10 February 2018

VA’s Three Biggest Failures on C-123 Agent Orange Disability Claims: Early VA errors still hurt our claims

We were abused by a flawed claims system – flawed in that VA staff chose to actively oppose us although their legal duty demanded a non-adversarial pro-veteran process. Numerous federal agencies and independent experts argued for years in support of legal and scientific merits of our exposure claims but instead a handful of VA staff broke their own rules and turned a deaf ear.

Key conclusions regarding the three VA actions against C-123 veterans detailed in this report:
1    By January 2012 VBA had “an overwhelming preponderance of evidence” supporting C-123 veterans’ herbicide exposure claims but instead VA insisted it had a preponderance of evidence against the claims.
2    When C-123 veterans turned for help prior to June 2015, they were told no C-123 claims could be granted and thus very few “fought the system” and bothered to apply for disability benefits. VA staff was trained that C-123 claims could not be approved, so none were.
3    As far as VA records indicate, the only time CDC, NIH and other federal agencies opined in support of exposure claims was for C-123 veterans. VA disputed all such input and denied all claims anyway.
4    VA abused its duties per law and VAM21-1MR for “benefit-of-the doubt, fact-proven, non-adversarial, paternalistic, pro-veteran,” and “case-by-case” claims evaluation, instead imposing a C-123 blanket denial policy.

In the end, with help from CDC and numerous experts, we were proven correct in the law and the science. But, in the end, that meant years wasted while our claims should have been advancing. Years went by while VA refused veterans and families all care and benefits. Survivors couldn’t even get a folded flag. Years went by with VA instructing staff against every C-123 claim, and often discouraging vets from even applying. VBA must now adjudicate C-123 claims and appeals in the most pro-veteran basis, giving every possible benefit of the doubt...and a bit more!

People just can’t help it. Not only are they decades past wanting to hear about Agent Orange, their eyes unusually glaze over if I begin explaining how VA blocked 2100 of our Agent Orange claims for many years. Actually, nobody should be surprised at VA failings with our couple thousand when one remembers VA blocked tens of thousands of sick veterans’ claims until Congress jammed the 1991 Agent Orange Act into their playbook. To anyone who actually listens, my narration seems outrageous, phony or self-serving. If I get into any details I quickly lose my listener. Their expression says it all: “This is outrageous. VA would never even consider such anti-veteran deceptions. Someone’s making it all up.”

Actually, nothing’s made up or imagined, and I hope to make a case that SMCs are appropriate from 3/2011 forward, particularly loss of use of both legs, bilateral avascular necrosis of the hips (with revision in 2012, third replacement 2015 following diagnosis 2011, Hyperlinks in this essay go to the VA’s own source documents. VA resolutely opposed our claims in violation of every legal and moral duty and in total contrast to empty assurances given our elected representatives. In April 2011 I had faith in the VA, faith that they’d carefully check out my claim and weigh the supporting evidence; an approval would be forthcoming.

My trust in the VA lasted years past when I should have been screaming “foul,” but when they rejected all expert evidence from the CDC and NIH, I pretty much knew what so many veterans complained about was true. And when in 2015 I finally got thousands of pages of VA internal documents released thru the Freedom of Information Act there was little trust left.

Rather than dig into the dozen or so worst examples of VA mistreatment, I’ll write about three of their worst tactics that really hurt C-123 veterans, and stalled our disability claims for many years:
     • First, VA insisted in every possible response to veterans, Congress and the press that they had no “blanket policy” against our claims, and rather, each claim was carefully evaluated on a case-by-case basis. Nope!
    Second, VA insisted from the very first it had “an overwhelming preponderance of evidence” against our claims. Nope!
     Third, VA said we could submit claims for “fact-proven” consideration. Yes they said that, but Nope, there never was proper consideration of even a single claim.

18 January 2018

Agent Orange exposure and cancer incidence in South Korean Vietnam veterans: a prospective cohort study

Cancer. 2014 Dec 1;120(23):3699-706. doi: 10.1002/cncr.28961. Epub 2014 Aug 7.

Agent Orange exposure and cancer incidence in Korean Vietnam veterans: a prospective cohort study (South Korean Vietnam War Veterans)
Yi SW1, Ohrr H.
Author information
Abstract
BACKGROUND:
During the Vietnam War, US and allied military sprayed approximately 77 million liters of tactical herbicides including Agent Orange, contaminated with 2,3,7,8-tetrachlorodibenzo-p-dioxin. To the authors' knowledge, few studies to date have examined the association between Agent Orange exposure and cancer incidence among Korean veterans who were exposed to Agent Orange during the Vietnam War.

