A Quarter Century of VA Disability Claims: 25 years of hard lessons

A brief narrative of interest to others dealing with environmental hazards and the VA

Looking back, if I’d known how long and how hard a VA disability claim was going to be, I can’t say whether I’d have the resolve to see it through. I served in the Army and Air Force for 26 years. Only this month...October 2017...have I received VA’s final adjudication of disability claims I began submitting in 1992. Finally, 26 years after hanging up my flight suit the last time, VA seems to have finished addressing my cancers, spinal cord injuries, 21 operations, heart attacks, Agent Orange exposures plus life’s` miscellaneous little ailments, boo-boos and maladies.

First lesson: thank goodness my family and I, unlike so very many veterans, didn’t find ourselves dependent on the VA for medical care and income because that help wouldn’t materialize for many years. My Air Force disability board and retirement as a major was completed in what now seems light speed only a year after leaving Bethesda Naval Hospital in 1992 following the Gulf War. We were also blessed with ample pre-war civilian retirement and investments...we were so lucky compared to young troops disabled before having a chance to establish themselves financially. My lesson has been awareness of how financially precarious sudden military injuries leave a family. It is a bleak picture.

The rest of the lessons:

1. I should have filed a VA claim as soon as possible, but instead I wasted nearly a year processing through the Air Force disability retirement system, Similarly, I should have filed for Social Security disability once eligible. I certainly could have more carefully investigated the wide range be benefits available to disabled veterans: supplemental insurance, independent living support, ADA home mods, many helpful programs. What I have learned I try to share with other vets by presenting Agent Orange town hall meetings for the Vietnam Veterans of America and working on Colorado state veterans issues. In 2015 I uncovered a flaw in Colorado’s state constitution that blocked property tax relief due disabled military retirees. and got correcting legislation signed by Governor Hickenlooper.

2. I should have kept identical, sequentially numbered and dated copies of everything sent to the VA. Looking back through VA’s eBenefits site I counted over 30 missing files for which I have a date for something having been submitted but can’t figure out exactly what’s missing. Unacceptable disorganization on my part, but then I never expected the VA files about me to take up 15 volumes, a full cart load before they started digitizing documents.

3. VA never bothered reading much of what I sent in. My expectation was that I could “explain” thing with a few typed pages but I can’t see where many of those pages had any effect. Similarly, I don’t think VA bothered to read many (or any?) of my VA Form 21-4138 statements, even the ones in which I detailed CUE (“clear and unmistakeable error”.) I submitted several well-founded CUEs but only had a response on one, and it was accepted but only after a separate claim was made.

I’m still amazed that two sets of records from two active duty stations, each where, while on active duty, I broke my left foot (two separate incidents, same foot bone.) Every document was submitted repeatedly and VA repeatedly insisted they never got anything. Heck, I could even see the documents on eBenefits. I failed to convince VA anything ever happened. The left foot claim remains denied, the VA insisting I never sent in the necessary proofs. Of course I did...in more recent years I simply kept referring adjudicators back to their own records for these service medical records, including an accident and treatment at Bethesda Naval Hospital. This is one example among several. My worry is that this stuff is probably typical for other veterans who aren’t prepared to self-advocate.

4. Regarding more serious heart and cancer issues, I was in a situation of asserting Agent Orange exposure aboard post-Vietnam C-123 aircraft, an effort that grew to argue on behalf of our Active Duty and Reserve aircrew and mechanics in the same situation from five separate air bases in three countries. I expected to rely on the VA’s assurances in multiple Federal Register postings that every veteran establishing exposure to Agent Orange would receive the same disability benefits as Vietnam veterans...what VA calls “fact-proven.” Hundreds of government source documents, supporting opinions and detailed scientific, medical, legal and historical explanations were laboriously prepared and submitted...because I truly thought some wise and kindly VBA person was actually going to read these things and come to a decision. That never happened. Apparently the only things they bothered reading were the claim, compensation and pension exams, doctors’ letters (not all of them,) service medical records, and proofs of military service. To whoever in VBA worked my claim, everything else from me was superfluous, at least until I used it to convince the Institute of Medicine of our exposure to our airplanes’ Agent Orange contamination. VA was never open to argument or explanation.

