Veterans' Rights Violated – VA Ignores Veterans Claims Assistance Act of 2000

 Ultimately, “[t]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006).

There's a law for that but too often VA ignores it, breaching the government's duty to claimants. For the veteran it can be a great loss, but for the VA, it is never a problem when that law is violated. Specifically, the law is the Veterans Claims Assistance Act of 2000 (VCAA.) It reinforced and detailed a range of pro-veteran steps the VA must take to assist a claimant or appellant for VA benefits.

Key is the law's requirement that VA disability claims system be non-adversarial and pro-veteran. Congress has imposed on VA a duty to assist claimants. VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. One significant part of the law imposes on VA the duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties on VA are supposed to significantly ease the burden on veterans in assembling the evidence needed to support a claim.

At least, that's the law. In practice, it's a law the VA obeys or violates at its pleasure. Abusing a veteran's VCAA rights and prejudicial errors per 38 U.S.C. § 7261(b)(2) also directly abuses rights under the US Constitution's Fifth Amendment and the Due Process Clause. Veterans and other citizens must obey laws or endure consequences. Violate a law, and once faces civil penalties, fines, loss of property, loss of civil liberties, imprisonment.

For VA and its officials, however, violating the Veterans Claims Assistance Act of 2000 carried no such penalties. When VA, in wrongly opposing a veteran, is slapped down by a Board of Veterans Appeals ALJ or the Court of Appeals for Veterans Claims, all that happens is punishment of the veteran! The worst thing for VA is a nasty comment from BVA or a CAVC judge. This is because when VA violates a veteran's rights under VCAA, rather than the vet's claim being corrected for VA's errors the claim is "remanded," – simply left unresolved and sent back to the same VA staffers who committed the violation to start the claims process all over again with a three to five year wait wasted.

So the veteran ups up "punished" by the claim being delayed yet further when the VA abuses the VCAA. There are no penalties for VA or its folks who deliberately failed the veteran. In fact, the VA actually benefits by delaying any medical care or other benefits. It denies or at least postpones paying any disability compensation, and it keeps veterans out of VA hospitals which helps keep existing appointment lines shorter.

In the case of C-123 veterans, VA ignores the VCAA, creating an adversarial rather than the statutory non-adversarial process, following the requirements of the law when and if it wanted to. Generally, VA has helped locate Social Security records (although it twice lost mine.) It generally locates service medical records (although it ignores mine from Bethesda Naval Hospital.) VA generally locates and acts on military service records (although it ignored my line-of-duty determinations, ignored details on my separation physical, and ignored both medical and military details on my PEB hearing, and ignored details of my Air Force Board of Correction of Military Records.)

But that's just me. VA also abused the VCAA rights of every other C-123 veteran. Their abuse cost us four years delay in getting our veterans into VA hospitals and able to use other VA benefits, such as CHAMPVA family medical care, nursing home, primary care, pharmacy, dental, audiology, prosthetics, survivor benefits and other vital services. Veterans pay the price for VA's abuse of us, but VA and its staffers have absolutely no consequences at all.

VA hasn't acted to honor its statutory duty to assist, and operate in a pro-veteran, non-adversarial manner with a low threshold for the burden of proof. Here's how VA ignores the VCAA.

How VA violates VCAA and trashes C-123 veterans' rights:

I. The worst violations were VA's determined avoidance of official input from the DOD Joint Services Records Research Center (JSRRC) and suppression of  that input for two years for two years after receipt. JSRRC informed VA's JSRRC Coordinator in March 2013 that the government had official records confirming C-123 veterans' Agent Orange exposures. Among other records, JSRRC provided Air Force and Center for Disease Control/Agency for Toxic Substances and Disease Registry reports identifying the C-123's as "heavily contaminated with dioxin on all test surfaces" and "a danger to public health." The ATSDR's director informed JSRRC that C-123 veterans experienced a 200-fold greater cancer risk...but VA's JSRRC coordinator sat on these official government records for two years.

For two years VA blithely ignored the VCAA and doomed claims at the regional VA offices as well as claims appealed to the Board of Veterans Appeals. Withholding official government records (here, the JSRRC March 2013 report) directly abused veterans' rights under VCAA. No problem at all for VA. Big problem for veterans who were forbidden VA medical care merely because of the preferences of VA staffers. The veteran and the VA are subject to VAM21-1MR which has the force of law (Evidentiary development procedures provided in the Adjudication Procedure Manual are binding.  See Patton v. West, 12 Vet. App. 272, 282  (1999))

Below is VBA's Agent Orange Desk explaining to other VA staff why VA opted to ignore JSRRC proof of C-123 claims, although no mention is made of why VA kept the evidence from claimants and the BVA considering such issues. Apparently a point was made that VA would only accept JSRRC reports which referenced military documents. No mention was made of VA having rejected Rear Admiral R. Ikeda (MD USPHS) and Captain A. Miller (MD USPHS) input, which was military because USPHS commissioned officers are by statute military officers. Further, VA regulations describe JSRRC as inputting to VA relevant "primary" evidence, not just evidence selected by the Agent Orange desk.

In this case, it was not USPHS evidence, but appropriately USPHS expert analysis of contemporary (1979-2010) military toxicology reports. As Admiral Ikeda was then Acting Director CDC/Agency for Toxic Substances and Disease Registry, such input seems both accurate and relevant, as well as military in nature. The question screams out..."how much proof does the Agent Orange desk demand to permit 'benefit of the doubt? Why set uniquely high standards for C-123 claims, rejecting JSRRC, DOD, CDC, NIH, USPHS, dozens of physicians and scientists, university researchers and VA physicians?'

II. Rather than be non-adversarial and even-handed in evaluating exposure claims per the law, VBA issued a 2012-2014 $600,000 no-bid sole source contract for monographs supporting VHA and VBA current policies and perspectives on herbicide exposures. That consultant's largest single target in two years was C-123 veterans' hopes with the Institute of Medicine C-123 committee. VA spent hundreds of thousands of dollars on its favored outside consultant specifically for his coaching against against and to target C-123 veterans' exposure proofs.

There were no studies allowed to support C-123 veterans' scientific position (we asked VBA for funding to prepare a pro-C-123 study but they didn't respond.) Veterans never could have funded the research provided pro bono by Columbia University, Oregon Health Sciences University, University of Texas Medical School and the many federal agencies like CDC.

All expert input supporting the C-123 veterans' scientific argument was unpaid – besides, the veterans had no source of funding and didn't spend a penny to counter the government's hundreds of thousands of dollars. On the other hand, all input used by VA to obstruct the C-123 veterans was paid either by VA, Dow or Monsanto. When peer-reviewed articles were published confirming the veterans' exposures, VA immediately opposed their findings.

The scientists and physicians in Veterans Health Administration represent a huge body of knowledge, skill and talent, none of which came to help us. They followed their company line, which was no more Agent Orange claims. All of those experts opposed C-123 veterans' service connection. They must have seen the totality of the evidence and realized there was no "overwhelming preponderance of evidence" against us, but more likely, for us. It is easy to look at the past four years and see that these professionals should have established service connection for C-123 veterans within existing law and science. The law sets a low threshold of proof for veterans, but no amount of proof would make VBA honor our claims (as Mr. Murphy confirmed at his office on 28 Feb 2013.)

