C-123 Vets join in ProPublica's Freedom of Information suit against VA

Yesterday, C-123 Vets joined in ProPublica's Freedom of Information suit against VA.

ProPublica, winner of three Pulitzer prizes for its solid public interest investigative journalism, and the Virginian Pilot newspaper have conducted almost two years of an intensive Agent Orange investigation, with several articles focused on C-123 veterans' experiences. They sought information from the government but in response, the Department of Veterans Affairs has failed to honor the public's right to access information through our media for nearly two years.

The reporters have already uncovered a great deal of information about veterans' health and our children's health. Their rights under the Freedom of Information Act have been ignored for almost two years. The publisher and ProPublica's reporters have been forced to file suit in the US District Court of Washington for VA's failure to respect the law.

Yesterday, our C-123 Veterans Association joined in this suit. We believe the information sought about Agent Orange, about the VA contractors who opposed our own claims, and about VA personnel who obstructed our claims all needs to be made public. Our contribution to the suit specifically included justification for an immediate temporary injunction ordering the VA to comply or justify their refusal.

It's disappointing to have to waste money and time just to access information that the government stores that is otherwise publicly available and not classified or confidential. Too often, but particularly with the VA, federal agencies simply opt not to cooperate because FOIA requesters have a little recourse other than an initial request and an expensive lawsuit if that request is dishonored.

Two years ago, that was our experience. Paul Bailey and I had waited years for our Freedom of Information Act to be honored. But after some limited release, the VA simply didn't bother with anything else requested. Paul had even passed away while the VA stalled.

We had to go to court. Over $50,000 in legal fees later, the Department of Justice in representing the VA agreed to provide the materials requested. 

Finally.

ProPublica Seeks Federal Court Order for Release of VA Agent Orange Files

by Robin Fields
ProPublica and the Virginian-Pilot filed a lawsuit today in federal court against the U.S. Department of Veterans Affairs, accusing the agency of stonewalling requests for documents under the Freedom of Information Act.

The lawsuit, ProPublica’s second against the VA in two months, seeks a preliminary injunction compelling the government to immediately release correspondence about Agent Orange, an herbicide used to kill vegetation during the Vietnam War, including documents sent to and received by Dr. David Shulkin, the VA’s undersecretary for health. Shulkin has been nominated to be VA secretary by President-elect Donald Trump.

ProPublica and the Pilot have been reporting about Agent Orange for 18 months, documenting ongoing effects on veterans and their families. The FOIA requests at issue in today’s lawsuit date back to May and September 2015.

As the news organizations have reported, the VA faces a number of imminent decisions about whether to cover certain groups of veterans who claim they were exposed to Agent Orange, as well as certain diseases that research has shown to be linked to the chemical mixture.

Exhibits attached to the lawsuits show how the FOIA requests submitted by the news organizations were subjected to one delay after another. ProPublica and the Pilot sought help from the VA’s Office of General Counsel, the agency’s chief information officer, as well as the Office of Government Information Services, also known as the FOIA ombudsman. Those efforts were not met with success.

“Repeated pleas to the VA to process two FOIA requests, which now have been pending for 618 days and 506 days, respectively, have been utterly disregarded. Indeed, ProPublica and The Virginian-Pilot have done everything short of turning cartwheels in front of VA’s headquarters to draw attention to these requests,” the legal memorandum in support of a preliminary injunction said.

Our C-123 Agent Orange Freedom of Information Act Lawsuits: $120,000 spent in legal fees

This month I had three questions from other veterans about why our effort to get documents released from the VA and USAF managed to cost over $120,000. Easy answer – because that's all I had to spend; if we'd had more money and more time we would've spent it to get more documents uncovered.

I began filing Freedom of Information Act (FOIA) requests in early 2011. I soon asked Paul Bailey to file some as well to see if the responses produced different results. Initially, these went to Davis-Mothan Air Force Base and Hill Air Force Base where responses were timely and quite revealing. Several CDs were released and on them we found the first test reports showing dioxin contamination, destruction of the aircraft as toxic waste, internal memos from the Air Force consultant in many other documents that focused the next four years of our effort.

We had to study thousands of documents

Eventually we identified two major areas for further investigation. The first was the general manner in which VA initially developed its response to our exposure claims and then the finer details of that VA opposition. There were several damning "gotcha" discoveries revealing the VA deception, such as the VA claim to have an "overwhelming preponderance of evidence" against our claims being mere policy statement, not fact or science. (#1: VA Lawsuit)

The second was the Air Force 2012 C-123 Consultative Letter in which the US Air Force School of Aerospace Medicine examined the aircraft contamination. That report generally concluded the aircraft was contaminated and aircrew exposure possible yet, illogically, somehow unlikely to be harmful. This letter was seized upon by the VA as part of their justification for denying our claims and thus was very important to us. A confidential Air Force source had told us the report was tainted by command interference and was scientifically flawed. (#2: USAF Lawsuit)

These FOIA requests to VA and USAF were submitted properly, acknowledged by the government but never fulfilled. The Air Force initially indicated its cooperation, although two years past and it became clear no substantive response was forthcoming. The VA first refused to waive research fees and then, to stall us, demanded thousands of dollars for only a partial response. Then, that response failed to materialize even though we successfully appealed the estimated fee requirement.

