VA Saves Huge $$ By Denying and Delaying Veterans' Disability Claims (part 2)

VA Saves Big $$$ By Delaying Veterans’ Claims:

Too often folks think a delayed VA claim is merely that...postponement of compensation which will all catch up eventually. That is a terribly wrong impression. 

The truth is so much worse...the awful truth is that the VA saves immense amounts of their budget by denying claims whenever possible, and by postponing approvals as long as possible. While some veterans’ disabilities are minor, other vets are left, or become, totally disabled with military injuries, without funds, without medical care, and with families left destitute until some day a VA clerk gets around to approving their claim after years waiting. (And, yes, we understand that current discharged troops have an extended period of VA medical care, but none of the other disability benefits essential to life after injury.)

The advantages and savings (to the VA) are obvious when you think about it:

      • No medical care at all (VA estimate: $600 per visit) is provided during the application phase or appeal – a two year wait for a claim to be denied followed by a two-three year wait to reach the BVA means five years of VA savings by not providing any care at all

• All dental, pharmacy, vision, rehabilitation, wheelchairs, crutches, prosthetics, lab, imaging, social services and every other vital care is refused until a claim is finally approved; denied medical care for such things worsens the impact of the veteran's service-connected injury–an untreated dental or other infection can kill a veteran with heart disease or other illness. Cancers (and despair!) can kill a veteran long before the VA finishes considering even the initial claim
• No travel pay or special clinics, such as the Spinal Cord Injury Centers 
• No clothing allowances for prosthetic or medication-damaged clothing
• No federal or state disabled veteran hiring preference
• No Service-Disabled Veterans Life Insurance, nor provision for the one year of free VGLI
• No family benefits, such as ChampVA and dependents’ educational allowance (the loss or even delay of these two can be devastating to college-age families, where students waiting for a parent's disability claim can't get the vital Dependents Educational Allowance, placing college beyond the means of most disabled veteran parents!)
• No military commissary privileges, nor space-available flights
• No adaptive housing or vehicle allowances
• No interest paid on retroactive claim settlements; no reimbursement for medical bills paid by veteran for military injuries before claim is approved
• No state benefits, such as free tuition for veterans or their dependents, property taxes, auto allowances; no disabled veteran hiring preference until claim is approved; no fee-free VA Home Loan until veteran rated "service connected disabled"
• If the veteran dies without eligible survivors, even the retroactive disability payments are “saved”
• Adaptive housing and other special housing needs denied until claim awarded means veteran usually pays for such modifications rather than wait
• No clothing or automobile allowances
• No aid & attendance allowance, nor nursing home
• No burial allowance if veteran dies before claim awarded
• If the veteran dies before claim is decided, in the event of a denial the survivors have a much poorer chance of successful appeals without the veteran's personal knowledge and input to the appeal, thus saving the VA years of DIC, CHAMPVA, etc.

Don't Tweak the VA's Nose, Part Two

Reading over my recent VA decision, in which 15 separate issues claimed were all denied, I'm convinced I really, really annoyed somebody at 1800 G Street in the District.

Denied were some issues for which I haven't even been examined yet. Maybe they were denied to save postage later??

Denied also were issues for which I submitted a Line of Duty determination, commander's letter, Bethesda Naval Hospital treatment records, all of which the VA summed up as  "no record of injury or treatment during service."

Denied were claims for aid and attendance, although I'm confined to bed or a power chair most of the time and unable to manage my life without help (cleaning, dressing, transportation, cooking, medication, home management, etc.) 

Denied were claims for chronic pain, despite VA referrals to pain clinics for treatment of chronic pain, despite VA steroid injections, despite VA-prescribed morphine, despite clinical diagnosis of chronic pain, despite Social Security legal determination of chronic pain, despite twelve surgeries since Gulf One, all denied without reference in the denial even to the VA's own records for these proofs.

Denied also, all my claims for poor treatment/bad results/failure to diagnose/malpractice associated with years of poorly monitored steroid prescriptions which resulted in a myriad of health problems. Denied even though a surgeon failed to note two years of steroid prescriptions, and instead noted in error the absence of those prescriptions because he didn't bother reading the patient records, important because steroids are a near-universal precursor for problems the VA then failed to treat. And a little CYA from his boss.

It just goes to show you: don't annoy the VA until your claim has been decided and you are safe in the P&T category!

Bailey Wins C-123 Agent Orange Claim! Thanks, VA

Win-Win in New Hampshire!

New Hampshire resident and C-123 veteran LtCol Paul Bailey was informed Monday that his claim for Agent Orange-related illnesses was approved by the Manchester VA after their earlier denial of the application. VA cited a complete package of proof which elevated Bailey's claim above the VA's famous "as likely to as not" threshold for such issues.

While Bailey is likely happier with this decision than VA officials in Washington, all should see it as a win-win outcome. The 1991 Agent Orange Act, and Title 38, and the 8 May 2001 Federal Register are clear enough – veterans like Paul who are exposed to military herbicides are to be treated for illnesses (those recognized by the VA as "Agent Orange presumptives) on the same basis as Vietnam veterans.

