Ao Fort Gordon

[Berta]

I received the decision but it is very hard to read-

"The evidence establishes that he was exposed to various herbicide agents... unreadable...as a game warden at Fort Gordon."

His MOS was Military Police.He proved AO was used there when he was there-

Granted DMII due to heribicides.

Granted Coronary artery disease due to DMII as secondary

Granted CHORACNE which was evuident in his SMRs- this is only the second grant for AO CHloracne I have ever seen.

It appears he is remanded for peripheral Neuropathy-

I regret it is more difficult to read than I first thought-

But when Allan posted the chloracne regs here-I thought best to post what I can from this Nov 8 2009 decision as chloracne is VERY difficult to prove due to AO.

[Berta]

The Veteran's claims Specialist Stephen L. Jones who helped bring this astonishing AO case to light- and helped win it has posted under the Test messages forum-

can we bring that post here into claims research?

This is a BIGGY!!!!!! And many of you might know the veteran- James Cripps.

[Wings]

x

x

x

Stephen.L.Jones, 11-11-09

Recruit

Group: New User Review

Posts: 0

Joined: Yesterday, 11:50 AM

Member No.: 7,035

Service Connected Disability: 80%

Branch of Service: United States Army

My name is Stephen Jones and I am the Veteran Claims Specialist who successfully prosecuted the James Cripps case for Service Connection for Disabilities associated with Agent Orange Exposure on a direct basis (CONUS). Mr. Cripps has asked me to post on this site and inform this veteran community, as to the particulars of the case in regard to the strategy I chose to implement in the prosecution of the case, and how we were able to prevail, in getting James' claim adjudicated successfully.

First, let me begin by saying that there were many mistakes, and I feel, violations of the 38 CFR as well as the 38 USC, from the time of Mr. Cripps initial claim, all the way through the Regional Office in Nashville, and up until the actual hearing before the BVA (11 Sept 08). Also, James' case was very high profile and many Veteran Service Offices (as well as Officers) were wary of the case and shied away due to the media attention and to Mr. Cripps' adamancy in the belief of the validity of his claim. What Mr. Cripps needed was an ADVOCATE, someone who would actually conduct a "De Novo" review of his claims folder (document by document) and ascertain the validity of the claim and construct an argument supported not only by evidence, but by the law. I was told by an administrator to make "him (Mr. Cripps) go away". It was evident to me that no one wanted to take the time to actually review and prepare a case...everyone, including officials in the VA, wanted to stand by the same position (the status quo) to deny, because Mr. Cripps is not a combat veteran...well, I am a combat veteran (Somalia, 101st Airborne) and we don't leave anyone behind, a veteran is a veteran is a veteran, regardless of whether he has served in combat....he served, that is good enough.

I reviewed the case, unbeknownst to Mr. Cripps, and was able to find evidence in the file, that was not being given it's fair weight in the adjudicative process. I spoke with my supervisor and I told him I believed that Mr. Cripps could win. He told me I was crazy, but that if I felt that strongly about the case he would assign it to me. We agreed that it was my case and I would prosecute it as I saw fit, with no interference from staff. He readily agreed and then laughed, he knew how hard it was going to be.

I contacted Mr. Cripps and asked him if he would like my assistance, and we set up an interview to meet. I explained to James that although I would win the argument, we would lose the case at the Regional Office because although 38 CFR 3.2600 invests the power of the Secretary to the DRO's, they would not overturn this decision at the RO. I told James that I could win at the BVA, and so it would take more time, but that I would fight tooth claw and nail, to get his benefits. James agreed that it was important to do it right instead of quickly. We forwarded the case to the Board of Veteran Appeals, and requested a hearing to present the argument. This gave me 9 months to prepare for the case.