At this point citizens can contact FOIA ombudsman in these departments but there we were also stonewalled. The only option left was federal court action compel the agencies involved to obey the law and meet their requirements. This is where most citizens find themselves helpless because the agencies involved have free legal support from their own staffs and the Department of Justice but a citizen must retain private counsel to go to court.

And that's where $120,000 of legal fees were needed.

We filed FOIA lawsuits in the US District Court of Washington DC and spent nearly three years and all that money to get the documents we required and which we are entitled to at the outset. A few papers were withheld for personal privacy or under the government's concept of "Deliberative Process" which is used to prevent discovery of how they came to conclusions (new FOIA rules enacted this year help correct this.) Interestingly, a part of the USAF FOIA was to the Air Force Surgeon General – that response was about 300 pages what's only 20 pages or so with text, all the rest redacted for one reason or another. We had ask – what the heck did the Air Force want to keep secret about our health and this 60-year-old airplane? We never found out.

Lesson learned #1: Federal agency compliance with FOIA requirements is very poor
throughout the government, but especially the VA and the military departments. Without
hundreds of thousands of dollars to pursue one's rights under the FOIA law there simply is
no way to proceed and our rights are trampled. Both VA and USAF agreed in court we
were right and they were wrong – we'd been entitled by law to the requested materials and
should have been given them years earlier when first sought in our FOIAs. .

Lessons learned #2: The 2014 Institute of Medicine C-123 Committee was provided all these documents and from them, and from other inputs, convinced the VA we'd been exposed and VA soon agreed. An especially alarming and disappointing IOM observation was offered from their review of documents we discovered:

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."

It is by such improper manipulation and deception that the VA denies veterans our legally required benefit of the doubt, subjecting veterans to a standard of absolute proof rather than mere equipoise. It was by this manipulation and deception that VA ignored confirmation of our exposures given at years earlier by the CDC and other authorities.

Department of Veterans Affairs December 2015: One veteran's appraisal

This old vet

• It is a better department than last year. While problems still abound, there are fewer than last year and we understand more about dealing with remaining issues.

• The C-123 issue has been basically resolved, with only retroactive compensation a lingering concern. This wraps up a 54-month effort, largely thanks to the Secretary's own fist pushing through his Interim Final Rule. As a small group, we've received more attention than we're due, both from the Secretary and his colleagues.

• The principal news on benefits came this week with the VA's announcement that it intends providing presumptive service connection to Camp Lejeune Marines. This is the biggest event since Secretary Shinseki recognized IHD as a presumptive Agent Orange illness, and again is due to Secretary McDonald's leadership.

• Staff changes have been significant and not always for the better. Besides the new Secretary, new faces are in place for Under Secretary for Benefits and Under Secretary for Health Administration. Staffers at more junior levels have caused alarm due to FOIA releases showing their personal disregard for the Veterans Claims Assistance Act, the VA21-1 regulation and Due Process rights.

• The inappropriate use of outside consultants and subject matter experts is certainly receiving more critical attention within the Department.

Secretary Bob McDonald

• I find the Secretary, much like his earliest predecessor General Bradley, to be basically apolitical, completely dedicated to serving veterans, and more hardworking than I ever imagined a cabinet officer could be. If VA has a problem he wants it out. If VA has a success he wants it magnified. If a veteran has a concern he wants it addressed. If a veteran wants a harder working Secretary of Veterans Affairs, good luck – there's none to be found! Give him credit – he took a job leading this government's most toxic agency with no chance for wide acclaim, only criticism, but a job he could grab onto to make veterans' lives better.

• Homelessness among veterans is greatly reduced, and the public is becoming aware that not every panhandler on a corner with a cardboard sign "help a veteran" is one...as they usually aren't.

• Claims inventory is down but appeals are up beyond reason.

• The VA Center for Ethics in Healthcare remains challenged with too many failures, as does the VA's own Inspector General.

• The VA Office of General Counsel serves the Secretary and his department as their client, of course, but has completely forgotten that the best way to do so is to have veterans' needs as their paramount goal.

• VA's Denver hospital became a national disgrace and brought the Department into disrepute.

Good job, VA!

• VA continues to disregard legitimate Freedom of Information Act requests, including those for patient records for veterans' claims; too much money is wasted opposing FOIAs, both in VA staff, VA attorneys, Department of Justice attorneys and fees paid veterans' advocates for unjustly withholding public information.

