Comment Tracking Number: 1jz-8jll-4wa2 Below are details on the comment you submitted: Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide A Rule by the Department of Veterans Affairs Document URL https://www.federalregister.gov/a/2015-14995 Published On 06/19/2015 Comment Submission Date 06/24/2015 at 05:41 AM First Name Wesley Last Name Carter Mailing Address Chair, The C-123 Veterans AssociationMailing Address 2 City Fort Collins Country United States State or Province Colorado ZIP/Postal Code 80524 Phone Number 9712419322 Fax Number Organization Name C-123 Veterans Association Submitter's Representative Wes Carter, Chair Comment VA Office of General Counsel provided two earlier precedential opinions on Reservists exposed or injured during ACDUTRA or INACDUTRA with subsequent injury noted only after conclusion of military service. In both binding opinions the Reservists were correctly deemed "veterans" per the statute and provided appropriate medical care and other benefits. These decisions closely parallel that of the C-123 veterans. These OGC opinions should govern the Secretary's response to the Jan 8 2015 Institute of Medicine which the Secretary has acknowledged. No new legislation was needed as discussed with VA OGC on April 16 2015, when it was also pointed out that the lack of retroactivity was unacceptable and inappropriate, especially given VA's years of delay, obstruction of evidence and infringement on the veterans' rights to Due Process. While the Secretary may consider a new regulation an effective instrument for responding to these veterans' service-connected disabilities vice legislation, any such regulation must account for the earliest date of claims for exposure as with other veterans' claims. In no event should a date later than 1 January 2012 be considered, and as with other disability claims no award should be made to predate the claim itself. Veterans' rights to property (here, any disability compensation associated with their service-connected illnesses for the period of the date their Agent Orange exposure claims were submitted and the regulation's proposed date of June 19 2015) are wrongly abridged by the proposed regulation and the arbitrary date of June 29 2015 for its effect, in violation of the Due Process Clause in the Fifth Amendment. VA should not "benefit" through its actions in delaying valid disability claims by prohibiting veterans from retroactive compensation. Veterans cannot recover medical and other expenses incurred before service connection is awarded and the loss of other vital benefits, but there is no basis for VA withholding retroactive disability compensation. In this case, we also note the immense body of evidence submitted by the veterans, to include the March 2013 Joint Services Records Research Center confirmation of C-123 veterans' exposure, which VA did not act on or provide veterans in violation of the Veterans Claims Assistance Act and also VA's own regulation VAM21-1MR. Please see the attached discussion, well-presented by the Yale University School of Law Veterans Legal Clinic. Uploaded Files Letter re Reservists-signed (1) copy 2.pdf Yale Legal Brief C-123K Veterans copy.pdf

What Does Secretary McDonald Need For C-123 Agent Orange Presumptive Eligibility?

Nothing. Everything is in place already for VA to act now to provide C-123 veterans Agent Orange presumptive eligibility. He should just hit the big red button to the right, and ACT NOW.

Nothing else required. No new law. No new legislation. No new regulations. No new rules.

Nothing. For many years, VA has had everything to do its job for C-123 vets, with far, far more effort put into blocking these veterans than in helping them.

For most of the C-123 veterans' needs, VA has all authority to begin providing care today. Perhaps some related issues such as veteran definition, BVA actions or other questions will need fine tuning via new regulation. Nothing that can't be resolved quickly.

The bulk of C-123 veterans need only VA's decision to obey the law and stop the improper blanket denial of all claims. VA can and should make that decision immediately.

The 1991 Agent Orange Act, Title 38, and VAM21-1MR are all in place and address our veterans' needs. VA even has repeatedly stated in the Federal Register that nothing else is needed – non-Vietnam veterans exposed to Agent Orange are provided presumptive eligibility.

Their 2010 Federal Register statement used the language "we wish to make clear" that exposed veterans will receive presumptive service eligibility, and with that, recognition of Agent Orange illnesses as line-of-duty illnesses. VA used the language "We therefore believe there is no need to revise the regulation..."

