Clements versus Veterans, why?

VAC Subcommittee Disability Claims Process Oversight Meeting



February 14, 2008



Instead of a subcommittee hearing, this was the perfect example of Veterans Affairs being nothing but a fill in committee. On the 14th this oversight meeting should have been listed as a micro-miniature subcommittee as there appeared to be, two members there and sometimes down to one holding oversight meetings on the claims process system. Assuming there is one - other than reject, deny, and stall.



Compare that to the Roger Clements congressional “standing room only hearing” and we can clearly see where the congressional importance is as well as the nation in all the talk shows and news shows. Moreover, it isn’t the Veterans or how they are treated for doing nothing wrong or even suspected of any wrongdoing as the subject matter.



The most important subject that affects the most Veterans and their families regarding how claims are handled and adjudicated and why there is a backlog of over 600,000 claims and growing was discussed at way to high of a level for the most part. A backlog that has been the subject at least since the 1980’s and still it cannot be and has not been resolved nor even the real rational as to why it cannot be solved even been identified. Excuses and so-called fixes are about gone and used up; although several have been revisited. Now, VA just makes up things and they are allowed to make statements with no challenges.



A quorum of two subcommittee members in oversight heard the testimony of four panels of experts (see http://veterans.house.gov/hearings/hearing.aspx?NewsID=189)



Three of the panels it was hard to tell the difference between the VA speaking and the panel members. One panel had a legal background and some had worked for the VA prior to being associated with this panel.



Our submitted statements for the record to reduce 200,000 claims in six months as you can see in panel five did not make the grade. While Kurt Pressman’s testimony, one of our guys did make it in. I think you will find the submitted statements by the Harvard Professor Linda Bilmes interesting as to how the civilian world processes claims in comparison to the VA; handling 30 million claims a year and pays 98% of them within 60 days. I think you will also find it interesting that the VSO’s, especially the VFW, made a direct point that they did not support the recommendations by the Harvard professor and her analogy and recommendations. Bet that makes you wonder why you are paying dues to these folks and their organizations. Just maybe there is a conflict of interest there, as VA can politically lobby (threaten) the VSO’s to support this or that or not support this or that; but in turn, VSO cannot return the favor. Also makes me wonder why congress even puts any credence at all, in what they say or present as representatives (?) of stakeholders; but yet they still do. I was also miffed at VVA not being there or submitting for the record.



One can only say, with the longevity of this issue of decades that within the government the ultimate reasons it has not been solved; is because the government does not want to solve the problem due to yearly budget control to mask the cost of war, cover the mistakes made by DoD in herbicides and Gulf War issues (etc), and the White House philosophy of only support what you have to keep enlistment. Those that served in the past, the White House memo by the Reagan/Bush White House to all federal agencies not to associate death and disability to the usage of DoD herbicides should have read = We “the Presidents,” as their commander’s and chief have chosen not to fund or identify our government damaged Veterans…just let them die off and become disabled with no compensations or award of service connection compensations or recognition of dying for the nation…their damaged offspring and widows that are left, can fend for themsleves.



Some highlights that I recall:



· The amount of abandoned VA claims was simply mind-boggling. This was attributed to many reasons. One of which was the complexity of the process and the lack of real professional legal guidance. I was hoping they would give the delta between Veterans claims and Widows claims that were abandon as the subject came up. That did not happen. Nor was it stated the number only represented Veterans claims and was not inclusive to the widows that finally just give up.



· The analogy of the little fellow pushing the rock up the hill then only to find once at the top it rolled backed down and he had to start all over pushing the rock back up again was compared to the VA system of claims processing. My analogy would have been Veterans or widows A-Z push up the ball. The balls name is one of the many disorders that should be classified as presumptive. So, lets call the ball Esophageal Cancer. Each one in turn tries to roll the ball up the hill called VA. After five years some are BVA approved, some are denied, and some are remanded. Yet, the ball was the same only with different A-Z pushing. The exact same ball; and some make it, some take longer, some never do make it, and some just give up. As each A-Z gets to the perches on the hill and continues after each perch, the incline of the hill (VA) gets government controlled increased thus making it harder and harder to climb the hill.



· The amount of overturned VA claims on one side stated that 80% of VA denials were BVA overturned. Of course, VA denied this and said that they only had 20% of their claim decisions overturned.



