03 July 2015

Federal Court Sides With Veterans in Toxic Exposures Lawsuit

Ninth Circuit Court sides with veterans in toxic exposures suit, and includes a sly dig at the quality of VA medical care.

The U.S. military must continue to alert veterans exposed to chemical and biological weapons experiments of any new information that may affect their health and provide them ongoing medical care, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed in part, and reversed in part, a ruling by U.S. District Judge Claudia Wilken.
Wilken sided with the plaintiff class, comprised of thousands of Army veterans, in sustaining claims that the government had duties to them and that those duties were judicially enforceable. The appellate panel agreed, but also reversed a part of the judge’s order.
Wilken, while finding that the government was obligated to provide medical care to the test subjects, declined to compel the U.S. Army to provide that care on the grounds that care was available through the Department of Veterans Affairs. But the appeals court said that was an insufficient basis to deny the requested relief because there was no evidence that the care available at the VA would be “equal in scope and quality” to what the veterans are entitled to.
Health Problems
The plaintiffs sued the CIA, the Department of Defense, and others, accusing them of failing to properly treat health problems caused by the experiments, which took place between 1942 and 1975. They said the government exposed them to chemical agents, germs and drugs in researching how to defend against nontraditional weapons attacks, and failed to provide proper notice to many of the veterans about health hazards they faced by participating in the experiments.
The government has acknowledged the testing program, and in fact a 1953 DOD directive, and an Army regulation dating to 1962, require that subjects be tested only with their informed consent. A 1988 amendment adds that “[t]he duty to warn exists even after the individual volunteer has completed his or her participation in research.”
The government argued, however, that the 1988 amendment is not retroactive, a position rejected by Wilken and the appellate panel.
Fletcher’s Opinion
Judge William Fletcher, writing yesterday for the Ninth Circuit, noted that the regulation was revised in 1990 to make it explicitly applicable to “[r]esearch involving deliberate exposure of human subjects to nuclear weapons effect, to chemical warfare agents, or to biological warfare agents.” The change, Fletcher said, “would have made little sense if the notice requirement applied only prospectively.”
The government’s contrary argument, he said, was a “convenient litigating position” rather than an administrative interpretation to which a court should defer.
“We conclude that [the regulation] requires the Army to provide former test subjects with medical care for any injuries or diseases that were proximately caused by Army experiments in which they participated,” Fletcher wrote. “The fact that the VA provides medical care to some former test subjects, for reasons independent of [the regulation] does not relieve the Army of its duty….”
Fletcher’s opinion was joined by Senior Judge Mary M. Schroeder.
Senior Judge J. Clifford Wallace dissented in part, arguing that the Army regulation does not include a “specific, unequivocal command” that the Army provide medical care to former research volunteers, and that the district judge’s order denying that form of relief should be sustained “on the alternative ground that their claim is not judicially enforceable under section 706(1) of the Administrative Procedure Act (APA).”
The case is Vietnam Veterans of America v. CIA, 13-17430.

Copyright 2015, Metropolitan News Company

30 June 2015

VA Answers Basic Questions About C-123 Agent Orange Claims! Hotline=1(800) 749-8387

July 2 - phone number the hotline is corrected here
 and is actually 1(800) 749-8387

A very kind response from Veterans Benefits Administration leadership! We asked for clear and simple instructions for our folks to follow and VBA just emailed us exactly that. Here's the scoop...read carefully and get those claims in if you have what you believe to be one of the Agent Orange-related illnesses. 

Specific claim situations:

a. no claims submitted yet 

Veterans with disability they believe is caused by Agent Orange exposure should file a claim for service-connected benefits on VA Form 21-526EZ (available at your local regional benefits office, through a Veterans Service Officer (VSO), or online athttp://www.va.gov/vaforms/ or file a claim online at https://www.ebenefits.va.gov/. 