• Some of the many adversarial studies funded by VBA to oppose veterans were titled:
A. "Discussion Points Supporting Compensation Services' UC-123K Claims"
B.  "Investigations into the Allegations Concerning 2-4-5-T Herbicide"
C. "Investigative Report: Assessment of New Information on the Former UC-123Ks Post-Vietnam Issue"
D.  "Investigations into the Allegations of Agent Orange/Dioxin Exposure from Former Ranch Hand Aircraft"
E. "Supplement to Investigative Report: New Information on Former UC-123K Post-Vietnam Issue"
F. "Al Young Letter to Acting Secretary Gibson requesting reversal of IOM report conclusions"
G. "Al Young Letter to Dr. Mary Paxton, Institute of Medicine C-123 Committee Staff Director arguing scientific failure of committee report"
H. "Al Young Letter to Dr. Terra Irons to answer questions put to VA by Institute of Medicine C-123 committee."
• Some of the studies or efforts by VA to consider possible merit to the veterans' claims:
Oh...there weren't any. VA permitted no such effort. Actually, there was one, the IOM C-123 report. Although VA argued hard and spent huge funds against the veterans through its proxy consultant, IOM, contracted with VA's hopes of finally blocking C-123 claims, instead independently concluded VA had been wrong all along and veterans had been correct all along. The real preponderance of evidence agreed with the C-123 veterans.

VA only sought material to oppose C-123 veterans. VA only recognized material if useful by VA against C-123 veterans. Nearly all material VA had was paid for by VA. Everything supporting C-123 veterans was from other federal and state agencies, and physicians and scientists without any compensation for their input. VA bought materials tailored to oppose or accepted it from the chemical industry. Veterans didn't buy evidence tailored to their objectives and never had funds to do so anyway. While the VA's consultant frequently referred to his monographs as "peer reviewed" there were not, as it is not acceptable for a researcher or author to select the reviewers himself. Peer reviewers should be objective, independent and not pre-selected by the author.

VA deliberately avoided uncovering or acknowledging any evidence or support for C-123 veterans. Their web pages discussing the C-123 investigation fail to mention a single resource not pre-selected to meet VA's policy objective. VA characterized all pro-C-123 exposure evidence as unacceptable because it conflicted with VA's predetermined policy objectives. Nearly all outside input VA sought was from its Agent Orange consultant, who previously also consulted with Dow Chemical against Vietnam Veterans' exposure claims, and two other scientists paid by Dow and Monsanto specifically to opine against C-123 exposures.

VBA's consultant also appeared as VA's proxy at the June 16 2014 IOM C-123 committee hearing to oppose the veterans' position. Without mention of his VA contract, nor the coordination of his IOM presentation and materials with VA, nor his role in 2009 recommending destruction of the C-123 fleet as toxic waste, he was an extremely authoritative and long-term dedicated opponent of all Agent Orange claims.

III. Acting in bad faith and utilizing resources known to be flawed in order to oppose veterans' claims, VA used without updating and correction the 2006 DOD Agent Orange site report used by VA to verify veterans' claims for non-Vietnam exposures. When a servicemember claims to have been exposed outside Vietnam, VBA checks against the DOD list and approves or denies the application.

The problem is the DOD list is seven years old, yet VA cites it in VARO decisions, and BVA cites it in appeals. It is fundamentally wrong for a government agency to permit use of a reference they know to be inaccurate. VA and DOD have rejected numerous entreaties by the C-123 Veterans Association to update their lists.

How does VA know the DOD list is unreliable? Because the list author himself, Dr. Al Young, prepared it for DOD in 2006 and then in 2013 proposed a contract for correcting identified errors and general updating. Nonetheless, VA approves or denies disability claims based on this terribly flawed document. It is as unacceptable error on VA's part.

Thus, VA violates the VCAA by knowingly deciding claims on flawed evidence, a "clear and unmistakable error."

From the first page of the consultant's report, "Investigations into Sites Where Agent Orange Exposure to Vietnam-era Veterans Has Been Alleged."

(From the VA's 2013 Agent Orange site report)

IV. Violating its duty to assist as well as performing in an anti-veteran manner, VBA opposed C-123 claims citing potential difficulty verifying aircrew or maintenance veterans' duty aboard specific former Agent Orange spray aircraft. Actually, this information was provided VA in 2011 by Headquarters Air Force Reserve Command and also by the Air Force Historical Records Agency. In any case, VBA in the spring of 2015 was able to identify eligible veterans by cooperating with other agencies such as Social Security and the Air Force

V.VBA and VHA orders to regional claims offices to deny C-123 disability claims violated VCAA by inappropriate guidance to those offices, and failure thereby to notify veterans of evidence needed to establish a claim. Specifically, veterans were not informed of proofs needed to overcome VHA and VHA's order to deny C-123 claims.

Further, VHA and VBA were wrong in their science since C-123 claims were first denied in 2007. As the Institute of Medicine C-123 report concluded, the aircraft were contaminated and the veterans were exposed and harmed. There was no new science behind the IOM conclusion but rather the proper interpretation of existing material. VA was simply wrong in its leap to construct unscientific arguments to block C-123 claims and was obviously anti-veteran and adversarial.

The proper VCAA pro-veteran approach should have been, if serious question existed as to the scientific foundation of the veteran's claims, to approve all applications until the science made clear the issue one way or the other. This is especially true considering the affirmation provided by ATSDR, NIH, US Public Health Service and the DOD JSRRC report in March 2013. VA clung to every possible negative interpretation it could devise and refused to admit an overwhelming body of evidence proving VA wrong...at the very least all that evidence introduced the "benefit of the doubt" which VA violated, despite the VCAA.

VI. VA has never permitted consideration of the possibility C-123 veterans might have been exposed.; no VA document released under FOIA questioned VA's consistent opposition to veterans or questioned whether the veterans might be correct. VA's adversarial as well as anti-veteran approach is quite clear and violated VCAA. Beginning with opposition to C-123 veterans VA never wavered.

VII. VA has never admitted locating any evidence supporting C-123 claims was ever identified by VA. Rejecting everything it disagreed with, VA was unscientific, and prejudicial in the extreme with blinders on regarding any contrary input.

VA denigrated every scientific and medical expert opinion supporting C-123 veterans as unpersuasive, lacking authority. Every scientist's input, even that from CDC and the National Institutes of Health as well as subject matter experts VA and IOM had previously relied upon, was immediately dismissed by VBA. VBA insisted its scientists were far more credible than experts who might not agree with them. VA insisted that its experts concluded that all evidence and expert input supporting veterans' claims of having been exposed to Agent Orange failed to create an element of doubt in favor of the veterans' claims.

"Overwhelming preponderance of evidence" is how VBA quite inaccurately described the VA's position against veterans. Four years of VA opposing C-123 claims eventually made perfectly clear that no matter how substantial the veterans' evidence and how unsubstantial the VA's, VA's was automatically but falsely characterized as an overwhelming preponderance of evidence.

VIII. VA created an in-house, novel and unscientific (per NIEHS) redefinition of "exposure" attempting to disqualify veterans' exposure claims.VHA's Public Health/Post Deployment Section redefined exposure to be "exposure=contamination field+bioavailability." This was introduced as a line in VHA's 2012 Society of Toxicology poster displays.

The redefinition was in contrast to standard definitions used elsewhere in VA, by the CDC, NIH and other authorities. It was even in contrast with VA's standard reference for definitions, Dorlands Illustrated Medical Dictionary.

VHA overlooked the fact that unique, home-made scientific definitions aren't scientific, especially when other federal agencies with statutory authority in the field label VA's exposure definition unscientific. "Whoever invented that certainly is no toxicologist" reported the director of a major federal research program. Veterans were invited by the Society of Toxicology to present a response at its 2014 conference, under sponsorship of the NIEHS.

