C-123 Agent Orange Veterans Propose Line of Duty Investigation of Our Exposures (no answer from VA to either proposal)

In hopes that VA continues seeking a process to permit C-123 veterans' retroactive disability compensation, we reached out to VA leaders to restate our arguments. A particularly interesting tactic might be Line of Duty determinations through the Air Force for our exposure injuries to meet statutory requirements for "veteran" status. VA's Interim Final Rule liberalizing rule to grant veteran status wouldn't be necessary, and VA could reconsider its retroactive disability compensation barrier. 
Secretary McDonald' said when announcing his C-123 decision, “Opening up eligibility for this deserving group of Air Force veterans and reservists is the right thing to do,” said Secretary McDonald. “We thank the IOM for its thorough review that provided the supporting evidence needed to ensure we can now fully compensate (emphasis added) any former crew member who develops an Agent Orange-related disability."  

We say, Keep trying, VA!

Our email to VA, January 7, 2016:

If tomorrow VBA must continue denying C-123 veterans' retroactive disability compensation, we respect that endeavor but are disappointed with it.

Our C-123 folks have a different perspective. Mr. Gxxxxx Bxxxxxx is an example of one of your C-123 veterans who has waited over six years for VA to resolve the issues of his prostate cancer and, more recently, leukemia also. 

VBA approved his 2009 claim only in June 2015, and his leukemia claim in August 2015, with all retroactive compensation denied, of course. I don't know how the percentages of disability would have been calculated with his prostate cancer, but he is presently at 40%. 

Had that percentage held for the six years since VA got his claim, this vet's compensation due would be around $45,000. Compensation he has waited patiently for VA to take care of in its normal course of granting claims back to date received. Like all of us, Bradley was not expecting the negative impact of the Interim Final Rule's liberalizing effect and dismissal of the VA OGC precedential opinions.  

What he'd waited for was only partial compensation for his pain and suffering, and only partial compensation for considerable loss of working time from his cancers. There is no compensation for this veteran's reduced life expectancy.

Air Force LOD manual AFI 36-2910 has as its overall philosophy protection of the servicemember's military benefits and eventually, veterans' benefits as well. We're asking Air Force for that philosophy to have full play here. The AFI requires Air Reserve Component members to report exposure and other illnesses and injuries within the regulation's mandatory 180 days, after which only VA would have authority. 

Fortunately, this requirement is satisfied because we reported the issue in early 1979 after which the Air Force Armstrong Labs submitted its incomplete Conway Report on one of our squadron's airplanes, C-123K  #362 ("Patches") and identified military herbicide residue. Using that data and test date from 1994, CDC ATSDR confirmed to VBA in 2011, we have a 200-fold greater risk of cancer than screening values. Not 2X. 200X. CDC said we should have been flying in full HAZMAT, but that was too late to help anyone.

The VA has a caring philosophy similar to the Air Force, but with specifically, a duty of insuring all the benefits due a veteran are provided, while at the same time taking a pro-veteran, non-adversarial and paternalistic perspective with every benefit of the doubt resting with the veteran. In clearer words, do all that's right by us within the law.

Last week VBA explained why DOD JSRRC confirmation (in 2013 and again in 2014) to the Agent Orange Desk of our exposures was not required to be shared with our veterans and why it did not apply to Reservists per VA 21-1MR and the VCAA. I don't understand their logic about why our being Reservists made it necessary for VBA to hide such official government confirmation of our exposures from us until after the Institute of Medicine C-123 hearings. 

I trust that VA can and will (if leadership approves) find a path forward which respects the rules you must operate under as well as the rights and benefits needed by and due C-123 veterans who volunteered for many years to fly these toxic airplanes, and who have already waited decades for your help.

An aside, please: VA has done a wonderful job with St Paul's processing C-123 issues. VA is also doing a great job using many different channels to get the word out to our veterans. Thank you!

Our email to VA, January 4, 2016:

I have raised the concern about C-123 retroactive disability compensation, presently blocked by the liberalizing rule per the Interim final Rule. The hope is to find a compromise for at least a year of retroactive compensation, presently blocked by the statutory "veteran" issue already much discussed. 

Our view is that by late 2011 VA had ample government evidence to form "an overwhelming preponderance of evidence" supporting our claims but instead insisted it had "an overwhelming preponderance of evidence" against them. VCAA and VA21-1 should have helped the input from ATSDR, NIH, USPHS and JSRRC be considered with our claims evaluation on the "case by case" basis Secretary Shinseki and Under Secretary Hickey assured us was the case. Instead, resolution was postponed until June 2015. 