• Clinic and hospital appointment wait times are improved.

• The Veterans Choice program is far from perfect but is helping speed up urgent care.

Conclusion:There isn't much more we could have hoped for from any Secretary of Veterans Affairs or any president's administration than Secretary McDonald has delivered for America's veterans. Whoever our next president may be, "Bob" is needed right where he is.

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.

C-123 Veterans' FOIA Ignored For A YEAR

Washington is one amazing place. Often they get things done, and yet more often than that, somehow things get marvelously fouled up.

Here's a perfect example. One year ago we submitted a Freedom of Information Act (FOIA) request to the VA for information about our C-123 issues. VA let out a $600,000 no-bid sole-source consulting contract in 2012 and the information about it was (and still is) important to us.

So the VA, for some reason, forwarded the FOIA to Headquarters US Air Force. Which sent it to Wright-Patterson AFB. Which, almost exactly one year after our inquiry, finally acknowledged us.

Amazing. Can you imagine what would happen if we ran aeromedical evacuation missions with this degree of excellence? At least, we can certainly trust that they're not trying to keep important health-related information from us. Right???

Note the date of the letter on the left, and the date of the request in the first sentence.

US sets new record for denying, censoring government files

I am a veteran serving other veterans, and both the Department of Defense and the Department of Veterans Affairs have abused my rights, and the rights of the veterans I serve.

Both VA and USAF have routinely ignored our Freedom of Information Act requests for unclassified materials, much of it dealing with our own health and the government's treatment of our exposure claims.

Unsuccessfully, we have sought materials as individual citizens, as a veterans association, and as journalists (per the blog, web site and C-123 Agent Orange book.)

Not addressed in the article below from today's Associated Press is the tremendous cost citizens must bear for legal expenses to assert our rights under the FOIA. Not addressed is the solution, which is to permit citizens to recover expenses and damages if they are forced to seek relief through litigation. Right now, the government can ignore or abuse FOIA requests with abandon (which AP's article suggests is the case) without consequences.

The C-123 Veterans Association has requests for information going back to 2012 which the USAF ignored. After ignoring, USAF said it had no materials. Then it said the materials would cost over $4,000 to provide. Then it stopped dealing with the request altogether, until we filed suit in the US District Court.

Even that did little to help – both the VA and the USAF are still only slowly releasing bits and pieces, each month telling our attorneys they need more time, with much of what they do release heavily redacted.

Can you just imagine how the IRS or DOJ would tolerate us as individual citizens ignoring their demands for our records? They have tools to compel our response...but we have none to compel any department's respect for our rights under the FOIA.

US sets new record for denying, censoring government filesBy TED BRIDIS
Mar. 18, 2015 3:27 AM EDT 

WASHINGTON (AP) — For the second consecutive year, the Obama administration more often than ever censored government files or outright denied access to them under the U.S. Freedom of Information Act, according to a new analysis of federal data by The Associated Press. 

The government took longer to turn over files when it provided any, said more regularly that it couldn't find documents, and refused a record number of times to turn over files quickly that might be especially newsworthy. 

It also acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.
Its backlog of unanswered requests at year's end grew remarkably by 55 percent to more than 200,000.

Early VA Actions "Stacked the Deck" Against C-123 Veterans For Years

"Overwhelming preponderance of evidence against veteran"...
CLAIM DENIED!

(VA Claims Motto??)

Wow. An "overwhelming preponderance of evidence "against a veteran's claim for Agent Orange certainly spells defeat for the vet. But it was a deception and there was no such "preponderance," much less an overwhelming one.

In fact, it was the reverse, with veterans' evidence being truly overwhelming but sneared at by VA.

Reading it aloud even now, it sounds like a VA must have had a tidal wave of facts and proofs to outweigh anything the veteran submits to substantiate a disability claim, rendering the claim completely without merit.

VA was aggressively opposed to C-123 claims, and annoyed that veterans continued to press their case and gather even more support...yet no matter how much proof veterans presented to VA, nothing budged its predetermination that anything conflicting with VA policy is useless, no more than a trifling and unpersuasive treatise.

That "overwhelming preponderance" catch phrase is one which stands out...shouts out... in reading hundreds of documents forced from VA's records via court action enforcing several Freedom of Information Act requests. VA initially denied all access to these records, then tried to deny access by charging thousands of dollars, and then simply refused to release anything.

"Overwhelming" prejudice would be a valid characterization of VA's approach to C-123 claims.

Finally, the C-123 Veterans Association suit in the US District Court of Washington DC prompted some cooperation. Over the past several months VA has given our attorneys at least some of the materials we sought.