Mr. Secretary, no new rules are needed to make clear what VA has already made perfectly clear. Mr. Secretary, the VA Office of General Counsel already defined Reservists as "Veterans" under the law:

"The VA Office of General Counsel has held if the evidence establishes that an individual suffers from a disabling condition as a result of administration of an anthrax vaccination during inactive duty training, the individual may be considered disabled by an "injury" incurred during such training as the term is used in 38 U.S.C. §101(24). Consequently,such an individual may be found to have incurred disability in active military, naval, or air service for purposes of disability compensation under 38 U.S.C.§1110 or 1131. VAOPGCPREC4-2002,69 Fed.Reg.25176(2004).
In the VA Office of General Counsel opinion, the Veteran was a former member of the Army Reserve who received two anthrax inoculations during inactive duty training. The Veteran alleged suffering from chronic fatigue and chronic Lyme-like disease as a result of these inoculations. The General Counsel held that the Veteran may be considered to have been disabled by an injury in determining whether the member incurred disability due to active service. The General Counsel reasoned that inoculation with a vaccine involves the introduction of a foreign substance into the body and that, while the substance is intended to and generally does have a beneficial effect,adverse reactions,sometimes of a severe nature,may result. Additionally,the term "injury" in section 101(24) may be interpreted to include harm not only from a violent encounter but also from exposure to a foreign substance, such as a vaccine. The General Counsel found that the concept of "trauma," which is recognized as the cause of "injury," encompasses a broader definition that includes serious adverse effects on body tissue or systems resulting from introduction of a foreign substance. Thus, an adverse reaction to a vaccination may be considered an "injury" as that term is used in 38 U.S.C.§101(24). See VAOPGCPREC4-2002"

Mr. Secretary, there is no need to turn to Congress for legislation because VA has already told Congress no extra legislation is needed for VA to meet its responsibilities to C-123 veterans.

Veterans can take the VA at its word, especially when thrice-published to Congress and the public in the Federal Register. VA has made it clear that no new regulations are needed for C-123 veterans, as well as any other veterans, who have been exposed to Agent Orange to be treated for that exposure by the presumptive service connection.

VA has even added a little extra justification for recognizing C-123 veterans, perhaps the only step ever taken that helped these vets. Because some staffers in VA challenged the C-123 veterans' exposure and the bioavailability of the dioxin from the airplane, VA sought input from the Institute of Medicine which confirmed the airplanes' contamination and the veterans' exposure. And harmful effects of that exposure. First proposed in 2012 but canceled by VA, the study has made veterans wait another year to complete but is now in hand for VA to do what it should have done with the first C-123 veteran's claim in 2007.

In fact, VA lacks any regulation or rule permitting Compensation and Pension Service to deny all our claims as they now do, their blanket denial even though that phrase is not used. VA has no authority for refusing these qualified claims, especially now that Joint Services Records Research Center confirmation has been received.

Mr. Secretary, it is past time for that announcement you promised the Senate!

(VA's Federal Register post, 31 Aug 2010)

BVA Gives VA C-123 Agent Orange Committee Example to Follow

VA's C-123 Committee should be guided in large part by Board of Veterans Appeals decisions over these last many years.

VA should realize that existing regulations, a decade of very specific Federal Register publications, well-established science even before the 9 January 2015 Institute of Medicine report, and the historical record all led Veterans Law Judges to their 100%* approval of C-123 appeals.

Every single one*. Even without the impact of the IOM report. Before the Joint Services Records Research Center began confirming C-123 aircraft exposures per VA M21-1MR (clearly detailed in Part IV Subpart ii Chapter C Section C.) With no new regulation, no new legislation, no need for additional Federal Register explanations. No need for any delay keeping our veterans from submitting claims for fair consideration, and on award finally allowed to enter VA hospitals.

No reason and certainly no excuse for VA to continue saving money by keeping our folks out of their hospital wards. A simple field training letter should do the trick.

Decisions by the Board of Veterans Appeals do not set precedent for other veterans' claims.

Everyone, including C-123 veterans, understands that quite well. What those decisions do, however, is offer an example of expert thought process by the Veterans Law Judges.

That example is an important one which the committee set up within Veterans Benefits Administration and Veterans Health Administration might consider carefully.

Because every BVA decision has been in favor of Reserve and Air Guard C-123 veterans.*

The point is that all claims which have been denied by BVA (and that is every single C-123 claim that ever was submitted*) have been reversed and awarded by the careful consideration at BVA.

BVA Veterans Law Judges had available to them in their decisions today's VA regulation VA M21-1MR, the veterans' medical information, and the historical and scientific information about these former Vietnam War Agent Orange spray warplanes.

