Most Ridiculous c-123 Agent Orange Exposure VA Disability Claims

OUTRAGEOUS! Where do they make these things up? Ever since June 2015 once VA acknowledged the C-123 Agent Orange contamination with their new regulation granting service connection, we've seen the most ridiculous statements from vets trying to climb onto the FREELOADER disability bandwagon.

Granted, their claimed ailments may be legitimate, but judge for yourself these phony claims of C-123 exposure. These are taken from VA Board of Veterans Appeals records.

1. C-123 aircraft flew from my aircraft carrier and exposed me to Agent Orange herbicide.

2. I was a Navy medic on many C-123 aeromedical evacuation missions in Guam (or from Guam to
Thailand, Japan, etc., pick one.)

3. I was a security policeman and flew armed escort on many C-123 missions in the USA.

4. I refueled C-123 aircraft in Alaska (or California, or Thailand, Guam, whatever) that had sprayed Agent Orange in Vietnam.

5. I often flew in a C-123 as a member of the Air Force band in Europe.

6. I was a passenger on a C-123 flight.

7. A C-123 was parked next to my aircraft AT (fill in whatever base name interests you.)

8. I cleaned Agent Orange spills from C-123 airplanes in the Philippines (or Guam, Thailand, Korea, etc.)

9. I built a C-123 Agent Orange storage shed in the Philippines.

10. I loaded drums of Agent Orange aboard C-123s in (pick any country, any state.)

11. I worked C-123 aircraft as an air traffic controller at Clark Air Base, Philippines.

12. I was exposed as a Navy stock clerk while stationed in Naha, Okinawa, Japan, from June 1969 to March 1971.

13. I was exposed to herbicides while serving at Howard Air Force Base in Panama as a security policeman and guarded the C-123 aircraft, which carried herbicides to the Republic of Vietnam, and guarded other areas where herbicide agents were regularly sprayed.

14. I was exposed to herbicides during Operation Ranch Hand while stationed at Dover Air Force Base. I worked on C-133 and C-141 aircraft on nightshifts and he moved barrels with unknown liquids from the aircraft.

15. I was exposed to C-123 at Gunter, Lackland, Maxwell without any foreign service.

16, As an inventory supply management specialist, my herbicide exposure was gained while moving herbicide-laden C-123 aircraft parts at Williams Air Force Base. The aircraft parts were from aircraft that were returning from Vietnam. My duties included tagging parts, putting them in a box and sending them to various places to be reused, fixed or for some other purpose.

17. I was a refueling specialist and serviced numerous airplanes returning from Vietnam, including C-123, C-124, and F-100 airplanes, from 1962 to 1966 while stationed at Biggs, Malmstrom, and Ramey Air Force Bases.

18. I refueled various aircraft, including C-123s, at Shemya Air force base in Alaska and at the Langley Air force base in Virginia.

19. While stationed at Davis-Monthan Air Force Base (DMAFB) in Tucson, Arizona, as a Law Enforcement Specialist (LES), I was exposed to both toxic substances and agent orange. C-123 aircraft stationed at DMAFB were contaminated with agent orange.

C-123 Regulation becomes FINAL on 22 October 2018

Three years on, VA on Monday October 22 2018 will make the C-123 regulations final.

This makes permanent and unchanged the C-123 interim final rule signed by Secretary Bob McDonald on June 19, 2015 following release of the pivotal Institute of Medicine C-123 Agent Orange report. In the interim rule, VA conceded that post-Vietnam C-123 veterans had been exposed and harmed by residual Agent Orange contamination in the aircraft.

The key point in this final adoption of the C-123 regulation is that there've been no changes whatever. VA received a great number of comments addressing retroactive exposure benefits, and shot them all down. Basically, VA held that exposure did not itself constitute an injury of the type that would make Reservists eligible for veteran status, much like a heart attack or broken bone on a UTA or Annual Tour would do. That destroyed any hope of our folks getting their claims back-dated, and only claims from June 19, 2015 forward are going to be compensated.

Below is the text of this important document:

Federal Register / Vol. 83, No. 204 / Monday, October 22, 2018 / Rules and Regulations 53179

DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900–AP43
Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicides
AGENCY: Department of Veterans Affairs. ACTION: Final rule.
SUMMARY: The Department of Veterans Affairs (VA) is adopting as final an interim final rule published on June 19, 2015, to amend its adjudication regulation governing individuals presumed to have been exposed to certain herbicides. Specifically, VA expanded the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C–123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era. In addition, the regulation established a presumption that members of this group who later develop an Agent Orange presumptive condition were disabled during the relevant period of service, thus establishing that service as “active military, naval, or air service.” The effect of this action is to presume herbicide exposure for these individuals and to create a presumption that the individuals who are presumed exposed to herbicides during reserve service also meet the statutory definition of “veteran” (hereinafter, “veteran status”) for VA purposes and eligibility for some VA benefits.
DATES: Effective Date: This rule is effective October 22, 2018.
Applicability Date: This final rule is applicable to any claim for service connection for an Agent Orange presumptive condition filed by a covered individual that was pending on or after June 19, 2015.

