18 April 2015

Are C-123 Veterans Actually Veterans?

No. Not if VA Office of General Counsel can prevent it!

"You're not veterans. Even if you were veterans before or after Reserve duty or even veterans in both situations, you're not veterans for purposes of Agent Orange exposure unless you qualify as such during your Reserve tour."

That was the VA Office of General Counsel talking last Thursday at the Senate Russell Building, defending its views in front of veterans service organizations,  Yale School of Law, House and Senate staffers, the media and others. The legal definition of "veteran" was raised as a stumbling block in our path to VA health care and other benefits.

Of course, this element of the puzzle could have been raised long ago and resolved, but for some reason, VA has a record of throwing obstacles one after the other, rather than putting everything on the table for the puzzle to be seen in one piece. Having resolved the scientific question of exposure through the Institute of Medicine C-123 report released in January 2015 (a process first discussed and promised the veterans in 2012,) VA OGC identified the statutory definition of "veteran" as its next barrier to our claims.

It turns out that VA benefits are available for Reserve and Guard members only if injured during Reserve duty, or if the servicemember completes a period of recall to Active Duty during the period in question. It is the view that Reserve and Guard, even if legally qualified as veterans before or after the period in question, are not "veterans" under the law unless they meet this criteria.

Example: a Reservist sent to duty in West Africa returns home and reverts to civilian status, develops ebola two weeks later. but is not a "veteran." Reason: because the illness or injury didn't actually manifest itself while the person was in uniform, even though the exposure occurred during Reserve duty. As ridiculous as this sounds, this exact scenario was run past VA Office of General Counsel and they agreed: VA actually would refuse care to an ebola-exposed Reservist.

The example closely parallels our Agent Orange problem.  We were exposed to the toxin dioxin in Agent Orange during the C-123 years of 1972-1982. However, soft tissue sarcomas and other Agent Orange illnesses don't manifest  themselves overnight, but instead can take decades for the exposure to be manifested in disease.

VA says because we didn't actually develop prostate cancer during a drill UTA, we were not injured in our Reserve status and therefore are not seen by VA as "veterans" for purposes of protection. An exposure to a Reservist which doesn't cause an immediate injury doesn't qualify the Reservist as injured and therefore a veteran under the law.

As you can imagine, this extremely restrictive OGC view didn't go unchallenged last Thursday. Rather, everyone present was of one voice: exposed C-123 servicemembers are veterans and are due VA care and benefits. There are a couple foundations for this challenge: in 2002 VA Office of General Counsel provided a formal precedent-setting option that a Navy Reservist given an anthrax vaccine who later developed serious illness qualified as a  veteran. It held that the vaccine was a foreign substance which injured her at the time of inoculation, even though the complications became evident years later. Our point: dioxin is a foreign substance which injured us.

VA OGC didn't take this quietly, Instead, they did the amazing thing of declaring their 2002 decision to be in error and therefore not applicable to the C-123. Nobody there was willing to let VA cherry-pick or redefine their own references and it was clear any final solution doing that was headed straight for court.

Still, the conference ended without degenerating into total chaos. VA OGC agreed that proposed legislation would be withdrawn, and to rethink the opposing arguments, especially in light of the unified front against the VA position. VA also came to realize that somehow language had been inserted in the proposed legislation barring retroactive claim awards, even if those claims had been in their system for many years.

"Active Service Criteria for Veteran Status (from the Congressional Research Service

“An applicant for VA benefits must have “active military, naval, or air service” to be considered a veteran for most VA benefits. However, not all types of service are considered active military service for this purpose.

In general, active service means full-time service, other than active duty for training, as a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or as a commissioned officer of the Public Health Service, the Environmental Science Services Administration or the National Oceanic and Atmospheric Administration, or its predecessor, the Coast and Geodetic Survey.

Active service also includes a period of active duty for training during which the person was disabled or died from an injury or disease incurred or aggravated in the line of duty and any period of inactive duty for training during which the person was disabled or died from an injury incurred or aggravated in the line of duty or from certain health conditions incurred during the training.

Additional circumstances of service, and whether they are deemed to be active military service, are set out in law. For example, if on authorized travel to and from the performance of active duty training or inactive duty for training, a person is disabled or dies while proceeding directly to or returning from such duty, the duty will be considered to be active duty for training or inactive duty for training."

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