Whether veterans like Paul were to actually receive such treatment as per the law was the issue, in this, a contest at which both sides prevailed on Monday. This was two years after his claim was first submitted...and initially rejected in March

Why should VA and their Compensation Services officials be satisfied with their side of this "win?"
Because they found a way to follow the law. To meet the broad requirements of their oath of office. To care for a veteran by finding a path rather than obstructing it.

VA employees and leadership should all be well-pleased with this decision because their beleaguered agency found a way, perhaps through the independent spirit of VA officials in Manchester, to do what's right, as well as what's lawful.

To men and women of honor, that's always a victory.

"Exposure" - The VA's Amazing Shell Game

It couldn't be simpler, right? What could be easier to understand than the idea of exposure?

For C-123 veterans who flew this former Agent Orange spray airplane after Vietnam, it turns out "exposure" has had VA's own special redefinition, just for their own use VA against Agent Orange veterans. VA "newspeak" has the VA saying scientific words like exposure will mean only what the VA says they mean, not what science, medicine, law or common sense tells us it means! VA has manipulated a straightforward word to prevent claims. "Keeping the pigs from the trough" is how some mid-level staffers put it.

It begins with the law and ends with the VA skirting legal rights of C-123 veterans. Agent Orange-exposed veterans can turn to the Department of Veterans Affairs for medical care and other benefits related to a list of illnesses recognized by the Institute of Medicine and the VA as being "Agent Orange presumptive illnesses," diseases such as prostate cancer and about 20 other ailments. The 1991 Agent Orange Act, various promulgations such as Title 38 USC and the 8 May 2001 Federal Register all refer simply to the word "exposure." Exposure can be by breathing, ingestion or skin contact with a contaminant.

And the C-123 veterans do claim to have been exposed. The post-Vietnam airplanes tested positive and "heavily contaminated with dioxin on all test surfaces" as read one test series. The contamination was repeatedly established by the Air Force toxicologists who identified the poisonous part of Agent Orange, dioxin. The vets flew the contaminated airplane between 1972-1982 and claim to have been exposed, some for up to ten years of their service. Numerous federal agencies such as the CDC, NIH and US Public Health Service have officially confirmed the airplanes' contamination and the veterans' exposure. Thinking, logically enough, that the facts were on their side the veterans approached the VA, only to be met with that agency's routine denial...no exposures ever happened, say VA officials.

The VA strategy to prevent C-123 claims? They could't avoid the AF tests proving Agent Orange contamination, so they opted to argue that the veterans somehow weren't exposed. As a basis of their scheme to skirt the law by denying the fact of exposure, VA tried to slip this special, VA-only redefinition into the Society of Toxicology in San Francisco at that society's 2012 meeting that exposure now has a new definition. "Exposure=contamination field+bioavailability."

That's the line tossed in to the middle of their Agent Orange poster display and for months, nobody  noticed. Only in mid-2013 did more careful reading of that poster remind veterans of a telephone conference with Veterans Health Administration's Deputy Director for Post-Deployment Health She informed C-123 veterans that, despite the contamination of their old warplanes, no exposure occurred (in the VA's mindset) because the veterans couldn't prove "bioavailability," - the specific harm done by the dioxin on the planes. She further explained that by the VA's definition none of the ground soldiers in the Vietnam War had ever been exposed, either, and few of the aircrews which actually sprayed the herbicide!

Fortunately, scientists and physicians outside the VA's control have disputed this special, post-2012 redefinition of a standard word well-understood in medicine and toxicology. Exposure is, as the definition above confirms, simply the contact with a contaminant. In some definitions, contact between the outer boundary of an organism and a contaminant. Same thing. In no situation is "bioavailability" a component of exposure, but rather, it flows from exposure. Consider: you drink coffee and are thus exposed to caffeine. Your heart rate may or not go up, and you've then had bioavailability - but you were first exposed.

VA Shell Game - with veterans' health?

VA compounds this act of confusion perpetrated on American veterans with a very special shell game performed by their Compensation Services, the folks who evaluate claims. C-123 veterans had submitted a raft of supporting independent professional medical and scientific opinions establishing their claim for exposure. Included were findings from independent toxicologists, retired US Army Chemical Corps officers,  Columbia University School of Public Health, Boston University School of Public Health, University of Texas Medical School, Oregon Health Sciences University, the NIH/National Toxicology Center, the US Public Health Service, the EPA and even the Director, CDC/Agency for Toxic Substances and Disease Registry, Dr. Christopher Portier.

These scientists and physicians, acting independently and without compensation, all confirmed the C-123 veterans' exposure. In a stunning verbal shell game, VA junked each and every one of these experts' opinions! VA's Director of Compensation Services directed C-123 claims be denied even though supported with this evidence, stating that as scientists and not physicians (he conveniently overlooked the physicians' findings which the veterans submitted) they were not qualified to address medical nexus.  (Actually, toxicologists are professionally qualified to address issues of toxicity, exposure and often medical nexus as well, but that's another article.)

Did you get the VA switch? The scientists and physicians verified the question at hand -  the veterans' exposure, and C&P trashed the expertise of the world's leading Agent Orange experts by ignoring exposure and saying the were not qualified to discuss medical nexus. Two different issues, swapped around in his orders to regional offices sent out to insure all C-123 claims are denied.