The few C-123 grants made prior to June 2015 all received full retroactive disability compensation (all were granted either by DRO or BVA decisions, none by VARO actions.)

Months ago when we met at the Senate Russell building to discuss the C-123 IOM report prior to publication of the Interim Final Rule, I raised the hypothetical concern of Ebola exposures and asked whether VA would treat Air National Guard and Reservists as "veterans" if the disease were to develop two weeks after their aircraft returned from Africa and the aircrew returned to civilian life. 

VA answered, "No," as with the C-123 veterans. The "veteran" issue blocks VA care and benefits for Reservists and Guardsmen and exposure situations.

Researching this issue further, I contacted the Air Force Reserve Command Surgeon who said he'd resolve such an issue by generating Line of Duty determinations. AFRC is where LODs on C-123 veterans would have been initiated. He'd expect VA to respect an LOD as protection for the airmen. He would consider generating LODs months or perhaps even a year or so after an event to protect the airmen, although AFI 36-2910 specifies a limit of 180 days for Air Reserve Component servicemembers. 

For four years, USAF has taken a completely hands-off position, leaving us to VA's mercy, but perhaps somebody in a blue suit or green bag will be led to do right by us at last.

Our time frame of 1972-1986 would have to be addressed with an LOD request through the Air Force Board of Correction of Military Records (AFBCMR.) While Air Force regs specify a 180 day period to submit an LOD following an event, Secretary James has complete authority in AFI 36-2910 to waive that constraint and anything else. The Board acts with the Secretary's authority.

Any airman can submit an AFBCMR request. In this instance, I ask that VA indicate to AFBCMR acceptance of such an approach for a representative C-123 vet. Further, I hope that VA can raise the issue with Secretary James and seek her acceptance.

With the Secretaries' input with their acceptance of this approach, the AFBCMR can make its decision based on the history of the issue, the supporting documentation, the IOM and other reports, JSRRC input and the flexibility built into AFI 36-2910. 

The AFI specifies:

"An LOD determination is based upon the onset of the disease, illness or injury process, not existence of symptoms."(3.4.1.1)​

​Further:

AFRCI 36-3004

The objective of the Reserve benefit system is to compensate, to the extent permitted by law, members of AFRC who experience incapacitation or loss of civilian earnings as a result of an injury, illness, or disease incurred, re-injured or aggravated in the line of duty, and provide the required medical and dental care associated with the incapacitation.

It would be better if an LOD can even be considered by the normal Air Force channels for such decisions without the time delay involved with an AFBCMR appeal.

This could provide a resolution for the "veteran" issue otherwise dependent on the liberalizing rule and permit VA to consider claims and appeals submitted prior to June 19 2015.

Perhaps technicalities make an LOD approach or any other solution difficult, but we believe it is reasonable and just, given the facts of the C-123 vets' exposure, ailments, and difficulties receiving the same benefits as their Active Duty counterparts and C-123 vets whose claims were approved prior to the Interim Final Rule.

Please forgive the inexpert phrasing of my suggestion as my ability to research and present the issue is quite limited. We count on VA to offer the most pro-veteran assistance that is permitted.

Please stop finding avenues permitting (not requiring) VA to say "no" and instead, find ways within the law to do what's right for us.

VA Needs to Hear Our Argument on Retroactive Disability Compensation

Here’s the law for veterans and the VA on retroactive disability compensation (38 C.F.R. 3.114)

“(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.”

C-123 veterans ask that VA more closely follow this section of 38 C.F.R. and further, interpret when possible in the most pro-veteran manner. Our exposures constitute injuries, which satisfy both our service’s and the VA’s requirements for statutory veteran status. Having all eligibility criteria met when the liberalizing benefit was promulgated, and having continuously maintained that eligibility, retroactive compensation is appropriate and not proscribed by 38 C.F.R. but instead provided for by it.

There is no justification in VA21-1M or 38 U.S.C. to prohibit Reservists and Guardsmen exposed to toxins which science and also VA acknowledges result in subsequent disabling injuries, illnesses and death. Indeed, prior to June 18 2015 and the C-123 Interim Final Rule, there was no prohibition to granting service connection for those exposures and grants were made repeatedly for Air Force Reservists’ C-123 exposure claims, including by different Boards of Veterans Appeals over many years.