Survivors whose spouses died from Agent Orange related disease should file a claim for Dependency and Indemnity Compensation on VA Form 21-534EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/

b. claims submitted no decision

If you already informed VA that this was a C-123 claim, you should just sit tight while we resolve the claim.  We generally work claims on a first in, first out basis, so if your claim has been pending six months or more, it should be near the top of our list.  If VA is not already aware that your claim is C-123 related, you should contact your VSO or call us at 1 (800) 749-8387 and request that we add that notation to your file and route your claim to the St. Paul, MN regional office.

c. claims denied not yet appealed

If you believe VA’s decision was wrong, initiate an appeal on VA Form 21-0958, Notice of Disagreement, available through your VSO and online at http://www.va.gov/vaforms/.  You have one year from the date we notify you of our decision to file an appeal that may protect the effective date.  After one year, you will have to file a reopened claim.  The process to reopen is the same as described under “no claim submitted yet”, but usually requires new and material evidence.  Because of the rule change, VA will consider the reopened claim even if you don’t have additional evidence.

d. claims denied and appealed

If the appeal is currently pending at a regional office or the Board of Veterans Appeals (BVA), you should make sure that VA is knows this is a C-123 claim.  If you’re not sure, you should contact your VSO or call us at 1 (800) 749-8387 and request that we add that notation to your file.  If your appeal is still at the regional office and you have more evidence to submit, mail it to the regional office intake address below.  If your appeal is pending at the BVA and you have more evidence to submit, mail it to the Board at the other address below.

RO appeals:
Department of Veterans Affairs
Claims Intake Center
Attention: C123 Claims
PO Box 5088
Janesville, WI 53547-5088

BVA appeals:
Department of Veterans Affairs
Board of Veterans Appeals
Attention: C123 Claims
810 Vermont Ave, NW
Washington, DC 20420

If you’re unsure where your appeal is inside VA, you can send evidence and information to either of the addresses and we will locate the file and forward the new evidence for consideration.

e. claims appealed, denied

If the claim was appealed and the appeal was denied, you can submit a reopened claim.  VBA requires new and material evidence to reopen a denied claim, but in this case the rule change is sufficient to reopen your claim. 

Veterans with disability they believe is caused by Agent Orange exposure should file a claim for service-connected benefits on VA Form 21-526EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/) or file a claim online at https://www.ebenefits.va.gov/. 

Survivors whose spouses died from Agent Orange related disease should file a claim for Dependency and Indemnity Compensation on VA Form 21-534EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/)

f. anything else?

I think we’ve covered all the bases, but we’re happy to answer any questions you or other C-123 Air, ground maintenance, and aeromedical crewmembers have.  If someone needs individualized advice on their claim, they should call 1 (800) 749-8387 and the experts will help sort out the issues.
Survivors should file reopened claims on VA Form 21-534EZ (available at your local regional benefits office, through a VSO, or online at http://www.va.gov/vaforms/).  If they’re experiencing extreme financial hardship or fall into any of the other categories below, they should inform us and provide whatever supporting evidence they have.  Evidence that would support a finding of financial hardship, and allow us to move their claims to the head of the line, include things like
  • an eviction notice or statement of foreclosure
  • past due utilities notices, and/or
  • collection notices from creditors.

If they need help, they should work through a Veterans Service Organization or call the specialized C-123 claim processors at 1 (800) 749-8387.  They can also call VA’s primary claims help and information line at 1 (800) 827-1000.

Our response...Good job, VA! Thanks!

28 June 2015

Clear & Unmistakable Errors (CUE) Taint VA's C-123 Claims Processing

CUE has been committed on numerous occasions by the Department of Veterans Affairs in processing C-123 claims. We'll point out some CUEs of major significance.

CUE means that a veteran’s claim has been mishandled or unjustly processed to the point that the errors are so apparent and so prejudicial that the injustice is plain for all to see. 

VA commits CUE frequently and resists admitting it. The BVA and CAVC don't often recognize it either. VA's standards to acknowledge its own CUE are very high.

But their C-123 CUE record is both obvious and terrible. Let's look at some of their most painful examples of CUE violations all flowing from a single incident – and there are dozens more we don't have time to detail here.

