HOUSE COMMITTEE ON Veterans AFFAIRS

 

PRESENTATION BY CHARLES W. KELLEY

December 6th 2005

 

ATTACHMENT Three

 

BVA case showing “no benefit of the doubt” given on PERIPHERAL NEUROPATHY

 

This was an actual case involving a Marine in his appeal for polyneuropathy damages before the VA court,” which Congress established "just for the Veteran."

 

Citation Nr: 0317458              

Decision Date: 07/24/03   

Archive Date: 07/31/03

 

“…Thus, the VA examiner noted in July 2002 that the veteran had undergone an excellent extensive work-up by his treating neurologist that had been negative for a causative agent for the peripheral neuropathy.  He said that the treating neurologist was making the "expected statement" that although the etiology of the disease was unclear; the only identifiable potential cause was his exposure to Agent Orange.  The VA examiner stated that this would never be proven one way or the other because he was unaware of any tests that would detect any long-term residual of Agent Orange.  The examiner went on to say that while the veteran's extensive evaluation had disclosed no clear etiology for the peripheral neuropathy, this was true in many such cases.”

 

A totally nonbiased veteran’s doctor indicates he has done a complete work up on the veteran, and has concluded that “more than likely” neuropathy was caused by toxic chemical exposure.

 

The VA examiner also acknowledges the extensive and thorough testing and evaluation of the medical facts by the Veteran’s doctor.

 

The VA examiner then states, the doctor is making the expected statements, but there are no tests to conclusively show the toxic chemical created the neuropathy problem, or to prove it one way or the other.

 

The VA examiner then states, there is no testing that would detect any long-term residual of Agent Orange.  This is of course an out and out VA lie and beside the fact, it is totally immaterial and irrelevant to the case.  Of course, the VA examiner ruling in this case then qualifies his statement by saying he is “unaware” of a test.  Nice crafting of words.  The issue is not only this lie, but also the VA examiners biased conclusions that only the dioxin TCDD or Agent Orange as a composite could be involved in the cause. 

 

If you check with any neurological clinic, or Harvard Medical you will find that they state that at least 33% of all neuropathy cases will be idiopathic, and a cause (etiology) will not be determined at that time, and may never be determined.  This is a typical example of where “the benefit of the doubt,” does not in fact apply as far as the VA is concerned.

 

We have the VA examiner admitting there are no conclusive tests to prove the causation of neuropathy and we have the VA examiner lying about the testing that is available.  We have our most prestigious neurological clinics, and some of our most prestigious research university hospitals stating that in at least 33% of all neuropathy cases will remain “idiopathic” (cause not found).  This veteran cannot even get the already established world of medicine “33-percentile benefit of the doubt” in this medical disorder; much less, the "congressional mandated benefit of the doubt" for toxic chemical damages.  Toxic chemical damages are known world wide to cause neuropathy and neuropathy medical disorders.  

 

The Ranch Hand study itself admits many times and states this as one of the “highlights of the study” that a "linear dioxin dose response to peripheral neuropathy was found."

 

The Korean Agent Orange Impact study found peripheral neuropathy associated to dioxin by a p-value of 0.039 (96.1 positive association).  This study also found in comparing peripheral neuropathy in Vietnam Veterans to those non-Vietnam Veterans a p-value of 0.0042 (99.58 positive association to service in Vietnam).

 

Dow Chemicals’ own point man indicated destruction of nerve fibers and nerve sheaths (neuropathy).   This neuropathy and neurological disorder explosion among Vietnam Veterans was also predicted in 1989 by the OTA and toxicology experts at the EPA.  This medical prediction, and medical rational was sent to the Secretary of The Department Of Veterans Affairs.

 

In the above-cited case that biased VA examiner knew this, yet still negated the Veteran’s doctor’s conclusion and certainly negated any "benefit of the already established “33% world standard medical doubt” or congressional mandated “50% benefit of the doubt” that is supposed to be awarded to this Veteran.

 

Neuropathy issues are one of the most prevalent, if not the most prevalent, medical issues before the Veterans Court of Appeals.  This data point is backed up by two Korean studies that after the second study categorically states that peripheral nerve disorder is the most prolific disorder among Vietnam Veterans  associated to Agent Orange exposures. 

 

Common sense would tell you that there is a connection between Vietnam service and these prolific manifestations of general nerve and ataxia muscle damages.  The VA examiners and claims adjusters are not medical professionals or toxic chemical experts.  Yet, they continually override the universal laws of statistics and probabilities, including the known medical facts.

 

How do they, as VA representatives, get away with this corruption and lies?  They are totally immune to any legal or professional discipline and are protected by the entire government, including our own congress it seems. 

