CONGRESSMAN HALL - OVERVIEW OF HERBICIDE VETERANS ISSUES… STILL UNRESOLVED by the 110th Congress

 

 

Attachment 1

 

Here is an example of what Veterans are fighting within the VA claims stalling system.  Is it any wonder the outstanding unresolved claims just keep growing?   This kind of action is nothing but government tyranny by the VA. 

 

“Kelley,

 

I have been diagnosed with prostate cancer, which I have read and assume is a covered disease.  The VA is using a play on words to stall or possibly deny service connection because the prostate pathology report found “adenocarcinoma”.  It doesn't specifically say prostate cancer! Adenocarcinoma is the medical term for cancer, which was on the pathology report. 

 

Nothing is certain when it comes to the VA.  Thanks for all your efforts and time to help us all.  God bless.”

 

This Veteran should be fully informed that yes Prostate Cancer is associated to Herbicide Exposures.  There would be no question if there were any ‘VA Outreach’ at all.

 

This Veteran’s pathology report from a biopsy taken from his prostate states ‘found adenocarcinoma’.  In any language or common sense interpretation of that pathology report it equals ‘Prostate Cancer’.  Yet, VA is allowed to even question this finding by demanding the pathology report actually say “Prostate Cancer”.  Doing nothing but stalling.  All the while making the Veteran jump thru hoops like an animal.  This happens thousands of times a day for our Veterans and Widows from a very adversarial federal agency.

 

It is highly recommend that a Congressional Oversight Investigator be sent to the field to talk to the claims folks on this.   From the claims handler, immediate supervisor, and the group manager to find out why this claim is even in question and why is it being held up for processing because the person handling the claim is either an idiot or totally ignorant and has no business even looking at the claim; much less any decision making authority.

 

Attachment 2

 

The Ranch Hand Study was funded by Congress and designed to generate significant scientific data and analysis to be used by the Department of Veterans Affairs [VA], and others in making health care and compensation decisions regarding Vietnam Veterans.  Yet, this study consistently for 28 years plus has been used for just the opposite of what congress funded the study.  

 

History shows Ranch Hand has been slow to publish findings, unwilling to share data, inconsistent in conveying design limitations, and resistant to congressionally mandated participation by independent parties, including the stakeholders, the Veterans/Widows themselves.

 

Many Veterans and families and some members of congress believe this research was designed to fail or manipulated to avoid controversial findings related to death and disability associated to the ‘Herbicide Exposures’ in many areas of body system and organ damages.  Just one of these medical areas being avoided and not published in the reports is the finding of an association of ‘all site cancers’ to both dioxin and/or service in Vietnam.

 

For example:

 

Air Force Health Study of Ranch Hand Personnel

 

AIR FORCE DATA: Significant cancer data and results generated as part of the Air Force Health Study were knowingly left out of the final report. For example: 

PURPOSEFUL EXCLUSION:

 

The data omissions were ‘unquestionably intentional’, since the Ranch Hand Advisory Committee at its meeting of 19 November 2004 recommended that all Air Force Health Study cancer data and results ‘should be included’ in the final report.

 

RESEARCH INTEGRITY ISSUES:

 

Well-established scientific standards were circumvented by omitting Air Force Health Study data and results from the final report. Federal guidelines on research misconduct define specific concerns. For example:

 

42 CFR Part 93 

Veterans Health Administration Research Misconduct Handbook 1058.2 

CONCLUSIONS:

 

The intentional omission of cancer data and results from the Air Force Health Study of Ranch Hand personnel means that the research conducted by the Air Force “is not accurately represented in the research record.” This is confirmed in a VA Agent Orange Review – Vol. 22, No. 1, October 2005 – where the Air Force Health Study was summarized.  It states that the “results do not suggest that herbicides or dioxin exposure are related to cancer in these veterans.” That is directly contrary to the found data and results.

 

The Air Force Health Study and published results did not evolve as more and more damaging data was found; the highest levels of our government manipulated it to show there was no damage when clearly there is data to the contrary.