"Overwhelming preponderance of evidence" is a thread running through many of these FOIA documents. Apparently the phrase was created by VBA's Agent Orange desk, and used by VA's Post Deployment Health Section in Veterans Health Administration as well as throughout VBA. It referred to, and summarized the conclusion of VA's facts against C-123 veterans' evidence about Agent Orange contamination and exposure.

But there was no such tidal wave of VA evidence. Rather, there was an "overwhelming preponderance of evidence" confirming C-123 veterans' arguments, all ignored by VA. Rather than permit evidence submitted by C-123 veterans to be fairly evaluated, Post Deployment Health trivialized it into insignificance against VA's evidence, using that characterization to assure senior VA leaders that C-123 veterans were completely in error and must be opposed.

To better avoid its non-adversarial, pro-veteran obligations, Post Deployment Health dismissed completely...even calling it "unfortunate, " all expert input from:
• CDC
• NIH
• US Public Health Service
• "Concerned Scientists & Physicians," Dr. Jeanne Stellman, Corresponding Scientist
• VA physicians
• Veterans private physicians
• Independent researchers with peer-reviewed articles establishing veterans' exposure

What was Post Deployment Health referring to with that phrase "overwhelming preponderance of evidence?"
• A letter from a Dow-sponsored scientist
• A letter from a Monsanto-sponsored scientist
• A VA contractor who had earlier denigrated C-123 veterans and who tailored reports to VA policy
• VA's own web pages, cited as their own authority, and which referenced only materials fitted to VA policy
• An inconclusive USAF report, later determined to have relied in part on poor math to reach its conclusions

Now that the Institute of Medicine C-123 report is on the Secretary's desk, VA should examine its initial knee-jerk reaction against the veterans' exposure claims, a position hard fought by VA from 2007 until January 2015. From the very first interaction with veterans in 2011, VA Post Deployment Health has clearly had a policy...perhaps a policy only among certain staff...that these claims were to be opposed.

The FOIA documents, and incidents through the years, show that VA predetermines veterans' claims to be denied yet still claim to offer a "case by case" evaluation. The record shows that such an evaluation actually means VA won't deny a claim until it is submitted,  and then it will deny it. Deny all such claims. But on a case by case basis, of course.

Statements were made by VA staff that C-123 claims would not be approved. The Associated Press was told, "We have to draw the line somewhere." Disability claims were denied – VA medical care refused to veterans seeking help – with language:

 "VA regulations do not allow us to concede exposure to herbicides for Veterans who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals"

In fact no such regulations exist. When veterans' legislators challenged this, VA conceded that no regulations actually exist, but that claims denied using that language were still denied. VA ordered claims adjudicators to use different phrases...but continue denying the claims.

VA even cited "scientific studies" by VA Public Health which turn out to be a handful of staffers selecting literature to fit their policy of blocking all claims. Finally, even the Secretary of Veterans Affairs tried to reverse the only C-123 veteran's award ever permitted by VA, looking for CUE as a basis even though every single requirement in VAM21-1MR was met, and continues to be met, by all such claims.

"Overwhelming preponderance" was used and repeated throughout VA to the point the entire agency was convinced that C-123 claims were to be denied. The phrase became its own proof, cited to refuse veterans vital medical and other benefits.

Due Process was ignored, and didn't factor into VA's "overwhelming preponderance of evidence" because VA predetermined all veterans' materials worthless and claims were ordered denied. So much for VA's own regulation VA M21-1MR...ignored by VA in its blanket denial of C-123 veterans' claims. The creators of "overwhelming preponderance" were successful in their goal of 100% blanket denial...on a case by case basis, of course!

We're not making this up: read the hyperlinked references, call VA leadership, ask the reporters, scientists and veterans.

This was a skillful, deliberate, persistent (the word VA used to describe me...I'm credited with being "persistent") exercise in denial of the Fifth Amendment's Due Process Clause as regards VA's refusal to fairly evaluate veterans' qualified claims.

The question still on the table...what about other veterans' issues where VA does the same thing but without persistent self-advocacy by the vets? Dirty water, burn pits, immunizations, radiation, toxins, blast injuries, and all the other joys attendant to military service...what about them? Will VA reach out to veterans, or sit back and deride vet's claims with its all-too-prevalent "not on my watch" attitude?

There are new players in VA today, and we can hope for Due Process and the Constitution of the United States to mean something. We can look for a pro-veteran perspective to return to this essential institution. We can look...and hope to find it, for the sake of all veterans.

As for VA and Agent Orange: Never again can veterans be treated this way.

(C-123 Veterans' Motto)

NEWEST VA FREEDOM OF INFORMATION ACT RELEASE VERY INFORMATIVE – & Even More Disturbing

There are hundreds of files on the most recent VA Freedom of Information Act document release just provided us by our terrific attorneys at Davis Wright Tremaine.

