How VBA & VHA control "independent and objective" Board of Veterans Appeals

It's so easy for the VA! They make the rules, interpret the rules, but seem free to ignore the rules as it suits them. (click for file of this report)

Rules oblige cooperation from veterans, but the VA freely twists, reinvents, ignores and bludgeons veterans with their rules. And when ignoring their own rules isn't enough to block claims, VA staff can simply hide vital evidence necessary to establish disability claims from the veterans. And, VBA is quite comfortable and accomplished at hiding the same vital pro-veteran evidence from the Board of Veterans Appeals (BVA.)

Does the Tenth Floor know about this??

Above, I wrote "attacks" because any process whereby a government employee pursues a personal vendetta of preventing medical care and other earned benefits from aiding qualified veterans is clearly an attack upon the veterans and their families. It forces upon them financial hardship, suffering and in some cases, death.

The law obliges VA to a "duty to assist." What we have seen, however, is four years of revisionist policy web pages described as science, a policy against veterans' claims which VA describes as "case-by-case" consideration, and even Agent Orange exposure claims denied by VA insisting Agent Orange (specifically, the toxin dioxin in it) hasn't been shown to be harmful. VA still stands behind that – his Compensation and Pension opinion was reviewed with the C&P director and he has allowed his opinion to stand for three years without correction. VA's Dr. Terry Walters did describe it as "an unfortunate choice of words" but apparently, not unfortunate enough to correct.

While the VA Manual VAM21-1MR has "the force of law" according to federal courts, the only force is applied against veterans' claims. Rarely has the VA had its hand spanked for disregarding VAM21-MR, and then, only in court criticism of the event as in the Fort Ord decision. Worse, never is even the mildest punishment given VA personnel who twist the rules to fulfill their personal extra-legal whims or prejudices against categories of servicemembers.

"Personal whims" are the proper words to use, because when VA denies Agent Orange claims on the basis that the toxin (dioxin) inside the herbicide isn't harmful, that's contrary to science, medicine, the Veterans Claims Assistance Act of 2000, and VA rules. But that 2012 VBA Compensation Service advisory opinion still stands as the kiss of death for the veteran's claim it was used against.

Sure, the claim can be appealed. And in this case, probably to be resolved after the C-123 veteran's death. Even though it is a "clear and unmistakable error" it still stands to empower VA to refuse all care and benefits for not only the year processing the claim but an additional three to five years to process the appeal at the Board of Veterans Appeals.

But even there VA brings its own deck of cards, seal broken and already stacked against veterans, despite the department's mission statement of being the principal advocate for America's warriors.

The BVA judges simply repeat wrong-headed VBA or VHA websites or memoranda to turn the facts and the law against claimants. Nowhere is this clearer than in VA's tortured C-123 claims and appeals process (AKA "automatic denial process.") First example: In 2011 VHA developed its web pages to obstruct C-123 veterans Agent Orange exposure claims. (Note: Most pages were updated by March 2015 from their 2011-2015 incorrect and very negative perspectives.)

Although claiming to have "reviewed all scientific evidence" (no, they didn't) VA has not been able to provide a list of what evidence was reviewed, despite US District Court supervision of our FOIA. No notes, no references, no emails, no anything. except the web page. We saw that VA's pages avoided all references and citations proving exposure, and cherry-picked and cited only references to use against the claims. No mention is even made of input from CDC/ATSDR, NIH, public universities or the Department of Defense Joint Services Records Research Center – all of whom actually confirmed the veterans' exposure. BVA then cited the VBA web pages for years to deny claims.

BVA also repeated a spectacular invention from VBA's Agent Orange desk, its "overwhelming preponderance of proof" against C-123 claims. A clever but deceptive description for VA's dismissal of the same evidence which convinced the Institute of Medicine that the veterans were indeed exposed. The statement implies a scientific weighing of pros and cons to the issue and the undoubted certainty that no truth existed at all to challenge VA's "overwhelming preponderance of proof."

In fact, there being no preponderance at all, there was certainly no overwhelming amount of it. Havin,g 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.