The Incident: March 2013 receipt by Veterans Benefits Administration Agent Orange Desk of an email from Mr. Dominic Baldini, Chief, DOD Joint Services Records Research Center (JSRRC), confirming C-123 veterans' Agent Orange exposures. VBA did nothing with the JSRRC report, which came to light only in May 2015 through Federal court-supervised Freedom of Information Act releases by the VA.

Further, the JSRRC began issuing individual veterans' C-123 exposure confirmations in May 2014, none of which have been acted on by the VA, which instead ordered all C-123 claims "postponed" as they remained until June 2015. Thus, VBA improperly ordered claims to be denied, forbidding medical care and other benefits for two years after the first JSRRC confirmation and one year after the second JSRRC confirmation.

1. VA abused C-123 veterans rights to Due Process by denying claims and withholding compensation ("property") when VBA received, but failed to reveal, Department of Defense Joint Services Records Research Center (JSRRC) confirmation in March 2013 of our Agent Orange exposures. That confirmation was backed up with HQ Air Force Reserve Command tail number records of our former Operation Ranch Hand aircraft, with CDC confirmation of the harm caused by our exposures, and by the original and subsequent Air Force tests in 1979, 1994, 1996, 1977, 2000 and 2009. 

2. The same misstep regarding the March 2013 JSRRC confirmation had another CUE. VA's own regulation VAM21-1MR, requires that VA provide such information to claimants but VBA failed to do so. Federal courts have ruled the VA regulation to have the force of law, and VA's violation of its regulation was a clear and obviously prejudicial error.

3. VA is required by the Veterans Claims Assistance Act (VCAA) to provide all available government, as well as readily available non-government, records helpful to a veteran's claim. VA failed to do that with C-123 vets when they withheld the JSRRC exposure information.

4. Very specifically, 8 C.F.R. § 3.156(c) provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back. No C-123 veteran whose claim was denied was permitted this protection. The March 2013 JSRRC confirmation (from DoD, "the relevant service department") had no VBA reaction, which should have been to permit all denied claims to be reconsidered. Instead, VA took no action at all, other than to dispute the JSRRC input, and not reveal it to veterans.

A single example of VA action, tied to four or more Clear and Unmistakeable Errors. A perfect example of how VBA fought off C-123 veterans' claims for four years, regardless of the merit of our arguments...merit finally confirmed by VA but only after the January 2015 release of the Institute of Medicine C-123 Agent Orange report.

No veteran such be the subject of such determined VBA CUE, but over 2100 men and women were abused by staffers in VA determined to block any and all C-123 claims. CUE didn't seem to deter them at all. 

Not a problem, at least from the VA's perspective. We paid the price for their erroneous and unconstitutional actions. 

25 June 2015

Here's How VA Calculated the Cost of C-123 Veterans' Agent Orange Benefits

It sounded like a lot but is such a paltry sum: $47 million to address the needs of 2100 or so C-123 veterans. It works out to something under $200 per month per veteran, assuming the wonderful gift of living another ten years.

VA's C-123 press release didn't stress the money issue but many news reports sure did. "Veterans in Line for Millions in Compensation" being the basic theme. But do the math: 2100 veterans dividing $47 million by ten years and then by twelve months is only $186 per month.

So it should be clear to all this struggle wasn't and isn't about the money. It was to get our folks VA medical care and other benefits vital for quality of live and extension of life, and once VA begins processing our exposure claims we'll finally be inside the system.

VA presented a detailed explanation of how it came up with the $47 million price tag for their C-123 response. Some of it makes sense, but much is obscure, such as survivors' benefits and medical care itself. Still, their best effort was made.

We disagree. Using the statistics developed by the Kennedy School of Government for current conflicts, that price tag per veteran is much higher.

Here's how the government calculated our 2100 veterans, assuming about 320 apply for benefits:

Title of Regulation: Presumption of Herbicide Exposure and Presumption of Disability During Service For Reservists Presumed Exposed to Herbicide

Purpose:  To determine the economic impact of this rulemaking.