However: Exposure is different than medical nexus. Medical nexus means being able to point to an illness as being caused by something...you drank heavily for forty years and have a bad liver. But that's not what the experts were addressing!

The law only requires veterans with Agent Orange-type illnesses to prove they were exposed. The medical and scientific experts confirmed the veterans were exposed. C&P denied the veterans' claims by ignoring overwhelming proof of their exposure by pretending the experts were discussing medical nexus.

Do you see which shell the prize is under? Wherever the VA says it is. Or nowhere. Just like VA's infamous "every benefit of the doubt to the veteran."

(Received June 24 from the incoming Director of the Agency For Toxic Substances & Disease Registry)

Dear Major Carter,

Thank you for your email and warm welcome regarding my new acting position.  I have recently been briefed about ATSDR actions related to this situation.  I have also reviewed the ATSDR correspondence related to C-123 aircraft and I am in agreement with it.  I understand that the VA has already received our letters and that ATSDR staff have spoken with VA staff about your situation. 

The letter from ATSDR to General Hickey regarding exposures at Camp Lejeune was somewhat different.  We sent that letter after completing an extensive dose-reconstruction model of exposures to volatile organic compounds at Camp Lejeune.  We were obliged to notify the VA because they had been relying on out-of-date information previously generated by us. 

The limited, but high quality, sampling of C-123 aircraft that we reviewed in 2012 confirm that some post-Vietnam era C-123 aircraft were contaminated with TCDD dioxin.   All C-123 aircraft have since been destroyed.  Thus, it is no longer possible to further characterize human exposure pathways through additional sampling.  Without additional environmental sampling information, an official health consultation would not shed additional light on this situation beyond that provided in January 2012 and March 2013.  I understand that United States Air Force restricted entry into these contaminated planes once they were found to be contaminated.  ATSDR concurs with this position and believes it would also have applied to pilots and crew had these planes remained operational. 

I hope this email is helpful.  Thank you again for your service to our country.  

Robin

 Robin M. Ikeda, MD, MPH

RADM, USPHS

Deputy Director, Noncommunicable Disease, Injury, and Environmental Health

Acting Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry

Centers for Disease Control and Prevention

4770 Buford Highway, MS F-39

Atlanta, GA 30341

=============
From: Wes Carter [mailto:c123kcancer@gmail.com]

Sent: Monday, June 10, 2013 2:55 PM
To: Ikeda, Robin (CDC/ONDIEH/OD)
Cc: Sinks, Tom (CDC/ONDIEH/NCEH)
Subject: Opinion provided earlier by Dr. Sinks and Dr. Portier re: C-123 Agent Orange contamination and exposure

Dear Dr. Ikeda,

Congratulations on your assuming the helm at ATSDR. We are the C-123 Veterans Association, and in the past ATSDR has been very kind to provide opinions over the signatures of Dr. Sinks and Dr. Portier. These opinions confirmed our exposure to Agent Orange for the years we flew the C-123 medium assault transports used earlier in Vietnam for spraying Agent Orange.

Last week I visited with several senators and congressional representatives, as well as with Ms. Amanda Meredith and Mr. Steve Robertson of the Senate Veterans Affairs Committee. We have asked the assistance of both the staff director and the Republican General Counsel in approaching the Department of Veterans Affairs regarding our veterans' claims.

I was asked, and they also asked me, why the previous letters from ATSDR have been disregarded by the VA. In one instance, VA's Compensation Services summarized Dr. Sinks' opinion (without mentioning his conclusion that veterans were exposed) by appending the sentence, "In conclusion there is no conclusive evidence of long-term TCDD harm." In another, the Manchester NH Veterans Affairs Regional Office denied a veteran's claim by grouping Dr. Sinks' and Dr. Portier's findings in the unacceptable "lay evidence" category, and into that group also put the findings by the NIH and US Public Health Service. Dr. Linda Birnbaum is also very familiar with this issue, as is Dr. Jeanne Stellman at Columbia.

Similar official letters from ATSDR have been accepted by VA for Camp Lejeune, and we cannot understand why the VA rejects their merit here. Obviously the issue is critical for us, because most of our veterans are not retired military and not otherwise VA-eligible, so they are turned away when seeking care for typical Agent Orange illnesses by the VA hospitals.

The matter has recently reached the desk of Secretary Shinseki. May I again ask ATSDR's leadership in restating to the General the opinion that we were exposed, and if possible, in the form of an official health consultation? Reading the criteria for an official health consultation, it seems to fit the requirements. 

Because the C-123 contamination had been kept "in official channels only" by the Air Force until released via FOIA in 2010, we only recently began presenting claims to the VA, and in every instance the claims have been denied, and all those reaching the VA's Board of Veterans Appeals a year or more later have been overturned in favor of the C-123 veteran. At our age and with our illnesses, however, we need very much for appropriate decisions to be made on the initial claims, rather than years later in appeal. 

I hope we can continue to count on Dr. Sinks, you and the ATSDR for help.

Sincerely,

Wesley T. Carter, Major, USAF Retired

Chair

Chairman Senate Veterans Affairs Committee Promises Agent Orange Claims Support

Today I received from America's favorite "Socialist" Independent Senator from Vermont, crusty Bernie Sanders, a letter in response to our messages to him about C-123 veterans' claims.