Those denied claims ended up years later at BVA. But here, too, VA controlled everything. VBA judges simply cited the imperfect VA web pages as perfect authority against veterans. Even though the VA web pages were unscientific and not peer-reviewed, and even though other federal agencies challenged them as error-laden, BVA rubber-stamped the same DENIED result the veteran began with.

Here's a BVA example from late 2013:

Of note, the Department of Veterans Affairs did addressee residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange.  VA's Office of Public Health is noted to have thoroughly reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces.  It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.  (See www.publichealth.va.gov/exposures/agentorange.)  Otherwise, other than his unsubstantiated allegations, there simply is no evidence that the Veteran was exposed to Agent Orange or other herbicides. 

The paragraph above, taken from a BVA denial of a veteran's claim, has two fatal flaws:

1. The original Office of Public Health web page BVA cites is now proven to be faulty, given the January 9 2015 Institute of Medicine report which confirmed C-123 veterans' exposures. The web pages were typed up by VHA Public Health Post Deployment Health to fulfill their policy of obstructing C-123 claims, and are not any kind of "scientific review. Challenged, VA has not been able to produce any evidence that such a review even took place.
2. Worse, because when this paragraph doomed the veteran's claim, March 2013 VBA had in its possession confirmation of C-123 veterans' exposures sent by the Department of Defense Joint Services Records Research Center (JSRRC.) But this evidence lay hidden from the veteran and his attorney's in submitting the claim, and hidden from the BVA when the appeal was denied. It is hard to imagine a more offensive violation of the government's failure to reveal evidence in its possession (Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). JSRRC began providing an even firmer confirmation of exposures in early 2014.

This was quite wrong but quite standard...VA did it all the time. Here's a parallel claim in which VA obstructed veteran justice. This is a 2014 claim, a year after VBA began hiding the JSRRC information:

Furthermore, the Department of Veterans Affairs did address residual Agent Orange exposure concerns by post-Vietnam crews that later flew C-123 aircraft that had previously sprayed Agent Orange. VA's Office of Public Health is noted to have reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal. See http://www.publichealth.va.gov/exposures/agentorange.

Hiding evidence is improper in most criminal and civil procedures, and probably frowned on even at VA, given the possibility of getting caught. It is hard to see anything in their published core values (below) suggesting or permitting evidence favorable to a veteran's claim being hidden, but perhaps "Integrity, Commitment, Advocacy, Respect and Excellence" are given different definitions at Compensation and Pension Service. I can testify that I have not been accorded "advocacy" by VBA in dealing with my claim, other than the gracious communications with the Under Secretary.

§ 0.601 Core Values.VA's Core Values define VA employees. They describe the organization's culture and character, and serve as the foundation for the way VA employees should interact with each other, as well as with people outside the organization. They also serve as a common bond between all employees regardless of their grade, specialty area, or location. These Core Values are Integrity, Commitment, Advocacy, Respect, and Excellence. Together, the first letters of the Core Values spell “I CARE,” and VA employees should adopt this motto and these Core Values in their day-to-day operations.
(a) Integrity. VA employees will act with high moral principle, adhere to the highest professional standards, and maintain the trust and confidence of all with whom they engage.(b) Commitment. VA employees will work diligently to serve veterans and other beneficiaries, be driven by an earnest belief in VA's mission, and fulfill their individual responsibilities and organizational responsibilities.(c) Advocacy. VA employees will be truly veteran-centric by identifying, fully considering, and appropriately advancing the interests of veterans and other beneficiaries.(d) Respect. VA employees will treat all those they serve and with whom they work with dignity and respect, and they will show respect to earn it.(e) Excellence. VA employees will strive for the highest quality and continuous improvement, and be thoughtful and decisive in leadership, accountable for their actions, willing to admit mistakes, and rigorous in correcting them.

Let's look at the other principal means by which VHA and VBA prevent Agent Orange exposure claims from justice at the Board of Veterans Appeals. As mentioned above, VA is guided by its regulation VAM21-1MR. The regulation provides that non-Vietnam exposure claims are checked against the Department of Defense Tactical Herbicide Sites list published in 2006 and written by Dr. Al Young on a DOD contract.