This is where the crux of our submitted recommendations was rooted. Even at 20-40% of the claims being eventually overturned, one must realize the amount of claims we are talking about. These claims would be in the range of 2 – 10 year claim resolution down to a maximum of six months to approve. Considering that many of these are simply duplicates of the exact same claim with different Veterans or widows rolling the rock uphill. If one is approved even if it was approved in, the context “it is just as likely as not” was herbicide, gulf war, or service in an area, etc attributable then all such claims should be approved. An error has been found and the flow down back to the VA should be that all such claims that are similar should be approved. An example of this was given in our proposal of such cases as esophageal cancers that BVA found at least as likely as not associated to service in Vietnam and herbicides.



· Of course, the subject was brought up that VA in some cases just ignores BVA pronounced and mandated actions on a claim. On the other hand, as we have found in the past they sit for five years while VA sits on them with no action at all.



· One of my pet topics was the fact VA says they determine claims within 6 months or so. VA seems to have a hard time figuring out what day of the week it is within 6 months. Arguing over whether it should be 160 days or 145 days is pointless. The reason why? This seems to be when you get the first denial or request for more data – resolution or determination of the claim has just begun not some - we are done within 6 months therefore give us credit. Presumptive cancer disorders are not approved in 6 months that require little if any real thinking or decisions. Remembering the civilian counter point of 30 million claims in one year and resolved in 98% of the cases within 60 days gives one reason to question why the government keeps paying VA for non-performance. I think most of us know why.



As you may recall Nicholson recanted under oath before the committee that all parts of the claim must be resolved and that was one reason for the delay of years for the Veteran receiving anything with regard to financial support. Yet, one of the lead VA guys testified under oath that VA in some cases such as amputees that VA fund that immediately and worry about the loss of hearing and such as that later. Now that is directly opposed to the excuses made previously. That I would like to see a real honest report on as to how many VA is treating this way without an act of congress. I would also point out that an amputee recovering is probably not going to die while there are many issues that the Veteran is going to die from and still cannot get this kind of service this VA fellow was discussing under the same scenarios of award the known and associated now and figure out the other later. While Nicholson got out of this VA mess, I think he inherited nothing but a cluster foul up. The only thing he said while in office that made any sense to me was, Veterans should not have to fight for earned benefits. Yet, we know they did then and still do.



The one issue that chapped my butt and always has. Somehow, in context of Veterans Entitlements was brought up. Entitlements are something the government gives away based on something that does not involve any earning of such entitlements. In other words, the government receives nothing in exchange, as the red grows even larger with more and more entitlement programs > leaning evermore towards a socialistic society. Veterans Benefits the nation received something in exchange called freedom and a constitution that still stands. While everyone must agree that, those receiving these benefits based on honorable service and in many cases valorous service under the most despicable of all circumstances one citizen can ask of another citizen is hardly in the context of an entitlement. In addition, it is clear that those receiving these “earned benefits” are not privy to the constitutional guarantees that our constitution demands of our lawmakers and elected officials for all citizens. Now we find that our lawmakers even mandate these guarantees to the illegal as well as the terrorist bent on destroying the constitution that those removed by our lawmakers from these constitutional rights have defended.



Something not right with this way of thinking? You bet!!!



One politician in our history stated centuries ago in the form of; “when the government creates the Veteran the citizen is not laid aside.” Yet, it has been down hill since then with more and more rights being stripped away. A hallmark of inverse action so eloquently stated by our first President was in the form of the Feres Doctrine and its nefarious usage by both DoD and VA and the Executive Branch. Somehow our congress agreed with this stripping of the marquee sign on the Supreme Court = Equal Justice for All. For Veterans, this is nothing but a joke; a sick congressional joke. It probably should be revised to say; Equal Justice for All (except for Veterans and their families) this no longer applies to those that served in accordance with the wishes of the nations elected politicians.



In that vane and with comparisons of the legal rights of many different segments of society where Veterans do not have those same rights one of the panel suggested that Veterans must be guaranteed “The Veterans Bill of Rights.”



Exhibit C: THE VETERANS BILL OF RIGHTS



Preamble: It is the intent of Congress to honor the service and personal sacrifices of veterans and their families by ensuring that they have fair and timely access to all the benefits to which they are entitled, including death and disability compensation, medical care, educational assistance, job training, housing and pensions (“VA Benefits”). To this end,

1. Congress recognizes that all veterans have and have always had a Fifth Amendment property interest in the receipt of all VA Benefits.

2. Veterans shall have an unfettered access to retain attorneys at their own expense, and the Fee Prohibition in 38 U.S.C. § 5904(c)(l) shall be abolished.

3. Veterans should have full rights to judicial review in Article III courts, and the Court of Appeals for Veterans Claims should be abolished, with a transition plan for implementation.