Since early 2011 VA leaders, from the Secretary to more junior staffers, knowing that nearly all of the claims would be from Reservists, assured veterans and our legislators that each C-123 exposure claim would be considered on a case-by-case basis. This assurance was accompanied with directions to regional offices that no possibility existed to honor C-123 exposure claims and that VA regulations prohibited doing so. Secretary Shinseki published his June 7 2013 C-123 Fact Sheet through Senator Burr, in which he repeated that assurance and commitment. Any prohibition against retroactivity only arises from the June 18 2015 Interim Final Rule inclusion of an unnecessary liberalizing rule.

Between 1972 and June 2015, there have been no denials of C-123 Agent Orange exposure claims for Air Force Reservists, either at VARO-level or BVA, on the only recently raised question of veteran qualification. When BVA decisions addressed the issue of Reserve veteran status at all, it was to specify that the exposure injury, dating from the exposure, satisfied the statutory requirements.

This comports with binding VA OGC precedential opinions, which themselves have frequently been cited in VARO, DRO and BVA decisions on different illnesses and injuries.

The VA has stated it cannot permit awards retroactive from the date the Secretary’s dates for new rules. If that is the case, certainly VA cannot attempt to make retroactive the prohibition of retroactive compensation for claims properly submitted to Veterans Benefits Administration prior to the Interim Final Rule.  That, too, is blocked by the Secretary’s inability to effect changes for his rules prior to the rules taking effect.

It is proper for VA to determine it has the authority to deny retroactive benefits only for claims not filed before the June 2015 Interim Final Rule, and proper to also determine that it has authority to provide or deny retroactivity for claims received after the rule’s promulgation. Again, the Secretary’s authority to prevent retroactive compensation only derives from the Interim Final Rule but on a prospective basis, not prior to June 2015 for claims already submitted. Claims received by VA prior to June 2015 must be considered on a case-by-case basis with full retroactive effect of any awards. After June 18 2015 VA can apply both its barrier to retroactivity and presumptive service connection.

The Board of Veterans Appeals has repeatedly acknowledged the “veteran” status of Reservists exposed to toxins, BVA Docket 06-18 270 in 2007 held that a Reservist exposed to Agent Orange aboard my own C-123 aircraft (citing in particular #362 which I flew) at my own base(s) (Westover AFB and Hansom AFB, both in MA and both of which were bases I flew from) during the same time period, satisfy statutory requirements: The Board concluded:

“The Board will concede that the veteran was exposed to an herbicide during service. The service and museum (USAF Museum Dayton Ohio re: C-123 #362) records document the veteran’s reserve service in 1972 and 1973, the presence of that C-123 at Hansom in 1972 and 1973, the use of that C-123 in spreading defoliant in Vietnam, and service of that aircraft in Vietnam in 1972.
The board accepts that the veteran was exposed to an herbicide during service. The veteran was diagnosed with type 2 diabetes after service. The Board presumes that the veteran’s diabetes is service connected, and grants his claim.”

Another BVA case dealing with Air Force Reservists flying the same C-123s, concluded in its 2001 decision:

“Therefore, the Board resolves such reasonable doubt in favor of the veteran to find that the veteran was exposed to an herbicide agent used in support of the United States and its allied military operations in the Republic of Vietnam during, his active duty for training performed at Rickenbacker Air Force Base between 1970 and 1975. 38 U.S.C.A. 5107(b) (West Supp. 2001); 38 C.F.R. 3.102.

Other BVA decisions addressing Air Force Reservists in 2013 and 2014 (Matte [2014, Boston DRO] and Bailey [2013, Manchester DRO]) paralleled the several earlier decisions. In fact, there are no known BVA decisions addressing C-123 Air Force Reservists which did not acknowledge assume their satisfaction of statutory requirements for veteran status.

Thus, seven years of multiple well-reasoned BVA decisions about C-123 Air Force Reservists indicate that until the June 18 2015 Interim Final Rule was published, no such barrier existed to recognize satisfaction of an Air Force Reservist’s claim to veteran status via the herbicide exposure. There was no barrier because the VA OGC opinions satisfied the issue completely – until created in June 2015.

The C-123 AO exposure claim which generated the most attention from VA leadership was that of LtCol Paul Bailey. His denial in February 2013 dealt with the claim without concern for veteran status. When his claim was reconsidered by DRO, no concern was raised regarding statutory veteran status because it was conceded.