 

Four decades ago, this neuropathy nerve damage issue was not prevalent in any segment of society other than among environmental toxic chemical workers and those exposed during toxic chemical accidents.

 

Some of my guys and Marines who served in Northern I Corps have been diagnosed with neuropathy, and/or  neuropathy with muscle ataxia (weakness) that progressed to a diagnosis of Multiple Sclerosis (MS).  There are few diseases with more potential symptoms than Multiple Sclerosis.  Some of these Veterans have gone on to be diagnosed with Parkinson’s disease.  It was predicted in 1989 that this degenerative nerve disease would begin to manifest in Veterans who were exposed to toxic chemicals.

 

I found very few studies done on the effects of these toxic chemicals on the “autonomic nervous system,” even though some of the toxic chemical workers demonstrated this impact.  This could also be attributed to sleep apnea, digestive problems, insulin problems, low heart rates, etc. that Veterans are developing.  Outside of the VA and NAS/IOM, central and peripheral nervous system damages are associated to dioxin and other toxic chemicals.  This must include damages to the autonomic nervous system. 

 

“While noting that he was not an Agent Orange expert, the VA examiner said that neuropathy is typically associated with Agent Orange exposure by ruling out other possibilities.

 

Where, as here, there has been a completely negative work-up, and there is exposure to Agent Orange, it is presumed that Agent Orange is the cause.  The examiner therefore concluded that "it is at least as likely (50%) that the [veteran's] peripheral neuropathy was related to Agent Orange" simply because there was no other identifiable agent to which to attribute it.  However, the examiner also noted that there was no objective evidence as to the cause of the peripheral neuropathy, although there was much evidence of the presence of peripheral neuropathy.” 

 

The VA examiner states that he is not an Agent Orange expert.  Yet, the board decision is based on this VA examiner who is not qualified to make any judgments regarding the effects of Agent Orange.  The VA examiner concedes that the protocol the Veteran’s doctor used in his conclusion was indeed the correct protocol.

 

The VA examiner, by his own admission indicates that there is at least a 50/50 chance that the Veteran’s medical issue is Agent Orange related.

 

The examiner admits the damage was shown, but there is no objective evidence as to the causations of the damaged nerves.

 

What he did not say again was that approximately 33%, or greater of progressive degenerative neuropathy cases are idiopathic, and no cause will ever be discovered, unless the neuropathy is a symptom of a more serious underlying issue that is not yet detectable.  The underlying more serious causation may manifest later in a more detectable state including types of neuropathy associated with developing cancers that are already admitted as associated.

 

In cases of toxic chemical caused gammopathy issue causations, some of these are not detectable, yet they are presumptive in these nerve damage issues from immune system damages creating deranged antibodies that attack the nerve sheath, or the nerve itself.  This is also found in the cancers we have already listed.

 

The EPA concluded that dioxin creates autoimmune issues at 100 times less body threshold than any cancer, but the VA ignores, or dismisses this science.

 

Common sense would indicate that this statement would conclude that there should be more autoimmune type diseases than cancers.    

 

“The Board notes, however, that in May 2003, VA gave notice that the Secretary had determined that a presumption of service connection based on exposure to Agent Orange used in Vietnam during the Vietnam era “was not warranted” for a number of disabilities, including "chronic persistent peripheral neuropathy."  68 Fed.  Reg. 27,630 (May 20, 2003).”

 

What was not brought out, or acknowledged: 

 

·    In 1989, the OTA studies indicated that peripheral neuropathy would show up in Veterans as they age, and the long-term chronic toxic chemical damages they sustained would manifest.   

 

·    In 1996, President Clinton added “acute neuropathy.”  By the time the Secretary of the VA was done with it, it became “acute and sub acute transient peripheral neuropathy,” with a one year removed from exposure (Vietnam), and two year clearing of symptoms or cured.

 

·    At one time, the VA was considering a 10-year exemption.

 

·    The EPA in reaching their conclusions used over 100 independent scientists not associated with the EPA, the VA, or the government.

 

·    The Ranch Hand Study itself points out as “studies highlight” a found linear dioxin dose rate to peripheral neuropathy.

 

·    The Korean Agent Orange Impact study provided overwhelming evidence of an association to dioxin and peripheral neuropathy.

 

·    The VA study of Army Chemical Corps workers points out neurological diseases.

 

·    The Secretary of the VA with no medical training can and does override the findings of our country’s finest toxicology experts and the overwhelming evidence that is contrary to his statements made above.  

 

The board states that the VA Secretary proclaimed that polyneuropathy is not Agent Orange associated.  In the real world of medical science, overwhelming evidence shows that neuropathy, at any age, is not only a possible cause of WMD toxic chemical exposures, but neuropathy may also be a symptom of more serious developing toxic chemical medical conditions of the immune system.

