10 June 2015

Board of Veterans Appeals Okay'd C-123 Reservist's "Veteran" Status in 2007 Decisions

The Board of Veterans Appeals and VA Office of General Counsel both agreed on something before April 16. Until then, VA rules, OGC opinions (38 U.S.C. § 1110 or 1131.  VAOPGCPREC 4-2002, 69 Fed. Reg. 25176 (2004)) the law were read to permit Reservists exposed to a hazard to be considered injured at that moment, even though a disease might not evidence itself immediately but rather after the Reservist's period of AD is over...such as PTSD or immunization illnesses.

Most C-123 veterans and our legislators, as well as Yale School of Law, are aware by now that the VA Office of General Counsel waited until just about the last minute to "discover" their newfound position that Reservists must be in or otherwise earn "veteran" status per the various statutes, for VA to permit Agent Orange medical care and other benefits. Until this point, OGC had disputed only the exposure claims made by veterans and VA's supposed freedom to redefine the term "exposure" to its own needs. Losing that battle, OGC switched to Plan B, The Veteran Status. Question to OGC: Does this show VA's pro-veteran, non-adversarial, "benefit of the doubt" VA justice?

This new and completely vacuous argument, disputed by VA's own earlier decisions which are legally binding but simply ignored, has managed to sidetrack any VA action from April 16 until today, and still no firm resolution in sight. We do know that VA has submitted language for their rule about us to the White House Office of Management and Budget, but it has sat there since May 12 with no action and not even an abstract to suggest what its scope will be.

None of this was necessary.  The Vietnam Veterans of America, Yale Law and Senate sources hammered at the VA about their earlier decisions, because Office of General Counsel decisions are binding on the VA, and that exposure illnesses convey veteran status at the exposure event, not the moment of diagnosis. VA OGC disagreed but has no basis for their disagreement. Still, with legislation being too drawn out, a rule seems the veterans' best hope for now.

The VA's own Board of Veterans Appeals decided a case for one of our Westover - Hanscom C-123 veterans back in 2007, Citation #0734812, involving the same everything...time frame, airplanes, duties, bases, veteran vs. reservist, exposure...everything parallel to all the claims denied ever since, except today C-123 veterans have even more proof in the IOM report, the JSRRC confirmations and other federal agencies findings.. The BVA judge justly decided:
    "The service and museum records document the
veteran's reserve service in 1972 and 1973, the presence of
that C-123 at Hanscom in 1972 and 1973, the use of that C-123
in spraying defoliant in Vietnam, and service of that
airplane in Vietnam in 1972.  Overall, the evidence
reasonably supports the veteran's account of herbicide
exposure.  The Board will concede that the veteran was
exposed to an herbicide during service. 
    The Board accepts that the veteran was exposed to an
herbicide during service.  The veteran was diagnosed with
type 2 diabetes after servic
e.  The Board presumes that the
veteran's diabetes is service connected, and grants his
    As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 
    In this case, the Board is granting in full the benefit sought on appeal.  
    Therefore, the Board need not provide further notification or
assistance to the veteran.  The Board also does not need to
discuss further VA's compliance with the laws and regulations
involving notification and the development of evidence."

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