BVA decisions are based on applicable law and the interpretation of the overall situation. Awards are made when the law's requirements are met. Any question, any interpretation, is made in a pro-veteran and non-adversarial manner. Issues in dispute are resolved in the veteran's favor if evidence reaches "as likely to as not" threshold.

BVA judges have shown for years that C-123 veterans' claims need nothing more in law or regulation to be awarded when appropriate. VA could do it today.

Friends of veterans, C-123 aircrews, maintainers and aerial port veterans have reached and far surpassed that threshold!

VA has benefited hugely by blocking C-123 claims for these years. Our vets have been denied VA medical care, pharmacy, rehab, counseling, independent living assistance, Chapter 20, children's educational benefits and allowances, burial, prosthetics, and compensation for their service-associated illnesses.

Any further delay, any further effort by VA to save more money by postponing the full inclusion of C-123 veterans into the Veterans Health Administration and Veterans Benefits Administration protections is unconscionable.

BVA already showed the VHA committee that nothing else is needed.

All VA has to do is open their doors and understand that C-123 veterans have established presumptive service connection for the recognized Agent Orange illnesses.

Just as we have done for many, many years, only to find our claims wrongly decided against us.

To us, there is no part of "clear" remaining. All is perfectly clear: JSRRC, USAFHRA, IOM, VA M21-1MR, 1991 Agent Orange Act. Clear as can be and not needing any new regulation nor Federal Register posting to make any clearer.

Keep that word in your mind, dear VA. Clear.

Clear on 31 August 2010 in the Federal Register Volume V, No. 168, page 53205. Clear? Any effort to make more clear only clouds the issue with attendant delay in providing the medical care we're all focused on, and that is unethical and contrary to VAM21-1MR itself.

A point where we take offense. The entire VA application process is build around the term "compensation." This is deceptive. Most non-veterans, and too many folks in the media, don't understand that vets are not permitted any care until their claims...in a process called compensation claims"...are decided.

At our ages, and our illnesses, we feel the process should be termed "medical care application" instead of compensation claim. Financial compensation may indeed follow if appropriate, but even a zero percent service connection permits the medical care to be provided a veteran.

Stop making us look like we're financially motivated We take offense.

We're looking hard for VA heros...volunteers welcome! Be one!
----------------

*All of them, other than LtCol Aaron (Tim) Olmsted's claim which was denied on appeal for the ridiculous reason given by the Board's opposing attorney that Tim hadn't shown his C-123s had ever been in Vietnam.

That was an obvious error by BVA and perhaps also an ethical question which should be raised in conversation with the attorney who skillfully blocked Olmsted's claim by such deception. VA has a duty to assist veterans in claims and the proof of Tim's airplane Agent Orange background took one email and a couple days to obtain when the veterans inquired. Why didn't the VA inquire?

Why the vicious motivation of the VA opposing attorney to win even in the face of VA's errors and the veteran's eligibility? We don't understand why the American Legion which represented Olmsted in his appeal failed to right this wrong, but it is still on the table in our conversations with VA officials.

HOW LONG CAN VA TAKE TO IMPLEMENT IOM C-123 FINDINGS? (see Feb 4 entry)

How long might we and our families have to wait for VA to act on the C-123 Agent Orange exposure situation?

FIRST FACT: VA could do what's needed tomorrow. Checking with legal scholars specializing in veterans law, and re-reading the Yale University School of Law C-123 report, it is clear that no new legislation is necessary to permit C-123 veterans into the VA healthcare system.

Previous announcements in the Federal Register addressing non-Vietnam herbicide exposures detail VA assurance of treating us with presumptive service connection, and VA's regulation VAM21-1MR (which courts said "has the force of law") have language already in place...so nothing need be done except – do it! 

Note: in comments to the Springfield (MA) Republican published 2/3/2015, a VA spokeswoman said it will take VA "several months."  UNCONSCIONABLE FOOT DRAGGING! What does Post Deployment Health calculate to be our veterans' death toll between January 9 (release date for the IOM report) and "months" later?

SECOND FACT: VA could drag this out beyond our imagination. They could imagine that new legislation is necessary to do what they already have authority to do, and VA Office of General Counsel could direct the whole thing to die by pretending to ask Congress for new legislation. Any legislation coming from that might be enacted, but only years after the last of us has had the final fly-over. They know this. Going to the legislature to ask for authority or guidance VA already has just won't cut it with either house.