Retired USAF C-123 Vets with Agent Orange Illness Eligible for Combat Related Special Compensation

Military.com

Combat-Related Special Compensation (CRSC) provides special compensation to military retirees who have retired pay reduced because of receiving U.S. Department of Veterans Affairs (VA) disability compensation. This means that qualified military retirees with 20 or more years of service that have "combat related" VA-rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation. Instead they will receive both their full military retirement pay and their VA disability compensation. The following is a summary of Combat-Related Special Compensation:

• Combat-Related Special Compensation Eligibility
  
• The Value of the CRSC Benefit
• The Application Process

Once a military retiree has been determined to be qualified he/she will receive their regular retirement pay plus an additional sum based on their VA disability rating.

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COMBAT-RELATED SPECIAL COMPENSATION ELIGIBILITY

The following CRSC eligibility requirements apply:

In order for members to be eligible for CRSC, they must meet all of the following criteria:

1. Receive military retirement pay for one of the following reasons:
   • Served on Active Duty, the Reserves, or National Guard with 20 years of creditable service;
   • Served on Active Duty, the Reserves, or National Guard and is also a permanent medical retiree (Chapter 61) regardless of years served;
   • Served on Active Duty, the Reserves, or National Guard and is classified as a Temporary Disability Retirement List retiree regardless of years served; or
   • Served on Active Duty, the Reserves, or National Guard and is classified as a Temporary Early Retirement Act retiree with 15-19 years served.
2. Have 10% or greater VA rated injury that is combat-related.
3. Military retirement pay is reduced by VA disability payments (VA Waiver).
4. Must be able to provide documentation that injury was a result of one of the following:
   • Purple Heart
   • Armed Conflict
   • Simulating War
   • Hazardous Service
   • Instrumentality of War
   • Agent Orange
   • Radiation Exposure
   • Gulf War
   • Mustard Gas or Lewisite

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Another word from Dr. Al Young, VA's famous Agent Orange "expert"

Agent Orange:  A veterans' issue, but one of only "questionable importance." So said Dr. Alvin Young, who offers us a wealth of such amazingly off-center and anti-veteran views.

His "expert" opinion above is from "back in the day" while helping form VA opposition to veterans' exposure claims.

Agent Orange, the C-123, and VA: My summary of it all

(article I wrote for the VFW magazine)

For vets concerned with Agent Orange, and vets concerned with how VA will deal with similar hazards going forward.

Why care? Because we got our Westover, Pittsburgh and Rickenbaker veterans between $48M-$240 million in compensation. It is even possible the total may be over a QUARTER BILLION dollars, but even more important is the life-saving VA medical care now provided.

We accomplished something that will affect all veterans from now on, as regards line-of-duty chemical and biological hazards. I am Wes Carter, a third-generation life member of St Cloud MN VFW Post 428, and a St. Cloud native now retired to Fort Collins Colorado. Retirement has meant time with grandchildren, and also time for volunteer service with veterans, in keeping with VFW core values.

Veterans' advocacy projects are dear to me. The first turned out to be the hardest and longest. It was to seek disability benefits for members of the C-123 Veterans Association, an informal group I started that became recognized as the negotiating voice with the VA.

Our folks are mostly the men and women who flew or maintained these former Agent Orange spray aircraft in the years following Vietnam. The project was pure Westover, labor and money, only from the 74th, 905th and 731st. Vets from Westover, Pittsburgh, Rickenbacker, Elgin, Howard (Panama) and Clark (Philippines) Air Bases all benefited.

VA insisted, even though the aircraft repeatedly tested as heavily contaminated with Agent Orange, there was no way the contamination actually exposed us to the deadly toxin in the herbicide. I had to prove VA and its Agent Orange consultant wrong. This involved lots of travel to Washington DC between the years 2011-2015. Postage, websites, FOIA fees, printing and other huge expenses all added up.

It was (is) a good use of my own Air Force retirement and 100% percent VA disability. I was perceived as a more earnest advocate because there was nothing personally to gain since I was already VA disabled...the beneficiaries were my fellow crewmembers and our maintenance troops.