His response: "I promise to do everything in my power to endure that the brave men and women who have put their lives on the line to defend our country, receive the highest quality benefits." We certainly cannot ask for more from Senator Sanders or his dedicated staff headed by Mr. Steve Robertson.

The Chairman's guidance, along with that of Senator Richard Burr of North Carolina, Senator Merkley and Congresswoman Bonamici (both of Oregon) and their staffs, has been extremely helpful in getting attention from the VA about this issue, and in forcing VA to reveal their extra-legal policies and activities designed to prevent C-123 veterans' claims. Armed with the knowledge of VA mistakes, we can answer better and more completely their demands for well-documented "fully developed claims."

If you haven't already had an Agent Orange exam, your C-123 Veterans Association urges to to obtain one immediately, even at your own expense. Yesterday an important article was published about aggressive prostate cancer being linked to Agent Orange exposure:

"This is a very, very strong predictor of lethal cancer," said urologist Dr. Mark Garzotto, who worked on the study at the Portland Veterans Affairs Medical Center in Oregon."If you're a person who's otherwise healthy and you've been exposed to Agent Orange, that has important implications for whether you should be screened or not screened," he said. (click here for full text of published article)

Dr. Garzotto happens to be my own VA urologist and already provided an opinion that I was exposed

during my years aboard the C-123, but the Portland VA regional office then rejected his expert opinion classifying it as "unacceptable lay evidence." From my perspective, he's a great physician, teaches at a fine medical school, works for the VA and obviously knows a lot about prostate cancer and dioxin...but VA makes its own rules and then choses which ones to use against us. VA regional offices seek any opportunity, however remote, to deny claims regarding Agent Orange. Any supporting evidence of C-123 veterans' exposure to Agent Orange is automatically unacceptable to the VA, per VA Compensation Services.

Last week we were informed by VA's Deputy Director of Post Deployment Health that Agent Orange exams are no longer allowed for our exposed C-123 veterans because of new internal VA rules requiring the exam be restricted to just Vietnam veterans or veterans in contact with LIQUID Agent Orange. Because our exposure was to the dried dioxin residue on the airplane which left it "heavily contaminated" we are prohibited from seeking an Agent Orange exam.

We believe Dr. Garzotto's research makes clear that all C-123 veterans need to be examined if they haven't already been seen for Agent Orange exposure. Do this promptly even though we are now excluded from the VA system.

The current Agent Orange Registry page on the VA site is outdated where that it says all veterans who believe they've been exposed may ask for the AO exam. "All veterans" does not include C-123 veterans as of last week. Outdated, or there may be some sort of confidential VA Post Deployment Health internal memo used to exclude us, but this new exclusion from the Agent Orange Registry has been confirmed with their Deputy Director and veterans already denied exams. The version for  C-123 veterans is:

"Other potential Agent Orange exposures

• Veterans who may have been exposed to herbicides during a military operation or as a result of testing, transporting, or spraying herbicides for military purposes. Learn about herbicide tests and storage outside Vietnam. Agent Orange or Dioxin dried on surfaces does not present a significant threat to human health. Veterans are eligible if they were in the presence of liquid Agent Orange such as when Agent Orange was sprayed, tested or transported"

VA Health Benefits Administration, as we were told by Compensation Services when we met with them on 28 Feb 2013, already ruled that C-123 veterans could not have been exposed and that no evidence to the contrary, such as from VA doctors, scientists, medical schools, or even the finding by the Director of the CDC/Agency for Toxic Substances and Disease Registry that we WERE exposed, is acceptable to VA. So the VA has determined that we cannot seek medical care there, but Dr. Garzotto's research makes it clear that we must seek it somewhere - do so now! We can't wait for the VA any longer.

C-123 Veterans Seek Senator Gillibrand's Assistance re: Agent Orange VA Claims

 

C-123 Veterans Release Newest YouTube Video Seeking Senator Gillibrand's Assistance with Agent Orange Veterans Claims

She has long championed the Blue Water Navy Agent Orange exposure issue, with her clear and unmistakable message that every veteran exposed to Agent Orange deserves equal access to VA medical care. Today we reached out to the Senator through her military and veterans affairs staff, taking Senator Gillibrand up on her leadership.

Our request. Not that she proceed with any legislation on our behalf, because none is needed - the law fully covers us except for the preference of VA leadership that we be excluded. Instead, we have asked that she compel VA to explain how their "experts" say we haven't been exposed (VA redefined standard definitions of "exposure" to prevent C-123 qualification) to Agent Orange, yet every other federal agency (NIH, CDC/ATSDR, EPA, US Public Health Service) and universities have made perfectly clear that we were exposed.

We share few common proofs of our Agent Orange exposure with the Blue Water Navy folks, but both of our organizations do indeed claim Agent Orange exposure and are seeking service connection for our members. We look forward to Senator Gillibrand lending her leadership and dioxin expertise to those who've long helped us, in particular, Senator Burr, Senator Merkley, Congresswoman Bonamici and their staffs. 

With solid proofs such as we have provided her and the VA, this should be simple. We have already been told our mass of evidence easily persuades at the BVA level and any federal judge (using the VA's "as likely to as not") decision matrix, would conclude in our favor.