 

“In accordance with the law, this determination took into account scientific studies conducted by the National Academy of Sciences (NAS).  See 38 U.S.C.A. § 1116(b)(2).  The initial NAS report, "Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam," was issued in July 1993.  A number of subsequent reports followed, with NAS issuing its fifth report in January 2003.  NAS found that there was inadequate, or insufficient evidence of an association between exposure to Agent Orange, and chronic persistent peripheral neuropathy.  Taking into account the available evidence and the NAS analysis, the Secretary found that the credible evidence against an association between Agent Orange exposure and chronic persistent peripheral neuropathy outweighed the credible evidence for such an association and determined that a positive association did not exist. See 68 Fed.  Reg. 27,630, 27,636-7 (May 20, 2003); 38 U.S.C.A. § 1116(b)(3).”

 

The VA goes to great lengths in detailing what a study must have to meet their standards of “proof” and what protocols are needed in proving associations to Agent Orange.  The EPA’s conclusions do not meet the VA’s protocols since their (EPA) conclusions are overruled by the VA secretary’s arbitrary ruling.  The VA board states that scientific studies done by the NAS prove no associations.

 

I would like to see those NAS/IOM studies that show “no associations” that override a found dioxin dose response by a government study funded just for this purpose to specifically evaluate peripheral neuropathy.  In fact, two different government studies found the same thing.  A consistent linear dose response to neuropathy and dioxin was statistically confirmed.

 

The Secretary of the VA has put this insane theory together that this toxic chemical-induced polyneuropathy will go away once the veteran is removed from the toxic chemical and/or it will resolve, or be cured within two years after removal.  This means that at least the three neurologist I have personally seen, and the countless other neurologist my guys and my brother Marines have seen across this country, including many VA neurologist, are either total liars, or should no longer be practicing medicine.  The unanimous consensus is that this medical disorder “is not curable” and the only thing we can do is take “Nuerontin” (the VA equivalent is “Gabapentin”) for the rest of our lives in order to try and reduce the pain.  Most of us are already on the maximum dosage of 3600 mgs a day and it is not working.  To get any pain relief at all some Veterans are having to use morphine tablets.

 

The above is a perfect scenario of what Congressman Christopher Shays stated in 2000 as he described, “telling Veterans the truth.”  “By the time we will know the scientific data, you are dead.  You will either have died early or you will have died in your old age in pain, but you will not get help from the Federal Government.” 

 

What the congressman did not say, but described; is this is all government-preplanned activity and collaboration.

 

The Secretary of the VA as a representative of our national government along with NAS/IOM members obviously knows how to cure this toxic chemical induced nerve damage since he pronounced the time limits, and will not tell anyone, much less tell their own VA doctors.

 

Maybe Vietnam Veterans should start lawsuits against our neurologists and doctors for malpractice since they obviously, according to the Secretary of the VA and NAS/IOM, do not have a clue what they are doing regarding our nerve damage issue.  The United States Government and NAS/IOM categorically say it is curable, yet our doctors across the nation seemed to be incompetent medical morons regarding this specific medical problem.   

 

Congress needs to demand that the VA explain why this Veteran and thousands of others are being denied compensations for this debilitating medical disorder.  I would include NAS/IOM in that explanation demands also.  Even without a certified found linear dioxin dose rate, the overwhelming evidence shows that this is a result of dioxin damages and has met the standards of the Dioxin Act of 1984 many times.  Including that the world standard is about 33% will never be identified as to cause.  In fact, my VA neurologist quoted to me that at least 50% would never be identified as to cause.

 

Does the VA now have protocols for NAS/IOM to “denounce associations?”  The VA board above implies that NAS/IOM is actually conducting studies, and not just reviewing data.  Is anyone besides the VA watching the NAS?  Do they have any rules?  Do they have published procedures and processes they use to determine the fate of Veterans and Veterans families?  If they do, is anyone checking to make sure they are following their own rules?

 

Where if any, is the “Benefit of the Doubt” in this new science, applied?  Does the VA have a greater toxicology expertise than the over 100 independent scientists who say they are wrong?

 

The NAS/IOM rationale is that “they” do not know how to apply it to the Veterans, so therefore their recommendation is “not associated.”  Does this mean that “ignorance” is now an excuse to disallow Veteran’s compensation?

 

Why do they not know how to apply it to the Vietnam Veterans?  What do they need to find a specific way to apply it to the Veterans?  What information is lacking?

 

NAS/IOM states they know dioxin causes this, or that, then adds the open-ended statement, “they do not know how to apply it.”

 

With the previous documented White House corruption identified by our own congress in HR 101-672 in 1991 does anyone trust what is going on?