THIRD FACT: Next-to-worst case is VA dragging out approval by waiting out the 60 days permitted after an IOM report. Then, burning off another 60 days proposing new regulations with a Federal Register posting (which would only be a repeat of their earlier statements) and then 90 days after that to effect new regulation. VA might see this as a present to us wrapped with a beautiful silk bow – but its not. Seven months to men and women our ages, with our diseases, brings a certain death count and VA knows this perfectly well.

Truth is truth, and VA has the truth in hand now from the IOM report. It is the same truth VA had on their desks seven to eight years ago – when more of us were alive. Truth, law, science together should move VA to make the right decision by us, but it sure would have been welcome those many years ago.

In their last Federal Register comment regarding non-Vietnam Agent Orange ("military herbicide") exposures, VA made their planned treatment of us clear. Very clear. Perfectly clear.

VA even used that very word. What part of "Finally, we wish to make clear" has been left unclear? Of course, VA made this commitment to the Congress and the American people before we came along with our exposure claims but I just can't imagine the Department...the Secretary in particular...reneging on making it "clear."

VA Violates 2010 Order from US Circuit Court of Appeals

Veterans Benefits Administration has violated a 2010 order from the US Circuit Court of Appeals. VA had been ordered to publish, and to implement, various rules involving Agent Orange exposure and veterans' benefits. The order flowed from a petition for a writ of mandamus from several veterans organizations and the National Veterans Legal Services Program.

And involved was the eligibility – the right – of C-123 veterans to exposure benefits.

The court approved the request for the writ and ordered the Secretary to publish in the Federal Register the changes in benefits recommended shortly before by the National Academy of Sciences/Institute of Medicine. The 1991 Agent Orange Act states that the Secretary has 60 days to implement such changes and the writ enforced that timely response upon the VA, which VA had been stalling on for too long.

The VA complied with the order, and on August 30 2010 published in the Federal Register the required rule changes bringing into effect the recommendations from NAS. C-123 veterans are directly affected in two ways:
1. The announcements in the Federal Register are binding upon VA 
2. The announcement on August 30 2010 included the VA's statement that no revision on VA regulations (VA 21-1MR) was necessary to address non-Vietnam exposure claims because VA would presume all such situations with recognized Agent Orange illnesses resulting would be treated the same as Vietnam veterans' "presumptive service connection"

So now VA has dodged its obligations to C-123 veterans by redefining "exposure" to prevent acknowledging C-123 veterans' fact-proven exposure claims. Setting up a definition of exposure unique to federal government medical and scientific agencies, VA defies opinions submitted by DOD, USPHS, CDC, EPA, NIH and other authorities to pretend this group of vets were never exposed at all.

And in this deception, not only do they defy their own rules, which courts have said have the rule of law, but they defy the US Circuit Court of Appeals. This is because, having published as ordered the changes recommended by the NAS, VA opts to avoid enforcing them and has for years refused to permit C-123 veterans to receive VA medical care.

VA Announcement in Federal Register
30 August 2010

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!
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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.

VA Invents (But Ignores) Rules About Agent Orange Exposure

Faced with disability claims from C-123 veterans exposed to Agent Orange aboard our former Agent Orange spray aircraft, officials in Veterans Health Administration and Veterans Benefits Administration have been energetic in barring veterans from essential health care. And also very selective about which rules VA follows, when they ignore those rules, and how to create new ones as the occasion warrants.

Not only does VA's Office of General Counsel and VHA Post Deployment Health create unscientific redefinitions of exposure to block exposure claims, but they simply ignore the law and their own rules and regulations. Of course, at some point, justice prevails and claims are appealed and corrected...but the veterans are forced wait years while somehow finding health care elsewhere. 

Here's how VA ignores the law and breaks the President's and the Secretary's promises to veterans, forcing vets into the black hole of appeals...three to four years waiting, with a 25% chance of the claim being approved (so far, all C-123 claim reaching BVA have won,) but a 45% chance of the claims having errors forcing the claim to be remanded for more work and still more delays by the regional office.

• "A veteran who was exposed to herbicides in service and who develops one of these diseases within the applicable presumption period, if any, is presumed to have incurred the disease in service, without the necessity of submitting proof of causation."    Testimony of Dr. Leo McCay, Deputy Secretary  IGNORED

• "Presumption of service connection. VA will presume service connection where a veteran who was exposed to an herbicide agent during active military service is diagnosed with a disease listed in paragraph (e) of this section that becomes manifest to a degree of 10 percent or more within the time period"      Federal Register July 27, 2004  IGNORED

• ‘‘Evaluation of studies relating to health effects of dioxin and radiation exposure."  38 C.F.R. 1.17 IGNORED!