During the 9 month period, I combed through the copious amounts of documents (Mr. Cripps' claims folder weighs in at 19 lbs, according the USPS), and was able to pull immensely helpful evidence, some irrifutible, to win the case. James had plenty of evidence, but he needed someone who could speak the VA's language and who knows the law and can, during a hearing hold the DRO or the Administrative Law Judge, to the letter of the law, which is usually in favor of the veteran. I spent 32 billable hours on Mr. Cripps Claim, with a finished product of over 30 documents supporting his claim and with an extensive legal argument. I had won James' trust, because he was constantly checking to see my progress, and he saw first hand that he had a knowledgeable, professional Rep who was good at research and at interpreting argumentative analysis, and was dedicated to giving his claim the right amount of attention needed to win.

My strategy was simple. We stood in opposition to the contentions of the VA, which denied service connection on a presumptive basis, because James did not serve in Vietnam. Had James had a service rep worth half his salt in the initial claims process, the rep should have argued that James claim was on a "direct" basis. Nowhere in James' file was this position ever asserted by the veteran. We would make sure to do this in the hearing. Also, the VARO Nashville had consistently denied the claim that he was exposed to Dioxin (the contaminate contained in the mixture of T-2, T-4 and T-5, because the spraying of the agent at test site 21 (Ft. Gordon, GA) was conducted on 16,17 and 18 June 69, and Mr. Cripps did not arrive to Ft. Gordon until Nov of that same year. The Appeals Coach for the VA told me himself, "he wasnt there when it was sprayed". I knew we had the VA right were we wanted them, because this was the same old tired story the RO leaned on for years and I knew we would blow it out of the water before the Judges.

11 Sept 08 came and we were ready. The Director of the Tennessee Department of Veteran Affairs himself sit in, while I prosecuted. I laid out a 3 pronged attack. I first had to get James reassurance that he trusted ma and for him not to rail against the VA for their incompetency. You want the Judge to focus on how the veteran was wronged, not at how pissed off the veteran is, it dteracts from the prosecution. James was wonderful, brief answers, humble, patriotic...no bitterness in his tone. James had evidence from Dewey Dunn, and numerous other experts, all concurring for service connection...I had to get us across the goalline, with the evidence.

Phase 1, I attacked the RO's reasons and basis for denial, explaining to the Chairman of the Board that we were claiming direct exposure, not presumptive and that my veteran had so many of the presumptive disorders, that it could not be coincidental...in regard to his exposure and the correllation of exposure and the many AO related illnesses incurred by the veteran. This would make his claim plausible, and under 38 CFR 3.326, he should have in the least been given a C&P Exam, before a summary denial.

I then, in phase two, presented the DOD documents conceding the test site and the tests conducted there....and then I leveled the hammer in phase 3 (closing arguments). I closed with the board by stating that despite the numerous violations of the veterans rights under 3.159 (failure to develop claim properly-duty to assist), 3.326 (entitlement to examination) etc etc...that my veteran met all 3 criteria for service connection....current diagnosis, event and service and a nexus or link between the two. I explained to the Judge that you can have diabetes without being exposed to agent orange but you cannot have chloracne without being exposed to Dioxin, the contaminate in AO...as the disorder itself is a clinical marker conceeded by the field of science. The Judge's jaw almost hit the table.....I have to go now but later, I will post some helpful hints in the claims process. I thank all veterans on this our holiday..... god bless the United States and May he bless and keep the Veterans of these United States.

Edited November 12, 2009 by Wings

[Berta]

Thanks Wings for moving this topic up to Claims Research-

Steve- disregard the question I had-

James Cripps just faxed me clear copy of this FABULOUS decision!!!!!!!!!!!!!!!!!

With many KUDOs to You!!!!

Thank you for helping him with this historic AO CONUS award!!!!!!!!!!!!!!!!!!!!!!!!!!

With the 3 new presumptives, the possibility of the AO Equity Act becoming Law, and with the fact that VA still defies the Nehmer court order- AO claims will become more in the fore front of advocacy I feel-

yet I only hope that these veterans and widows of AO vets can lve long enough to get their proper awards.