Challenging the VA involved contacting scientists in and out of government but particularly those in the CDC and the National Institutes of Health. Here I found great support from experts who disagreed with the VA and insisted our exposures were very harmful and, in fact, we should have been flying the toxic airplanes wearing full HAZMAT protection.

Dr. Jeannie Stillman of Columbia University acted as corresponding scientist for the Concerned Scientists and Physicians, a group of dozens of experts affirming our veterans exposures to deadly dioxin.

The VA responded by saying these experts’ opinions were unacceptable, and that VA had “an overwhelming preponderance of evidence” against our exposure injuries having been caused by Agent Orange on the aircraft.

Some of VA's so-called evidence was previously discredited information from Dow and Monsanto. Most of the VA position was only its policy against post-Vietnam Agent Orange exposure claims. Internal VA memos even insisted that the department "hold the line" against us. Eventually, it became clear that the VA "scientific studies" didn't exist and certainly weren't credible science.

We countered VA arguments with stacks of evidence and expert opinions from medical schools and other universities as well as independent scientists and several government agencies. Several scientists re-examined all C-123 toxicology tests, concluded that our veterans had been exposed via dermal, inhalation and ingestion routes of exposure. and published their peer-reviewed report in the journal Environmental Research. There was general agreement everywhere that we been exposed... everywhere EXCEPT the VA.

Enough controversy was created, with enough proof of our exposure gathered, that eventually VA submitted the issue to the Institute of Medicine of the National Academy of Science for its investigation and public hearings.

I testified at four of these hearings and offered input regarding aircraft and aircrew details, Agent Orange and dioxin toxicology, history of the aircraft, relevant United States code, VA's misinformation plus data on the post-Vietnam use of these former Agent Orange spray C-123s. I explained how VA and the Air Force considered the C-123s to be "Agent Orange spray aircraft" until the first veterans' claims surfaced. Our FOIA search uncovered many AF tests establishing severe contamination, disproving VA's insistence on only one test on one airplane. The VA consultant testified to IOM that the aircraft were not contaminated but we then showed that in 2009 he recommended Air Force destruction of all airplanes as toxic waste.

CDC testified our airplanes were so contaminated we should have been flying in full hazmat. CDC explained that our cancer risks are much, much higher.

The Institute of Medicine Committee of distinguished scientists and physicians considered the issue for nearly a year before publishing their conclusion: Yes, C-123 aircrews and maintenance staff were indeed exposed and harmed. Importantly, IOM reported that VA and the military routinely ignored or minimized evidence of Agent Orange illnesses. The VA consultant was found to have manipulated or misstated scientific and historical evidence affirming our exposures.

On January 18 2015 VA Secretary Bob McDonald finally authorized full VA benefits for our veterans if diagnosed with any of the recognized Agent Orange ailments.

This had never been done before by any veterans' organization. Along the way, I found powerful help from leadership in the American Legion, DAV, Jewish War Veterans, VFW, Vietnam Veterans, Air Force Association, Reserve Officers Association. Experts and leaders in NIH and CDC also leaned heavily on VA for us. Yale Law School published an outstanding legal brief, and major law firms provided over $120,000 of pro bono legal help as we fought the VA and USAF to get hidden documents released.

The Vietnam Veterans of America helped with a $3000 grant for travel expenses, and VFW leadership worked with other veterans organizations to press Congress and the VA for a resolution and full benefits for our 2100 men and women aircrew and maintenance veterans. I’m very grateful!

We found a sympathetic media from the very first. The Air Force Times, ProPublica, Virginian-Pilot, Boston Globe, Pittsburgh Gazette, Washington Post, veterans organizations magazines, the Springfield Republican, Gannett newspapers, Tom Philpot military.com, the Portland Oregon Oregonian, NPR, CBS and so many others spoke up for us.

Vietnam Veterans of America is active in presenting townhall meetings about Agent Orange and I've put on several of these. Somehow, there are always Vietnam veterans who don't know that their prostate cancer for diabetes or other ailments entitled them to VA benefits, so these are essential educational programs with great fellowship.

Other veterans’ issues are also a concern. In May the governor of Colorado signed legislation that I initiated to provide partial property tax relief to about 700 totally disabled military retirees. When we first moved to Colorado I read the state constitution which provided for property tax relief to 100% VA AND totally disabled military retirees, BUT noticed the enabling law only mentioned VA. Our law was thus in conflict with our constitution. It only took five months to fix that and it was hugely satisfying to get my free pen from the governor signing the new legislation.