The Need for the Regulatory Action:  The Department of Veterans Affairs (VA) is amending its regulation governing individuals presumed to certain herbicides.  Specifically, VA is expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era.  In addition, the regulation will establish a presumption that members of this group who later develop an Agent Orange presumptive condition were disabled during the relevant period of service, thus establishing that this service constituted “active, naval, military or air service.”  The effect of this action is to presume herbicide exposure for these individuals and to allow individuals who were exposed to herbicides during reserve service to establish veteran status for VA purposes and eligibility for some VA benefits.  The need for this action results from a recent decision by the Secretary of Veterans Affairs to acknowledge that individuals who had regular and repeated exposure to C-123 aircraft that the United States Air Force used to spray the herbicides in Vietnam during Operation Ranch Hand were exposed to Agent Orange.

Estimated Impact:  Estimated Mandatory Cost. Benefit costs are estimated to be $3.8 million during the first year, $21.0 million for five years, and $47.5 million over ten years.  Benefit costs are estimated to be $3.8 million during the first year, $21.0 million for five years, and $47.5 million over ten years. 

Fiscal Year
Obligations (000's)
Obligations (000's)
Obligations (000's)
5 Year Total



10 Year Total




Administrative Costs. There are insignificant FTE or GOE cost requirements associated with this proposal.

Assumptions and Methodology of the Analysis:
Veterans.  Data from the Office of Performance, Analysis, and Integrity (PA&I) indicates that 2,783,690 Veterans served in Vietnam, of which there are 453,782, or 16.3 percent, living Veterans with Agent Orange-related disabilities.  Based on the IOM study, up to 2,100 Air Force Reserve personnel trained and worked on C-123 aircraft and were potentially exposed to Agent Orange.  Assuming that 16.3 percent of these Reservists have Agent Orange-related disabilities results in an estimated 342 Reservists that would be eligible to receive disability benefits for Agent Orange presumptive disabilities under this proposal.  Mortality rates were applied to these 342 Reservists to estimate caseload in the out-years.

Data from PA&I also indicates that the 453,782 living Veterans with Agent Orange-related disabilities have, on average, approximately 1.5 Agent Orange presumptive disabilities.  The data also shows that the average rating for an Agent Orange disability is 36 percent.  Assuming that each Veteran has 1.5 Agent Orange-related disabilities at an average of 36 percent leads to an average combined degree of disability of approximately 50 percent for Agent Orange-related disabilities.  Estimated payments at the 50-percent level and annual cost-of-living adjustments from the 2016 President’s Budget were applied to the caseload to calculate annual obligations.

For purposes of this cost estimate, VBA assumes that these 342 Reservists would be granted Veteran status and begin receiving compensation in 2016 for their Agent Orange-related disabilities.  While some of these reservists may already be on the compensation rolls for service-connected disabilities associated with separate periods of active duty service, data is not available to identify these Veterans.  Therefore, for this cost estimate, VBA also assumes that these Veterans would be new to the rolls in 2016.

In addition to the Reservists that currently have Agent Orange-related disabilities, there are Reservists that do not currently have these conditions, but will develop them over the remainder of their lifetime.  While data is not available to predict if and when these Reservists will develop Agent Orange-related disabilities, for purposes of this cost estimate, VBA assumes that there will be 10 new Veteran accessions per year through 2025.  This is based on a straight line average number of cases per year since 1982 (i.e. an estimated 342 cases in 33 years since 1982).  Obligations for these Veterans are also calculated by applying the 50-percent payment rate beginning in the year of accession.

Survivors.  The caseload for survivor compensation is associated with the number of service-connected Veterans’ deaths.  VBA assumes, based on marriage statistics from the Census Bureau, that 50 percent of Veterans will have a surviving spouse.  For purposes of this cost estimate, VBA assumes that a survivor will access the rolls at the beginning of the year following the Veteran’s death and will receive the estimated average survivor compensation benefit from the FY 2016 President’s Budget.  Mortality rates were also applied to survivors to calculate caseload in the out-years