The Bailey decision received immediate and extensive scrutiny from VA leadership, including Secretary Shinseki. After the Washington Post’s August 3 story about the grant it generated email and other correspondence from VBA Compensation and Pension, VBA Agent Orange Desk, VHA Post Deployment Public Health, the Under Secretary for Health Administration, VA OGC, Congressional Liaison, and other officials…all without concern ever raised for any statutory veteran status and the only comments being that the claim was supported by credible scientific evidence and that is was proof of VA’s promise of “case by case” consideration.

On my own initial AO denial in 2012, no issue was made of statutory veteran status. Indeed, Mr. Tom Murphy in C&P directed the claim be denied, not on the veteran issue but instead by disregarding all the scientists’ and physicians’ input and asserting no exposure – my veteran status was unchallenged as in all the other veterans’ claims mentioned above. Mr. Murphy and the other VA executives with whom I’ve exchanged communications (VA OGC, Under Secretary Shinseki, VA Office of Congressional Liaison, regional offices) a question might have been raised by now regarding statutory veteran status, especially from Mr. Murphy or General Hickey. Denying my claim and appeal for years never touched on veteran qualification. If veterans failed to satisfy statutory veteran requirements for the specific time period associated with the exposure injury, that problem should have been raised by VA years ago. Instead, but problem of the Reservists’ status was created only with publication of the June 2015 Interim Final Rule.

Between 2007 and May 2014, each of the handful of approved Air Force Reservists’ Agent Orange exposure claims were granted on the fact-proven basis of herbicide exposure, but granted only through an appeals process involving DRO, or BVA actions where each of them was successfulasd433. In January 2015 the Institute of Medicine made that point even more clearly in its answer to Secretary McDonald’s charge to the committee. Before June 2015 each veteran granted service connection for C-123 Agent Orange exposures received full retroactive compensation. Our claims were submitted in the same time frame.

I flew with these veterans and was their flight instructor and flight examiner to train and certify them on the same aircraft on the same days, and we’ve had the same illnesses, yet my own claim was “postponed” for years and only recently awarded but with retroactive compensation blocked. Thus, my students received proper retroactive compensation but I do not, nor do other similarly situated Air Force Reservists, despite how perfectly parallel all the claims are, and only because VA did not process my claims or appeals within the 52 months it had them. The significant distinction here is only that some claims were granteed prior to June 2015 and most others, afterwards but without the same retroactive compensation. This is unfairly discriminatory.

Should this request for retroactive compensation for C-123 veterans be denied, we specifically ask for assurances that every effort was made by VA leadership to take the most pro-veteran perspective on each aspect of the issue.

A ray of hope might be found in the military Line of Duty determination process. In the Air Force, this is AF Instruction 36-2910, and the overall tone is strongly pro-veteran, and protective of servicemembers' VA rights. If the Air Force can generate LODs for our C-123 exposures and injuries, VA is supposed to accept them and thus we'll have satisfied the statutory requirement for "veteran" status and injury, and hopefully, then be qualified for retroactive disability compensation dated from date of VA claim. We'll see...here's the VA policy per 38 C.F.R. 3.1.:

In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.(Authority: 38 U.S.C. 105)

Senator Gardner (Colorado) Raises C-123 Questions With VA

There is a lot of subtle deception in VA's answer today to Senator Gardner's inquiries. In particular, how C&P twisted the ATSDR "vets were exposed" conclusion to Mr. Murphy's summary, "TCDD causes no adverse health effects." In the military, this is a prevarication and unacceptable. Also interesting was VA's response about how they opted to just disregard JSRRC's confirmation of veterans' exposure, because VA wouldn't accept CDC and other government opinions and instead accepted Dow, Monsanto, and VA's Agent Orange consultant to constitute "an overwhelming preponderance of evidence" to block C-123 claims. Finally, VA continues to insist below that C-123 claims were denied for want of medical nexus...but VBA avoids reminding the Senator no veteran ever need prove medical nexus...only Agent Orange exposure. That's the law!

– Response to Senator Cory Gardner (CO) – 

Questions re Agent Orange - TCDD/C-123 Exposure

1. In 2012, VBA Compensation and Pension (over Mr. Tom Murphy's signature) directed VARO Portland to deny an Agent Orange exposure claim. Included in C&P's advisory was its summation of the CDC/ATSDR C-123 report by Dr. Tom Sinks, "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects."