Anyway, we can always hope!

Newest YouTube Video: C-123 Veterans Challenge VA's "Scientific Review of C-123" Article

Posted yesterday: C-123 Veterans Challenge VA's "Scientific Review of C-123 Agent Orange" article.

The VA began poisoning the air immediately after the first C-123 Agent Orange exposure concerns were raised by veterans. Their basic response was posted on the Internet entitled "Scientific Review of Agent Orange in C-123 Aircraft." Our is a long 22-minute video, because there was much to cover, or should we say, uncover, regarding this act of deception on the part of VA.

As science, this article from VA is useless. It reflects a 100% one-sided argument, framed solely to prevent any possibility of our veterans qualifying for Agent Orange exposure protection. VA deliberately ignored everything in science which would have confirmed our possible exposure, and cherry-picked only materials to deny us. Amazing, but they even cited Dr. Linda Birnbaum of the NIH/NEIHS as author of an article "proving" we weren't exposed, yet Dr. Birnbaum has written that C-123 veterans WERE exposed to dioxin.

VA scientists writing this certainly won't be proud to list it in their CV of publications - no, it isn't science, but rather policy, and it doesn't deserve to be called science! As for VA's cherry-picking of references, we must remember what VA's Compensation Services told us on 28 February 2013 - that no amount of evidence proving C-123 veterans' exposure will be considered because VA's Post Deployment Health has already ruled that no C-123 veteran was ever exposed.

I guess we'll have to keep arguing that point with them!

C-123 VA Claims Approvals and Denials Needed!

C-123 Veterans and Survivors!

The two law firms helping us fight the VA's pretense that we are not entitled to Agent Orange benefits need to have copies of C-123 veterans' Agent Orange claims approvals and denials. So far, we only have a few copies of denied claims, and some overturned at Board of Veterans Appeals levels.

Please: if you have applied, been denied or been approved, WE NEED COPIES OF WHAT WAS DONE! The various reasons VA picks to deny claims, even only when the rating officer denies for meaningless reasons such as ruling all evidence unacceptable, is important as the attorneys helping our Association form our best approach.

While we obviously are moving forward on the lawsuit, we also need to develop a logical "cookie-cutter" package for our members to follow. This will insure as perfect as possible a claim put forward, with all evidence that we've gathered, with targeted rebuttals for what are the expected VA objections. This cannot be developed with any accuracy without YOUR denied or approved claims being provided.

We have a handful of widows who have also pressed survivors claims and I only have a couple of those - if you are a survivor, please do what's right and give us copies of your claims.

Delete your names and personal info if you wish, but get them scanned and emailed, or send snail mail copies to Wes at 2349 Nut Tree Lane, McMinnville OR 97128.

Institute of Medicine - 16 January 2013

C-123 veterans were invited by the Institute of Medicine to present the basis for their Agent Orange exposure claims at the Institute's 16 January 2013 meeting at University of California-Irvine. The basis for their exposure claims for service aboard contaminated C-123 military medium assault transports used first in Vietnam for spraying Agent Orange, were discussed in detail with the IOM and are reported here.

Scientists from several universities, as well as from the CDC/ATSDR, US Public Health, EPA and others had already joined in confirming the Agent Orange exposure of C-123 veterans - all expert opinions were unpaid. Only the VA among federal agencies has concluded veterans weren't exposed and did so by inventing "bioavailability" as additional requirement, not in the law, to establish dioxin exposure. Further, VA has grouped all expert findings, other than those from VA staff, as "unacceptable lay evidence" to include exposure confirmations even from VA physicians and other doctors.

USAF faced the necessity of destroying the remaining C-123 aircraft stored at Davis-Monthan AFB's "boneyard" due to their Agent Orange contamination. Sales and parting out were not possible and a potential $3.4 billion EPA fine was in view. DOD Agent Orange Consultant recommended destruction of the airplanes, especially because veterans (already exposed!) who'd flown the airplanes earlier might learn of the contamination, and their exposure, and turn to the VA for medical care. OSD's statement clearly was to prevent veterans from proceeding on their claims, and the statement to the AF was taken up by managers at the 505th Sustainability Squadron as they sought Air Staff approval for C-123 shredding and smelting...and by repeating OSD's recommendation to hide the process from the media and the veterans, it became AF policy.

It should be clear. Veterans had ALREADY been exposed...the harm was done. They should have been told of this when first discovered by the USAF, rather than having the evidence about it destroyed specifically to prevent their learning of the C-123 contamination history and the right...indeed, for many, the NEED to turn to the VA for medical care for exposure to deadly dioxin. Shame on the Air Force Surgeon General for opting NOT to inform exposed veterans of the damage to their health "out of concern not to cause undue distress" as reads his distribution memo.

Shame on all parties involved for this "magnificent" deception. Shame on those who congratulated the players for their secrecy. Shame on the Base Public Affairs for a piece of tainted "journalism" which brings discredit to the United States Air Force!

VA Directs 60-Day Processing for All Claims 2 years old and older

VA has directed its regional offices to complete processing of all claims two years old or more, and gave them 60 days to complete the project. Good in some ways, but I fear, it will lead to more of what's happening today.