IX. In a manner similar to VA's rejection of the March 2013 JSRRC exposure confirmation, VA also elected to ignore the expert input of Rear Admiral R. Ikeda, MD US Public Health Service and Acting Director, CDC/ATSDR.  USPHS commissioned officers are military officers, and her concurrence with earlier ATSDR findings of C-123 veterans' Agent Orange exposure was suppressed after its receipt in June 2013. Captain A. Miller, MD US Public Health Service, also submitted an expert medical opinion in March 2013 confirming veterans' exposure but as with all other evidence behind C-123 claims, VA's Agent Orange desk disregarded it and withheld it from VAROs and the BVA. Disregard for and suppression of these two expert military medical opinions was in clear violation of the VCAA.

Conclusion:
Violation of the Veterans Claims Assistance Act of 2000 were numerous and unrelenting. It didn't matter how much evidence supported veterans' exposure claims because VA predetermined it had "an overwhelming preponderance of evidence" regardless of all reason. VA's policy of preventing C-123 exposure claims led it to conceal pro-veteran evidence such as the March 2013 JSRRC confirmation. Suppression of any evidence within the government's possession violated VCAA, and the JSRRC email was critical evidence kept from veterans and the BVA.

VCAA was violated more generally with VA's stubborn resistance to any scientific or medical evidence supporting C-123 veterans' exposure claims. This was anti-veteran and adversarial. This deliberately avoided admitting any benefit of the doubt due veterans.

That VA was wrong in all this is clear from the Institute of Medicine C-123 report to Secretary McDonald. Despite all its money spent to oppose veterans, science spoke louder than specie.

The VCAA failed C-123 veterans. Nothing in it prevented violation of C-123 rights by the VHA Post Deployment Health Section and the VBA Agent Orange desk in the Department of Veterans Affairs. Nothing in the law prescribes a remedy for such abuse of office or prevents its abuse again. The same VA staffers perform the same duties, electing whether to obey or disobey the VCAA.

Only veterans were impacted and only veterans paid the price for VA's campaign against us. Still barred from VA hospital and refused VA benefits, we are still paying the price. As for the VA staffers, they're annoyed with our resistance for these four years but nothing more: it's just not their problem.

Board of Veterans Appeals Calls Reserve & Guard "Weekend Warriors" in Disability Appeals

Unacceptable prejudice!

In today's All Volunteer military I find it highly offensive that an official agency of the Department of Veterans Affairs refers to Reserve and Guard warriors as "weekend warriors," slurs used even in official citations, summaries of their appeals for service-connected illnesses and injuries.

(from a Reservist's BVA appeal, Citation Nr: 1243683, remanded for VARO errors)

The BVA web site's decisions go back to the early '90s. Below is just the first page of dozens, each showing that an administrative law judge (ALJ) considered the veteran appealing a claim to be worthy only of a "weekend" label, somehow less than an American warrior, and that had to affect the claim's outcome. Clearly an ALJ using this language needs to be challenged.

The law, VA rules and regulations should govern the outcome of a veteran's claim, not the ALJ's attitudes.

Every Reserve and Guardsman having a BVA appeal and receiving this disgusting treatment should appeal to the Court of Appeals for Veterans Claims. They've received an injustice from the Department of Veterans Affairs and it shouldn't be tolerated.

I trust that NGAUS, ROA and all other military associations will challenge VA on this slur.

 ("weekend warrior")

Citation Nr: 1503497 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 09-18 264

www.va.gov/vetapp15/files1/1503497.txt [view]

hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. 

C-123 Claims Update After Denver VARO Visit

I had the opportunity to visit the Denver VARO and was kindly received by a claims officer and her supervisor who offered me an extraordinary amount of time reviewing my claims, denials and appeals. The questions I raised were about any administrative changes or developments regarding our Agent Orange claims.

First off, they had no information about C-123 issues other than the March 11 changes on VA web pages. They checked: Claims and appeals are still handled in the local VARO (at least, mine is and they had nothing about St. Paul being a centralised processing facility.

Checking carefully, they told me my last claim was "postponed" to await the C-123 IOM decision. I JSRRC had already provided one in March 2013 and another in March 2014, but she explained a new one would be required.
mentioned that report had been published in January but they had no information about it. I was told the next step would likely be, once VA (Washington) sent Denver information about the IOM report, the regional office would have to inquire through DOD to make sure I flew the C-123s. At that point Denver would request a Joint Services Records Research Center report. I mentioned

One suggestion was to submit my doctor's letter that I'm terminal as that is a faster category for processing claims and appeals. Another, of course, was to be patient. Everyone realizes that appeals take a long time. The lady helping me had been working on appeals from 2010-11, so I have several years to go because my claim wasn't denied until 2012.

SITREP: We're going nowhere fast.

VA Ignored DOD Confirmation of C-123 Agent Orange Exposures for Two Years!

March 2013. Remember that date in reading this article!

VA's objective was to make certain the C-123 veterans' claims got denied. Hide whatever evidence says otherwise, and simply insist there never was any exposure. At VHA, it was "disregard VA's duty to assist."

As we wrote ten days ago, for the past four years all C-123 scientific evidence and medical input was disregarded by Veterans Benefits Administration's Compensation and Pension Service.

When the first C-123 claims were submitted, VBA and VHA simply made an immediate policy decision,which they termed a "scientific study"that C-123 vets weren't exposed. VHA then began "filling in the blanks" but selecting only materials to support that policy. They wrote a web page that said no exposure was possible, and VA everywhere quoted their web page. But that wasn't science, it was policy. What they described as a "scientific investigation" was no more than their selection of only references best supporting their policy.

There was no objective "let's look into this to find the facts" but instead, "how can we best block these claims" because, "we have to draw the line somewhere."

Chief among the ignored but most revealing of all official documents was the March 13 2013 confirmation of C-123 veterans' exposures provided by Mr. Dominic Baldini, Chief Joint Services Records Research Center. A JSRRC confirmation of an exposure situation is obviously a most decisive document. That's why Compensation and Pension simply ignored it. Veterans, VSOs and BVA were kept from knowing about it. JSRRC is VA’s research authority, and it has the duty to research details of stressful events for verification of stressors for PTSD claims and exposure to Agent Orange. VA has the duty of relying on its research authority, not hiding its responses.

Question: why would VBA withhold the JSRRC exposure confirmation, and fail to make mention in various reports and other correspondence that a multitude of other federal agencies supported the veterans' exposure claims?

Answer: all the better to deny claims they disliked.

To someone a little more attached to legal procedures and adhering to VA's own rules and regulations, t would seem relevant if the VA was interested in following the law. It would seem relevant if any VA official got the guilts about screwing veterans' claims by withholding evidence from a highly credible source.

But overpowering professionalism and ethics was their determination to not permit a single C-123 disability award on their watch. "We have to draw the line somewhere," VHA told the Associated Press.

And once drawn, that "line" became policy...became VA's mythical overwhelming preponderance of evidence against which no amount of proof from whatever source would be considered. That's what we were told in his office by Compensation and Pension's director, Mr. Tom Murphy, on February 28, 2013.

VA's insistence on its overwhelming preponderance of evidence meant that if evidence such as DOD confirmation of the aircrew's exposure was contrary to the policy, that evidence was denigrated, ignored, hidden. VA insisted in so many forums that it had "an overwhelming preponderance of evidence" against the veterans, even VA staff began repeating the phrase as somehow scientific proof itself.