You can read them all in this Google Docs folder...and you'll find an eye full if you read with your eyes wide open, and consider what was written compared to the Institute of Medicine recent affirmation of our exposures! No wonder it took four years to get to the point today, when VA is only now considering how to care for us. And no promises made yet!

A great many of these FOIA files clearly show VA's unending resistance to C-123 veterans' Agent Orange claims. "Not on my watch," is the motto smearing so many of these files, although not in those words.

Not a single file here, or in any earlier documents we've received, has a single question raised about whether our veterans were exposed. Instead, VA puts its brick wall in front of us and invites head-banging, knowing we would get nowhere. Never was a question raised about whether a way could be found to include, rather than forbid, C-123 veterans from entering their wonderful hospital corridors.

No wonder we had to fight in US District Court to get these papers. No wonder, even with so many obviously vital parts redacted, VA didn't want this record made public.

The attitude of is clear, especially in VBA where staffers look for unflattering references in this blog or in correspondence with VA and take umbrage. From 2011 when the issue first appeared at 1800 G Street in Washington, dedicated opponents rose to dispute any C-123 veteran's claim. VA staffers consistently informs others that the 1991 Agent Orange Act was meant only for Vietnam veterans during the time period allowed, but skipped mention of the multiple postings in the Federal Register by which VA assured Congress that all veterans with evidence of exposure would be treated the same as men and women who served in Vietnam.

VBA also insisted that non-Vietnam exposures to Agent Orange, even if fact-proven and claiming Agent Orange-recognized illnesses, must require proof that the illness didn't result from another cause. VA is of course expert with this issue and cannot have made these statements in ignorance, but rather policy. VA folks know the law and regulations dictate otherwise, but why worry about such niggling details which conflict with policy? Even if that policy was unpublished, unofficial, and in the end...in error.

VA regulations provide for inquiries to the DOD Joint Services Records Research Center if veterans claim on-Vietnam exposures. Many times, JSRRC tried to forward documents from other federal agencies, only to have them dismissed by VBA, Reading these files, I find myself described in words I'd consider unflattering, let's say.

Except for persistent. I see persistent a lot in reading these FOIA files.

That begs the awful question...why does any veteran have to be persistent, any more than completing the FDC and speaking honestly about the claim? Why did this veteran, rated by VA itself as "catastrophically disabled,"  have to spend four of the last few years in my piggy bank of life trying so hard? What about other veterans, other disabilities, other exposures? Are those veterans going to face a VA like the VA which put their brick wall in our faces?

Conclusion about this most recent FOIA release? It is policy that VA was clearly determined to preserve, and that policy was to prevent C-123 veterans' claims.

Compare responses to legislators, governors and state directors of veterans affairs (thank you, Oregon and North Carolina!!) hard with the recent release of the Institute of Medicine C-123 report. Policy, at least the policy of individual players, kept us out of those hospitals for years. We'd be outside still, fingers on the door bell, if not for the skills and care of reporters, scientists and legislators who've stood up for us since 2011.

God bless you all, VA included. Let's take care of veterans from this point forward, okay?

More disturbing facts from the FOIAs:
1. Secretary Shinseki said that Lt Col Paul Bailey's cancer claim shouldn't have been granted and sought opinions on getting it reversed as an error. Some VA staffer asked how Bailey could have qualified as "exposed" with "only two days on Patches." This statement required deliberately overlooking all the flight documents submitted placing Paul on Patches and the other contaminated former Ranch Hand aircraft. Note: Pauls VA award came just before his death...he'd already entered hospice.
2. VA's Agent Orange consultant was persistent (my turn for that word, having noted VA's frequent use of it) in steps to prevent C-123 veterans' claims. He got $600,000 for his efforts through his no-bid sole source contract with VA; we got financial loss, suffering and death.
3. Not a single mention is made anywhere of VA's frequent Federal Register statements about non-Vietnam Agent Orange exposures. VA is held to these publications, but did they feel best to pretend the don't exist?
4. I'm stopping here. You read. You decide if this is how VA promised to treat our veterans. It is depressing to keep writing about.

Department of Defense Passes The Buck - and veterans pay!

Who is the Decision-Maker on AO Sites?

Help is needed on this issue, please. Even some questions in the right place might resolve things.

Our own former Ranch Hand C-123 aircraft, having sprayed over 615,000 gallons each of Agent Orange plus thousands more of other toxic herbicides, are not considered to be among the DOD group of Agent Orange locations for testing, storage, evaluation or transportation. The agency responsible, the Armed Forces Pest Management Board, declined to do so and rejected repeated requests, including three managed through General Fedder in the OSD. From FOIA papers, it seems the request had initial concurrence from SECDEF but stumbled at AFPMB who recommended denial. Repeatedly.