 

For the final report to say there is no cancer effect when the data clearly demonstrates ‘all site cancers were found increased’ is flat scientifically wrong.  This intentional omission verges on the criminal with intent to hide found scientific evidence that would be used to judge the Veterans/Widows case against our own government and prove their Service Connected Cancer(s) in mortality and disability.

 

The study was flawed from the very outset 28 years ago by including individuals in the comparison control cohort (those not exposed) of whom almost half were indeed exposed while serving in Vietnam.

 

In essence, false assumptions of cohort comparison group whether directed or not has fatally flawed the published study.  Which in turn is then used against Veterans/Widows.

 

Is this no different from a pharmaceutical company running a clinical trial on a new medication, and they found out later almost half of the people who were in the placebo group were actually taking the new medication.  That ruins the whole study along with any statistical analysis done and published. Would that not ruin your trial and compromise any data derived from that trial?   If the company knowing this, still published their false positive statistics and then were found out; would congress or any government legal authority just ignore this fact.

 

Would Congress then consider this fraud?  Should it make any difference if it is a civilian entity or an entity of the Federal Government?  If they both know the published data is flawed are not both just as guilty.

 

Congressman Hall … if the ‘all site cancer data’ is this flawed---then what else in mortality and disability disorders were also statistically improperly presented and published?  False data generated specifically in order for Veterans Affairs to deny the Veterans/Widows ‘Service Connection’ to Herbicides (Plural) exposures (Plural)?

 

It is conservatively estimated that Veterans can prove an “increased risk of incidence” or “significant correlation” to at least 28 plus disorders.  Which is all that the district courts indicated we needed to prove Service Connection.  I also believe that congress also has agreed to this level of association without having to show causation down to some microbiological level that no one in science has been able to accomplish.  Yet, we presently have no forum to prove these issues as stakeholders and victims.  Only the declarations by the Secretary of Veterans Affairs seemed to matter and he has a direct conflict of government bias.  

 

Is this the kind of Government treatment Veterans earned in Service to this Nation?  Facing integrity issues daily of our own government.  Is this their just reward?

 

{Many thanks to one of our stand up cancer research scientists for providing the information.  A true Veteran Hero in our just cause.}

 

 Attachment 3 

 

Congressman Hall…the two worst enemies of the United States Veteran/Widow are the Feres Doctrine used by both DoD and VA against Veterans/Widows and the appointed Secretary of Veterans Affairs.  A federal agency head appointed by the Executive Branch in all cases deemed the defendant in legal matters of death and disability; a direct conflict of interest.

 

Adding to this direct conflict of interest is USC 38 paragraph 511 wherein Congress abdicated its responsibility for justice and separation of powers demanded by our constitution.  Giving sole legal power to an Executive Branch appointee (the defendant) over an entire segment of society (the plaintiffs).   Congress has assumed integrity in decision-making and guaranteed constitutional justice with this absolute power when there is very little if any in many cases as previously pointed out.

 

For Veterans/Widows this is nothing new.  The same processes used now to deny/stall Herbicide Issues, Gulf War Issues, etc were used against the Nuclear Test Veterans.   (See Referenced NY Times Article furnished as Attachment 8)

 

Clearly this article describes VA being caught in destroying 1,000’s of records in order to deny or stall claims.  Clearly this article also describes VA officials had lied and that records were being destroyed to deny claims in agency employees seeking high performance personal reviews.  All of this was found in a court of law and still VA officials contended at the very same time they were being found guilty that the VA process was nonadversarial. 

 

There are few outside of VA that would conclude the destroying of records can be even remotely compared as "nonadversarial".

 

Congressman Hall…there is no shame within the VA.  I would also bet if you checked the record those caught doing these despicable issues to our nation’s best citizens that nothing was done for punishment except maybe a VA promotion or two.    

 

In listening to the congress in the present financial crisis a congressman used an example of 400 economists some of the Nobel Laureates had indicated the present bailout bill was not the way to go.

 

Ironic that over 5,000 scientists many of them also Nobel Laureates petitioned the government early in the Vietnam War not to use these herbicides because of the unknown short; as well as long term implications in death and disability.

