How VA avoids its duty for "case by case" C-123 claims decisions (& also violates patient privacy at the same time*)

Here's how they do it. Here's how Veterans Benefits Administration and Veterans Health Administration/Public Health Section dooms a veteran's claim to denial followed by three to five years waiting for the Board of Veterans Appeals (BVA) to "remand" the claim for minor errors to be corrected...all adding up to years in which the Department of Veterans Affairs prevents all medical care and other benefits.

Below is an email between VA employees in their Veterans Benefits Administration and Veterans Health Administration. It was released last week through the Freedom of Information Act and under supervision of the US District Court/Washington DC. The court got involved because VA fought tooth and nail to prevent these things coming to light, and only the court's intervention forced VA to comply with the law.

VA's VAM21-1MR explains that regional offices will forward to the VA's Agent Orange Desk in Washington all Agent Orange disability applications for its opinion when the veteran claims an exposure but wasn't in Vietnam. VA will inquire through the Department of Defense Joint Services Records Research Center (JSRRC) for any official records which might substantiate the claim.

JSRRC has detailed my Agent Orange exposure proofs to the VA, but VA has ignored that response altogether because such confirming JSRRC responses don't fit with VHA's objective of denying C-123 veterans' claims.

The VA email above explains that VBA will be refusing my own claim for Agent Orange exposure. The law, and VA's published procedures in the Federal Register, clearly state the only requirement of exposure, and not medical nexus. I provided nearly 100 pieces of supporting evidence and expert medical and scientific opinions, which the VA email dismisses as "his PhD supporters."

The VBA writer said he was weighing my supporters against the VHA Public Health website evidence. The website was the product of two VHA physicians, one VHA toxicologist, and a VHA veterinarian also with a PhD in Public Health. VA's references were selected to argue the VHA position and all references which helped prove the veteran's' exposure were disregarded. VA dismissed any peer review.

This is called cherry-picking, not science. It is called policy, not medicine. The VA error is clearly evidenced in the January 8 2015 Institute of Medicine C-123 report to the Secretary of Veterans Affairs, in which the IOM (under VA contract) confirmed the C-123 contamination and the exposure and harm done the veterans who flew and maintained those planes.

Dismissed like my JSRRC confirmation or simply ignored among my submitted proofs were expert opinions (all unpaid) (plus my private physicians, not listed here) including:
• Dr. Jeanne Stellman, PhD, Columbia University
• Dr. Fred Berman,  DVM PhD, Oregon Health Sciences University
• Dr. Arnold Schecter MD, University of Texas
• Dr. Tom Sinks, PhD, CDC
• Dr. Linda Birnbaum, PhD, NIH/National Institute of Environmental Health Science
• Dr. Christopher Portier, PhD, CDC Director Agency for Toxic Substances & Disease Registry
• Dr. Mark Garzotto, MD, Portland VA Medical Center/Oregon Health Sciences University
• Captain Aubrey Miller, MD US Public Health Service
• Rear Admiral R. Ikeda, MD US Public Health Service
• Concerned Scientists and Physicians – dozens of experts who submitted a group letter to VA

The EPA did not provide their own opinion but they concurred in the NIESH opinion of Dr. Birnbaum. Thus agencies represented in affirming my exposure claim were EPA, NIH, NIESH, CDC, and USPHS. Opposing the claim was the Public Health Section, Veterans Health Administration and its staff of four. They did this simply by typing up a web page for the VA's website on which they said, based on their personal views, C-123 vets weren't exposed. Thereafter, rating officials, BVA and even CAVC cited the fault-laden website as somehow proof itself.

The law requires VA to give a veteran's claim every benefit of the doubt. "Resolving all doubt in favor of the veteran" is how VA is supposed to work, yet here and probably in many other unrelated cases VA personnel develop their own policy and bend all science, all rules, all laws to that policy. Here the policy was to prevent C-123 claims, and the policy has worked perfectly from 2007 to this very day.

The same VA players are still in place, feeding the Secretary of Veterans Affairs deceptive reports, having him sign misleading, dishonorable and error-laden letters to the Senate.

It is samo-samo. An uphill struggle where VHA expects veterans to wimp out at trying, discouraged by the barriers VA invents, the landmines used to blow up all protections in VAM21-1MR and other regulatory and statutory protections which should be extended veterans.

They can wait us out...after all, we're the old and ill veterans beating our heads against the wall at 810 Vermont. They simply close the door and lock us out until we die off or go away.

* PS...about the patient privacy. Read the email at the top of this entry. See how casually VBA sends over to VHA staffers information about a veteran's name, claim, disability status and personal medical information. As well as his personal observation that "100% must not be enough." Does this staffer think my spinal cord injuries, cancers and heart disease are "enough?" Is VA annoyed with my claim? Is this why this staffer disapproved my claim by dismissing all proofs and also by insisting that Agent Orange is harmless?