Too often, a complicated case sits on a rating officer's desk, aging and eventually drawing attention to the officer's backlog. Too often, this is addressed with a simple denial of the claim, tossing the hands into the air and saying "Let the BVA sort it out."

The problem is that our lives continue. And with a claim denied and in the queue for the BVA (Board of Veterans Appeals) five years or more can be wasted, on top of the two or three it took to get the clam through the regional office! So perhaps then eight years of denied medical care, denied family benefits, denied compensation. Consider a veteran with kids headed for college - a 100% rating would entitle the kids to VA monthly support for 48 months...waiting eight years for a claim and a BVA decision, even if favorable, takes the kids through high school and college. Then, no longer eligible, what good the benefits the veteran earned.

"Fortunately" my two year old claim was denied even through supported by over 100 pieces of confirming evidence, and at age 66 with cancer, heart disease and more ailment than I can mention here a five year wait is useless to this veteran. When I mentioned that at the face-to-face meeting with VA's Compensation Services, a smile from them assured me it was the proper process, nothing else to be done.

I protest. What could have been done is a legitimate hearing of my claim and those of other C-123 veterans like Paul Bailey, both of us denied Agent Orange exposure recognition because the VA's Health Benefits Administration has introduced new flavors to the word in the law - eligibility - and using those new flavors finds a clever way to deny benefits.

Science and the law say we C-123 veterans were exposed to military herbicides and are due care from the VA. The VA, in defiance of law, science, medicine, justice, common sense and simple logic, says otherwise in the face of other federal agencies far better qualified to in their confirmation of our exposure. Who the heck made the VA science different and better than that practiced by the NIH, US Public Health Service, EPA, and CDC?
-------------------------------------------VA LETTER BELOW-------
VBA Letter 20-13-05
VA Regional Offices

DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 204239

SUBJ: Guidance Regarding Special Initiative to Process Rating Claims Pending Over Two Years
Purpose
This initiative is the first in a series of efforts to address VA’s oldest claims. This letter focuses on those rating claims pending for over two years. Further guidance will be provided regarding claims pending less than two years. The intent of this initiative is to work all claims pending for more than two years within 60 days from the date of this letter. Regional Offices (RO) must immediately begin to process these claims based on the below guidance. For the claims at issue, this guidance supersedes all other guidance from other offices or personnel. It does not affect those claims that already require priority processing (Homeless, Terminally Ill, Medal of Honor recipients, Former POWs, and Fully Developed Claims).
Guidance for Processing Claims Pending More Than Two Years:
Identifying Claims
This guidance applies to claims received on or before July 1, 2011. The date of claim of the oldest pending claim in the file will be used to identify claims addressed under this special initiative. Use the Special Issue indicator “OCR – Old Claim Review” to identify these claims electronically in VETSNET Operations Reports (VOR). Follow the Brokering/Shipping Instructions provided in the enclosure.
Use of RO Personnel
ROs will devote all RVSRs and as many VSRs as are needed to ensure that all two-year old claims are processed within 60 days from the date of this letter.

Upon receipt of this guidance, immediately identify two-year old cases and develop an aggressive plan to complete these cases as soon as possible but no later than 60 days from the date of this letter.
Rating Actions
Raters will immediately begin to process two-year old rating claims and develop an aggressive plan based on the “available evidence” in the claims file. The rating decision produced will be considered a provisional rating unless ALL evidence in support of the claim has been received (and the claim is considered ready-to-rate) or the rating assigned provides the highest level evaluation authorized for the particular diagnostic code for each claimed issue. The End Product (EP) will be cleared for any rating completed as a result of this special initiative and no issues will be deferred on a rating decision.
Category 1 Cases: ROs will issue rating decisions, as normal, for ready-to-rate cases that meet the two-year old criteria and for cases where the rating assigned provides the highest evaluation authorized in VA’s Schedule for Rating Disabilities for each claimed issue. These will be FINAL decisions and appeal rights will be provided.
Category 2 Cases: ROs will issue “provisional” rating decisions for other two-year old cases even if VA is still waiting for certain evidence. RVSRs will complete these claims based on the available evidence of record as long as the appropriate Section (§) 5103 notice (formerly VCAA notice) was provided to the claimant UNLESS the following requests for evidence are outstanding:

• Service Treatment Records (STRs) for original claims;
  
• VA medical records;
  
• Any evidence needed to establish Veteran status and/or pertinent service dates, if
  available evidence is not otherwise sufficient;
  
• VA examinations, if such exams are pending at the time the case is reviewed or if one
  is required in order to issue a decision.
  The above minimal level of evidence must be available before a Category 2 rating is completed. Therefore, in order to meet the required completion date for these cases, ROs must expedite procedures to secure this evidence and decide the claim.
  In any Category 2 case where the RO is awaiting VA exam results, ROs will contact the appropriate VHA facility or contract examination provider to expedite completion of the required exam(s) so that a decision may be issued promptly. Only order a new exam when one is required to decide the claim.
  RVSRs will rate on the available Service Treatment Records (STR) of record, to include copies supplied by the claimant. If no STRs are of record or no STRs have been developed, immediately
  