However accurate DOD's report might have been nine years ago, its hopelessly outdated in 2015 as even its author concedes. Out efforts to get it updated were stalled for a year merely trying to find out who had responsibility for it. Initially, we were told by the Senate to approach Lieutenant General J. Fedder in the Pentagon, but she declined several requests, referring us back to VA, which was one of the agencies telling us to deal with DOD. Eventually, we discovered the Armed Forces Pest Management Board which is now "owner' of the DOD list. They, too, declined to get involved updating anything in the report, once again referring us back to VHA.

The cycle is hopeless. Neither DOD nor VA has any interest in updating their 2006 report, knowing they're certain to be faced with unintended consequences of all sorts. In any case, the list is not accurate, and still BVA routinely dooms veterans' claims by citing the fact that the exposure situation claimed by the veteran is not included in the 2006 list. Despite the fact that an absence of a proof (here, a site missing from the list) does not make a statement false, VBA denies claims citing the 2006 list even though they prevent making it accurate with proper updating, yet both VA and the 2006 list's author agree it is obsolete, error-ridden and requires updating to be reliable.

A DOD Inspector General complaint was filed, however the IG declined to investigate...too touchy a problem? A principal component of the complaint was VA's disregard for the interpretation of absent evidence. According to the Court of Appeals for Veterans Claims and summarized by the Congressional Research Service, VA must  consider “the absence of actual evidence is not substantive negative evidence” against a veteran's assertions. Thus VA uses a report it knows to be inaccurate to deny exposure claims insisting that because the site claimed by the veteran isn't in the flawed DOD list, the veteran is in error. Wrong, according to the federal court!

Here are examples of BVA use of the flawed DOD 2006 Agent Orange list denied the claimant justice. In each, and in others not shown here, VBA turned down appeals by citing the incomplete DOD list, knowing that neither DOD nor VA considers thelist accurate. Quotes are from actual BVA claims citations:

1. Consistent with M21-1MR procedures, in October 2007, the RO furnished the Veteran's detailed description of exposure to C&P Service via e-mail and requested a review of the DoD's inventory of herbicide operations to determine whether herbicides were used, as alleged. In a November 2007 response, the C&P Service indicated that a list of herbicide use and test sites outside of the Republic of Vietnam from the Department of Defense (DOD), "does not show any use, testing, or storage of herbicides  

2. In an April 2013 Memorandum, the Armed Forces Pest Management Board (U.S. Army Garrison Forest Glen) responded that a recently published report by Dr. Alvin Young titled "Investigations into Allegations of Herbicide Orange on Okinawa, Japan" provides the most complete data available on this subject. Dr. Young's findings were that there were no documents or records to validate that Herbicide Orange was shipped to or through, unloaded, used or buried on Okinawa. The internet link to the full report was provided

 3. VA has developed specific procedures to determine whether a Veteran was exposed to herbicides other than in the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the inventory of herbicide operations maintained by the Department of Defense (DoD) to determine whether herbicides were used or tested as alleged.

 As claimed in the beginning of this article, VBA and VHA tightly control decisions at their Board of Veterans Appeals. This is done by withholding evidence, by creating artificial policy-driven "evidence" like their VHA web pages, by preventing any update to the nine-year-old DOD list of sites, and by permitting an absence of proof to support veterans' exposure assertions to be evidence against the assertion, which is contrary to law (McLendon, 20 Vet. App. at 85.)  These failings have been pointed out to the VA, along with complaints about VA ignoring the requirement for a "low threshold of proof" and "benefit of the doubt" requirements with disdain and silence VA's only response.

Veterans insist that three things must happen:
1. VA must hold its staff accountable for action (or inaction) on evidence having potential effect on veterans' claims and appeals, and must drop the unofficial blanket policy of C-123 denials.
2. Either the DOD 2006 list must be updated, or at a minimum, VBA must never cite this or any other incomplete document once its errors are evident.
3. VA must be held to the statutory responsibility of being pro-veteran, non-adversarial, imposing a low threshold of proof for claims, and must conclude BVA appeals within a year or award the claim.