The creator and repeaters of that phrase simply ignored input from USPHS, CDC, NIH and the numerous other authorities because that input challenged VA's "overwhelming preponderance of evidence." When the phrase was used in correspondence with legislators, VA skipped even mention of the fact DOD had already confirmed the veterans' exposure. VA left off mention that CDC had already affirmed the veterans' exposure and probable 200-fold increase in cancer risk. VA skipped mention of anything not agreeing with their anti-C-123 policy, because VA staff had already decided by ignoring all evidence supporting veterans claims, those claims were easier to deny.

Withholding such vital and relevant information in the VA's possession clearly shows the VA mindset that C-123 claims were considered contrary to policy (not science) formulated by the Agent Orange desk or VHA. VA's Agent Orange desk consistently reassures other VA functions that all scientific proof was against C-123 claims, citing:
1. Input from Dr. Al Young under his $600,000 no-bid sole-source contract to write monographs for the Agent Orange desk; IOM found the veterans' evidence more persuasive in concluding "with confidence" (the IOM added that emphasis) the crews were exposed, contrary to Young's insistence.)
2. Scientists Ross and Ginevan (who acknowledged funding by Dow and Monsanto for their C-123 memo.
3. VHA's web page; most scientists would not accept any internet page as scientific research, but VA cites it as such to disqualify C-123 veterans' claims

None of the internal emails, memos or formal correspondence referencing these three points ever mentioned the JSRRC confirmation, the ATSDR confirmation, the NIH confirmation, the USPHS confirmation, or the dozens of scientists and physicians who wrote Under Secretary Hickey. VA considered their three points to constitute "overwhelming preponderance of evidence" against C-123 veterans. That isn't a correct assessment but instead, mere policy.

VA has an obligation to assist veterans filing claims. VA withholding information useful in a veteran's claim is deceitful and contrary to law.

Another DOD document ignored by Compensation and Pension is related to the 2006 DOD list of exposure sites. If a veteran claims to have been exposed somewhere, that "somewhere" had better be on the DOD list or VBA shoots down the claim. But there's a problem: even the list's author insists it is obsolete, incomplete, unreliable, and needs a complete reexamination. The worse problem is that VBA permits this flawed document to still be used to deny exposure claims. We begged VA and DOD to help on this since November 2011 but no response except "go see the other guy."

Rear Admiral R. Ikeda (MD, USPHS) and Captain Aubrey Miller (MD USPHS) are officers in the military, as are all commissioned officers of the U.S. Public Health Service. Both separately and officially informed Veterans Benefits Administration that C-123 veterans were exposed. But BVA again opted to restrict this information from regional claims offices, VSOs and BVA.

Having filed away the JSRRC email where it wouldn't conflict with VA policy of blocking C-123 exposure claims, VBA then spent two years telling everyone VA had a "preponderance of evidence" against the veterans' exposure claims. Smoke and mirrors!

VA had a preponderance only if VA were to disregard input from CDC, USPHS, NIH, NIEHS, juried
scientific articles, dozens of physicians and scientists ("Concerned Scientists and Physicians") and other support behind the C-123 veterans' claims.

Here's the rub: VBA had plenty of official evidence supporting the veterans' exposure argument, but decided never to acknowledge any of it. While assuring other VA personnel, legislators, the media and perhaps themselves that the veterans were, as described by VA's Agent Orange contractor, "freeloaders looking for a tax-free dollar," VBA Agent Orange Desk simply wouldn't deal with any proof or evidence in conflict with its policy decision that C-123 veterans' claims, as VHA told an Army officer, would "never be approved."

VBA's Agent Orange desk wasn't unfamiliar with JSRRC and its role in confirming veterans' non-Vietnam exposure claims. Indeed, the same gentleman wrote to a regional claims official, "If you get a positive response from JSRRC on the direct claim, you can move forward with granting the claim." VA had its positive response but it wasn't the desired response fitting the Agent Orange desk policy...so the JSRRC confirmation was simply disregarded. With this pivotal JSRRC confirmation hidden from them by VA headquarters, VA's regional claims offices had no choice (indeed, were ordered) to continue years of denying C-123 Agent Orange claims.

Consider that date again, March 2013. Here is a list of just a few of the VBA documents and other items written AFTER DOD had submitted its DOD/JSRRC report,  but VBA continued to deny all such evidence existed, hiding essential proofs related to veterans' claims:

1. Shinseki-Burr exchange
2. Secretary of Veterans Affairs C-123 "Fact Sheet"
3. Secretary correspondence with Oregon's Governor
4. Numerous claims denied at VAROs, including Paul Bailey and others.
5. Murphy to Concerned Scientists and Physicians
6. Sampsel to Murphy, "overwhelming preponderance of evidence" against veterans
7. Compensation Service VBA Decisions
8. Congresswoman Bonamici brief from VBA/VHA

JSRRC Confirmation email re: C-123 exposures, March 2013

Below, how VBA JSRRC Coordinator dismissed the DOD evidence in violation of VCAA:

VBA simply disregarded VCAA and its own VAM21-1MR requirements and raised the bar, disputing everything submitted by the veterans and by other federal agencies, and even disregarding the official JSRRC confirmation. Finally, overwhelmed by all the evidence plus the conclusive Institute of Medicine C-123 report, VBA simply ordered its regional offices to "postpone" any C-123 claims. 

Totally ignored was VA's statutory duty to assist under the Veterans Claims Assistance Act (VCAA) of 2000. It's not much of an assist if VA gets records like the JSRRC confirmation but opts to keep them secret. JSRRC will not respond to a veteran's request, nor any other requests except from VBA, so VA hiding such conclusive proof of exposure was fatal to many claims. VA itself agrees, stating on its web page, "VA is responsible for getting relevant records from any Federal agency that you adequately identify and authorize VA to obtain." In fact, The VA can only stop trying to get military records records if it seems like the records don’t exist or no reasonable effort will produce the records. If the VA fails to obtain records needed to support a claim for benefits, the agency is required to notify the veteran of this fact.

It would seem VA's JSRRC Coordinator has failed C-123 veterans – but not by accident. Evidentiary development procedures provided in the Adjudication Procedure Manual are binding.  See Patton v. West, 12 Vet. App. 272, 282  (1999)

Today, just as in 2011 when our first VA claims were submitted, VBA will not permit any to be approved. Still today, not a single C-123 veteran's claim has ever been approved without special appeal following denials.

Following, email between VA and Senator Burr's staff. VA's response does not mention the fact of JSRRC's 2013 confirmation, nor the fact that VA still frustrates all-123 claims. VA claims in this email to be "committed to a fair and impartial evaluation"...by which four years of C-123 claims has only meant 100% denials. The same person who gave Senator Burr assurances of fair evaluations also directed his regional claims staff to deny all claims because of VA's "overwhelming preponderance of evidence." There turns out to have been no such preponderance!

John E. Kruse, Director, Benefits Legislative Service Office of Congressional and Legislative Affairs(202) 461-xxxx 

 Request: I understand the procedural requirement for JSRRC to provide VA with only "DoD documents", however, if VA has addressed this matter in good faith for veterans, it would seem incumbent upon VA to insist that DoD turn over all relevant information in its file regarding C-123 exposure concerns that could potentially assist VA's knowledge of the issue or at least request documents DoD has received from within the Federal government from subject matter experts familiar with the C-123 issue.