Question: does this remain C&P's official position regarding TCDD exposure and how have any adjustments in it (if any) been undertaken as regards this and other claims? Does the VBA perspective on TCDD differ from the scientific view of other VA departments?

Response:  The 2012 Compensation Service Director’s advisory opinion concerned that claim only. However, his advisory opinion was consistent with VA’s views on post-Vietnam exposure to Agent Orange on C-123 aircraft at that time.  VA’s current position regarding exposures on C-123 aircraft is reflected in the regulations published on June 19, 2015, which established a presumption of exposure to Agent Orange for a select group of Air Force and Air Force Reserve personnel who had regular and repeated contact with contaminated C-123 aircraft that the Air Force used in Vietnam in Operation Ranch Hand.  Under these regulations, a Veteran who meets the eligibility criteria for the presumption of exposure (air, ground maintenance, or medical crew members who served in units that had the aircraft after Operation Ranch Hand) may file an original compensation claim for a covered disability or may reopen a previously denied claim. (NOTE: question unanswered by VBA)

Question: this C&P statement was its summary of Dr. Tom Sinks' (CDC/ATSDR) conclusion that C-123 exposures resulted in 182-times exposure thresholds and 200-times greater cancer risks. Does the VA summary concluding its paragraph on the CDC/ATSDR report accurately reflect Dr. Sinks' conclusions?

Response:  Dr. Sinks’ views related to increased exposure were addressed in the January 2015 IOM report on C-123 exposures, and the IOM report provided the scientific and medical bases for VA’s current regulations.  As described above, these regulations provide a presumption of exposure to Agent Orange for certain C-123 crew members. (NOTE: question unanswered by VBA)

Question: has the above phrase been used on any other Agent Orange claims?

Response:  VA is not aware of the use of the above phrase in evaluating any other claim.

2. In March 2013, the DoD's Joint Services Records Research Center informed VA's Agent Orange desk in Compensation and Pension that evidence from federal health agencies (CDC/ATSDR, USPHS) existed supporting Agent Orange exposure claims of post-Vietnam C-123 veterans. VA21-1MR details the role of JSRRC confirmation of exposure, and VA personnel commented on whether the JSRRC information would affect veterans' claims. In May 2014, veteran-specific JSRRC confirmation of C-123 Agent Orange exposure was received by VBA.

Good news from a brother C-123 veteran. Makes the effort worth everything.

In my email box this morning: (Jan 6 note: VA leadership saw George's note with August date...and corrected his claim back to June. Good job, VA!)

Wes;Thursday I got a letter from the VA awarding me 100% for leukemia effective Aug 24 2015. I had just about given up all hope. I want thank you very much for your help, without it the C-123 VETs would have been left out in the cold. Again "THANK YOU"
George B.

God Bless George in his continuing health issues, and God Bless St Paul VARO for caring about C-123 veterans.  Isn't this wonderful?

'Bad paper' haunts vets after leaving the military – as it must, in my opinion

I stand for careful review of dishonorable discharges to insure PTSD, TBI or other causes are not involved.  Thanks to the National Veterans Legal Services Project this review is underway. Further, individuals have extensive review rights as well as the opportunity to seek redress through their service Board for Correction of Military Records.

I also stand for exclusion from any "veteran" status of an individual who so completely failed the military and his/her comrades through dishonorable conduct. A dishonorable discharge is the result of a judicial procedure with ample protection for the individual's rights.

An honorable discharge is earned by honorable service, and a dishonorable discharge should bring no benefits but instead, public awareness that the individual failed his or her duty, often through criminal acts. 

JIM SALTER | Associated Press, December 25 2015

ST. LOUIS – No medical or mental health care. No subsidized college or work training. For many who leave the U.S. military with less-than-honorable discharges, including thousands who suffered injuries and anguish in Iraq, Afghanistan and elsewhere, standard veterans benefits are off limits.

The discharge serves as a scarlet letter of dishonor, and the effects can be severe: Ex-military members with mental health problems or post-traumatic stress disorder can’t turn to Veterans Affairs hospitals or clinics; those who want to go to college aren’t eligible for the GI Bill; the jobless get no assistance for career training; the homeless are excluded from vouchers.

“It’s an indelible mark of their service that follows them for the rest of their lives into the workforce, through background checks, social relationships, and it precludes them from getting the kind of support that most veterans enjoy,” said Phil Carter, an Iraq War vet and senior fellow at the Center for A New American Security.