develop for such records, and ensure they are available at the time of the rating (unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile).
RVSRs should make a provisional decision based on the evidence of record. If required Federal records outside of STRs have not been received, issue the provisional decision and then request the Federal records. If private records have been requested only once, issue the provisional decision and then request the private records again unless it is clear a second request would be futile. Establish an EP 400 using the special indicator "OCR – Old Claim Review" to make the request for Federal and/or private records.
RVSRs will accept Acceptable Clinical Evidence (ACE) evaluations where possible, and rate on the medical evidence of record in accordance with 38 C.F.R. § 3.326.
Because the decision notification for Category 2 cases will inform claimants that a provisional decision has been made, it is not necessary to include such language in the rating document.
In the “evidence” section of the Rating Decision, RVSRs will list all evidence considered, as normal. The RVSR will also list evidence identified but not available at the time of the provisional rating.
No issue(s) will be deferred on a rating document.
Other rating considerations for Category 2 claims:
For claims falling within the provisions of this guidance, the prohibitions against certain partial rating decisions found in M21-1MR III.iv.6.A.1.b do not apply.
RVSRs will grant entitlement to service connection for the claimed disability at the highest justifiable evaluation level of disability based upon the evidence of record, as warranted.
One year from the date of notification of the provisional decision, ROs will assess all Category 2 claims and provide notice of a final decision to include appeal rights. Compensation Service will provide additional guidance in the future regarding procedures for the review of Category 2 cases after the one-year period has ended.
Authorization Actions
All Category 1 cases will be processed as normal.
For Category 2 cases, the following procedures shall be followed:
• Before promulgation of the decision, local Veterans Service Organizations will be given a full 48-hours to review the rating decision. In addition, a POC (and alternate POC) shall be

designated within the Veterans Service Center so that Service Officers can contact these individuals directly if they have questions or concerns.

• Upon promulgation of this provisional decision, clear the controlling EP.
  
• No appeal rights will be provided to the claimant since the decision rendered is considered a provisional decision. After one year (or earlier if the claimant requests), the claimant will be
  notified that the claim has become final and provided appeal rights. This only applies to cases worked under this special initiative.
  Important: Be sure that any reference to "final" decision or appeal rights notification that is generated automatically in the notification letter is removed.
  
• Diary the case for one year from the date of the decision. Establish Diary Reason 39 - Review for Reevaluation.
  
• After the decision is issued, the completed claims should be added to the files sent immediately for scanning. Follow the shipping instructions set forth in the enclosure.
  
• If the claimant submits additional evidence or VA receives previously requested records within the one-year time period which allows a final decision to be made, VA will establish a new EP with a special issue “OCR – second review,” clear the diary, PCLR EP 400 if pending, and take the appropriate adjudicative actions.
  
• If all evidence is received at any time during the one-year period after the provisional decision is issued, take the appropriate adjudicative action and issue a final rating decision with appeal rights.
  
• In most instances, the effective date will go back to the date of claim of the earlier EP. Decision Notification Criteria
  The responsible party for preparing the decision notification for claims processed under this special initiative must include the following special language in the letter:
  “We have made a decision based on a special initiative to complete your pending claim. This is a provisional decision that is based on the evidence currently in VA’s possession. If you have additional relevant evidence pertaining to the issues decided here that you would like us to consider, please submit it to our office within one year of the date of this letter and we may reconsider our decision. If you want VA to obtain evidence that you previously told us about that was not available at the time of our decision, tell us and we may be able to obtain this evidence.
  If you want to receive a final decision with appeal rights before the one-year provisional period ends, send VA a signed statement as follows:
  “All necessary evidence was considered by VA. I request that this provisional decision be made final.”
  

STAR and QRT
Quality will continue to be assessed on decisions made under this special initiative. However quality will be measured based on the accuracy of the decision based solely on the evidence of record at the time the decision was made.

VA Defies FOIA - Hides Documents from Senate & C-123 Veterans with "Don't Exist" Claim

"FOIA - a vital part of our democracy" The Department of Justice (but not the VA)

"They are honorable" Marc Antony, Julius Caesar, Act 3, Scene II)

FOIA-requested materials concealed from C-123 veterans. Documents don't exist? Well, they certainly DID until our FOIA was filed a year ago! But given the issue so important to C-123 veterans and in light of their team's preparation and participation in meetings on the issue of C-123 Agent Orange exposure, and the dedication they show to making sure it is never conceded, we can understand their preference to keep their materials under cover. And as Marc Antony said, "They that have done this deed are honorable."

C-123 veterans, joined by scientific experts and Senator Burr's Senior Policy Advisor, Mr. Brooks Tucker, conducted two meetings, one in 2011 and one in 2012, with representatives of the Veterans Administration to discuss C-123 Agent Orange exposure concerns. One meeting was a teleconference and the second, a gathering hosted by Mr. Tucker at the Hart Senate Building.

Extensive preparation went into these meetings on the part of the veterans and

scientific advisors, and VA representatives participated with perfect familiarity with the subjects discussed and also arrived at the Hart meeting with proposals to submit some issues to the Institute of Medicine for a special project. This makes clear that the VA representatives were prepared, and we certainly saw notes with more notes being taken. Last year, veterans submitted a broadly-cast FOIA net for all materials used by the VA for preparation for the meetings, and notes taken during that meeting, and other materials.