METHODS:
An Agent Orange exposure index, based on the proximity of the veteran's military unit to the area that was sprayed with Agent Orange, was developed using a geographic information system-based model. Cancer incidence was followed for 180,251 Vietnam veterans from 1992 through 2003.

RESULTS:
After adjustment for age and military rank, high exposure to Agent Orange was found to significantly increase the risk of all cancers combined (adjusted hazards ratio [aHR], 1.08). Risks for cancers of the mouth (aHR, 2.54), salivary glands (aHR, 6.96), stomach (aHR, 1.14), and small intestine (aHR, 2.30) were found to be significantly higher in the high-exposure group compared with the low-exposure group. Risks for cancers of all sites combined (aHR, 1.02) and for cancers of the salivary glands (aHR, 1.47), stomach (aHR, 1.03), small intestine (aHR, 1.24), and liver (aHR, 1.02) were elevated with a 1-unit increase in the exposure index.

CONCLUSIONS:
Exposure to Agent Orange several decades earlier may increase the risk of cancers in all sites combined, as well as "several specific cancers", among Korean veterans of the Vietnam War, including some cancers that were not found to be clearly associated with exposure to Agent Orange in previous cohort studies primarily based on Western populations.

06 January 2018

USAF C-123 Report: We're going to set the record straight in 2018

Nearly five years ago the US Air Force School of Aerospace Medicine (USAFSAM) at Wright-Patterson AFB released their study of the post-Vietnam C-123 transports previously used for spraying Agent Orange. The planes were used for a decade after the
Vietnam War and had never been decontaminated of the military herbicides they dispersed. The study was ordered by the Air Force when C-123 veterans complained of likely Agent Orange exposure.

The study was flawed, and tainted with command interference obvious when compared to the 38-page draft report the scientists themselves submitted. The study seemed torn between political and scientific goals, rather than science alone as would be proper. Veterans were concerned about their health but the report assured them the planes were unlikely to have been contaminated enough to cause medical issues typically associated with Agent Orange exposure.

The Air Force declined to inform aircrews of the twice-proven C-123 contamination, insisting it "would only cause undue distress and provide limited benefit." Message: we'd already been poisoned, and knowing about the poison wouldn't help us very much.

This blog began on March 14, 2011, a year before the USAFSAM report was released, and we've earned a seven-year track record of honesty and accurate interpretations of USAF and VA source data. Seven years ago, we said the Air Force and the VA were both wrong about our exposures.

By January 2015, we were proven right and they were proven wrong when the definitive Institute of Medicine report "Post-Vietnam Dioxin Exposure in Agent Orange-Contam-inated C-123 Aircraft" was submitted to the Secretary of Veterans Affairs. They were wrong, but only the veterans involved paid any penalty for errors because for six years, VA refused these vets all medical care and other benefits.

Two of those six years, 2012 to 2014, are tied to the tainted USAFSAM report and how the VA misused it. For these years VA refused all medical care, compensation, family assistance...everything needed by disabled veterans, citing the USAFSAM report as justification for VA locking its hospital doors to C-123 veterans.

Today, we begin our challenge of the USAFSAM report, together with an exposure of the damage done when VA relied on the report to cancel their own 2012 promise for referral of the C-123 question to the Institute of Medicine.

The goal now is to have the Air Force either withdraw their C-123 report ("UC-123 Agent Orange Exposure Assessment, Post-Vietnam [972-1982]) or, more probable, annotate it in some way to describe its errors and shortfalls. It should not be allowed to stand, as it has for five years, as the official Air Force conclusion about C-123 veterans and our exposures. It fouls the scientific record and offends the veterans it mistreated.

Now a clarification as we move forward. We will deal with three reports:
1. The 2012 USAFSAM C-123 Report (done)
2. The 2012 VA-promised referral to the Institute of Medicine (promised, cancelled)
3. The 2015 Institute of Medicine report, ordered by the VA (done)

16 December 2017

WE USED TO BE SCIENTISTS. THEN, WASHINGTON INVENTED SOME POLITICAL NEWSPEAK TO HELP SCIENCE BEND INTO POLITICAL CONSTRAINTS.

FELLOW VETERANS: THIS IS AS WRONG AS SOMEBODY TRYING TO FORBID FLYERS TO USE "ALTITUDE, HEADING, BEARING, WEIGHT & BALANCE.": MY DEMAND: HANDS OFF THE CDC AND OTHER FEDERAL MEDICAL AND SCIENTIFIC AGENCIES!

