Last Thursday Congressional staffers, veterans service organizations, legal scholars and C-123 veterans met with the VA's Office of General Counsel Mr. Richard Hipolit. Despite all their disagreement about VA's approach to preventing medical care and other benefits for Reservists they agree were harmed by Agent Orange exposure, agreement was reached on one important issue: Ebola.
Actually, on any situation like ebola, but that disease was offered as an example by the C-123 Veterans Association spokesperson. If a C-17 transport crewed by Active Duty, Air Guard and Air Force Reservists were sent on a humanitarian mission to West Africa, and the crew returned home and went about their regular lives but developed ebola after a week, only the Active Duty aircrew would be cared for by the VA.
VA officials agreed with the example that because the Guard and Reserve members' ebola didn't develop while they were on active duty but after, as is the natural course of ebola and so many other toxin and biologically-induced illnesses, the VA would not offer any medical care to them. The VA's interpretation of "veteran" status of veterans* exposed to anything is that an illness (read "injury") must manifest itself during the duty period.
So, if no overnight cancers, if no overnight ALS, if no weekend ebola, the aircrews and maintainers who were asked to volunteer are are their own when these ailments appear once off duty, even if scientifically and medically tied to their duty exposures. Surviving families are also to be abandoned by VA when mom or dad Reservist dies from the illness contracted while serving.
Even when the Institute of Medicine "emphatically" informed VA that C-123 crews were exposed to Agent Orange, and even though the Secretary signed a March 17 2015 memo agreeing with that finding and restating the VA's duty to protect, VA has found (actually, created) a means to prevent caring for ill aircrew and maintenance veterans. By deciding we aren't veterans, even if we were legally qualified as veterans before flying C-123, after flying C-123s, or both.
Clearly, VA OGC's flawed legal perspective also fails every real-world test.
Their agency, responsible for meeting the medical and other needs of those who volunteer to serve, is so eager to block C-123 veterans' benefits that it has constructed a flawed legal theory...so flawed that today's Reserve Components would be unlikely to volunteer if properly informed of the risks.
Actually, our airmen are and always have been patriotic enough to volunteer and probably would do so in any situation...but they'd be foolish, knowing that the VA has determined in advance to abandon them.
VA's proposed language to address C-123 servicemembers but withdrew it under severe criticism. OGC said they would reconsider the entire situation. The proposed legislation would, if enacted, protect C-123 Agent Orange victims by making them veterans by statute, but not resolve the conundrum DOD faces with Reserve Component volunteers left unprotected in all other situations. Like ebola.
* While VA Office of General Counsel binding opinions and BVA decisions clearly say otherwise, OGC maintains under 38 U.S.C. § 101 (24) that Agent Orange-ill C-123 aircrews and maintainers were exposed in a proper duty status but weren't "injured" at the same time as the exposure. Statutes explain that Reserve Component members who are injured on Reserve duty earn "veteran" status thereby and thus are protected by appropriate veterans benefits. Yale School of Law produced very relevant point papers disagreeing with OGC, a position joined by all veterans service organizations, and members of the House and Senate.