VA’s determination to deny our claims regardless of proof was made crystal clear to me when I learned that their Agent Orange “subject matter experts” had even redefined the word “exposure” just in their office so that no contact, ingestion or inhalation of Agent Orange was considered exposure to satisfy VA regulations. “Ridiculous” and “unscientific” was the conclusion once the NIH authorities heard of this verbal trickery.

5. Winning benefits as we finally did has never been done before or since. It stands unique in veterans issues. What stands out most clearly after our six years’ hard-fought struggle is that VA dedicated itself to stopping us, and that was their fundamental failure...not in losing the contest with us but in making it such an inappropriate, anti-veteran struggle at all! They defied their own values, ethics, mission statement and Lincoln’s Second Inaugural promise. In a perfect world, VA would have come to us with news of the exposure and their solution for us. In a perfect world the Air Force would have had at least some concern for the post-Vietnam aircrews when Air Force C-123 tests in 1979 and 1994 established C-123 Agent Orange contamination. Blue Water Navy (BWN) is running the effort closest to our own, with John Paul Rossie at the helm. Members number in the tens of thousands of sailors who’d been aboard ships in the coastal waters of Vietnam during the war. Originally VA cared for their Agent Orange-related illnesses but VA did a 180-degree turn in 2002: veterans already having VA disability ratings would keep them but going forward Blue Water vets wouldn’t be covered unless otherwise able to present a fact=proven exposure. What got C-123 veterans Institute of Medicine recognition of our exposures and VA benefits while Blue Water sailors are still denied care? “Patches!” We had our contaminated airplane but BWN has no contaminated ship still afloat to prove their case. BWN leaders still continue their struggle through the courts and Congress, but frustration has been their only reward thus far.

6. The Freedom of Information Act (FOIA) served as our principal tool for information mining, after the Internet. I should have dispatched FOIA requests as necessary right from the beginning. A request needs to specify what is needed and to try capturing peripheral information. Ask for correspondence, emails, messages, presentations, briefings, recordings, digital files, marginal notations, and reports. Ask for fees to be waived because you’ll use requested materials for veterans’ claims, veteran and public awareness via blogs, correspondance, presentations and briefings, and that there is no commercial or profit-making objective. It took me far too long to begin submitting broad-spectrum FOIAs. It took me too long to discover and use military centralized FOIA services like the Air Force offers.

7. Informality! I’m glad we kept things informal about our group. Yale Law School described us as “an informal association” and that has been adequate for the courts thus far. I didn’t have time or money to both establish a veterans’ service organization as doing the hard work actually advocating for VA exposure benefits. I was spared accounting for expenses, meeting the various legal requirements in running a non-profit, and all stuff that turns a vibrant and focused movement into an institution, bogging things down. My wife and I carried association expenses for a few years. Then, thanks to old hands like Arch Battista, John Harris, Joe Butler and others putting the word out, checks started coming in help carry the load. I’m always quick to tell folks that C-123 veterans won our benefits thanks to work and money from a handful of men who, like me, were already covered by VA. Their effort was not for themselves but for our crewmates. To all who’ve sent in such help, my thanks. Earlier this month we won through the BVA a big part of our remaining quest for retroactive compensation, and have one suit still working its way through the US District Court in Washington.

8. A major lesson was the need for skilled legal advocacy became clear once both VA and the Air Force stopped honoring my FOIA requests, holding out for years instead of the law’s limit of twenty days. The law prevents me or the C-123 Veterans Association managing a veteran’s claim without formal certification. To get around that restriction, we agreed at the beginning with suggestions from attorney/pilot Colonel Arch Battista, that we’d use my claim and Paul Bailey’s as ”poster children” pathfinders. We’d then advance all other claims the same way. The National Veterans Legal Services Project put us in touch with law firms that represented me (and therefore us) pro bono. Assistant Secretary Linda Schwartz introduced us to the Yale Law School veterans law clinic. Yale helped on our retroactive arguments and the pro bono law firm not only won our two FOIA lawsuits but also won their attorney fees...that only happens when the federal court concludes the agency was totally in the wrong.

9. Allies. We couldn’t do this alone, and VA itself was the problem but no longer the solution. On February 28 2013 Mr. Tom Murphy in VBA’s Compensation & Pension told me face-to-face in front of his staff that no amount of proof from whatever government or scientific source would be accepted because VHA had already told him we’d never been exposed. Thus, any decision to provide C-123 vets Agent Orange benefits would have to be imposed on VA by outside authorities.