The attached letter from ATSDR sent to JSRRC Director last year is clearly such information. Relative to the prior RFI and this ongoing issue, please let us know, before 9 June 2014,  if the attached letter been received at VBA from JSRRC and if it has not been, has VBA requested the letter from JSRRC?

 Response:  VBA is committed to a fair and impartial evaluation of all disability claims, including those from Veterans associated with post-Vietnam C-123 aircraft.  The letters referred to by Mr. Tucker and Mr. Carter were provided to VBA by the Agency for Toxic Substances and Disease Registry (ATSDR) and by Mr. Carter and were evaluated by Veterans Health Administration (VHA) medical scientists and public health experts.  This evaluation contributed to VA’s decision to create the current VHA C-123 website (http://www.publichealth.va.gov/exposures/agentorange/locations/residue-c123-aircraft/index.asp), which explains that dried and solidified TCDD cannot be absorbed by the human body in any significant amount, and that there is no scientific evidence supporting long-term health effects from association with an environment containing such dried and solidified TCDD.

 The letters under consideration were solicited by Mr. Carter from government agencies and refer to an amount of TCDD that was obtained from one C-123 aircraft by vigorous rubbing with a strong solvent.  This amount was then compared to an industry standard for exposure to environmentally “active” TCDD and, as described in the letter Mr. Tucker forwarded, ATSDR concluded that this solvent-extracted amount exceeded the active TCDD industrial safety standard and therefore “TCDD exposure” occurred.

Due to the conflicting scientific opinions on this issue, VA contracted with the Institute of Medicine to review all available studies and literature and report its findings later this year. However, Compensation Service has been notified that JSRRC has begun providing these letters, or summaries of their content, to VBA regional offices for consideration in claims based on association with post-Vietnam C-123 aircraft.  In particular, information from these letters was provided to the Portland VA Regional Office for consideration of an appeal filed by Mr. Carter. 

While VA regional offices are able to directly access and search an extensive electronic library of such records for many Marine Corps veterans, they must rely on DOD’s U.S. Army and Joint Services Records Research Center (JSRRC) to research such records for all other service branches,  making inquiries to fulfill part of VA's duty to assist. VA has procedures detailed JSRRC in its regulation VM21-1MR.

Official Records: VA Deception & Error Denying C-123 Exposure Claims

VA Deceptions & Errors Blocked C-123 Veterans’ Valid Exposure Claims (CLICK for this report)

"Oops...my bad. I apologize!"

These polite words, essential in any civil discourse, are words you'll never hear from the Department of Veterans Affairs, especially if you are a C-123 post-Vietnam veteran. About 2100 men and women veterans who flew and maintained Air Force C-123 transports between 1972 and 1986 became VA's targets. Targets in which eight years of veterans' valid disability claims were fought with VA skill, VA determination, VA funding and at times, deceptions. 

Here's our longest and most detailed blog entry in four years, detailing VA actions and inactions against C-123 veterans.

VA was proved wrong on every one of their attacks with the January 8 2015 Institute of Medicine C-123 Committee confirmation of C-123 vvaneterans' Agent Orange exposures to the Secretary of Veterans Affairs.  IOM proved VA wrong on eight years blocking medical care and other benefits rightly due C-123 veterans.

Although disappointed, a few VA staffers in Veterans Health Administration (Public Health-Post Deployment Health) and Veterans Benefits Administration (Compensation & Pension Service) take professional pride in blocking C-123 claims as long as they did. Even though VA was wrong. (note: I think highly of Post Deployment Health's War Illness and Injury Study Center; I was a grateful patient at their Palo Alto clinic this week last year.)

VA was wrong about the airplane exposures, but only C-123 veterans and their survivors paid and continue to pay the full price for VA errors and deceptions. VA staffers shrug their shoulders and carry on, unapologetic, unpunished, attitudes unchanged. 

Veterans have learned there is no catch-up for health damaged in years of VA refusing medical care, locking its hospital doors when C-123 vets sought entry but were refused.

In a perfect world of VA and veterans, both sides would be celebrating a mutual victory of eligible veterans finally welcomed into the VA embrace for medical care and other vital benefits. In a perfect world, one in which VA staffers more closely embrace, rather than abuse, VA's own mission statement, this would have been our mutual goal from the beginning and the struggle would have been years shorter. And we could have focused on our families and our medical concerns instead of wasting too many of our remaining years doing what the VA should have done for us at the beginning.

Of course, in the very best of perfect worlds where there's a pro-veteran VA, there'd have been no struggle because VA should have simultaneously discovered the problem and implemented a solution. Veterans should never have to go through what we've endured. VA should never have been an opponent but rather, our own impassioned advocate! That sea-change that would require VA staff embracing their own mission statement. 

VA's document trail, read in light of the affirming IOM C-123 report, makes that so clear. Years of VA articles, reports and presentations are proven wrong. On March 17 2015, Secretary McDonald signed a memorandum acknowledging the IOM report's recommendations.

Key point: Veterans were correct. VA was wrong.

One has to think that if all this were laid out in a federal court case, the judge would ask VA, "Aren't you charged under the law with 'Integrity, Commitment, Advocacy, Respect, and Excellence?'"

VA would answer the department saved some disability funds by keeping money from veterans and widows or widowers who earned and need it, and kept appointment lines shorter by keeping C-123 veterans out of VA hospitals. Hardly an acceptable answer nor one the public would embrace. It is, truthful answer.

Let's look at these VA barriers to veterans' claims. There are many document errors, and careful reading lets most stand out. Some are especially deceptive or benefit from explanation. There are dozens of such documents recently released under VA-opposed Freedom of Information Act requests, but this report will examine only a handful. As time allows, more will be examined and added. So, from the worst down:

1. "Veteran failed to prove his C-123 airplanes were the ones used in Vietnam for spraying Agent Orange." (BVA denial of C-123 exposure appeal, filed 2007 and denied 2011.)

We see here VA's failure to assist the veteran in gathering necessary military information to support a claim. LtCol Tim Olmsted's exposure claim was denied with the statement above, yet in 2011 it only took a telephone inquiry to HQ Air Force Reserve Command to confirm all the tail numbers and then compare to the Air Force list of former Agent Orange spray C-123s. A parallel inquiry to the Air Force Historical Records Agency got a response by email in two days. Comparing the list of C-123s assigned to Olmsted's unit showed him flying hundreds of hours in contaminated aircraft. 

So why didn't VA do its duty? Because it would have meant helping a disabled veteran and the decision was already made by Veterans Health Administration that no such claims were to be honored. Still today we don't know why Tim Olmsted's claim wasn't better supported by the Disabled American Veterans but in any case, VA had the duty to obtain these easily-located records which would have proved Tim's claim before his death.

In 2015, Mrs. Olmsted was assured by VA of the proper reconsideration of Tim's claim, a full ten years after its wrongful and deceitful denial.

2. "In summary, there is no conclusive evidence that TCDD exposure causes any adverse health effects." (Compensation & Pension Service advisory opinion, 2012)

VA Headquarters directed a C-123 veteran's claim be denied, citing many reasons but pretending TCDD is harmless stands out. Elsewhere in VA where physicians and scientists have a voice, TCDD is considered a potent human carcinogen. WHO, EPA, NIH, CDC, US Public Health Service...the opinion is universal that TCDD is harmful, and here Compensation & Pension (C&P) merely pretended otherwise and doomed the claim.