(CNN) Officials at the Centers for Disease Control and Prevention, the very agency tasked with saving and protecting the lives of the most vulnerable, are now under order by the Trump administration to stop using words including "vulnerable" in 2018 budget documents, according to The Washington Post.
In a 90-minute briefing on Thursday, policy analysts at the nation's leading public health institute were presented with the menu of seven banned words, an analyst told the paper. On the list: "diversity," "fetus," "transgender," "vulnerable," "entitlement," "science-based" and "evidence-based."
Alternative word choices reportedly were presented in some cases. For instance, in lieu of "evidence-based" or "science-based," an analyst might say, "CDC bases its recommendations on science in consideration with community standards and wishes," the source said. But those working on the Zika virus's effect on developing fetuses may be at a loss for appropriate -- or acceptable -- words.
The reaction in the room was "incredulous," the longtime CDC analyst told the Post. "It was very much, 'Are you serious? Are you kidding?'"
    As news of the word ban spreads at the CDC, the analyst expects growing backlash.
    "Our subject matter experts will not lay down quietly," the unnamed source said. "This hasn't trickled down to them yet."

    05 December 2017

    Retired USAF C-123 Vets with Agent Orange Illness Eligible for Combat Related Special Compensation

    Combat-Related Special Compensation (CRSC) provides special compensation to military retirees who have retired pay reduced because of receiving U.S. Department of Veterans Affairs (VA) disability compensation. This means that qualified military retirees with 20 or more years of service that have "combat related" VA-rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation. Instead they will receive both their full military retirement pay and their VA disability compensation. The following is a summary of Combat-Related Special Compensation:
    Once a military retiree has been determined to be qualified he/she will receive their regular retirement pay plus an additional sum based on their VA disability rating.

    COMBAT-RELATED SPECIAL COMPENSATION ELIGIBILITY

    The following CRSC eligibility requirements apply:
    In order for members to be eligible for CRSC, they must meet all of the following criteria:
    1. Receive military retirement pay for one of the following reasons:
      • Served on Active Duty, the Reserves, or National Guard with 20 years of creditable service;
      • Served on Active Duty, the Reserves, or National Guard and is also a permanent medical retiree (Chapter 61) regardless of years served;
      • Served on Active Duty, the Reserves, or National Guard and is classified as a Temporary Disability Retirement List retiree regardless of years served; or
      • Served on Active Duty, the Reserves, or National Guard and is classified as a Temporary Early Retirement Act retiree with 15-19 years served.
    2. Have 10% or greater VA rated injury that is combat-related.
    3. Military retirement pay is reduced by VA disability payments (VA Waiver).
    4. Must be able to provide documentation that injury was a result of one of the following:
      • Purple Heart
      • Armed Conflict
      • Simulating War
      • Hazardous Service
      • Instrumentality of War
      • Agent Orange
      • Radiation Exposure
      • Gulf War
      • Mustard Gas or Lewisite

    24 November 2017

    C-123 Vet Passes: John Stuart Peavey, July 11, 1940 – December 2, 2015

      John S. Peavey, age 75, of the Shelburne Falls, and Buckland, Massachusetts area passed away at 11:30 PM on December 2, 2015.  John was born in Bangor Maine to his late parents, Edith (Turton) Peavey (Great Britain) and John Peavey (Maine).  John’s death was by natural causes attributed to respiratory failure brought on by ulcerative colitis.  John was buried at Blue Hill Cemetery in Braintree, Massachusetts.
       John leaves behind two sons, one named John S. Peavey II, and the other named unknown.  He leaves at least two grandsons also, and his former wife
    Paula (Jourdenais) Peavey.
       John was a Air Force veteran of the Vietnam war/era, having served from May 22, 1961 to May 21, 1968.   He furthered his military career serving with 439th TAW Reserve Unit at Westover AFB/ARB (C123s and C130s) during the 1970s and 1980s as an ART (Air Reserve Technician) full time civilian, military reserve obligated position, focusing in on the C123s.  T/Sgt John S. Peavey served in a dual role capacity being assigned to the 901st CAMs (Consolidated Aircraft Maintenance Squadron) as a C123 Flight line crew chief, both civilian and military, when not performing “flight status duties”, and also served with the 731st TAS (Tactical Airlift Squadron), C123s, as an in-flight Flight Mechanic, performing both mechanical and flight crew support duties to complete the various mission assignments  of the C123 Provider type aircraft assigned to Westover.
        John was a very well liked individual by his many friends of both the 901st Cams, and 731st TAS units,  as well as his “buddies” from the hill towns including Shelburne Falls, and the Colrain area of Massachusetts.    John will be missed by all.