The Department of Defense said of nearly 207,000 people who left the military last year, just 9 percent received what’s referred to as “bad paper.” Still, that’s more than 18,000 people last year and more than 352,000 since 2000, Defense Department data shows.

U.S. Rep. Mike Coffman, a Colorado Republican who’s on the House Armed Services Committee, believes many of those men and women suffered battle-related problems that affected their behavior, especially PTSD and traumatic brain injury.

A 2005 study showed Marines deployed to combat who were diagnosed with PTSD were 11 times more likely to receive less-than-honorable discharges, said Brad Adams, an attorney who works with the San Francisco-based organization Swords to Plowshares.

Varying levels of bad paper discharges exist. A general discharge is for those whose service was generally satisfactory, but who engaged in minor misconduct or received non-judicial punishment. Recipients are usually eligible for VA medical and dental services, VA home loans and burial in national cemeteries, but can’t receive educational benefits through the GI Bill.

Virtually no post-military benefits are available below that level.

An other-than-honorable discharge is an administrative action for those with behavior problems such as violence or use of illegal drugs. A bad conduct discharge is punishment for a military crime, and dishonorable discharges are for offenses such as murder or desertion. With those discharges, the VA doesn’t consider the former service members veterans for the purposes of VA benefits.

Maj. Ben Sakrisson, a Defense Department spokesman, said there is “substantial due process” for all cases where people receive a less-than-honorable discharge. Its statistics show that last year, 4,143 service members received other-than-honorable discharges, 637 received bad conduct discharges and 157 were dishonorably discharged.

Once people are discharged, the Department of Veterans Affairs can extend medical and mental health benefits on a case-by-case basis to those whose disabilities were service-connected, the VA said.

Studies show those who are less-than-honorably discharged are far more likely to end up in prison than honorably discharged veterans, and more likely to be suicidal.

For Years, Colorado Legislators Have Blocked Property Tax Relief Due Some VA 100% Permanent and Totally Disabled Veterans

Colorado's statute provides property tax relief for VA-certified permanently and totally disabled state veterans. Colorado's law covers all of them, but some Colorado legislators have mentioned to the state's Veterans Affairs Department they'd like exceptions made, on the basis of their personal preference! The federal VA provides certification for this type of veteran and the state accepts that is the qualifier for relief, the benefit being half of the taxes on the first $200,000 of assessed home value.

The problem is that Colorado pretends there are extra words in its statute and adds, unofficially and without legislation, an unwritten preference suggested by some legislators to disqualify those disabled veterans certified by VA as "permanent and totally disabled" if any portion of the total disability is due to unemployability. Many vets are 60% or more for their service-connected disability but other disabilities make it such that the are unable to work even at the poverty level. They still are certified by VA as "100% permanently and totally disabled", but Colorado adds an unofficial, unmentioned qualifier...to exclude vets with any part of their VA award being for unemployability.

They say this is because some of the legislators who drafted the legislation then told the Colorado Veterans Department that's how they'd like the extra, interpretation added but only AFTER the language had been approved by the people of the state, their legislators, and the governor. Time for a little extra-legal fine tuning, not by adding eligible veterans by but excluding eligible veterans otherwise clearly certified by the VA as eligible for Colorado disabled veteran property tax relief. They did this, not by the clear words of the Colorado statute nor the equally clear words of the VA letter certifying some disabled veterans with unemployability awards as "100% permanent and totally disabled." They did this by simply telling the Colorado Veterans Affairs how they'd prefer the statute to be more exclusive, despite the language of the law just passed.

Only by the legislators' personal preference is it that totally disabled unemployability-qualified veterans are to be excluded, despite their word-for-word qualification under the Colorado law.

Personal preferences of some Colorado legislators somehow trump the clear language of the law, the votes of both houses of its legislators, and the governor's signature and the massive support of Colorado's citizens who want the states veterans given a small and vital benefit.

Here's the law:

 " (1.5)  "Exemption" means the property tax exemptions for qualifying seniors and qualifying disabled veterans allowed by section 39-3-203.

  (3.5)  "Qualifying disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department."

Why the distinction? Anybody catch the word "unemployability" Anybody else notice that it is the United States Department of Veterans Affairs which certifies 100% permanent and totally disabled veterans, not the state of Colorado?

"I figured they would take care of me, but so far they haven’t."

“They promised me health care, and I figured they would take care of me, but so far they haven’t.”