 

On September 17, 2008 ABC news reported, “the federal government says more than 400,000 Veterans are dying from illnesses linked to Agent Orange Exposure from their time in Vietnam.”  That statement indicates presently dying and does not include those that have already succumbed or those that have not manifested yet, due to the latent properties of how dioxin works.   Which is like throwing a hand grenade into the most delicate of human biological processes with outcomes and severity as wide spread as any medical book can describe.

 

How many of these does VA actually have on the books as being compensated and Service Connected?  Not many!

 

While Congress has abdicated its responsibility, Veterans and Widows are willing to fight for their rights and justice.  However, the VA sole power deck is stacked against them in seeking this justice.

 

The lack of transparency of how this absolute government power makes presumptive disorder decisions is unconstitutional.

 

Veteran/Widows/Offspring have no idea of what level of certainty this agency is demanding or what the measurable objective defined criteria for such inclusion, as ‘PRESUMTIVE’ requires.   Therefore, it is impossible for the plaintiff to address the legal ramifications of VA decisions or the lack of decisions with their own evidence of facts.

 

In fact, this absolute power is a double-edged sword for the plaintiff.  The rules that state a Veteran can present his or her own case is nothing but a joke.  At the local level, VA denies a claim no matter how much valid scientific evidence is presented by the plaintiff.   The local VA just states, “that the Secretary of Veterans Affairs has "previously concluded" the “disorder is not associated to the militarized herbicides”.

 

When the Veteran/Widow submits a claim to VA they may thank you for the evidence and education but then say they cannot approve the claim because of USC 38 where the Secretary has already declared a non-association.  It matters not what the evidence indicates.  You might get a denial in one to maybe two years.

 

Then you go to the Board of Veterans Appeals and in their decisions they also use the same denials…

  

“The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341, 346 (1994); see also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996); 67 Fed. Reg. 42,600, 42,608 (2002).”  You also may get a denial in one to two years. 

 

The BVA may remand it back to Veterans Affairs Appeals Management Center there in DC.  If so, you will be lucky to get a ruling back in two years.  Is it any wonder that it takes six years or longer to get claim finalized.  (For example my BVA remand which is supposed to expedited according to the BVA paper work is sitting there since February of 2007.  No change.  I just call on status and they say they are waiting for someone to pull the file and look at it.

 

In other words, the judge has already ruled no matter what evidence is presented to the contrary.  Is there any other segment of our society that the judge appointed by the defendant rules on what is associated or not associated before the plaintiff can present a case?  The validity of the evidence presented means nothing because the judge has already passed judgment and has the sole power to do so.  How does this even come close to guaranteed constitutional justice and redress for government created death and disability?

 

Can anyone in Congress call this any form of constitutional justice other than a government agency run by an appointed dictator with the power of the President and seemingly Congress behind that dictatorship?

 

Note:  I received e-mail on 30 September 08 from one of my widows who had promised her dying husband that she would not let the government get away with denying his Service Connection for brain cancer and the Herbicide Association.  She was finally awarded her DIC claim and admittance it was service connected some four years after appealing.   She fulfilled her promise even though during that time she had to sell the family home and face all kind of issues.   Attachment 2 describes why his cancer should have been presumptive long before his death. 

 

She fulfilled her promise to a dying Veteran, which is more than we can say for our own government.

 

This also goes to the points made in Attachment 6. 

 

Why should other widows have to fight for the exact same thing when the scenario is exactly the same? 

 

Does this make any sense other than creating a Veterans Lottery System for Service Connection?  

 

Attachment 4

 

Going hand in hand with Attachment 3 is the jury for the Veteran/Widow/Offspring in the form of the Institute of Medicine (IOM).

 

After the despicable biased performance found in the decision making processes of the Veterans Advisory Committee on Environmental Hazards (VACEH 1979 – 1991) for recommendation of presumptive disorders Congress contracted with the IOM for recommendations.

 

However once again as with the VACEH, plaintiffs have no idea of the measurable objective defined criteria for such inclusion, as ‘PRESUMTIVE’ requires for recommendation to VA.  The jury (IOM) deciding legal ramifications for Veterans and Widows is purely subjective not objective without defined measurable addressable processes for recommendations to be addressed by the plaintiffs.