    November 2017 activity report for C-123 Veterans Association

    1. With NVLSP help, won 51 months of retroactive 100% disability compensation, with decision helpful for three avenues of approach to backdating liberalizing rule claims 2. Working on Colorado's disabled veteran property tax exemption. Last year got new law bringing CO statute into compliance with state constitution for military disabled retirees (vs VA SC,), but state still refuses to permit 8-12,000 permanent TDIU vets to receive exemption. I'm arguing that TDIU is a permanent and total disability rating complying with the original referendum, the state constitution and the enabling legislation, and that unemployability is improperly added only as a disqualifier on the application forms 3.Trying to get Veteran-Directed Home and Community Health System benefits extended throughout Colorado. Presently offered only in eight counties around Denver but not in our other 56 counties or in Wyoming. 6000 vets in my county eligible. 4. Many individual vets assistance, plus running veteran info tables at churches 5. Attended United Veterans of Colorado monthly conference to present VC-HCBS and Colorado disabled veteran issues for their support

    23 November 2017

    November 2017 activity report for C-123 Veterans Association

    1. With NVLSP help, won 51 months of retroactive C-123 vet’s 100% disability/SMC-R compensation, with decision helpful for three avenues of approach to backdating liberalizing rule claims
    2. Working on Colorado's disabled veteran property tax exemption. Last year got new law bringing CO statute into compliance with state constitution for military disabled retirees (vs VA SC,), but state still refuses to permit 8-12,000 permanent TDIU vets to receive exemption. I'm arguing that TDIU is a permanent and total disability rating complying with the original referendum, the state constitution and the enabling legislation, and that unemployability is improperly added only as a disqualifier on the application forms
    3.Trying to get Veteran-Directed Home and Community Health System benefits extended throughout Colorado. Presently offered only in eight counties around Denver but not in our other 56 counties or in Wyoming. 6000 vets in my county eligible.
    4. Many individual vets assistance, plus running veteran info tables at churches
    5. Attended United Veterans of Colorado monthly conference to present VC-HCBS and Colorado disabled veteran issues for their support 

    13 November 2017

    Houston VA to Study Prostate Cancer & Agent Orange in African-American Vets, Using New Research Grant

    NOTE: Like me, many C-123 vets are concerned about bladder cancer and prostate cancer, and we hope that VA will soon designate bladder cancer as an Agent Orange-related illnesses. Some vets have been successful with claims that prostate cancer increased their odds of bladder cancer, and argued with VA successfully to win disability claims.

    Prostate cancer, however, is well-established as an Agent Orange-presumptive illness. VA has honored disability claims for many years, and even the most recent research has only firmed up the science behind the link between Agent Orange and cancer. My own oncologist at VA MedicaL Center Portland, Dr. Mark Garzatto, established that Agent Orange vets have twice the rate of cancers, and that ours are twice as likely to be highly aggressive cancers. Not good, and maybe this recent grant by the Prostate Cancer Foundation will help improve things.

    Houston VA to Study Prostate Cancer with New Research Grant
    Thanks to a new $1 million grant awarded by the Prostate Cancer Foundation, researchers will be able to study the link between prostate cancer and exposure to Agent Orange in African-American male veterans who served during the Vietnam War.

    08 November 2017

    C-123 VETERANS: OUR PRO BONO LAW FIRM IS READY FOR YOUR CALL! S0...CALL TO SEE IF YOU CAN RECOVER

    YOU'RE INVITED TO ASK FOR FREE LEGAL HELP.
    Situation:
         Most of us who submitted C-123 Agent Orange disability claims before June 2015 ended up denied some compensation because VA decided to pay our claims only from that month forward. Others of us were diagnosed with AO illnesses but submitted our VA claims well after then, and by waiting also lost months of compensation. 
         There may be pro bono legal help to recover denied compensation. The National Veterans Legal Services Project (NVLSP, "Lawyers Serving Warriors") has skillfully helped C-123 veterans for years, and also the Vietnam Veterans of America and most other veterans' organizations. Here's a great video describing them.
         If your disability claim predates June 2015 I urge you to contact NVLSP. They'll review your situation with you. 



    07 November 2017

    VA CORRECTS REGULATIONS TO ADD C-123 VETERANS

    VA HAS BEEN CORRECTED!

    The fundamental document guiding a veteran' eligibility for VA benefits is their regulation VHA DIRECTIVE 1601A.02.

    Published in June 2017 it failed to include proper information about C-123 veterans. This was pointed out to them and a corrected version (see page 9) has now been released throughout the VA and supporting agencies:

    The point is that C-123 vets ONLY need to prove C-123 duty and have a diagnosis for an Agent Orange associated illness.

    Here is the additional C-123 language, page 9:
    This term also includes an individual who has been determined by VA to have a service connected disability related to herbicide exposure under 38 CFR 3.307(a)(6)(v) who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.

    06 November 2017

    It happened again last week. Another C-123 veteran's Agent Orange claim mishandled by his choice of veterans service organization ("VSO",) in his case Arizona State Department of Veterans Affairs as well as the regional office of the VA itself. The vet, however, did everything right!