One list shows US sites and the web site states it was supplied to VA by DOD. There is a published hard-copy second list, prepared by Dr. Al Young through Battelle as a DOD response to a VA request. A third list is another online list of outside Vietnam sites, again attributed to the DOD, to whom VA repeatedly referred me for a solution – hopefully including former Ranch Hand C-123s somewhere.

How can a C-123, the principal delivery vehicle for Agent Orange not qualify, yet the soil which it sprayed does? How can these aircraft, which carried an average of over 615 loads of 1000 gallons each not be considered transport or storage sites? How can the planes not be listed even though tested by the Air Force and their contamination established over the decades?

Nobody in DOD or VA seems to be the owner of these lists yet VA cites the absence of anything not on DOD lists as justification for denial of exposure claims, per VA M21-1MR. A veteran serving at one of the places named on a list doesn't automatically qualify him/her as "exposed" but the veteran's claim of service at some place not on a list is disqualifying in most instances.

Joint Services Records Research Center also cites the DOD lists in responding to VA's inquiries about veterans' claims but helpfully, references CDC sources for the airplanes' toxicity.

If any authority or reference, such as these DOD lists, is cited by the government to deny a citizen's rights and privileges, it must be accurate or the citizen's rights to due process are abridged. To refuse its amendment, which seems here to be the VA's responsibility because VA in each instance is credited with requesting the information and it is VA which cites the DOD lists in VA regulations, is only to prevent claims and not to properly adjudicate them.

I also believe AFPMB's response flies in the face of DODI 6055.5 as well as US Army TG312, and the intent of Air Force Manual 48-155 and OSHA requirements detailed in 29 CFR 1910.1450 (as regards Air Reserve Technicians exposed in civil service status, and perhaps traditional Reservists as well.)

It is also wrong-headed buck-passing which harms veterans. None of our rights under the Fifth and Fourteenth Amendments were sacrificed by serving in the United States military. Due Process is denied us by this inaction and we remind authorities of their personal oaths to support and defend the Constitution.

Now would be a good time.

VA "Releases" C-123 Agent Orange White Paper

Years ago the C-123 Veterans Association began filing, and the VA began ignoring, Freedom of Information Act requests for documents better detailing the VA knee-jerk position denying any and all C-123 Agent Orange exposure claims. Here's one of the more recent discoveries of how our rights to information about us are withheld so that claims are more easily denied by VA.

Well, it took a complaint filed through the US District Court in Washington, but VA finally yielded some (only some) of the requested documents. For reasons important to them, the attached memorandum touching on LtCol Paul Bailey's approved C-123 exposure claim resulted in internal turmoil as to how Manchester VA Regional Office had permitted such a thing. VA headquarters demanded the reasons for Manchester departing from the company line of denying the contamination of the airplane, and the exposure of the aircrews.

The Washington Post carried the Bailey decision prominently, as it followed by just days the Post's front-page story of Agent Orange and C-123 veterans.

Here's what is bewildering: The Vietnam War ended officially 41 year ago. The last Agent Orange spray missions were 43 years ago. The last C-123 retired to HAZMAT desert quarantine 32 years ago.

But still, VA executives and their staff attorneys decided that VA must withhold the core of this memo from the public and the veterans requesting this FOIA which VA attorneys had approved. This stuff is secret and must be kept from veterans and their advocates??

Redacted were two pages with only the front page title "White Paper" remaining. Apparently, VA in its dedication to provide the finest medical care for veterans, and to insure that every veteran presenting a disability claim receives the famous "benefit of the doubt"...decided that the very core of VA's determination to block all C-123 claims is to be kept secret.

So much for President Obama's assurance that freedom of information is a right of every citizen...and veteran...and the FOIA is fundamental to the American concept of democracy. They're treating us wrong here, making decisions against us and keeping their secrets from us! Here is what VA attorneys felt safe to make public, and I think we can all trust that if VA had uncovered absolutely convincing proof against our claims they'd have been eager to release it. However, if it contains materials which might assist vets in their claims...it is redacted!

--------Page One---------

========Page 2==========

Court Questions VA Conduct in FOIA Lawsuit

BY MICHAEL DOYLE
McClatchy Washington Bureau, September 24
WASHINGTON — The often-embattled Department of Veterans Affairs won the war but may lose an embarrassing battle over its handling of Freedom of Information Act litigation.

In what seems a rather noteworthy ruling Wednesday, U.S. District Judge Paul Friedman first sided with the VA in rejecting a FOIA challenge by Citizens for Responsibility and Ethics in Washington, but then raised the possibility of sanctioning the VA for its actions.

“This Court...is deeply troubled by the VA’s litigation conduct in the case: inaccurate declarations were left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic,” Friedman stated.

Friedman further ordered the VA to “show cause why a sanction under 28 U.S.C. § 1927, in the form of attorneys’ fees and costs, should not be awarded for the additional time and effort CREW’s attorneys were required to expend due to the VA’s tactics.”