By asserting that TCDD, the toxic part of Agent Orange, is harmless, one can see the intensity with which VA opposed C-123 exposure claims when reading the entire paragraph which summarized the CDC confirmation of the exposures. CDC concluded the veterans had a 182-times greater exposure than military limits, and had a 200-fold greater cancer risk than screening values. Pretty bad – instead here's how C&P characterized (clearly, mischaracterized) CDC:*

The same advisory opinion refused to accept input from any non-physician scientists, including the Director, CDC/Agency for Toxic Substances and Disease Registry (ATSDR.) This violates a ruling by the 8th US District Court regarding scientists' input in federal cases. 

It is quite revealing of VA attitudes, and the intensity C&P had in opposing the claim. CDC said vets were exposed, but VA summarized the CDC finding by saying vets weren't' exposed. That's deceptive. The claim was denied in 2012 and remains in appeal, facing more years of delay.

3. Fact Sheet Regarding Processing of Disability Based on Agent Orange Exposure Aboard C-123 Aircraft Outside the Republic of Vietnam." (VA response to Senator Burr, June 2013)

Drafted for the Secretary by VBA's Agent Orange desk and in response to Senator Burr's formal inquiry, Secretary Shinseki's letter included a formal "fact sheet" upon which VA laid out is objection to C-123 claims.

But those objections were false. The link for Number 3 includes an analysis of the fact sheet, with the most significant of 24 VA errors including:

• Fact sheet claimed "several scientists" came forward unsolicited and supported the VA. In fact, there were only three and each was paid either by VA or Dow and Monsanto. In opposition, dozens unpaid of physicians and scientists laid out the facts behind the veterans' exposure. Joining this "Committee of Concerned Scientists and Physicians" were other federal agencies (CDC, NIH, EPA, USPHS,) and renowned Agent Orange researchers such as Dr. Arnold Schecter at University of Texas Medical School.

Further, the only juried article investigating the post-Vietnam Agent Orange C-123 exposures concluded that the veterans were exposed, and dismissed VA's twisted revision of the term "exposed."

• Fact sheet claimed contamination was found in only one C-123 (Patches.) In fact, many different tests were done and in one, 14 of 17 aircraft were contaminated with dioxin. Another test of four of the quarantined C-123s identified two which were contaminated and two which weren't. The expensive testing of the rest of the fleet was halted without examination of the others, and the results mischaracterized as "only two of all the C-123s were found to be contaminated" without mention that only four were tested and the two uncontaminated airplanes were known to have never been in Vietnam. In 2010 all the aircraft were destroyed as toxic waste at the recommendation of the VA/USAF Agent Orange consultant. A huge motivator for USAF action was the threatened $3.4 billion dollar EPA fine for illegal HAZMAT storage of the quarantined C-123 aircraft at Davis-Monthan.

In 2011 USAF informed VA that all prior testing had been done with concern only for contemporary museum worker exposures, not to consider prior aircrew exposures, and even in the last comprehensive tests (1996) fourteen of seventeen aircraft were too contaminated to permit worker entry without full HAZMAT protection. This is a quarter century after the last spraying of Agent Orange. IOM concluded dioxin levels were higher in the earlier years than when tested in the '90s. The scientists who completed the 1994 original testing also concluded the airplanes too toxic for anyone to enter without HAZMAT, and confirmed this in 2011.

Assisting in the Air Force's 2011-2012 study, Post Deployment Health provided a set of documents prepared by Dr. Al Young which argued against all harmful Agent Orange exposures, despite assurances to the Senate that each agency was to be independent in their C-123 assessments.

• Fact sheet claimed VA had conducted a "scientific investigation" of the C-123 exposure issue. To date, VA has been unable to locate that investigation to comply with a federal court-supervised Freedom of Information Act lawsuit. The investigation actually consisted of VHA's Post Deployment Health unit simply picking literature which argued against exposure, and disregarding all literature which argued for the veterans' claims. They did no research...no science...merely a literature survey with the objective of dismissing everything not supporting the VA's predetermined objective. From the Agent Orange desk:

Most deceptive, over a four year period VA disregarded expert input from directors of the CDC/Agency for Toxic Substances and Disease Registry that directly confirmed exposures. Post Deployment Health has maintained since the first inquiries in 2011 that no possibility existed of harmful exposure. The only "investigation" was deciding how best to oppose veterans and then posting the VA web pages. All input from veterans, outside physicians, scientists, federal agencies, and university researchers was deemed "unreliable input." 

• Fact sheet failed to mention that in March 2013, the DOD Joint Services Records Research Center (JSRRC) had officially confirmed to the staffer writing the Secretary's Fact Sheet that ample evidence existed at DOD for VA to provide regional offices to confirm C-123 claims. JSRRC even forwarded copies of evidence. 

This JSRRC response satisfied VA's own regulation VAM21-1MR for official confirmation of exposure (M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10[n]) but instead lay carefully hidden in the Agent Orange desk's files until forced into the open by court-supervised FOIA compliance. Repeat...the staffer in charge of the VBA Agent Orange desk, who wrote Secretary Shinseki's error-laden June response to Senator Burr, withheld the fact that DOD had confirmed the exposure three months before. Between March 2013 and today VA still has not acknowledged receipt of JSRRC exposure confirmations.

4. Each claim considered on a "case by case" basis.

This is VA's standard position on claims about exposure in situations not covered by statutes, rules, regulations or presumptions about exposures. Veterans have responded that VA has a blanket policy refusing all C-123 claims and the "case by case" evaluation doesn't exist. Indeed, VA's defense is empty because VA has officially informed its regional offices that no basis exists to honor C-123 claims. So, "case by case" evaluation meets "no basis exists to honor claims" with the result being 100% of all C-123 claims have been denied. Here's how C&P's Agent Orange desk drafted General Hickey's letter to Oregon's Governor:

"There is no conclusive evidence that shows all post-Vietnam C-123 aircraft contained TCDD, that the solidified TCDD found in some of the planes is able to be absorbed into the body, or that solidified TCDD can lead to adverse long-term health effects. Therefore, exposure to tactical herbicides for crewmembers that served aboard post-Vietnam C-123 aircraft cannot be conceded."

"Case by case" statements in VA's web pages should in honor be followed with "and then blanket denial of each claim." If exposure can't be "conceded," VA has clearly ordered automatic denial of each claim.

Every single one of them denied, but on VBA's flawed "case by case" basis and by ignoring DOD JSRRC exposure confirmation.

Seems like "blanket denial" is the only proper description of how VA processes all C-123 claims and denials.

And what evidence was VA telling the Governor wasn't conclusive? CDC findings. NIH findings. US Public Health Service findings. Air Force test reports. Dozens of unpaid independent scientists and physicians. University researchers. VA physicians. And the DOD Joint Services Records Research Center. VA must have set their rule book (VAM2-1MR) aside, because veterans' evidence need not be "conclusive" but "as likely to as not" for the threshold of equipoise to be reached and a claim approved. By demanding "conclusive evidence" VA was raising the bar, illegally, and just for C-123 claims. By law (but not by VA if they can avoid it) every benefit of the doubt must be resolved in favor of the veteran's claim.

Which brings up Point #5.

5. “Overwhelming preponderance of evidence….

As described by the focal point in VA for such claims, VBA's Agent Orange desk used this language to dismiss any and all merit to C-123 claims. An "overwhelming preponderance of evidence" against a veteran's claim for Agent Orange certainly spelled defeat for the vet. But it was a deception – there was no such "preponderance," much less any "overwhelming" one.

In fact, it was the reverse, with veterans' evidence being truly overwhelming but sneered 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.