Time is the enemy of all vets with any type of claim.

[Wings]

BRILLIANT!! BRAVO!! Good work veteran Jones!!!! Still reading and feelin' very impressed. Thanks so much for posting here at Hadit, and please feel welcome to join us on a regular basis, we need your passion and brainpower ;-) ~Wings

[Chuck75]

There are some key sections to this. I have no doubt that the VA lawyers have worked overtime to construct a defense for future cases.

The one that struck me as really significant in it's future impact--

"Phase 1, I attacked the RO's reasons and basis for denial, explaining to the Chairman of the Board that we were claiming direct exposure, not presumptive and that my veteran had so many of the presumptive disorders, that it could not be coincidental...in regard to his exposure and the correllation of exposure and the many AO related illnesses incurred by the veteran. This would make his claim plausible, and under 38 CFR 3.326, he should have in the least been given a C&P Exam, before a summary denial."

x

x

x

Stephen.L.Jones, 11-11-09

Recruit

Group: New User Review

Posts: 0

Joined: Yesterday, 11:50 AM

Member No.: 7,035

Service Connected Disability: 80%

Branch of Service: United States Army

My name is Stephen Jones and I am the Veteran Claims Specialist who successfully prosecuted the James Cripps case for Service Connection for Disabilities associated with Agent Orange Exposure on a direct basis (CONUS). Mr. Cripps has asked me to post on this site and inform this veteran community, as to the particulars of the case in regard to the strategy I chose to implement in the prosecution of the case, and how we were able to prevail, in getting James' claim adjudicated successfully.

First, let me begin by saying that there were many mistakes, and I feel, violations of the 38 CFR as well as the 38 USC, from the time of Mr. Cripps initial claim, all the way through the Regional Office in Nashville, and up until the actual hearing before the BVA (11 Sept 08). Also, James' case was very high profile and many Veteran Service Offices (as well as Officers) were wary of the case and shied away due to the media attention and to Mr. Cripps' adamancy in the belief of the validity of his claim. What Mr. Cripps needed was an ADVOCATE, someone who would actually conduct a "De Novo" review of his claims folder (document by document) and ascertain the validity of the claim and construct an argument supported not only by evidence, but by the law. I was told by an administrator to make "him (Mr. Cripps) go away". It was evident to me that no one wanted to take the time to actually review and prepare a case...everyone, including officials in the VA, wanted to stand by the same position (the status quo) to deny, because Mr. Cripps is not a combat veteran...well, I am a combat veteran (Somalia, 101st Airborne) and we don't leave anyone behind, a veteran is a veteran is a veteran, regardless of whether he has served in combat....he served, that is good enough.

I reviewed the case, unbeknownst to Mr. Cripps, and was able to find evidence in the file, that was not being given it's fair weight in the adjudicative process. I spoke with my supervisor and I told him I believed that Mr. Cripps could win. He told me I was crazy, but that if I felt that strongly about the case he would assign it to me. We agreed that it was my case and I would prosecute it as I saw fit, with no interference from staff. He readily agreed and then laughed, he knew how hard it was going to be.

I contacted Mr. Cripps and asked him if he would like my assistance, and we set up an interview to meet. I explained to James that although I would win the argument, we would lose the case at the Regional Office because although 38 CFR 3.2600 invests the power of the Secretary to the DRO's, they would not overturn this decision at the RO. I told James that I could win at the BVA, and so it would take more time, but that I would fight tooth claw and nail, to get his benefits. James agreed that it was important to do it right instead of quickly. We forwarded the case to the Board of Veteran Appeals, and requested a hearing to present the argument. This gave me 9 months to prepare for the case.