    Whats the problem? ALL C-!23 CLAIMS GO TO VA ST PAUL. That office has people trained in our C-123 issues, and instead of denying our comrade's claim "for want of service in Vietnam" they'd have recognized the several buddy letters and other documentation of his C-123 experience.

    Solution: Consider sending in the following page, right out of VA's own manual, when working with your choice of VSO, and insist a copy accompany your claim and write C-123 VETERAN on top of your papers, just to make sure.
    ++++++++++++++++++++++++++++
    +++++++++++++++++++++++++

    03 November 2017

    DISABILITY COMPENSATION: Three paths to C-123 vets' retroactive compensation

    Many of us C-123 veterans were diagnosed with Agent Orange illnesses before the VA recognized our rights to disability compensation. At that time (June 2015) it seemed impossible to get VA to recognize those claims from the date filed, as VA usually does. 

    Last month that changed! In our favor!

    An October decision at the Board of Veterans Appeals, supported by similar decisions in years past, suggest three approaches to retroactive compensation for C-123 veterans. There is no certainty, because decisions at the BVA do not set precedent. Decisions do, however, offer guidance. VBA seeks consistency, and thus far BVA decisions are 100% behind retroactive disability benefits.

    Here are three situations where I see VA awarding retroactive disability compensation to C-123 veterans. Obviously, for those vets with illnesses diagnosed after June 2015 and who file claims after June 2015, the date of filing should be the effective date for compensation if approved.

     1. Veterans who filed disability claims on or after June 2015 who were diagnosed before June 2015 and whose illnesses continued until the date of filing their claim; in those cases, it seems that up to 12 months of compensation may be recovered:
     “Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law.  38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997).
    In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. Id.”
    2. Veterans who had a disabling line of duty injury during the period (1972-1982) that they were also being exposed to Agent Orange, thus establishing veteran status:
    “Exposure constitutes an injury under 38 U.S.C. 101 (24) (B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.”
    3.     Veterans with VA disability claims for Agent Orange-related illnesses predating June 2015 and who were denied retroactive compensation, receiving compensation only from June 2015 forward:
    “GC Precedent Opinion VAOPGEPREC 4-2002 recognizes that a reservist's adverse reaction to exposure to a toxin during ADT qualifies as an injury under 38 USC 101(24) and therefore entitles him to compensation under 38 U.S.C. 110 or 1131. Thus, the regulation that grants presumptive C-123 rule was not a liberalizing law and his benefits should pre-date the effective date of 38 C.F.R. § 3.307 (a)(6) (v).”

    29 October 2017

    A Quarter Century of VA Disability Claims: 25 years of hard lessons

    A brief narrative of interest to others dealing with environmental hazards and the VA

    Looking back, if I’d known how long and how hard a VA disability claim was going to be, I can’t say whether I’d have the resolve to see it through. I served in the Army and Air Force for 26 years. Only this month...October 2017...have I received VA’s final adjudication of disability claims I began submitting in 1992. Finally, 26 years after hanging up my flight suit the last time, VA seems to have finished addressing my cancers, spinal cord injuries, 21 operations, heart attacks, Agent Orange exposures plus life’s` miscellaneous little ailments, boo-boos and maladies.
    First lesson: thank goodness my family and I, unlike so very many veterans, didn’t find ourselves dependent on the VA for medical care and income because that help wouldn’t materialize for many years. My Air Force disability board and retirement as a major was completed in what now seems light speed only a year after leaving Bethesda Naval Hospital in 1992 following the Gulf War. We were also blessed with ample pre-war civilian retirement and investments...we were so lucky compared to young troops disabled before having a chance to establish themselves financially. My lesson has been awareness of how financially precarious sudden military injuries leave a family. It is a bleak picture.
    The rest of the lessons:

    27 October 2017

    Timeline: C-123 Agent Orange Issue, 1972-2017



    A PARTIAL VICTORY: Retroactive C-123 benefits for claims AFTER June 19, 2015!

    ARE YOU A C-123 VETERAN WHO FILED AN AGENT ORANGE CLAIM AFTER JUNE 2015 BUT YOUR ILLNESS WAS DIAGNOSED BEFORE THEN?

    Most likely, the VA started your disability compensation effective on the date you filed, not when you became ill. That may have cost you months or years of lost compensation.

    I think I found a solution to recover those lost months and years of compensation, based on language a BVA veterans law judge used in a recent C-123 decision. There is a way to backdate to June 2015 some or all of the compensation due you.

    Once it finishes processing an application, the VA provides disability compensation for claims based on the date filed. Many of our C-123 veterans were diagnosed with Agent Orange related illnesses before the VA rules took effect for us on June 18 2015.