That "overwhelming preponderance" catch phrase is one that stands out...shouts out most persuasively as it was meant to in reading hundreds of documents forced from VA's records via court action enforcing several Freedom of Information Act requests. VA initially denied access to these records, then tried to deny access by overcharging thousands of dollars, and then simply refused to release everything.

"Overwhelming" prejudice would be a more correct label of VA's approach to C-123 claims. Deliberate decision to prevent medical care would be another label. Disregard for VA's mission is a proper assessment. Failure to perform the duties of their office also works.

C-123 Veterans Association's FOIA suit in the US District Court of Washington DC which prompted some cooperation. Over the past several months VA has given veterans' attorneys at least some of the materials sought.

"Overwhelming preponderance of evidence" is a coined phrase 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.

What was Post Deployment Health referring to with their 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 on poor math and misleading references to reach its conclusions

Statements were made by VA staff to Senator Burr's staff that C-123 claims would not be approved. The Associated Press was told by VA's Dr. Terry Walters, "We have to draw the line somewhere." Her line was drawn by denying every single C-123 disability claim. VBA summarized it with, "VHA has taken a definite position that post-Vietnam exposure in these aircraft is not sufficient to cause long-term health effects." 

Ignored here was the CDC conclusion that C-123 crews experienced a 200-fold greater cancer risk...which seems a long term health effect. VA's Agent Orange desk seems to have decided to leave that fact out of its email on June 8 2012 to Jeannie Viveiros. Clearly, VBA's overwhelming preponderance of evidence works best by leaving out all contrary facts and figures. No need to confuse a reader with relevant truths.

VA even cited non-existant "scientific studies" by VA Public Health that turn out to be a handful of staffers summarizing cherry-picked literature to fit their pre-determined policy of blocking all claims. 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 VAM21-1MRM21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n) was met, and continues to be met, by all such claims.

"Overwhelming preponderance" was used and reused 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.

BVA repeats "overwhelming preponderance of proof" against C-123 claims and other herbicide claims.  However, the same evidence convinced the Institute of Medicine that the veterans were indeed exposed. The phrase implies a judicial or scientific weighing of pros and cons to the issue and the undoubted certainty that no truth existed at all to challenge VA's pretended "overwhelming preponderance of proof."

In fact, there being no preponderance at all, there was certainly no overwhelming amount of it. Having decided to block all C-123 veterans claims,VA staffers imply coined the phrase as they dismissed every piece of evidence not in accord with the Agent Orange desk policy.

"Overwhelming preponderance of proof "implies a scientific weighing of pros and cons about the issue and an undoubted certainty that no truth existed at all.  But there was no assessment of pro versus con to challenge VA's "overwhelming preponderance of proof." There was merely the invention of the phrase to justify denying veterans medical care and other benefits.

6. "Exposure = contamination field + bioavailability:"

This was Veterans Health Administration's (Post Deployment Health) unsuccessful effort to change the fundamental definition of the standard toxicological term "exposure" to prevent any veterans' exposure claims...setting up a definition few or none could qualify for excepting immediate chemical-type injuries or burns. 

VA redefined exposure to fit its needs, and introduced its deceptive new perspective at the Society of Toxicology conference in 2012. Thereafter, VA insisted that if veterans exposed to harmful toxins, chemicals, or biohazards could not specifically prove that the exposure led to subsequent illness, no exposure had taken place. Exposures such as Agent Orange, which manifest in illness decades later, were impossible to prove to VA's satisfaction. Agent Orange claims were denied wherever VA was not compelled by law, even though permitted by law, to approve. Every C-123 judgement call was anti-veteran.

VA was immediately challenged, not just by C-123 veterans. The CDC/Agency for Toxic Substances and other federal agencies, toxicologists, and physicians complained immediately. The government already had established definitions of medical and scientific terms and VA did as well...all quite different and actually correct. To everyone, including VA scientists and physicians but not Post Deployment Health, "exposure = contact between the outer boundary of an organism and a chemical." Even the VA's oft-cited reference in claims and federal court cases, Dorlands' Illustrated Medical Dictionary, defines exposure in the proper way, not the Post Deployment Health creation

C-123 veterans were invited by the Society of Toxicology to present our different perspective at their 2014 conference in Phoenix. We were sponsored by Dr. Linda Birnbaum, Director National Institute of Environmental Health Sciences. She, too, differed with the VA's exposure definition, saying it was unscientific and she'd never heard of anything like it in her career. At SOT 2014, the veterans challenged not only VA's 2012 exposure redefinition but also VA's ethical failures.

7. "C-123 veterans were perhaps exposed, but their exposure was secondary, remote and they weren't harmed."

The law, and VA's own assurances to Congress as to interpretation of the law covering exposures, makes VA's #6 irrelevant. Since the 1991 Agent Orange Act, veterans no longer have to prove the medical nexus of Agent Orange-associated illnesses. Veterans from Vietnam simply prove their "boots on the ground" duty, and others who are exposed simply prove the exposure event. Three times VA assured Congress and veterans via the Federal Register that non-Vietnam exposures would result in VA treating those veterans the same as Vietnam veterans.

But VA hasn't budged on this side-step, at least, not until the IOM report in January 2015. Despite the law and VA's promises to Congress, Post Deployment Health ruled that C-123 veterans' exposures didn't qualify under their unique exposure redefinition and even if the vets were exposed, there was no perfect way to prove medical nexus of the illnesses (to resolve this impossible hurdle Congress passed the 1991 Agent Orange Act, but VA skipped past that inconvenient truth.) Their training briefings still stand as instructions to regional claims adjustors to refuse C-123 claims.

8. DOD's Joint Services Records Research Center confirmed C-123 veterans' exposure to VA, but that proof was withheld from veterans, Board of Veterans Appeals and Court of Appeals for Veterans Claims.

JSRRC first confirmed C-123 veterans' exposure to Agent Orange to VBA's Agent Orange desk in March 2013, but VA withheld this pivotal document until early 2015, allowing claims to be denied citing no JSRRC confirmation, and allowing BVA claims to proceed without this vital proof, specified in VA's own regulation VAM21-1MR. JSRRC confirmation was rephrased and resent to VA inquires beginning in early 2014. However, because the JSRRC information confirmed C-123 vets' exposures, it was unacceptable to VA's Agent Orange desk.

9. VA promised in 2012 to order an Institute of Medicine C-123 study. It restarted the process in 2013, the report concluded late December 2014 and was submitted to the Secretary January 5 2015.

It broke that 2012 promise soon after.When VA finally did order the study it heavily funded and advocated a negative conclusion advanced by VA's proxy, generally the same arguments which VA had maintained since 2011.

Its delay cost veterans two years of coverage, as the IOM conclusion in 2015 had little material not available in 2012. This brought about predictable financial hardship, physical suffering and perhaps deaths of veterans refused VA medical care in the interim.

VA finally ordered the C-123 study in 2013, started it in 2014, and received report in January 2015. But the deck was stacked against the veterans: VA carefully worded the "charge" to the IOM...the questions VA wanted answered. Ignored was the single important point under the law...were the veterans exposed or not?

C-123 veterans beseeched the committee to exercise its independence and seek answers which would actually address the issue. On June 16 2014, both the C-123 veterans' chairman and the VA spokesperson presented to the IOM committee, as did invited scientists with expertise in the field.

10. Without VA objection, the VA contractor/spokesperson failed to mention his no-bid sole-source $600,000 contract with the VA in which a series of Agent Orange monographs were written and joined his larger body of work prepared for the VA, Air Force, Department of Agriculture and others. The subject with most attention was C-123 exposures, and the consultant/spokesperson not only covered the issue in general but as materials surfaced to support the veterarrbuns' claims, he prepared head-on challenges as needed while VA tried to guide the committee's decisions.