• Finally, we wish to make clear that the presumptions of service connection provided by this rule will apply to any veteran who was exposed during service to the herbicides used in Vietnam, even if exposure occurred outside of Vietnam. A veteran who is not presumed to have been exposed to herbicides, but who is shown by evidence to have been exposed, is eligible for the presumption of service connection for the diseases listed in § 3.309(e), including the three diseases added by this rule.   VA announcement in Federal Register 31 August 2010.    IGNORED, and the reason VHA scrambled to create its redefinition of exposure to block exposure claims.

Does the VA even have the authority to order, and then evaluate, a IOM C-123 Agent Orange study addressing bioavailability, relative to veterans' benefits under the 1991 Agent Orange Act? 

No. C-123 veterans with proof of duty aboard "Patches" or any of the other former Agent Orange spray aircraft are fully eligible right now for presumptive service connection, and for treatment of those illnesses. Indeed, it will take a new law or regulation to disqualify them.

Instead, 38CFR spells out the procedures the VA should employ evaluating outside scientific studies about the association of herbicide exposure with different illnesses, but not of the fact of exposure or the paths by which exposure may occur.  (Chapter 1, Section 1.17 (c), p. 14) Nothing indicates any procedure by which exposure itself may be denied, defined or by which VA can require bioavailability. So VA decided to invent a basis denial and a redefinition to block claims. 

VA has a very aggressive defense, and very anti-veteran. VA seeks out, or simply creates, barriers to claims rather than permitting eligible veterans to receive care for hazardous service and injuries.

• Indeed, based on current statute, the VA is not required to consider evidence on exposure magnitude or duration and all exposures are to be given equal weight when determining health effects. There is no qualification for amount of exposure, bioavailability, color, flavor or even whether it makes one robust and improves the humors – the only qualifications are (1) proof of exposure and (2) a recognized AO illness. That foundation...exposure...is exactly why VHA and the VA Office of General Counsel simply redefined exposure to block claims. Other government agencies more correctly use the CDC definition, by which there is no question as to the C-123 veterans' eligibility. CDC says exposure is contact with a substance by swallowing, breathing, or touching the skin or eyes.     IGNORED

In meeting its pro-veteran, non-adversarial obligation, VA has failed. The Law:      IGNORED

(for background, read the Congressional Research Service "Presumptive Service Connection" report)

VA "Cherry Picks" Scientific Definitions Against Veterans' Claims, Invents Others

It is right there for all to read, in three separate statements in the Federal Register, including rule making. VA assures Congress, the public and all veterans it will consider all non-Vietnam exposures to Agent Orange with the same presumptive service connection as it does with "boots on the ground" veterans. "No new legislation needed," says VA.

After all, the Federal Register is an agency's implementation of its own rules and procedures.

But faced with C-123 veterans' claims which VBA insists be denied, the VA Office of General Counsel threw an end run to nullify the Federal Register. VA OGC expects to redefine exposure to prevent exposure claims! VA will develop a unique redefinition of exposure, different than the one used by all other federal agencies such as ATSDR.

In concert with the Veterans Health Administration's Post Deployment Health Section, OGC has opted to challenge VA's own Federal Register postings...not by modification, but by redefinition of the word "exposure."

Presently, Post Deployment Health has invented its special redefinition to block C-123 veterans' Agent Orange exposure claims, stating: "Exposure = contamination field + bioavailability." No other definition of exposure used in science or medicine includes bioavailability as a component. Actually, these are separate toxicological terms.

Here is where creative and anti-veteran "cherry picking" takes place. Throughout its administrative documents, in the Federal Register, the Board of Veterans Appeals and even the United States Court of Appeals for Veterans Claims, VA cites Dorland's Medical Illustrated Dictionary (32nd Edition) in the Federal Register as well as in many other administrative documents. And Dorland's defines exposure as:                                                                        Nowhere is bioavailability mentioned or implied.

Get it? VA uses Dorland as the authority – but VA is just as happy to invent other creative, unscientific definitions as the need arises to better block veterans' claims. VBA even cites Dorland definitions against veterans in appeals, yet drops Dorland when Dorland's definitions enforce the veteran's claim.

Who is the client of VA's Office of General Counsel? Not the veterans!