During the 9 month period, I combed through the copious amounts of documents (Mr. Cripps' claims folder weighs in at 19 lbs, according the USPS), and was able to pull immensely helpful evidence, some irrifutible, to win the case. James had plenty of evidence, but he needed someone who could speak the VA's language and who knows the law and can, during a hearing hold the DRO or the Administrative Law Judge, to the letter of the law, which is usually in favor of the veteran. I spent 32 billable hours on Mr. Cripps Claim, with a finished product of over 30 documents supporting his claim and with an extensive legal argument. I had won James' trust, because he was constantly checking to see my progress, and he saw first hand that he had a knowledgeable, professional Rep who was good at research and at interpreting argumentative analysis, and was dedicated to giving his claim the right amount of attention needed to win.

My strategy was simple. We stood in opposition to the contentions of the VA, which denied service connection on a presumptive basis, because James did not serve in Vietnam. Had James had a service rep worth half his salt in the initial claims process, the rep should have argued that James claim was on a "direct" basis. Nowhere in James' file was this position ever asserted by the veteran. We would make sure to do this in the hearing. Also, the VARO Nashville had consistently denied the claim that he was exposed to Dioxin (the contaminate contained in the mixture of T-2, T-4 and T-5, because the spraying of the agent at test site 21 (Ft. Gordon, GA) was conducted on 16,17 and 18 June 69, and Mr. Cripps did not arrive to Ft. Gordon until Nov of that same year. The Appeals Coach for the VA told me himself, "he wasnt there when it was sprayed". I knew we had the VA right were we wanted them, because this was the same old tired story the RO leaned on for years and I knew we would blow it out of the water before the Judges.

11 Sept 08 came and we were ready. The Director of the Tennessee Department of Veteran Affairs himself sit in, while I prosecuted. I laid out a 3 pronged attack. I first had to get James reassurance that he trusted ma and for him not to rail against the VA for their incompetency. You want the Judge to focus on how the veteran was wronged, not at how pissed off the veteran is, it dteracts from the prosecution. James was wonderful, brief answers, humble, patriotic...no bitterness in his tone. James had evidence from Dewey Dunn, and numerous other experts, all concurring for service connection...I had to get us across the goalline, with the evidence.

Phase 1, I attacked the RO's reasons and basis for denial, explaining to the Chairman of the Board that we were claiming direct exposure, not presumptive and that my veteran had so many of the presumptive disorders, that it could not be coincidental...in regard to his exposure and the correllation of exposure and the many AO related illnesses incurred by the veteran. This would make his claim plausible, and under 38 CFR 3.326, he should have in the least been given a C&P Exam, before a summary denial.

I then, in phase two, presented the DOD documents conceding the test site and the tests conducted there....and then I leveled the hammer in phase 3 (closing arguments). I closed with the board by stating that despite the numerous violations of the veterans rights under 3.159 (failure to develop claim properly-duty to assist), 3.326 (entitlement to examination) etc etc...that my veteran met all 3 criteria for service connection....current diagnosis, event and service and a nexus or link between the two. I explained to the Judge that you can have diabetes without being exposed to agent orange but you cannot have chloracne without being exposed to Dioxin, the contaminate in AO...as the disorder itself is a clinical marker conceeded by the field of science. The Judge's jaw almost hit the table.....I have to go now but later, I will post some helpful hints in the claims process. I thank all veterans on this our holiday..... god bless the United States and May he bless and keep the Veterans of these United States.

[Wings]

x

x

x

Veteran Jones, I want to hear more!

Why and how and by what authority --are the VARO raters allowed to arbitrarily and capriciously deny a C&P Exam prior to a denial of claim?! WTF?! Time and again, of late especially, VARO raters take it upon themselves to plainly (in the light of day) destroy medical evidence, weigh medical evidence without so much as having an opposing VA medical opinion --how is the VA getting away with this: denying a veterans claim without first affording a C&P Exam???

BTW, It was brilliant the way you went about direct service connection vs presumptive. I can get really hung up on which "principle" of service-connection would apply to a complex claim. In your case, I am guessing you applied 3.303(d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. [26 FR 1579, Feb. 24, 1961]

Anyway, come back anytime!!! Congratulations again!!! ~Wings