[T]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006)
09 May 2015
National Guard Association Publishes Details on VA Failures With Exposure Claims
Guardsmen encountering harmful toxins, biologics or viruses can develop illnesses in the natural course of those exposures, such as an Ebola exposure, resulting in the disease manifesting itself weeks later. Present Department of Veterans Affairs (VA) policy is that for VA benefits all exposures must result in illness during a Guardsman's military duties. If the servicemember has returned to civilian status, the VA will not provide medical care or other benefits when exposure illnesses develop.
Only illnesses diagnosed during military duties are recognized by VA for considering the Guardsman a "veteran" under statute and deserving of VA care. But harmful exposures to a virus like Ebola can take weeks to attack, or toxins like Agent Orange take months or years to cause illness, leaving Guardsmen unprotected after they return home. VA’s vital “caring embrace” for servicemembers made ill will not be there as expected, unless Secretary of the Department of Veterans Affairs Robert McDonald exercises his authority to act.
Veterans organizations, including VFW, DAV, American Legion, Paralyzed Veterans of America, Jewish War Veterans, Air Force Sergeants Association, and Reserve Officers Association, along with Yale Law School legal scholars and leadership from both the House and Senate, have called on Secretary McDonald to use his authority. But he hasn't. Nothing has been done.
VA's hesitation to act endangers readiness. Commanders have a moral obligation to inform their volunteers of this gap in care.
Secretary McDonald is presently considering VA's response to the C-123 post-Vietnam reservists’ Agent Orange exposures. VA regulations enacted to address these Agent Orange illnesses must be non-specific, and broad enough to address other exposure threats as well. Otherwise, VA will simply have to turn to Congress for authority to treat the next virus or toxin to sicken troops once they're home and off duty.
The author is a retired major of the U.S. Air Force.