While working on that issue I was shocked to learn that Colorado’s Gold Star Wives are not provided any property tax relief such as offered survivors of VA 100% disabled veterans. I’ve been appointed the Gold Star Wives official adviser, and helping these widows is my next project! They need help...VA provides only an inadequate $1252/month to these women who have sacrificed so much.

We are also still working to get retroactive benefits for our C-123 Agent Orange vets because VA back-dates awards only to June 2015. That is unfair because benefits are usually based on the date a claim is submitted. Some of our folks have claims as old as sixteen years.

We got one other change. VA's Veterans Health Administration has a section called Post-Deployment Public Health, led by retired Army physician Dr. Ralph Erickson. This unit will now be tracking all servicemembers' potential exposures to chemical and biological hazards throughout their careers. The NIH scientists who affirmed our exposures also explained to VA the hazards of multi-toxin experiences... the add-on of toxin upon toxin and biohazard upon biohazard...all brewing up over time into mysterious ailments.

In the spring of 2015, during our final rounds of negotiations with VHA, VA general counsel, veterans organizations and congressional staffers, I identified biohazards that Reserve Component servicemembers will face. Posing a hypothetical, I forced VA to acknowledge present rules might not meet both military readiness and VA's duty to care for exposed personnel. Solutions were found, some proposed by the surgeons general of the departments and others as potential legislative steps.

Summary: my health Is really messed up but this kind of work had the benefit of being immensely satisfying, especially when other vets tell me how much their approved claims have meant to them and their families. At our reunion last month one of the older vets from the 905th came out to the club with his wife, and called me outside to offer his thanks for helping get his claim approved.

Wow... that meant so much to me and my wife, Joan.

There's a great need for ALL of us to keep serving our fellow veterans and our nation. It doesn't take money (although that helps.) It takes imagination and dedication which, as veterans, we've all been demonstrating all our lives

NEW ACTING VA BENEFITS UNDERSECRETARY SAYS AGENT ORANGE IS HARMLESS!

T. Murphy, VA Acting Undersecretary for Benefits

Problems continue to unfold at the Department of Veterans Affairs. The VA has had a series of recent personnel changes, one of them the departure of the man filling the office of Undersecretary for Veterans Benefits.

So, as a problem topped with another problem, in comes Mr. Thomas Murphy (himself a veteran, moving up from his Director, Compensation and Pension in less than a year to become Acting Undersecretary for Veterans Benefits. 

Mr. Murphy is a hard worker, and came to his earlier position at Compensation and Pension in 2010 where he oversaw VA's entire program for reviewing veterans' disability claims for approval or disapproval. His business background was at Home Depot.

Why is Mr. Murphy a problem? Because his six years at Compensation and Pension are fairly judged to be a relative failure in serving America's veterans. We'll focus here on two of these failures.

First, his determination and success in "holding the line" against Agent Orange claims. The two most visible groups he's fought on this are the Blue Water Navy Veterans and the C-123 Veterans Association.

In 2012 Mr. Murphy wrote his denial of a C-123 veteran's Agent Orange exposure claims after the Portland VARO said they wanted to approve...Mr. Murphy put a stop to that! "In conclusion, there is no conclusive evidence that TCDD exposure causes any adverse health effects." He wrote that to dismiss expert input from the CDC  confirming the veteran's exposure.

TCDD, the toxin in Agent Orange, is recognized by science to be the most toxic of the toxins, and definitely causes "adverse health effects." VA itself (but not Mr. Murphy) understands that it is a highly toxic substance. Likewise, NIH, EPA, WHO, NIEHS, US PHS and other health authorities understand TCDD ain't good for you.

His was no mere typo. Mr. Murphy's three-page denial blocked compensation and medical benefits to a veteran C-123 aviator. Four years later, VA itself conceded that veteran and other C-123 vets actually had been exposed to Agent Orange and could receive benefits.

At least, those who survived that long despite Mr. Murphy's policy of blanket denial by VA all C-123 claims would receive benefits.

Of course, Mr. Murphy assured veterans and legislators that VA had no such policy of blanket denials and instead promised to review all C-123 claims on a "case-by-case basis" – he just never bothered mentioning his assurance actually meant VA's case-by-case denial of every single claim submitted by every single veteran who flew the C-123.

Mr. Murphy must have been determined to deny this C-123 vet's claim. He rejected input confirming the vet's exposure not only from the CDC, but also from the National Institute of Environmental Health Services, the NIH, and numerous university-based scientists and physicians all supporting the vet's claim.

His denial opinion was read back to him, and he merely said he couldn't be familiar with everything leaving 1800 G Street over his signature. He hasn't made any correction to his 2012 statement, even with the last four years of confirmation of C-123 exposures.