The underlying FOIA request dealt with documents that could shed light on allegations that the VA discouraged staff from diagnosing veterans with post-traumatic stress disorder.

The VA’s precise legal conduct that’s in question is spelled out in Friedman’s decision, and in an earlier decision in which the judge declared that “counsel for the VA decided as a matter of litigation tactics not to be forthcoming by withholding relevant evidence until after the limited discovery ordered by this Court was concluded.”

 note: C-123 veterans have sought documents from VA under the FOIA for over two years so far.

USAF Conceals All C-123 Agent Orange Exposure Information

Yesterday, in response to our suit in the US District Court of Washington DC, the Surgeon General of the Air Force determined which materials relating to C-123 Agent Orange exposures are to be publicly released.

Nothing.

Certainly, a loud echo of the 1996 memo from JAG attorneys in the USAF Office of Environmental Law which directed all C-123 Agent Orange information "be kept in official channels only."

General Travis withheld everything except their disputed 2012 report, and copies of some of my own letters to the AF.

In an action very unusual for involving a lieutenant general, he insisted AF would not release anything explaining his decision. VA recently did the same, releasing blank pages and withholding virtually everything.

You see our conundrum: The VA and the USAF say, without any basis, that C-123 vets were not exposed. Neither will explain anything about their research, references, correspondence, emails, staff contributors, reviews, approvals, reports, manuals, orders, regulations, notes, recordings, conclusions – all restricted from us, other than VA providing a contractor's selected monographs. 

The Air Force will not release any of its correspondence with VA, NIH, or CDC/ATSDR. ATSDR, like the others, continues to insist we were exposed and were harmed aboard our C-123s. Yet the Air Force has told Senator Burr its report was somehow "consistent" with ATSDR.

Exposed (CDC/ATSDR) is "consistent" with not exposed? (USAF)

What is the justification for any secrecy involving a 60-year old airplane, and our duties aboard it three to four decades ago? Since VA has decided in advance to refuse us care for our Agent Orange exposures, don't we have the right to insist they reveal completely their justification?

It seems neither agency is in tune with the President's executive order on transparency in government! The 2009 memo instructed federal officials "to make discretionary FOIA releases of documents that might be technically exempt from release (especially with respect to the "deliberative" b(5) exemption), to proactively post records of interest to the public, and to remove "unnecessary bureaucratic hurdles." General Travis somehow concluded the President did not include the military in his FOIA rule, and on his authority redacted virtually everything that might be relevant.

It is clear that DOD or VA place veterans ahead of whatever policy or hidden agenda they have regarding this problem of C-123 aircrew exposure.

Deceptive VBA Freedom of Information Act Response!

On July 29, 2014, in partial response to my suit in the US District Court of Washington DC for information due me under the Freedom of Information Act, VBA sent a letter. It seems inaccurate and incomplete....in the extreme!

VBA stated, in effect, they had no records relating to the C-123 issue except the three or four Internet pages on the VA web sites.  They denied knowing anything about the current IOM study, other than that it is underway.

Their denial is so broad, they even denied their VBA staff preparing the letter Secretary Shinseki sent to Senator Burr regarding the C-123 veterans. Good thing, because the letter was riddled with errors. A perfect example of how Secretary Shinseki was torpedoed by his staff as they went about their personal agendas.

As for the information which surely exists, VBA insists there were no notes taken before, during or after any of our meetings. No knowledge of the hundreds of pages of letters and forms and source documents the C-123 veterans provided. No knowledge, no records, no recordings, no emails, no correspondence, Nada.

But how can VBA deny the existence of the September 27, 2012 $600,000 contract they let to A.L. Young Consultants? How can they deny existence of documents approving the contract, arranging the funding, receiving the contractor's reports, correspondence, distribution within VBA and VHA...how can they honestly evade answering the FOIA in a formal response? How can they deny correspondence between VBA and Joint Services Records Research Center? How can they deny ordering VAROs, such as Portland, to deny C-123 veterans' claims and then deny existence of the emails which were already provided the claimants?

Because this is the VA. What can you do? Appeal?

They do as they wish, as there are no individual penalties for deception or evasion. And they take their sweet time about their inaccurate and incomplete response – the FOIA was given them in October. Instead of responding in the 20 days FOIA requires, VBA opted to ignore it and take until the end of July to respond. So much for VBA adherence to the President's own directives, and statements from the President about FOIA being a fundamental element of American democracy.

This fits in perfectly with the overall VA policy of delay, delay until we die. That's not just a phrase...they mean it.

My Most Recent Claim Denied – For Want of VA Records

Typical VA Claims Result

My latest claim for various VA disabilities (not the Agent Orange-related ones) was denied last week, mostly because the VA regional office in Denver maintained I had no new information to submit against earlier denials, thus the original denials were final.