4. Veterans shall have the right to subpoena documents or records from all federal agencies, and all federal agencies shall treat veterans’ document or record requests expeditiously and shall produce all responsive documents within 60 days.

5. Veterans shall have the right to call any VA employees as witnesses at any regional office hearings related to veterans’ benefits, including treating physicians or other medical personnel and anyone else who has made any determination in connection with a claim.

6. Congress shall take all necessary measures to insure that the VA delivers on its commitments to provide health care to veterans, and the VA’s practice of denying care to veterans it classifies as having a low priority is disapproved.

7. The VA shall adopt remedies and procedures to timely address cases of alleged denial of or unreasonable delays in providing health care, including notice, an opportunity to call witnesses, and a hearing to any veteran contesting such denial, as well as an expedited procedure in cases of emergency.

8. The VA shall award interest at the federal rate on all retroactive awards of any form of death or disability compensation or pension.

9. Congress shall guarantee and appropriate all funds necessary to provide all veterans benefits in accordance with the VA’s budgets.



The above is the minimum of rights that should be guaranteed. To even have to consider this should give most folks and those in congress a moment to pause and think… – What have we done to our Veterans and families? Yet, this will not happen and those that are prospective military personnel should be told before they sign on the dotted line. After they serve they are indeed no longer real citizens but the personal property of the Executive Branch and those in congress that support this stripping of their constitutional rights and to be treated as those politicians in power deem is appropriate…now matter how nonsensical it is and would and could not apply ever to any other segment of society as long as our constitution stands.



When I say the minimum, many issues must be added to this Bill of Rights as specific issues:



X. Any and all process and procedures use in pronouncing associated disorders to a form of exposures or service in a geographical area “shall be” open, transparent, defined in measurable scientific data points that can be addressed by the real constitutional courts and the stakeholders.



· WITH REGARD TO X, any and all government-contracted personnel and heads of such contracts on both sides “shall be” available for testimony under oath and provide the methodology used to determine such associations on behalf of the government and its contracted work.



· WITH REGARD TO X, VA “shall provide” where in the now mandated and defined decision matrix at what level the congressional mandated propaganda of the 1984 Benefit of the Doubt rule is applied.



· Until X is resolved (and the CONGRESSIONAL actions suggested below), VA nor BVA “shall not deny” any case based on any statements made by the Secretary of VA (judge) or findings by the contracted IOM (jury). The case shall be resolved by the merits of the evidence… not statements of findings of exclusion by others that are subject to bias and perjury with an undefined level of decision processes that can no longer be purely subjective.



XX. VA “shall not” ignore those findings that were found associated to civilians around the world from similar exposures that somehow VA has determined does not apply to Veterans.



XXX. VA “shall not” ignore the published findings of laws of chemistry for civilians around the world and then conclude these proven and sacred laws do not apply to Veterans.



While these next two are cynical in presentation, it shows how unscientific many of these VA and IOM decisions and statements are nothing but subjective scientific garbage based on budgets; not facts.



· Since the Secretary of the VA has pronounced time limits, on certain presumptive disorders, VA and IOM “shall present” the actual causation and etiology of such disorders and how a time limit is appropriate in the manifestation. (Obviously, the VA and the IOM must know the actual causation and the processes in that process in order to limit the time after exposures that mandated such decrees by science. Moreover, I am quite sure there are hundreds of thousands of medical doctors around the world that would be interested in what seems to be outside of their intellectual prowess and only privy to the VA and IOM.



· Since the Secretary of the VA has pronounced time limits of medical resolution of created disorders, on certain presumptive disorders, VA and IOM “shall present” the actual causation and etiology of such disorders and how a time limit of complete resolution is appropriate. (Obviously, the VA and the IOM must know the actual causation and the processes in that process in order to limit the actual resolution of created medical disorders after exposures that mandated such decrees by science. Moreover, I am quite sure there are hundreds of thousands of medical doctors around the world that would be interested in what seems to be outside of their intellectual prowess and only privy to the VA and IOM. Especially since in many of these disorder medical science is waiting for the answers as to how to treat these disorders that seemed to be a VA and IOM secret… so the pain and suffering of both civilians as well as Veterans will go away and their associated disorders will resolve itself.



Congressional mandated actions:



Congress, not just the VAC, should immediately call for hearings to the validity of Ranch Hand Study Data used by both VA and BVA in denial. This must include IOM using these flawed statistics and flawed findings to recommend no associations to VA. This would be to determine has there been government interference, has there been a constitutional injustice, and those within the agencies and contracted agencies that have not been forthcoming, for whatever reason, be identified for possible collusion. In addition, an explanation of how so many studies can find increased risk of incidence or significant correlation and yet VA and IOM deny such associations based on what.