Note: Title 38 USC addresses this issue: (1) Any officer or employee of the Department of Veterans Affairs, who by virtue of his or her employment or official position, has possession of, or access to Veterans Affairs records which contain individually identifiable information the disclosure of which is prohibited by 5 U.S.C. 552a or by § 1.575 series established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $ 5,000

(Received June 24 from the incoming Director of the Agency For Toxic Substances & Disease Registry)

Dear Major Carter,

Thank you for your email and warm welcome regarding my new acting position.  I have recently been briefed about ATSDR actions related to this situation.  I have also reviewed the ATSDR correspondence related to C-123 aircraft and I am in agreement with it.  I understand that the VA has already received our letters and that ATSDR staff have spoken with VA staff about your situation. 

The letter from ATSDR to General Hickey regarding exposures at Camp Lejeune was somewhat different.  We sent that letter after completing an extensive dose-reconstruction model of exposures to volatile organic compounds at Camp Lejeune.  We were obliged to notify the VA because they had been relying on out-of-date information previously generated by us. 

The limited, but high quality, sampling of C-123 aircraft that we reviewed in 2012 confirm that some post-Vietnam era C-123 aircraft were contaminated with TCDD dioxin.   All C-123 aircraft have since been destroyed.  Thus, it is no longer possible to further characterize human exposure pathways through additional sampling.  Without additional environmental sampling information, an official health consultation would not shed additional light on this situation beyond that provided in January 2012 and March 2013.  I understand that United States Air Force restricted entry into these contaminated planes once they were found to be contaminated.  ATSDR concurs with this position and believes it would also have applied to pilots and crew had these planes remained operational. 

I hope this email is helpful.  Thank you again for your service to our country.  

Robin

 Robin M. Ikeda, MD, MPH

RADM, USPHS

Deputy Director, Noncommunicable Disease, Injury, and Environmental Health

Acting Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry

Centers for Disease Control and Prevention

4770 Buford Highway, MS F-39

Atlanta, GA 30341

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From: Wes Carter [mailto:c123kcancer@gmail.com]

Sent: Monday, June 10, 2013 2:55 PM
To: Ikeda, Robin (CDC/ONDIEH/OD)
Cc: Sinks, Tom (CDC/ONDIEH/NCEH)
Subject: Opinion provided earlier by Dr. Sinks and Dr. Portier re: C-123 Agent Orange contamination and exposure

Dear Dr. Ikeda,

Congratulations on your assuming the helm at ATSDR. We are the C-123 Veterans Association, and in the past ATSDR has been very kind to provide opinions over the signatures of Dr. Sinks and Dr. Portier. These opinions confirmed our exposure to Agent Orange for the years we flew the C-123 medium assault transports used earlier in Vietnam for spraying Agent Orange.

Last week I visited with several senators and congressional representatives, as well as with Ms. Amanda Meredith and Mr. Steve Robertson of the Senate Veterans Affairs Committee. We have asked the assistance of both the staff director and the Republican General Counsel in approaching the Department of Veterans Affairs regarding our veterans' claims.

I was asked, and they also asked me, why the previous letters from ATSDR have been disregarded by the VA. In one instance, VA's Compensation Services summarized Dr. Sinks' opinion (without mentioning his conclusion that veterans were exposed) by appending the sentence, "In conclusion there is no conclusive evidence of long-term TCDD harm." In another, the Manchester NH Veterans Affairs Regional Office denied a veteran's claim by grouping Dr. Sinks' and Dr. Portier's findings in the unacceptable "lay evidence" category, and into that group also put the findings by the NIH and US Public Health Service. Dr. Linda Birnbaum is also very familiar with this issue, as is Dr. Jeanne Stellman at Columbia.

Similar official letters from ATSDR have been accepted by VA for Camp Lejeune, and we cannot understand why the VA rejects their merit here. Obviously the issue is critical for us, because most of our veterans are not retired military and not otherwise VA-eligible, so they are turned away when seeking care for typical Agent Orange illnesses by the VA hospitals.

The matter has recently reached the desk of Secretary Shinseki. May I again ask ATSDR's leadership in restating to the General the opinion that we were exposed, and if possible, in the form of an official health consultation? Reading the criteria for an official health consultation, it seems to fit the requirements. 

Because the C-123 contamination had been kept "in official channels only" by the Air Force until released via FOIA in 2010, we only recently began presenting claims to the VA, and in every instance the claims have been denied, and all those reaching the VA's Board of Veterans Appeals a year or more later have been overturned in favor of the C-123 veteran. At our age and with our illnesses, however, we need very much for appropriate decisions to be made on the initial claims, rather than years later in appeal. 

I hope we can continue to count on Dr. Sinks, you and the ATSDR for help.

Sincerely,

Wesley T. Carter, Major, USAF Retired

Chair