 

Recently IOM recommended two more presumptive disorders, four decades after our war was over to be added.  VA then has the omnipotent power to approve or disapprove.  In this case, VA approved one and denied the other based on their opinion.  An opinion based on some undefined measurable process in which once again is unknown and unchallengeable by the plaintiffs.

 

What is even more unexplainable as to this process is the denial by both of the most prevalent disorder found associated to dioxins in peripheral neuropathy.  Found in many studies of dioxin exposures years after that exposure.  Including two studies by the prestigious International Agency for Research on Cancers (IARC) going back to 1977 and 1986 that dioxin exposures were associated to this neurological disorder.  Even the biased VACEH found that dioxin was associated to peripheral nerve disease and recommended presumptive association for health care and compensations.

 

Veterans Affairs then took a ten-year exclusion after exposure down to one-year exclusion, which of course makes no scientific or medical sense whatsoever.  Then added a two-year exclusion that this damage would repair/resolve itself within a two-year time limit.

 

To add insult to injury for the neurologically disabled Veterans no one at IOM or Veterans Affairs knows the etiology of this damage.   Yet, can put a time limit of manifestation after exposures and a time limit for the neurological disorder to resolve with a stroke of a pen.  How?

 

The ALS issue is also “just as likely not associated to dioxin” created neurological issues no different from the many studies that have found another neurological disorder associated as in Parkinson’s.

 

No different than the found ‘all site cancers’ not everyone will develop the same cancer from the exact same causation.  Especially when one considers the persistence of dioxin in the body and the level of damage or changes that dioxin creates.  There are many genetic variables as well as genetic pathways that determine the outcome of causation such as dioxins.  Degenerating neurological disorders will also be varied as to their outcomes based on the same damaged genetic damages and genetic widely varied pathways. To conclude otherwise would be spurious at best.

 

No different from exposures to the Epstein-Barr Virus (EBV) that the effects lay dormant for decades and then are associated to the development of many ‘different cancers’.  Or autoimmune disorders associated to EBV when the cell maturation to a malignant cancer is arrested for whatever the reason; more than likely genetics and key pathways play a role in the outcomes.

 

The bottom line is … there are many questions and demanded documented answers that Congress should be asking for the benefit of their Veteran constituents of both the IOM and VA that have gone not asked for much to long while Veterans are denied death and disability service connection.   

     

Attachment 5

 

Veterans Affairs lack of performance in the realm of approving already approved presumptive disorders is nothing short of a crime.  A VA crime that bottlenecks the VA Service Connection process which then has a direct flow down effect to all claims in the system; presumptive or not.

 

Many of these presumptive decisions do not require a Compensation and Pension (C & P) exam as the rate of compensation is spelled out in rating decisions based on severity or in the case of diabetes the treatment level required for the disorder at that time.

 

Yet, even for stage IV presumptive cancers VA somehow cannot define or refuse to amend their processes of decision-making that require the validation of three data points or in some cases four depending on the treatment plan.

 

The outcome of this lack of performance for the Veteran and family is nothing short of tragic.  Waiting months for a VA decision and financial support that should be approved within minutes of receiving the application for earned benefits.  Meanwhile, VA knowing the Veteran is probably not going to survive benefits greatly on ‘not approving a ten-minute claim’ without taking months or even over a year as the Veteran battles for life.

 

These types of claims only require the following; a diagnosis of which most of the time the Veteran is in a VA hospital or being diagnosed by VA doctors, is the diagnosis on the presumptive list, and does the Veterans DD-214 reflect qualification for the presumptive disorder.  That is all that is required.  These decisions and the amount of time to get the financial aid to the Veteran and family to help battle his or her cancer(s) far to often come too late.  Even the approval of the claim the Veteran knowing he or she is not going to survive is a blessing knowing the Veteran is not leaving his or her family to fend for themselves.  But again these approvals and financial support far to often come to late for even ‘peace of mind’.  Considering that most of these men served in combat environment and the government created his death by their own arrogance. 

 

This treatment by Veterans Affairs is inexcusable and certainly no one in Congress can justify this lack of performance. 