• The first allies marshaled to our cause were scientists and government agencies, led by Oregon Health Sciences University. Soon others lent their authority and prestige...CDC/ATSDR, Dr. Linda Birnbaum’s National Institute of Environmental Health Sciences, the US Public Health Service. Experts from Columbia University, Boston University, University of Texas and other institutions. Dr. Jeanne Stellman at Columbia’s Mailman School of Public Health formed the Committee of Concerned Scientists and Physicians, dozens of experts who together told VA that C-123 vets were exposed.
• While none of this growing body of opinion moved VA in the slightest, it did much to persuade our next two allies, the media and our legislators. I sought out reporters interested in military and veterans’ issues, and within two years we’d had major coverage from the Air Force Times, Washington Post, The Oregonian, NPR, Pittsburgh Gazette, The Springfield Republican, Gannet, MILITARY.COM, PBS and more. The media was objective but convinced by the weight of evidence.
• The third pillar of support I found was the most logical place to turn – veterans organizations. Dr. Stellman brought me to the American Legion’s leadership and soon we had their national resolution calling on VA to act. My requests for help were welcomed by the Vietnam Veterans of America, Paralyzed Veterans, Jewish War Veterans, MOAA, ROA and VFW. More pressure on VA to act, and more credibility for C-123 veterans.
• The media coverage, veterans’ voices and the great body of scientific opinion, helped convince our fourth ally, our legislators. I turned to North Carolina’s Senator Richard Burr, ranking member of the Veterans Affairs Committee, and Senator Jeff Merkley from Oregon. I believe now that their terrific staffs (B.T. and A.S.) were the real keys to eventual success.

10. Three years of kicking up dust everywhere I could, plus the efforts of allies and media coverage, brought VHA and a few new leaders there (R.L.E.) to submit our issue to the Institute of Medicine as per the 1991 Agent Orange Act. Hearings were held in 2014 at which VA’s proxy Dr. Alvin Young and I both testified, along with many scientists and other experts.The IOM’s January 2015 report agreed with our exposure claims.

11. At this point Bob McDonald stepped into the thankless job as Secretary of Veterans Affairs. The issue dragged on without resolution until seven senators blocked all VA confirmations, and by June 2015 full benefits for C-123 vets suffering Agent Orange illnesses had been authorized by Secretary McDonald.

12. We left something big on the table as we finished negotiations. Secretary McDonald came to Denver to meet with me about retroactive disability compensation. VA refused to honor our claims based on the date submitted as is typical. VA said our claims could only be paid from June 2015 forward because of restrictions within the law used to establish our veteran status. In October 2017 we were successful getting a representative claim honored with full retroactive benefits, thanks to more skillful pro bono legal assistance. We have yet another law firm representing us at the US District Court in Washington to force the Air Force to issue retroactive line of duty determinations back to 1980. VA will usually recognize military documentation and if they do in this case, we will then have three good separate arguments establishing retroactive disability benefits.

13. The last lesson involving the VA itself involves its individuals. I am still amazed that key staff took it on themselves to pervert VA ethics and values. Mr. Jim Sampsel runs the VBA’s Agent Orange Desk. Mr. Tom Murphy, who told me proof didn’t matter because VHA Post Deployment Health had decided not to honor any of our claims, is now Principal Deputy Undersecretary for Benefits. He’s the same man who wrote on my initial Agent Orange claim that proof of my exposure submitted from CDC, US Public Health and other authorities was unacceptable to him. People like these two, and the consultants they hired to obstruct us at the IOM, are not representative of the values we deserve from VA employees. They are not men like us.

Final lessons. I should have started raising financial help right away, once I realized I was advocating for all 2100 of us. I should have sought more help, but sadly, my two collaborators Paul Bailey and Arch Battista both soon died of their Agent Orange illnesses. Since then I haven’t had anyone to call up to brainstorm or just chat. It has become a more lonely quest without those two guys.

I’m glad I didn’t quit once the effort demanded far more effort than it was worth to me personally. At least a few hundred of our C-123 vets now have VA benefits and the rest are eligible if need be. The most rewarding result to me has been essential benefits for widows like Nancy Bailey, Barbara Carson and the others.