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:*
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."
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:
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.
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* 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.
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