  

Attachment 6 

 

As the backlog of claims approaches 700,000 it is inexcusable not use Information Technology already in use and previous claims that are similar and have gone through all the litigation bells and whistles from VA denials and then finally claim approval at the Board of Veterans Appeals (BVA).  The risk to the government that someone would be awarded a claim erroneously would be slim.  

 

As it stands now, you can have two soldiers with the exact same disorder/diagnosis that served in the same unit, during the same time period and one claim is denied while the other is approved.  A disorder that is at least as likely as not associated to dioxins as found through litigation and the Board of Veterans Appeals process. This makes no sense whatsoever in common sense nor in a legal setting that this is currently happening.

 

Use the data already accrued by BVA in their computerized data of claims that are searchable by data fields that have been found “at least as likely as not” associated to government created herbicide exposures while in service to the nation.  Is not an approval for one Veteran good enough for the next Veteran or Widow for the identical issue?  (If the answer is no then why not?)

 

It is not out of the question that 200,000 plus claims could be resolved within six months for both Veterans and Widows using this practical recommendation.  Again there would be little risk to the government that an erroneous claim would be approved.  This is because these claims are almost identical and nothing but duplicate after duplicate with the exception of the VA claim number or BVA docket number and the Veterans/Widows name.

 

Why try 100,000 same cases one at a time for years on end when they are so very similar for the same underlying connection to military service.  Why not group these claims that have already been found approved/associated and mandate an approval for all such similar claims?

 

If not, then the intention of Veterans Affairs is clearly to deny these claims as long as possible.

 

Is it worth alienating the entire Veteran/Widow population?    

 

 Attachment 7

 

The Department of Defense (DoD) as in so many of our herbicide issues has not been forthcoming.  DoD has made direct successful attempts at what must be consider lying to avoid self-incrimination while so many Veterans died ‘not service connected’ as a direct result of Department of Defense fraudulent actions.

 

Congress itself has declared that civilian contractors that worked “on our near the Korean DMZ” from September 1, 1967 to August 31, 1971 qualify for inclusion of compensations from the death or disabling of such civilian contractors and the presumptive disorders listed by VA.

 

Yet, VA only allows certain unit assignments and the inclusive dates are much narrower only covering those men who served in specific units from April 1968 to July 1969.

 

For example:

 

Veteran David Hill from Tennessee served on the Korean DMZ and had three letters from the men he served with in that location.  As well as a letter from the commanding officer that made the assignment.

 

Veteran David Hill was diagnosed with two already presumptive cancer disorders to dioxin and given 18 months to live.  Veteran Hill was assigned to that location two months after the inclusive dates used by VA but well within the inclusive dates used by congress for civilians.

 

Veteran Hill contacted me and I gave him the half-life of dioxins as characterized by our Environmental Protection Agency in several soil conditions as well as characterization of environmental conditions such as degeneration by photosynthesis and the fact that dioxins are not water-soluble.  Even the very minimum half-life condition concluded that Veteran Hill clearly would have been exposed two months after Department of Defense states it stopped the usage of herbicides along the Korean DMZ, which as previously stated is suspect at best.

 

VA then concluded that any half-life study would have to be done on the Korean DMZ.  Which means that VA has the power to determine the laws of chemistry and that characterization must be done at a ‘specific geographical location’.  (i.e. the laws of physics and chemistry do not apply unless our VA says it does when it comes to Veterans/Widows.)

 

VA denied Veteran Hill’s case and Veteran Hill succumbed to the two presumptive cancers in less than a year leaving a widow and one minor child.  

 

Of course none of this makes any common sense much less scientific sense based on the evidence.   In a real court of law there would be no question.  But what is even more staggering in this VA denial is:

 

Veteran Hill had his medical records that clearly demonstrated after serving on the Korean DMZ he was discharged with Pustular Acne.  He did not have this disorder before he served on the Korean DMZ.  Pustular Acne is one of the hallmark signs of dioxin exposure used by scientists when comparing dioxin cohorts.

 

No, this is not the ‘atypical case’ but the ‘typical case’ and how VA denies Service Connection for what are obvious connections to Herbicide Exposures.