VBA was especially clever in this response: the adjudicator avoided addressing several elements of the claim (different injuries,) knowing that once the claim reaches the Board of Veterans Appeals they don't have jurisdiction, and the claim will be remanded. That will mean more time at the regional office, and then back in line for more years of waiting for BVA to decide.

They don't do this stuff without strategy, you know! What looks like an oversight is meant to provide VA with several more years of stalling, waiting for the vet to lose interest, or die.

For some reason, eBenefits has been accepting electronic documents for several months, at least since the end of April, but not showing them in the list of either requested or unrequested materials. Things get posted on eBenefits only if mailed or if a vet calls IRIS. Thus all my responses to VA inquiries for the last ten weeks have disappeared, so VA denied my claim.

That's one problem. The other is that the FOIA I submitted in April, which was acknowledged, still hasn't been fulfilled. That was where I'd expected to find the Air Force line-of-duty determinations for the specific injuries in the claim. Originally VA had somehow failed to even note the LODs and denied the claim because the LOD-specified injuries "did not occur during service nor in one year after." Heck, I was even hospitalized in Bethesda Naval Hospital on AD and they missed that.

I should have asked the Denver FOIA office about this earlier, because from their response letter I had no idea their current backlog is actually between six to nine months for a "C" file FOIA response. I'd gone in to see my files but they could only let me see a few pages on their computer, so a trip to Denver was wasted.

Yesterday, Denver FOIA offered to move my request for a copy of my records up and get them here in about a week because I'm so sick. Great. Now I can face two to five years in an appeal but that's way, way past my life expectancy.

Nice folks. Lousy system. Everybody at VA solves claim problems with a vet by telling us to "just appeal."

That's like a kiss of death. They know it. Perhaps their greeting at the 800-number should be "sorry for your loss" instead of "thanks for your service."

VA & USAF Defy FOIA – VA & AF Hide Data & Threaten IOM Study

An Institute of Medicine investigation of C-123 Agent Orange issues will begin June 16 – but with essential, unclassified VA and USAF data withheld. Although directly relevant to the assignment given IOM by the Department of Veterans Affairs, the committee will not have vital information for their studies. Without all available C-123 information made available to the IOM, their committee report will be fatally flawed, and the affected veterans harmed.

Both VA and AF have relevant, unclassified information about this 60-year old airplane and its Agent Orange history. This information has been improperly refused release to the public in defiance of Freedom of Information Act. Complete and valid requests go back over a year in each case, but they have been ignored.

In stark defiance of the Freedom of Information Act, it is clear that both Departments prefer at least some documents demanded by the veterans not to be released and available to the IOM. Although relief has been sought through the US District Court of Washington D.C. to force release of the materials, there is no possibility of court action before the June 16 workshop. 

This leaves the IOM C-123 committee tackling their VA assignment but with VA withholding information, years of its own investigations, all specifically relevant to the issue at hand. 

The June 18 IOM C-123 project is only the third such study on a unique population since the Vietnam War. Veterans who flew these airplanes which the AF tested as "heavily contaminated" claim their exposure to Agent Orange residues. Since becoming aware of the C-123 toxicity, and also responding to the C-123 veterans' inquiries, both AF and VA have completed studies, exchanged correspondence and conducted meetings and conferences. 

This extensive background of materials has been demanded under their rights expressed in the Freedom of Information Act. The materials are particularly relevant to the IOM investigation because VA has used it for years as justification for denying all C-123 veterans' exposure claims.

Both VA and AF have refused compliance with their own regulations requiring prompt release of non-sensitive materials such as the veterans' seek. The President of the United States has described FOIA as a fundamental American right, as have the courts. But neither VA nor the USAF seem to have been impressed.

According to the USAF FOIA web page:

"The principles of government openness and accountability underlying the FOIA are inherent in the democratic ideal: "The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."

The Air Force, and the Department of Veterans Affairs, have determined that the democratic ideal can be best realized by their disregard of the FOIA and the rights of veteran citizens.

Can't IOM or other interested parties contact AF and VA for prompt release of the FOIA materials without any unnecessary court action? 

IOM, Irvine, CA   (16 Jan 2013)

If such vital information is withheld from the veterans and the IOM with the resultant incomplete report so vital to the veterans' health, it must be known to senior leadership of both Departments as well as the public.  

It should be made known that from a legal basis, budgeting for the IOM C-123 Agent Orange review is potentially wasted money. Not only is there no component of the IOM charge involving the complete legal qualification of the C-123 veterans seeking Agent Orange exposure benefits (detailed in the Yale Law report,) but VA and AF are withholding large amounts of data relevant to the committee's investigation. 

IOM's final report will be flawed by being incomplete, by design...by the calculated defiance of the FOIA, as VA prevents essential documentation from being evaluated by the Institute of Medicine.