    Many of our vets submitted claims after that date but have Agent Orange illnesses diagnosed before then. In that situation, there is a way you can argue for compensation not based on whenever you filed after June 2015 but instead, all the way back to the June 2015, for a maximum of twelve months compensation. As an example, twelve months of prostate cancer at 100% is over $30,000, so you'll want to consider this carefully with any claim submitted after June 2015.

    Read the following paragraph (taken from a C-123 retroactive compensation decision) very carefully.  1. Note that it specifies Agent Orange illnesses diagnosed prior to the date of the liberalizing law VA used to grant benefits, which for C-123 claims is June 19 2015.
    2. Also, that illness must have been evident from the diagnosis to the date whenever you filed. If your prostate cancer was diagnosed in 2011 and cured in 2014, this won't apply to you. If, however, you remained on "watchful waiting" up to June 19 2016 and beyond, this rule could apply. Same thing for any of the other Agent Orange illnesses like diabetes, IHD, peripheral neuropathy, etc.
    3. If your claim was submitted after June 19 2016, and your diagnosed illness continued from before June 18 2015 to the date your claim was filed, say June of 2017, could argue retroactivity only to June 19, 2015. That is because VA limits this situation to one year of back pay.
    However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. Id.

    I'll summarize:.

    1. This is for claims for illnesses diagnosed before June 18 2015 and continuing to the date a claim was submitted to VA.

    2.  VA limits this retroactive compensation to one year. If you filed after June 2016 or any later date, you may be eligible for one year of retroactive compensation.

    If you think this may apply to you, please discuss with your veterans service organization...you will probably have to bring them a clipping of the paragraph I quoted from the C-123 award.

    21 October 2017

    Attn: C-123 vets with Agent Orange claims before June 18, 2015

    Read the old VVA press release below! In early 2015 the President of the Vietnam Veterans of America, John Rowan, insisted VA treat C-123 aircrews and maintainers as VETERANS with full Agent Orange disability benefits. But the best VA would do is cover claims from June 18 2015 forward, not back to date filed. A partial but welcome victory.

    Now we finally have two possible approaches to fix that and recover what is due. That's why I've been trying to get the name, telephone and SSAN of everyone who filed claims for Agent Orange illnesses prior to June 2015. VVA is helping by putting the word out on their web site. WE NEED YOUR HELP TO HELP YOU: CONTACT WES CARTER IF YOU'RE ONE OF THESE VETS, and get the word to our crewmates to do the same. A major law firm is providing pro bono help to us.

    The lawyers are doing this for free, just as they did the C-123 claim settled on October 12 that awarded our comrade over four years of his 100% disability the VA owed...you can do the math!! (P.S.: $2,950 x 48 = $141,000.)

    Spread the word, please. All I need is the name, year the first claim was filed, email and phone, and Social Security or VA claim number.

    YOU CAN DO THIS – it wraps up six years of my hard work on your behalf and I want to do something else with my life!

    18 October 2017

    FREE legal help with our USAF C-123 Agent Orange claims (Westover, Pittsburgh, Rickenbacker, Howard, Clark)

    The law firm that just won a C-123 veteran's disability appeal to backdate a claim four years wants to represent all others whose claims were submitted before June 2015 and denied, or were paid only from instead that June 2015 forward instead of per the date first submitted. 

    Totally free, and you keep the entire amount recovered. They want to manage us as a group, not one at a time. Coordination is via the National Veterans Legal Services Project and the C-123 Veterans Association.

    Reminder: If you are retired military, Agent Orange illnesses qualify for Combat Related Special Compensation

    17 October 2017

    C-123 vets sue for USAF line of duty determination


    Yesterday afternoon C-123 veterans filed suit  in the US District Court of Washington D.C., seeking USAF line of duty determinations (LOD) to recognize our Agent Orange exposures. We are represented by the firm of Perkins Cole LLP of Washington, D.C.

    The military LOD is vital in protecting veterans' disability benefits from the Department of Veterans Affairs.

    16 October 2017


    Retroactive Disability Compensation: Today We WON!

    –TODAY C-123 VETS WON A BIG ONE FROM THE VA! –

    NOTE: I NEED TO HEAR FROM ALL C-123 VETS WITH CLAIMS SUBMITTED PRIOR TO JUNE 2015!

    C-123 veterans have been barred from disability compensation for our Agent Orange claims
    submitted prior to June 2015. That's when the VA finally started honoring our claims but not going back to the date submitted for those of us who filed before VA's June 2015 decision. TODAY WE BEGAN TO CHANGE THAT AND GET OUR BACKDATED BENEFITS!

    The VA's Board of Veterans Appeals, acting on a vet's C-123 claim first submitted back in 2011, on Thursday approved his appeal that sought retroactive benefits to the date first filed, thus picking up four years of retroactive disability compensation due him.