That's the story from so many VA patients in Oklahoma and elsewhere. More stories than there should be, given the standards VA sets for itself and the typically complex medical situation of aging veterans.

We've written before about how much it hurts all veterans to read about VA failures in providing essential medical services. The title of the USAToday news feature sums up its damning indictment of the Oklahoma City Veterans Hospital. Not only are veterans abused with a claims system making them wait months and years before allowed VA medical care and benefits, but the care they've been promised falls short of their needs.

My own care at various VA facilities has been excellent for the most part, especially in dental service, urology, medical imaging and the emergency department services. 

However, I also had my second-worst experience at the VA when the Portland VA emergency department diagnosed avascular necrosis of my right hip. I was referred

to orthopaedics where a surgeon concluded I had simple bursitis, although I couldn't walk for the pain and had several falls. He made this conclusion despite his own hospital's emergency department and radiology physicians' written diagnosis of avascular necrosis, basing his conclusion on the fact that I had no history of taking prednisone, a powerful steroid.

Problem: the orthopaedist didn't bother reading the many pages in my medical record that detailed his own hospital's prescription for my massive doses of prednisone over a several year period. He wrote in my records "no history of prednisone use," and nothing came up in our conversation about it for me to realize his oversight...I discovered only on reading my records after a FOIA request. 

His failure to diagnose cost me many more months of increasingly miserable pain, more falls, and failed to treat a hip that could have been saved. Like the patients in USAToday's article, my problem was finally diagnosed by a private physician. Complaining about it to my VA doctor's supervisor and then, filing what's called an 1151 complaint, only brought VA's official conclusion that my VA care (for the hip and for the probably unrelated earlier problem which required the massive prednisone) had somehow equaled the standard for care in the Portland medical community. The complaint was dismissed. 

Avascular necrosis (large bone death caused by loss of blood supply to the bone) is progressive...and how! I eventually couldn't move the hip at all, and was bedridden until I sought care and was properly diagnosed at Oregon Health Sciences University. By then my hip was damaged past the point of recovery and I went through two painful replacements and less than optimal results.

Months later I felt ready to collapse and ended up once again at the VA emergency room –with an infection of the hip prosthesis I'd received at OHSU. I was shocked when the same VA physician came in to care for me, and for the first time in my life I refused care and asked to be transported to another hospital. 

My story, like every other individual's story, is only anecdotal. It takes many such stories to prove a fact, and we've seen those stories accumulate to the point of proving the case: VA care too often is substandard and veterans pay with pain, suffering and death. USAToday and other publications have certainly proven that VA care is too often below the standard of what aging veterans need and below the standard the Secretary expects of his Department.

Mr. President, Mr. Secretary and my own Colorado federal legislators, the entire country needs the VA to succeed. We need heros in the VA to pull it up to the standards in health care we deserve. With news like Oklahoma City, Phoenix and other problem facilities, we're losing the support of the American public. Without that support, the Department can only sink lower and lower into disrepute. Please lead the Veterans Health Administration into the ranks of America's finest!

Because I need it and my experiences warrant it, I'm a vocal supporter of the Department of Veterans Affairs and its leaders, but not VA's claims process. Stories like this in USAToday sadden VA's most enthusiastic supporters and threaten to make 2015 a repeat of 2014, which everyone called "the year of scandals."

VA Now Pushing C-123 Veterans' Agent Orange Benefits!

It is absolutely wonderful to see 54 months' hard work on C-123 Agent Orange claims now appear on VA's own benefits web pages!! 

VBA Violated 38 United States Code 5103A(b)(2) – and more!

VBA Motto?

For nearly three years, Veterans Benefits Administration sat on vital evidence supporting C-123 veterans' claims for Agent Orange exposure injuries. Our inquiry about this, with copies of VA documents establishing our allegations, was provided the VA Office of General Counsel as well as VA IG and VA National Center for Ethics in Healthcare, without response. Actually, the Ethics Center did respond but said the issues are so serious it is outside their purview.

Input from (1) CDC, (2) National Institutes of Health, (3) US Public Health Service (4) The Concerned Scientists and Physicians and other agencies was received by VA as those agencies sought to confirm C-123 veterans' exposures. (5) Input was even submitted by the Department of Defense Joint Services Records Research Center (JSRRC) beginning in March 2013, but ignored by VA Agent Orange Desk other than in internal discussions about how to disregard it. JSRRC proofs weren't released to C-123 claimants. (6) Even VA physicians who are acknowledged cancer researchers were disregarded (Dr. Mark Garzotto, Cancer Society researcher and author, professor at Oregon Health Sciences University and my urology oncologist at VA Portland.) VA's Mr. Tom Murphy, Director of Compensation and Pension, disregarded every other physician and scientist who submitted evidence on my own exposure to Agent Orange.