 

I also find it somewhat convenient and coincidental that DoD, after finally admitting they used these toxic chemicals along the Korean DMZ after years of denial then gave permission to the finance center to destroy the pay records of these men.   Thus denying the Veterans any easy undeniable proof of ‘hazard duty pay’ for serving along the Korean DMZ.

 

 

Attachment 8

 

From 1987 New York Times

 

RULING SPURS EFFORT TO LET VETERANS HIRE LAWYERS

 

By BEN A. FRANKLIN, SPECIAL TO THE NEW YORK TIMES

Published: January 15, 1987

 

LEAD: A Federal judge's finding that officials of the Veterans Administration unlawfully destroyed thousands of documents is likely to revive a drive in Congress to alter a century-old system that limits veterans in pressing appeals, veterans' and Congressional spokesmen say.

 

A Federal judge's finding that officials of the Veterans Administration unlawfully destroyed thousands of documents is likely to revive a drive in Congress to alter a century-old system that limits veterans in pressing appeals, veterans' and Congressional spokesmen say.

 

Representative Don Edwards, a California Democrat said that as the senior member of the House Veterans Affairs Committee he would ask for ''immediate hearings'' on his proposal to change the law. The law limits to $10 the amount a veteran can pay a lawyer to appeal a decision of the agency and allows no appeal to the courts beyond the agency's own Board of Veterans Appeals.

 

But the chairman of the committee, which has blocked repeated attempts to bring such legislation to the floor, indicated today that the effort would be a struggle.

The chairman, Representative G. V. (Sonny) Montgomery of Mississippi, said in a letter to Mr. Edwards that because the court had already taken ''corrective action'' he saw no need for his committee to repeat hearings on the Edwards bill. Last July the panel rejected the measure, 20 to 12.

 

In the ruling last Thursday, Judge Marilyn Hall Patel of the Federal District Court in San Francisco said that V.A. officials had lied in denying allegations of misconduct in processing claims and that she would appoint a court overseer for the agency's pension and compensation division here.  She found that officials had destroyed evidence that veterans' claims had been randomly denied by agency employees seeking high performance ratings.

 

The case involves several thousand veterans who have been denied compensation by the agency for illness and death that they contend resulted from exposure to radiation while on military duty in the early years of atomic weapons. But one of their main arguments affects all of the nation's 28 million veterans and their 25 million heirs and survivors.

 

The ''atomic veterans'' say that their inability to hire lawyers to press their cases in the legally and medically complex dispute, and to take appeals to the Federal courts, effectively deprives them of the ''due process of law'' that the Constitution guarantees.

 

The law dates to the Civil War era, when the intention was to prevent unscrupulous lawyers from gouging the first veterans granted Government benefits. But the effect has been to limit professional legal representation in veterans' claim disputes to lawyers willing to undertake appeals before the agency as a public service without fee. They are few.

 

In 1985 the Supreme Court overruled a finding by Judge Patel that this constituted an unconstitutional denial of due process. But the decision allowed her to explore whether the veterans in the California case had been denied due process through a pattern of error by the V.A., conduct that the Court said might, after all, be a violation.

 

Her finding last week that officials had dealt with some claims ''recklessly'' and unlawfully has focused new attention on the overall issue.

 

Mr. Montgomery, the House committee chairman, has said that if the major national veterans' organizations dropped their opposition to changing the current system, he would reconsider his unwillingness to clear such a measure for a vote on the House floor, where more than 200 members have indicated their support for it.

 

Last week, Senator Alan Cranston, the California Democrat who heads the Senate Veterans Affairs Committee, said he would work for such an agreement among the veterans' groups before attempting Senate passage of the measure. The Senate has passed bills to change the claim procedure six times in the last eight years, only to have them held up in Mr. Montgomery's committee.

 

The Veterans Administration has argued that the current arrangement is a smoothly running ''nonadversarial'' system and a ''pro-veteran process.'' The intrusion of judges and lawyers would ''sour the already good system to the detriment of all veterans,'' according to the agency's general counsel, Donald L. Ivers.

 


 

Hard Copy to:

 

Congressman Filner

Congressman Shays

Congressman Waxman

Congressman Conyers

Congressman Kagen

Senator Akaka