In conference with C-123 veterans and his own staff, Mr. Murphy firmly explained that Veterans Benefits Administration had already determined none of the C-123 veterans were ever exposed, and no amount of proof from scientists or government agencies would raise the claim to VA's "as likely as not" threshold. All claims would be denied, he said.

But, of course, only after his "case by case" evaluation and automatic denial! It took four years and the Institute of Medicine study to get VA to begin permitting benefits for surviving C-123 vets. While that may have been a disappointing shift from the blanket denial policy VA still pretended not to exist, at least the department drew satisfaction in the money saved by blocking medical care and benefits for so many years.

A note: if Mr. Murphy's 2012 claim denial letter was written by a staffer for his approval, the staffer was most likely Mr. James Sampsel, manager of VBA's Agent Orange desk and liaison to the Joint Services Records Research Center (JSRRC) in DOD. Mr. Sampsel was also the staffer who drafted Secretary Shinseki's error-laden letter and deceptive C-123 Fact Sheet.

Mr. Sampsel, a Vietnam veteran himself, made his own perspective quite clear in a related email to Mr. Murphy. Mr. Sampsel determined that "the real problem" in denying C-123 veterans' claims is the amount of evidence confirming those exposures.

Get it? VA's "real problem" is that the veterans' proofs must be ignored by VA so as to deny the C-123 exposure claims. Mr. Sampsel, labeling CDC, NIH, US Public Health Service as "the real problem" in his email to Mr. Murphy, insisted VA had "an overwhelming preponderance of evidence" against the vets. He cited input from the VA consultant and VA's own web site, pretending that VA putting their policy statement online was "overwhelming evidence" sufficient to ignore the other federal agencies and dozens of independent scientists and physicians establishing the veterans' exposure injuries.

No legally required "benefit of the doubt" was even to be permitted. No contrary evidence was acceptable to VBA, Mr. Murphy or Mr. Sampsel...their policy overrode every regulation, law, Federal Register statements and assurances to Congress. Their anti-veteran preference overrode everything.

Even the DoD had tried to tell Mr. Sampsel it had credible evidence from many sources supporting the veterans. Mr. Sampsel, in response to DoD, put blinders on and was improperly very highly selective about what evidence it would acknowledge – if evidence supported C-123 claims it was immediately ruled unacceptable. As for VA and its campaign against C-123 claims, Mr. Sampsel would not request a JSRRC finding or permit one to be issued on C-123 veterans (note: this violates procedures described in VA's own regulation VAM21-1MR, as well as the Veterans Claims Assistance Act.) He then refused to acknowledge any JSRRC input he had not first requested...thus, no requests = no JSRRC confirmation = denied claim.

Mr. Murphy thanked Mr. Sampsel for his input.

Mr. Murphy's thanks were for Mr. Sampsel's success in denying all such claims for another three years. It wasn't until the Institute of Medicine's C-123 report was published that VA finally acknowledged the aircraft contamination and the aircrew's exposure.

Just as the CDC had said back in 2012, when more of the vets were still alive.

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

VA stalled my claims for five years, then closed them all without explanation!

 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 ends 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.

And in the weirdest setback concluding the entire claim process for me, last week (June 2016) the VA denied my 2012 claim for Gulf War issues (all veterans claims for Gulf War issues are denied) and somehow closed every other claim. No denial, no remand, no action of any sort!

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 violated VCAA and trashed 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 (Mr. James Sampsel) 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 directly abused veterans' rights under VCAA. No problem at all for VA, however a big problem for veterans who were forbidden VA medical care merely because of the preferences of VA staffers. VA has a duty to adhere to VAM21-1MR or invite CUE  (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 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 and targeting of 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. VA wouldn’t even make copies of documents the C-123 chairman was asked by IOM to provide the committee. 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!” 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 input tailored to oppose the veterans or otherwise 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 laymen or experts 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."

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 proven 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. By October 2011 VA had in-hand virtually all materials eventually found to be so persuasive by IOM in 2015 – VA should have been processing claims on a fact-proven basis from October 2011 on.

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:
Violations 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 and without any real basis in fact. 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. Everything C-123 veterans said in 2011, and substantiated with government proofs, was proved valid in the IOM report. The IOM report was based mostly on proofs available to VA since 2011…proofs which should have permitted fact-proven claims except VA had already predetermined all such claims to be denied.

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. Many of us are still barred from VA hospital and refused VA benefits – we are still paying the price.

What materials in government possession have been provided me by VA in meeting its duty under VCAA? NOTHING.