    How was this done? I'd read about the restrictions on retroactive benefits with liberalizing rules and was a party to the negotiations with Secretary McDonald that left us so dismayed by loss of benefits for which we'd waited years.

    An idea formed: I'd also read that reservists with line-of-duty injuries can achieve legal veteran status. It was easy to find a couple citations on the BVA web site, so it seemed possible to anchor a C-123 Agent Orange claim or appeal with a C-123 hearing loss disability. The claim would be on a "fact-proven" basis because VA already recognizes our exposures and there would be no need for the liberalizing rule to convey veteran status via presumptive service connection. We owe sincere thanks to the C-123 pro bono team (Chicago and Denver) at Faegre Baker Daniels, plus the National Veterans Legal Services Project for their input.

    Most of us have some hearing loss, and this particular vet had earlier submitted a straightforward hearing loss claim, earning the small disability VA typically grants for hearing loss and tinnitus, based on the vet's flying activities. Those activities included C-123 duty, so the hearing loss triggered legal veteran status during the 1972-1980 period he was also being exposed to Agent Orange.

    With legal veteran status established by his hearing injury, the Agent Orange illnesses for this vet simply became additional illnesses that VA covered.

    Although this particular vet was already 100% disabled for other issues besides Agent Orange, if he hadn't already been receiving a VA check this decision would give him compensation from 2011 to June 2015, or about $110,000...serious pocket change, indeed! His claim was meant to be our association's "poster-child" claim to try to pave the way for others.

    What's this mean for you? If your claim was submitted to VA on or after June 19, 2019, nothing. If it was submitted before and you are neither retired military nor already on VA disability, it means your claim can be appealed, or re-appealed, citing this decision, so long as you have a claim you can also make for hearing loss or some other disability. BVA decisions don't set precedent, but VA administrative law judges do give them great weight on similar claims.

    I emphasize the issue of hearing loss...most flyers (or infantry, artillery, EOD) have it to some degree. Many of us have tinnitus, for which there is no test and a veteran need only state that ringing in the ears has become a problem. That hearing loss (or any other LOD injury) having its origins back in our C-123 days, is a disability that satisfies the law's requirements for full legal veteran status...and opens the door for your Agent Orange claim being backdated!

    This appeal is in my Facebook NOTES section and HERE IS THE ACTUAL DECISION

    22 September 2017

    BVA Screws Up Another C-123 Vet's Appeal?

    It looks like BVA has trampled over the facts of another veteran's appeal.

    In early August 2017, a denied claim was reconsidered by the VA Board of Appeals in West Virginia. The vet claimed service connection for Agent Orange exposure during his assignment to the 327th Tactical Airlift Group at Lockbourne. BVA determined that the vet wasn't exposed to C-123 Agent Orange contamination because the 317th "was nor recorded as having operated or maintained  the ORH (OPERATION RANCHHAND) C-123 aircraft."
    EXCEPT: The 317rh did fly assigned C-123 transports!

    A two-second Google search showed that the 317th was assigned C-123 transports between 1969-1971,
    "Further, the Board's previous remand directed the RO to determine whether the Veteran serviced Operation Ranch Hand (ORH) C-123 aircraft during his military service, which are affected aircraft under the regulation. The RO determined that the Veteran was stationed at one air base, Lockbourne Air Force Base, where ORH C-123 aircraft were stationed while the Veteran was present. However, the Veteran's assigned squadron, the 317th Air Lift Group, was not recorded as having operated or maintained the ORH C-123 aircraft, and he thus was not found to have regularly and repeatedly operated or maintained affected aircraft under the regulation. Therefore, this case turns on whether the Veteran was exposed to herbicide agents as a result of his military service in Thailand."



    Stations[edit]
    Tachikawa Airfield, Japan, 18 August 1948 - c. 21 September 1948
    Wiesbaden Air Base, Germany, c. 30 September 1948
    Celle RAF Station, Germany (later: West Germany), 9 January – 14 September 1949
    Rhein-Main Air Base, West Germany, 14 July 1952
    Neubiberg Air Base, West Germany, 17 March 1953
    Évreux-Fauville Air Base, France, 17 April 1957 – 25 September 1958; 15 April 1963 – 20 June 1964
    Lockbourne Air Force Base, Ohio, 20 June 1964
    Pope Air Force Base, North Carolina, 31 August 1971 – 20 August 1993
    Dyess Air Force Base, Texas, 1 April 1997–present
    Aircraft[edit]
    C-47 Skytrain, 1942–1948
    C-46 Commando, 1948
    C-54 Skymaster, 1948–1949
    C-119 Flying Boxcar, 1952–1957, 1957–1958
    C-130 Hercules, 1957–1958, 1963–1964, 1964–1971, 1971–1993, 1997–2012
    C-124 Globemaster II, 1963–1964
    C-123 Provider, 1969–1971.
    Lockheed Martin C-130J Super Hercules, 2010–present

    Luckily, this vets' appeal was approved on other justification, but everyone involved let the vet almost get denied. BVA should have checked as should VFW, WHO REPRESENTED THE VETERAN!!