I would remind the congress that they met for similar issues on a weekend and with the President flying back from Texas on such constitutional rights issues regarding a single citizen. That being Teri Schiavo. It seems the one citizen is more important than the millions when it comes to constitutional rights. But then again with Veterans, their citizenship status is laid aside by congress.



For published fatal flaws in Ranch Hand see:

http://www.2ndbattalion94thartillery.com/Chas/MediaReports.htm



Almost half of the “non-exposed comparison group” was actually exposed, creating nothing but flawed useless data that was published from 1982 on…used in VA and IOM denials and also cited by BVA in their denials then and up to including the present.

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In addition, see Oversight Congressional transcripts of meeting on Ranch Hand dated March 15, 2000



HEARING before the SUBCOMMITTEE ON NATIONAL SECURITY, VETERANS AFFAIRS, AND INTERNATIONAL RELATIONS of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES Serial No. 106-163



Participating scientists under oath of charges of:



· Use of command influence

· Changing concluding medical findings that were already cleared for publication

· Serious protocol violations; to include the usage of another executive branch federal agency directives of the office of the Surgeon General in those protocol violations

· Changing of Exposure Index as data mounted against the government

· Medical issues found associated at a 50% level of increase or higher not brought forward

· Study integrity was sorely lacking

· Data was not being used properly

· Veterans not given a fair assessment of their health status

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Also, see questionable testimony of Dr. David Butler (Senior Program Officer, Veterans and Agent Orange Reports, Institute of Medicine, National Academy of Sciences



Also, see questionable testimony of Dr. Susan Mather, Chief Public Health and Environmental Hazards Officer, Department of Veterans Affairs



Also, see questionable testimony of Ronald Coene, Executive Secretary, Ranch Hand Advisory Committee, Food and Drug Administration

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Congress shall investigate in oversight why it is other government agencies find many issues associated and yet VA and IOM seem to find these scientific facts not associated.



Congress shall investigate in oversight why it is other government agencies find many issues associated and yet VA and IOM seem to find these scientific facts not associated when it deals with Veterans. Does congress now concur with VA and IOM; that Army fatigues and Marine utilities double as some sort of toxic chemical environmental hazard protective clothing?



Congress shall investigate in oversight why it is when government scientists (EPA and CDC for example) with actual integrity come forward they are demoted or suspended. Examples Dr. Cate Jenkins at the EPA and toxicologist Christopher De Rosa at the Centers for Disease Control. For the latest in cover-ups see

http://www.2ndbattalion94thartillery.com/Chas/CDCtoxiccoverup.htm



Quote from that recent article:



“There were deficits in immune function, which is significant because some of the chemicals, such as PCBs do affect the immune system and suppress the immune system.”



Many studies have shown Veterans exposed as well as civilians develop immune system issues or what is called “a compromised immune system.” This also included many international studies. Yet, exposed Veterans clearly developing the multitude of symptoms some disabling and some not and systemic organ damages are denied by IOM and VA even when medical testing proves their immune system has been compromised. Testing that validates exactly what the studies brought forward. Does congress think this is some sort of spectacular here to fore unknown massive coincidence? It seems so.



This also includes our EPA concluded long ago that the amount needed for this compromised immune system requires a much lesser dosage then for a cancer. At least in the short-term response for some cancers, not all. Also once this happens the outcomes are as many disorders that are listed in the medical books. Yet, if congress looks at our hit parade of cancer killers already associated you will not find one association to only a compromised immune system that can also kill and disable. How is that possible? Certainly there are more outcomes in a compromised immune system than VA can count using their fingers and toes. Including that EPA has concluded that not only do these toxic chemical create an ineffective immune system but also an attacking immune system at the same time; the worst of the medical scenarios. A chronic proinflammatory response and yet an immune system degraded to the point of little if any tumor protection is available.



No congress, diabetes type II is considered a disease of old age and not immune system associated as in type I. Although with the massive amount of type II early in life for Veterans and civilians alike now … this might be a mischaracterization.



Contrary to seemingly congressional belief the chemical companies, using fraudulent studies, do not have more right to produce 50 years of toxic chemicals than citizens do to not live in a toxic chemical environment destroying whole towns and the people in them in the process. (Times Beach, MO and Love Canal, NY.)



Anyone at the VA or the NAS/IOM or the CDC or the congress or congressional staffers wanting to debate me on these issues either separately or all at one time, given that any intestinal fortitude is present, please contact me.



Charles Kelley

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