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.