Destroying all integrity and potential merit of the monographs, the consultant sought VA approval of materials to insure they complied with VA policy. This was instead of generating factual reports free of his client's expectations and goals...which were to prevent C-123 claims.

VA failed to stand aside. VA failed to permit IOM to reach conclusions without tampering with the process. Spending $600,000 insured VA would out-resource the veterans, who had nothing and spent nothing except for travel from personal funds. Everything and everyone arguing in support of the C-123 veterans' exposure was unpaid, and everyone disputing the veterans was paid either by VA, Dow or Monsanto. 

In accord with protocol for such scientific presentations, the Dow and Monsanto experts honestly revealed their funding. The VA spokesperson/consultant did not. Neither did he reveal his earlier role with the Air Force in which he insisted in 2009 that the C-123 fleet be destroyed as toxic waste, nor why he was insisting to the committee that all C-123s were uncontaminated. He did not mention that in 2011 he denigrated C-123 war veterans as "trash-haulers, freeloaders looking for a tax-free dollar."

This was not the expert, objective scientific perspective required when weighing whether or not to refuse VA medical care to the veterans subjected to his vitriol. 

The consultant's use of photographs showing the IOM what he claimed to be a 1972 restoration/decontamination of an Agent Orange spray C-123 proved instead to be simply clipboarded from the private owner's web site, showing his own airplane's 1996 restoration work. The consultant's insistence that no C-123s sprayed Agent Orange with their ramp door open was disproved six days later when the Boston Globe featured a front-page photo of exactly that. 

Finally, when asked by the IOM committee why the C-123s were destroyed as toxic waste when the consultant was insisting they'd been decontaminated or were never contaminated in the first place, the consultant responded "it was because they were obsolete" - he skipped the the fact he himself recommended destruction as toxic waste in his series of three "decision memoranda" to Air Force officials in 2009.

11. VA either mistakenly or deliberately misled the Senate Veterans Affairs Committee 

Other legislators, including Senators Burr and Merkley and Congresswoman Bonamici were deceived when presented this flawed set of VA bullet points:

Each point of the chart is now proven factually false or misleading.  For instance, the fourth point about medical nexus...no Agent Orange exposure claim requires a medical nexus unless it is claiming an illness not recognized by the Secretary as associated with the herbicide. That's the 1991 Agent Orange Act, which VA should be familiar with by now.

It is particularly foul of VA to state that the handful of Post Deployment staff responsible for preparing VA's web pages against C-123 exposures somehow overcome expert input supporting veterans from the CDC, NIH, US Public Health Service and other experts, as well as dozens of independent scientists and physicians. There simply was no "VA scientific data," but instead VA's cherry-picked list of resources which carefully excluded all evidence supporting veterans' claims.

12. DOD Agent Orange testing, manufacture, transport site list.

VA frequently refers to the DOD list while processing Agent Orange non-Vietnam War exposure claims. Generally, it is to deny an herbicide claim. The 2006 DOD list is cited as VA or BVA (click for sample citation) basis of denial when a claimed site is not on the DOD document. Not on the list means VA disputes the veteran's exposure basis. VA's Manual M21-1MR describes how VA has "reviewed" the DOD listing, but that list has been shown by its own author to be incomplete and needing revision. 

The contractor, Dr. Al Young, who is also VA's chief Agent Orange consultant, wrote in his VA-contracted research paper, "Investigation into Sites Where Agent Orange Exposure to Vietnam-Era Veterans Has Been Reported:"

But the problem is that the list was compiled by DOD under a 2006 contract with Battelle in 2006, subcontracted to Dr. Al Young. By lack of action at both VA and DOD, Young's list has had no modifications since its publication. Probably the unintended consequences of admitting the document's questionable accuracy alarm VA. Requests to VA to update their list, supported by official documents about the C-123 fleet, only brought a referral to DOD. The Pentagon, however, refused numerous requests. With assistance from Senate sources, the military unit with responsibility for the list was identified as the Armed Forces Pest Management Board (AFPMB.)

But there, too, requests for DOD to update their list were simply refused at the actual agency, AFPMB. Thus, given the identified inaccuracies in the DOD list, it is improper for regional offices, the Agent Orange desk at VBA, and the Board of Veterans Appeals to permit reference to the list in deciding claims. It is improper to permit lack of evidence (here, any site claimed by the veteran but not included in the DOD site list) to be used as proof of a negative.

13. Postponed C-123 Exposure Disability Claims:

Last year VA regional offices began "postponing" certain C-123 Agent Orange disability claims, citing the need to await the Institute of Medicine report. The IOM report was finally published and accepted by the Secretary on January 8, 2015...but all C-123 claims remain in limbo. We saw one of the first postponements in Master Sergeant Richard Matte's claim at the Boston VARO. Awarding some of the issues in Matte's application, the Decision Review Officer postponed the principal Agent Orange exposure-related claims to await the IOM report. 

My own exposure claim had a similar postponement, citing the IOM report. Again, the IOM report was published over five months ago and is readily available to any VA claims official.

Thus the VA's reservation, their postponement of decisions, seems to have at hand the item specified as justification for withholding final action on these claims. With that proof from IOM, the claims were thought ready to receive final appraisal and award.

But VA has created another, last-minute stall for C-123 claims. The Department of Veterans Affairs is currently challenging C-123 veterans' eligibility for any VA benefits with its newly-developed concept that the aircrews and maintainers aren't veterans. And statutes are clear as to who qualifies under the law for "veteran" status.

So despite the veteran status issue not being a reason C-123 claims were postponed for this last year and more, VA has ordered all such claims postponed again. This is until the veteran issue is resolved, which is likely to be via a rule already in process at the White House Office of Manpower and Budget.

But is this fair and legal? To delay processing a claim to await resolution of one issue, have that issue resolved, but then VA postpone for yet another reason not specified in the VA's first decision? Using one postponement reason after another is a VA claim approval a moving target for veterans?

VA withheld benefits by citing its decision to await the Institute of Medicine C-123 study and its conclusions. Although the IOM report to VA was over five months ago, and Secretary McDonald acknowledged VA compliance with the IOM recommendations on March 17, claims continue to be postponed but for a brand new VA excuse...the "veteran" challenge raised by General Counsel.

If VA has concluded a claim decision but withheld action, or postponed it citing an issue, once that issue is resolved the claim should proceed, and not permit subsequent postponements for issues not specified in the interim decision and related to the original postponement reason. 

===========================================

* This opinion denying the claim was read in person on Feb 2013 to Mr. Thomas Murphy, its author. Mr. Murphy, Director of VBA's Compensation and Pension Service, responded that he wasn't familiar with everything leaving VA over his signature. His advisory opinion statement, although contrary to VA's official position on Agent Orange, was allowed to stand and the claim denied. 

Mr. Murphy explained that Post Deployment Health had concluded no C-123 veterans could possibly be exposed and that no amount of evidence from anyone to the contrary would change VA's position. Later, more senior VA executives termed the Murphy opinion language "unfortunate choice of words." 

Clearly, VA SES-equiv. executives who were informed about this shirked their responsibilities to veterans by doing nothing to correct it and allowed the denied claim to remain denied...which was the VA objective, regardless of an "unfortunate choice of words." This compounded the VA's errors immensely by leadership failing to resolve C&P's ethical and administrative errors.