    13 September 2017

    VA DECEPTIONS USED TO DENY C-123 AGENT ORANGE CLAIMS, 2011-2015

       Every C-123 Agent Orange claim ever submitted was denied until June 2015, but still, VA insisted it had no blanket denial policy. How else are ten years of 100% denials described? With instructions like the examples below, there clearly was an official blanket denial policy. This denied Due Process, misled Congress when it tried to help us, ignored VAM21-1MR and provisions of US statutes and Federal Regulations. It was deceptive and an amazing abuse of discretion.

        Look at the following list of promises of case-by-case consideration. All of them, however earnestly offered, are shown to be false in the memo authored by VBA's Agent Orange expert, Mr. James Sampsel. He wrote, "If we were to adopt a case-by-case plan, an additional problem would be how to determine whether a particular post-Vietnam C-123 crew member was flying stateside on a former Ranch Hand aircraft." 

        See the point? He's discussing VA adopting a case-by-case plan, making it clear VA never had one! Why? Because VBA wanted to avoid the "slippery slope" his memo warned of.

    VA has the means to punish veterans making false claims, but veterans have nothing except outrage to deal with VA's abuse of discretion and false promises.

          – FALSE VA PROMISES OF PROPER C-123 CLAIMS  –
    "Scouts' Honor?"
    • "All claims are considered on a case-by-case basis." – former Secretary Shinseki
    • "All claims considered on case-by-case basis." – Under Secretary Hickey
    • "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel
    • "All claims are considered on a case-by-case basis." – VA Deputy Chief Consultant Post-Deployment Health
    • "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26, 2012, May 23, 2014
    • "Makes a case-by-case determination..." – VA Office of General Counsel
    • "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee
    • "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page
    • "These claims will be decided on a “case-by-case basis" – VA Agent Orange consultant
    • "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service
        • "Claims are evaluated on a case-by-case basis." – VA Public Affairs

       – FALSE EXCUSES VA CITED TO DENY C-123 CLAIMS –
    "I cannot tell a lie!...except about C-123s"

         VBA informed regional off
    ices how to deny all claims, and when ROs asked CS for they were told how to deny C-123 claims (VBA and VHA leaders made similar statements.)
         Every one of these was eventually shown to be in error, yet VA has never made right the harm done affected veterans.



    •  “VHA has already informed CS that no C-123 exposure claims will be approved because there was no exposure” (Mr. Tom Murphy to Wes Carter and Major Marlene Wentworth, NC USAF on 28 Feb 2013, in his office)
    •   "No amount of proof from whatever source will permit a C-123 claim approval. Because we've already determined there was no exposure." (Dr. Mike Peterson VHA to Wes Carter and Mr. Brooks Tucker [Senator Burr's staff] at Senate Hart Building meeting, May 2012)











    •  "There was no exposure. (Consultant representing VA at June 2014 IOM C-123 hearing)

    •  "VA laws and policies related to Agent Orange exposure, whether presumptive or based on fact-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide"*


    "TCDD is believed to persist in the metallic (or painted) environment with the lack of direct sunlight; however, its exposure risk is low due to lack of bioavailability and possible routes of exposure."

    • "Therefore, it can be concluded that crews who worked on C-123 aircraft after they were used in the Vietnam War were not at risk of developing TCDD/Agent Orange-related health effects"

    * Liquid Agent Orange only? A novel concept, but an outrageous one in toxicology. Agent Orange and its contaminant TCDD are deadly as a liquid, gas, solid or anything in between. The IOM concluded that, despite VA's "liquid" slight-of-hand. C-123 veterans were exposed via dermal, inhalation and ingestion routes of exposure.
    ** Mr. Murphy references the letter to Secretary Hickey from the Committee of Concerned Scientists and Physicians, which sought to satisfy the legal and scientific requirements for veterans' Agent Orange benefits per 38 USC and the VA's three eligibility statements in the Federal Register, i.e. exposure alone.

        ––––––––––––––––––––––––––––––––––––––––––––––––
    Here is VA's first position statement from April 2011 addressing C-123 exposure inquiries. 
    • The first point is correct: at that time, only Vietnam veterans had "presumptive exposure." The law was that other claimants would have to prove exposure on a fact-proven basis as we proceeded to do.
    • The next four VA points were either disproved by the IOM or, with the third point, clearly CUE.