Lots of evidence. Evidence even VA described as "credible." Yet for years, VA ignored every bit of it for every one of us. Even today, neutral observers cannot fathom VA having disregarding solid evidence, raising the barrier for C-123 veterans' claims far past its fundamental standard of "as likely to as not." Indeed, VBA's Mr. Tom Murphy, Director of Compensation and Pension, even stated to us and his staff that no amount of proof from whatever source would be permitted to let a C-123 claim be approved.

There's law about such things. VA is required under the Veterans Claims Assistance Act (VCAA) to assist veterans in obtaining records from all other government agencies. It is clear that VA's use of these laws and regulations is primarily procedural but the only enforcement seems to be against veterans and not to compel VA to be correct and legal. Until recently I hadn't found the specific language in the United States Code, but happened upon it today:

(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records.
(Authority: 38 U.S.C. 5103A(b)(2)) 

 That's pretty clear. If VA "becomes aware" it will notify the veteran. One can assume that if VA has "relevant records" in its own possession, it will "notify the claimant."

But the Veterans Benefits Administration neither notified the veterans of available relevant records nor provided those records once in possession of the VA. Instead, VA decided that input from DOD, CDC and other relevant agencies wasn't adequate for VA's purpose...which was to obstruct the C-123 exposure claims. VA even dismissed JSRRC input, writing that it wasn't the role of JSRRC to dictate VA policy.

There's more. VA's Manual M21-1 states:

    Federal records are any documents in the custody of a Federal department or agency. Federal records include but are not limited to:

 ·  service treatment records (STRs)
·  other service department records (such as personnel records, line-of-duty determinations, inpatient treatment records or behavioral health records) that are not included with the STRs
·  VA medical and other records (including Vet Center records and authorized VA medical treatment or examinations at a non-VA facility)
·  Social Security Administration (SSA) records
·  Public Health Service records, and
·  Department of Labor records.

Somehow, VBA opted not to provide C-123 veterans conclusive evidence of their exposures, preferring to simply deny the claims by insisting no evidence existed. Further, VA's manual has specific instructions for VA claims adjudicattors about JSRRC reports of veterans' exposures:

Has the veteran provided sufficient information to permit a search by the JSRRC?
● If yes, send a request to the JSRRC for verification of exposure to herbicides.
● If no, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. (Note: For a sample of a formal finding, see M21-1MR, Part IV,
Subpart ii, 1.D.16.c.),
● decide the claim based on the evidence of record.

(VA21-1, Part IV, Subpart ii, Chapter 2, Section C) 

Here's an actual example of how VBA avoided its duties under VCAA, 38 U.S.C. and Due Process. In June 2014 VBA denied a C-123 veteran's claim for various Agent Orange presumptive illnesses, including prostate cancer and heart disease. In its denial, VBA wrote,

"JSRRC is unable to verify or document that aircrew members were exposed to Agent Orange residue or dioxin contaminated aircraft or aircraft parts. (JSRRC response dated May 2012.)"

But that's not correct! JSRRC had specifically informed VBA's Agent Orange desk (Mr. James Sampsel) in March 2013 that C-123 veterans had, per credible government scientific documents (as VBA itself described them,) been exposed to Agent Orange aboard their aircraft. Mr. Sampsel's emails circulated throughout VBA and VHA, yet nobody took exception to VA characterizing the information in an anti-veteran manner or staffers' decision to disregard the JSRRC input.

It is important to follow the dates. In 2012 JSRRC did provide VA an initial negative report but updated that with its confirmation in March 2013, yet VBA denied the veteran's claim in June 2014 citing old information and withholding the newer JSRRC response. VBA even termed the current JSRRC and other information as "unfortunate and credible scientific information."

"Credible scientific information" plus JSRRC confirmation...all vital, primary evidence to support all C-123 veterans' claims. All of it, however, withheld by VBA as it stalled C-123 claims until forced by the Institute of Medicine report to finally recognize the issue in June 2015. And then, VBA even found a way to block retroactive benefits for the years it stalled and violated veterans' rights.