        

The congress contracts the NAS/IOM.  The NAS/IOM concludes that the toxic chemicals do cause the medical problems, they just lack the ability, or knowledge of how to apply it to the Vietnam Veterans therefore it becomes by default, “inadequate” for allowing compensation.  This is also the same denial method used in the Ranch Hand reports.  Whether this is VA directed is unknown.  Since the biased VACEH used this similar form of “not proving” associations from 1979 to 1991, when the NAS/IOM entered the picture, I would conclude that NAS/IOM is being used in the same way and for the same purposes.  Given the history of the VA, and our government in previous mass veteran’s issues (atomic vets), this is most probably the case.

 

Veterans can no longer trust our government to establish diseases, or medical issues of “inclusion?”

 

Remember the above statement by the VA examiner?  “The examiner therefore concluded, it is at least as likely (50%) that the veteran's peripheral neuropathy was related to Agent Orange" simply because there was no other identifiable agent to which to attribute it.”  In a 50/50 tie, the veteran is supposed to win even with out the so-called toxic chemical benefit of the doubt.  At least that is what our “Veteran friendly” congress has told us since 1984.

 

The Court Of Veterans Appeals is rigged against the Veterans.  Only the rules the VA itself set, counts;  regulations override science.

 

Notice the date on the “new” regulation, 2003.  The Veterans were finding ways around the earlier gauntlets, so the VA changed the regulation in 2003, to make sure that they did not have to award anything based on the truth or facts.

 

“The Board gives much more weight to the NAS/IOM analysis than to the opinion of the private treating neurologist because the NAS analysis is based on the most recent scientific and epidemiological data.  The opinion of the VA examiner that there is no objective evidence of an etiology for the peripheral neuropathy, considered in conjunction with the NAS analysis, shows that the most that can be determined without a resort to speculation is that the veteran's peripheral neuropathy is idiopathic in nature; it is of undetermined cause.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (Board has fact-finding authority to assess the quality of the evidence before it, including the duty to analyze its credibility and probative value, as well as authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).”

 

The board gives more weight to the government contracted, and biased NAS, than to the nonbiased veteran’s doctor, or the numerous, independent, nonbiased studies that conclude the exact opposite of what the board examiners conclude, including their Ranch Hand study and the overwhelming evidence substantiated in the Korean study that was a model of integrity.

 

Also note the BVA is allowed to reference previous court decisions wherein the Veteran is denied that "constitutional right" to cite approved BVA legal decisions for the exact same medical issues and the exact same circumstances which would eliminate the BVA's and government's stalling for decades as the Veteran dies or becomes totally disabled from government mistakes.

 

Is this any form of justice?

 

In the opinion of the VA examiner there is no objective evidence of the etiology of neuropathy.  The question should be at this point – SO WHAT?  Causation is the concern, not how the causation created the neuropathy.  Causation to service connection is all this examiner should be allowed to address.

 

All other studies and medical facts are totally discounted in this so-called court.  In fact, the board so states that fact in the statement:

 

“Board has fact-finding authority to assess the quality of the evidence before it, including the duty to analyze its credibility and probative value, as well as authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.”

 

I seem to recall similar courts that existed during the Nazi era that operated this exact same way.  If the Veterans find a way to challenge the court, the VA, in concert with congress, just writes new rules that override the new method of challenge.

 

“In these circumstances, the Board concludes that the preponderance of the evidence is against a finding that the veteran's chronic persistent peripheral neuropathy results from his presumed exposure to Agent Orange in service.  It follows that his claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54-58 (1990).”

 

“Preponderance of what evidence?”  The only evidence cited was the NAS/IOM conclusions that were contracted by the government itself, directed by the Secretary of the VA, who "march ordered" to the President.  This was done, to limit spending on unnecessary, obsolete government assets (Veterans).  The VA medical expert is classified as a non-Agent Orange expert.

 

This veteran never had a chance in this “so-called court.”  His fate and the courts decision were decided decades before he even got to this level of “so-called government justice.”  Justice decided by politics and budgets, not scientific facts and truth.

 

This is the perfect example of a “civilian” and his or her rights being laid aside by our own government.  Denied and laid aside from any form of real justice because he or she once made the decision to proudly wear the uniform of the U.S. Military. 

 

A complete and total group of an entire society is subjected to unconstitutional control by a pompous and arrogant government that call themselves a “just government.”

 

How the higher courts of our land, including our Supreme Court can let this VA criminal activity go on in something they call a court; is beyond me.  We are all supposed to be under constitutional rule of law. 

 

I cannot understand this Nazi form of judges making the rules of evidence by giving government weight and then denying other factual evidence.

 

Where is the justice for Veterans and veteran’s widows?

 

This is despicable government behavior against our country’s finest and most noble citizens; "its Veterans."

 

Charles Kelley

SP5Kelley2nd94th@aol.com