VA Cheats On Toxicologists' Expert Evidence - defies 8th & 9th Circuit Courts!

In its energetic denial of claims for service connection regarding C-123 Agent Orange exposures, Compensation & Pension's director dismisses expert findings provided about C-123 veterans by some of the field's leading toxicologists. 

The director explained to PVARO that as toxicologists, these scientists lacked medical credentials to establish medical nexus. C&P perhaps passed over the fact that medical nexus was not the issue but EXPOSURE was, medical nexus not being a veteran's responsibility to establish if claiming an Agent Orange presumptive illness. When arguing against veterans, however, VA has no trouble citing toxicologists as experts! 

     VA's own toxicologists are welcome to oppose veterans' claims - but unacceptable to VA in presenting veterans' claims? This VA perspective defies logic.

     In any case, C&P was in error in dismissing the toxicologists' findings. I refer readers to Marmo v. Tyson Fresh Meats, Inc. Decided by the 8th Circuit in 2006, the Court decided that  toxicologists are allowed to testify that exposure to a certain chemical is the cause of particular injuries. While I respect C&P's dedication in preventing our claims' approval, it is misplaced fervor. 

      It is also inappropriate and discriminatory, failing to permit the applicable portions of the 1991 Agent Orange Act, Title 38 CFR and other promulgations of Agent Orange and veterans issues protect C-123 veterans. VA's verbal shell

game, switching exposure discussed by the scientists with medical nexus which was not addressed by them, was meant to confuse and misdirect. In fact, toxicologists are uniquely QUALIFIED to address questions of toxin exposure. Here, especially, with several federal agencies as well as the most reputable scientists in their field offering findings in our favor. For whatever reason C&P felt appropriate, they did not address but ignored the MEDICAL opinions provided by physicians to better doom the claims.

     

      In a decision earlier this year, the 9th Federal District found in Whitlock v. Pepsi Americas that such baseless dismissal of expert testimony of toxicologists and chemists regarding exposure issues was an an abuse of discretion by lower courts, and presumably, decision-making bodies such as VAROS making such blanket dismissals would also be illegal.

     I am not sure of the law, but if a federal court cannot

freely disregard expert testimony of toxicologists and chemists addressing exposure questions without earning criticism for abuse of discretion, I cannot imagine greater privilege in doing so by the Department of Veterans Affairs, especially when those opinions are from other federal agencies with the statutory responsibility for determining issues of toxicological exposure. 

     The National Academies Press "Reference Manual on Scientific Evidence: Third Edition" (2011) provides an excellent narration of the generally accepted role of toxicology in addressing exposure questions and the acceptance of toxicological testimony in legal proceedings.

      C&P is skilled and creative in preventing fair and legal evaluation of C-123 veterans' exposure claims, but I ask that VA consider actually basing our claims on law and science, not individuals' preferences.

     Finally, as many BVA citations such as 0634583 and 1110601 make clear, the VA itself has no reservations using VA's own toxicologists in making claims determinations regarding exposures. Is the C&P' suggestion that veterans can't be protected by expert toxicologists' evidence but the VA is free to do take advantage of their professional qualifications necessary to deny claims? 

    It is also amusing (no...actually it hurts!) that VA BVA decisions frequently dismiss PHYSICIAN evidence from veterans because the doctor lacks toxicological expertise - but here C&P opts to dismiss toxicologists instead! Anything to deny a claim. Are they making up the rules as they go along??

Senators Demand VA Briefing re: C-123 Agent Orange

Sen. Jeff Merkley, Oregon

Senator Jeff Merkley (Oregon) yesterday joined with Senator Richard Burr (North Carolina) extending a bipartisan invitation to the VA to once again brief Congress on why the VA is so adamant on preventing legitimate C-123 veterans' Agent Orange exposure claims. (late note 12/12/12: the meeting was fruitless with the VA continuing to insist no C-123 veterans will be cared for. A letter from ten scientists and five physicians supporting C-123 veterans' claims was dismissed by VA on the basis that no claims will ever be approved regardless of justification.)

Sen. Richard Burr, North Carolina

They'll need your help to make it clear this important veterans issue isn't going away. Mr. William White of Senator Merkley's DC office works veterans affairs, and he's asked each of us C-123 veterans to contact our own senator's veterans affairs staffer to ask that they join the meeting.

Easy. Just call your senators' and congressman's local offices, ask for the veterans affairs staffer, and pass along the invitation from Will White...tell them to contact Mr. White in DC for the meeting time and place, and you're done. Of course, you might want to follow up after the meeting to "encourage" your senator to continue pressing the VA for action! It would also be superb if you were to "educate" your senator's staff about the C-123 exposure issue, and I've prepared the C-123 Agent Orange briefing for them which you can download by clicking HERE.

The 1994 Air Force testing on Patches labeled it "heavily contaminated" on all test surfaces, and "extremely dangerous." Alarming words certainly bad enough to get our attention, and they did! And that's what the inspectors meant so the aircraft was immediately quarantined from all personnel access...not just restoration workers.We correctly understood that if Patches was extremely dangerous when the tests were done in 1994, Patches and her sister C-123s were certainly extremely dangerous when we flew them 1972-1982! And, of course, tests over the next many years continued to confirm these as "a danger to public health" until they were all destroyed in 2010 as toxic waste. So the Air Force's 2012 report was supposed to set the record straight.

Ah, but enter politics, replacing science! The Air Force's 2012 reexamination of C-123 records led them to dismiss the recommendations of the toxicologists who examined Patches, using as an excuse the pretense that the recommendations must have been meant for AF Museum restoration workers only, not to personnel in general. They listed the types of chores the museum restoration workers were likely to perform and disturb Agent Orange residue and implied those tasks were different than what we did, so we couldn't have been affected by disturbing Agent Orange residue.

And the base chief of safety even required the aircraft be opened and aired out for two full days to vent dioxin in the air before personnel entry...anybody remember us doing that at Westover? I don't!

Horse feathers! We did those restoration workers' chores and much more. We did them, not for the days or weeks a restoration effort might require, but for years upon years, and we certainly were exposed thereby to the deadly TCDD component of Agent Orange. Several of our veterans have submitted sworn statements to that fact, and we need more...especially from squadron commanders and NCOICs! Download the statement here and, if you are in agreement, sign and return to me by scanning it (if possible) or snail mail.