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 Denies C-123 Veterans Constitutional Right of Due Process

"Veterans applying for disability benefits do not have an absolute right to "due process, as described in the Fifth Amendment. Rather, veterans must attempt to provide evidence that they meet the "as likely to as not" threshold." In that attempt, the Due Process Clause is clearly applicable.

The Department of Veterans Affairs has its own duties to respect a veteran's right to apply for benefits, and to consider the claim in a pro-veteran, non-adversarial and paternalistic manner. A veteran must submit adequate evidence of entitlement to receive benefits, and at the point adequate evidence has been submitted most interpretations of the Cushman decision holds that the veteran has a right to due process at that point...the Due Process Clause applies and denial of it is unconstitutional.

Implicit in the statute and acknowledged in Cushman is the requirement that a veteran satisfy the burden of persuasion, in that the evidence of military and medical issues be submitted and reach the level of equipoise. Veterans must satisfy this initial burden of proof: Failing that the claim is inadequate. Therefore, a veteran has an absolute right to submit evidence and have it considered, and not simply ignored or careful examination of it denied by improper instructions from VA executives.

But VA has predetermined that C-123 veterans do not have the right to even try to express our argument. VA, through instructions and training and communications from VHA and VBA, directs their claims adjudicators to consider any and all evidence we may submit as failing to meet the burden of persuasion. The issue is already been decided against the claim, per VHA directions.

How can C-123 veterans satisfy the requirement of persuasion when consideration of our evidence from multiple credible sources, including other federal agencies, is predetermined by VHA to be inadequate, regardless of merit? How can a claim be considered properly when VHA restricts the ability of the Joint Services Records Research Center to fully apprise VA of a veteran's exposure history, even while VA 21-1MR specifies a JSRRC inquiry? As CAVC has ruled, VA 21-1MR has the force of law but VA disregards at its whim.

This abuses our rights. This is contrary to public policy and destructive of the public trust in the Department of Veterans Affairs to meet the medical needs of disabled veterans. Veterans have the right to expect public officials and employees to perform their duties in good faith and in accordance with law and governing regulations. By issuing guidance dismissing our effort to persuade and to reach the threshold of "as likely to as not" VA executives deny us Due Process, as do the adjudicators who follow those instructions.

The VA denies our constitutional rights and frustrates the public's expectation of proper treatment of veterans when VA invents special terminology, distinct from its regular authorities such as Dorland's Medical Illustrated Dictionary and the glossary published by the CDC/ATSDR, to obstruct claims. In this instance, VA's Office of General Counsel has opined that VA has the authority to redefine exposure to prevent otherwise qualified claims for Agent Orange exposure.

Altogether, these improper actions by VA deny C-123 veterans our Fifth Amendment right to due process. We call on the VA to consider that the United States Constitution and the collection of veterans' laws applies to them, as well as to us veterans.

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.

As we read Cushman and other decisions, prior to establishment of entitlement to VA benefits, a claimant is entitled to fair adjudication of the disability application and that the Due Process Clause is violated when the vet shows entitlement to benefits and an adequate solution is not available under VA’s governing statutes and regulations. Here is the key point: Due process applies once a C-123 veteran is shown to meet the eligibility requirements set forth in the governing statutes and regulations – but the VHA denies us the right to have our eligibility argued on the face of the evidence, because VHA has dismissed it in advance of the claim.

Here are their false promises:
• "All claims are considered on a case-by-case basis." former Secretary Shinseki
• "All claims are considered on a case-by-case basis." – Under Secretary Allison Hickey
• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel
• "All claims are considered on a case-by-case basis." VA Deputy Chief Consultant Post Deployment Health
• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26 2012, May 23, 2014
• "Makes a case-by-case determination..." – VA Office of General Counsel
• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee
• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page 
 • "These claims will be decided on a “case-by-case basis” – VA Agent Orange consultant
 • "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service
• “Veterans' claims are evaluated on a case-by-case basis.” – VA Public Affairs spokesperson 

What VA Actually Did in Word and Deed (from VHA Instructions and Training Materials)

"AO exposure based on stateside service aboard C-123 aircraft previously flown in  Vietnam for AO aerial spray missions  

 Not covered by VA statutory presumption of AO exposure for Vietnam Veterans 
 No VA statutory or regulatory provisions to acknowledge AO exposure based on “remote” or “secondary” exposure 
 No acknowledgement of direct facts-found exposure because no evidence that any residual TCDD on aircraft was biologically available to crewmembers 
 Insufficient scientific evidence to establish a medical nexus between service on post-Vietnam aircraft and diseases associated by VA with AO exposure 
 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"