Yale University School of Law, which maintains a veterans law clinic (their "Jerome N. Frank Legal Services Organization") under Dean Michael Wishnie. Dean Wishnie, functioning as the Supervising Attorney, has provided an extremely detailed pro bono analysis of the C-123 exposure issue and has formed an expert opinion as to the eligibility of C-123 veterans for VA Agent Orange claims.
Here is their executive summary, which is expertly supported with a fourteen page brief:
Dear Major Carter,
On behalf of the C-123 Veterans’ Association, you have asked us to consider whether existing medical and scientific evidence satisfies the U.S. Department of Veterans’ Affairs (“VA”) legal standard for “actual exposure” to herbicide agents such that veterans who served on C-123 aircraft , which were used to spray Agent Orange and other tactical herbicides in Vietnam, are eligible for presumptive service connection for disability compensation benefits. We are pleased to provide our legal opinion on this question.
We conclude that existing evidence indicates that C-123 veterans satisfy the legal standard for “actual exposure” to tactical herbicides. These veterans are thus entitled to presumptive service connection for listed diseases. Because those veterans who served on C -123 aircraft can prove actual exposure [via USAF Form 5s, flight orders, and other military documentation specific to both airplane type and "tail number,'] by law and regulation they need not demonstrate that they served in the Republic of Vietnam, nor are they required to present evidence bearing on “bioavailability” of herbicides, the duration or magnitude of their exposure, or any other criteria. Under existing scientific and medical evidence, service on C-123 aircraft used to spray Agent Orange satisfies the VA’s standard for actual exposure to herbicides. Thus, veterans who served on such aircraft and who have a disease listed as service-connected for exposure to tactical herbicides are entitled to disability benefits on that basis. In addition, like all veterans, C-123 veterans are eligible to seek benefits even for non-listed diseases, if the veteran can establish a medical nexus between the disease and the herbicide exposure.
And here is the brief's conclusion:
For the reasons stated above, C-123 veterans are entitled to service connection for listed diseases, because the available scientific and lay evidence demonstrates that veterans were “actually exposed” to tactical herbicides. Veterans also remain eligible to seek benefits for non-listed diseases if the veteran can establish a medical nexus between the disease and the herbicide exposure.
It is the plan of the Association to make the Yale brief available to all interested veterans. Yale will post it on their web site, and interested attorneys and VSOs can use the brief to hit hard on the legal justification for our exposure claims. Important: the brief can stand alone, but will do better through the initial disability claim if supported by Form 5s, flight orders, and other documentation available from the C-123 Veterans Association web site.
|Dean Michael Wishnie|