At first, the request was denied by the VA. Then the request resulted in an estimated $4700 fee, appealed by the veterans. Finally, the VA responded that no such materials exist. No memos. No emails. No briefings. No reports to superiors. No nothing. Yes, I know that a double negative, because there certainly was material, just not which they were willing to submit in response to the law.

"The law" you ask? Right...you remember...that thing which veterans are obliged to obey and which the VA flaunts. The law, which we, and they, were all sworn to protect and defend. The law. The foundation of our society and upon which we depend to compel government by, and not OF the people. Doesn't matter - big laws or small, one veteran or a thousand. Law is law - it must reign supreme, otherwise we are to expect (or beg) for our veterans' benefits from the whims of  a capricious and hopefully benevolent administrator.

But among others, VA disregards the Freedom of Information Act. Hello...neat word...freedom. Previously, considered important in American-style democracy. Here, VA even has their general counsel helping us to understand that these materials "have gone missing" in response to our FOIA. And as Marc Antony said, "They that have done this deed are honorable."

Really now, are we to believe that employees did nothing regarding Agent Orange, failed to send emails, didn't use references or correspond,  were hired without qualifications being noted, haven't published professionally, and addressed issues of contaminated aircraft and vehicles without research or conclusions, other than voicing them at the meetings with veterans? Did they beam down and back up again without documents? 

The VA claims in its online publications and correspondence with Congress that it conducted "scientific research" by its scientists and physicians, but it cannot account for that in any way, other than the internet pages. But that undocumented "scientific research" seems to have been enough to deny Agent Orange exposure benefits to C-123 veterans, and in the face of other federal agencies such as the EPA, NIH, CDC/ATSDR and US Public Health Service claiming the C-123 veterans were exposed. VA, by claiming no such materials exist, must have simply sat down and started typing at a computer with the only work product being the online pages about the C-123 veterans magically being spared Agent Orange exposure. Right. Uh-huh. 

VA, by responding in the negative here, doesn't even have copies of the Air Force test results, the materials provided by other federal agencies and universities...nothing.

How could the VA conclude it would charge us $4700 to collect and duplicate materials which, on 11 March 2013 and a year after the FOIA submission, VA reports the items don't even exist? How could mid-level mangers from the VA's VBA and VHA organizations not prepare, not take notes, and not generate work product following a meeting such as this? Attending for the VA were physicians, scientists and managers such as Director Post Deployment Health and Deputy Director. 

Why is VA hiding these materials? Why are they even hiding the ones already published on their web sites? 

Can you please help? 

And remember, Marc Antony assuring us "They that have done this deed are honorable" men and women, as indeed they are. And, "If you have tears, prepare to shed them now." (Julius Caesar, Act 3, Scene II)

VA REJECTS All Other Federal Agencies' Medical Evidence as USELESS in Claims!

Incoming!

VA's Compensation Services last month informed veterans that expert findings by other federal agencies...in fact, evidence from whatever source, will not be considered as material adequate to bring a C-123 veteran's claim to the "as likely to as not" threshold. This is the 50-50 point at which the benefit of the doubt rests with the veterans, and that half-way point just won't be permitted by the VA for C-123 veterans.

And they meant it. On 28 February, the same day as the meeting with Compensation Services, during which we were told of the uselessness of any evidence we might present and the predetermination that our claims will be denied, VA's Manchester NH regional office indeed denied the Agent Orange exposure claim of a C-123 veteran.

C-123 Vet. "Dang - screwed again!

There seem to be two VA basic challenges to this man's claim. First, the VA denied his Agent Orange claim because he hadn't served in Vietnam. To better deny the claim and prevent the veteran's access to VA medical care, they simply ignored the Agent Orange Act of 1991, Title 38 3.09, and the clarification VA provided in the Federal Register 8 May 2010 where VA explained that any exposed veterans will be treated the same as Vietnam veterans if able to substantiate their exposure to dioxin.

The second method VA used to deny this perfectly valid claim was to pretend that other federal agencies lack any qualification to address exposure issues. All such opinions submitted in this man's claim as proofs were grouped as "lay evidence" and dismissed as lacking credibility. And what evidence was dismissed as lay evidence?

EPA, National Institutes of Health, National Toxicology Program, CDC/Agency for Toxic Substances & Disease Registry, US Public Health Service, University of Texas Medical School, Columbia University School of Public Health, Oregon Health Sciences University Toxicology Program, numerous independent scientists and physicians, the veteran's own physicians and other veterans' expert supporting testimony via sworn VA21-4138 forms

(note: all evidence was either specific to this veteran, or in direct, inclusive reference to him and all C-123 veterans similarly situated)

Included in what Manchester dismissed as lay evidence was evidence from Dr. Linda Birnbaum, Director, National Institutes of Health/National Toxicology Program, and a member of the National Academy of Sciences. Does somebody in the Manchester VARO bring to bear science credentials more credible than hers? Anyone in Manchester with an 80-page CV to match hers?

What threshold does Manchester set for a veteran's claim to be fairly evaluated, given that even this amount of powerful and convincing evidence is dismissed in their eager refusal to award service connection? Sorry...not actually "eager" as they took two years to get around to denying his claim! Anyway, their threshold is one of  VA policy, not science or law!