[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)
24 June 2015
C-123 Veterans Comment in Federal Register re: VA C-123 Rules
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Chair, The C-123 Veterans AssociationMailing Address 2
State or Province
C-123 Veterans Association
Wes Carter, Chair
VA Office of General Counsel provided two earlier precedential opinions on Reservists exposed or injured during ACDUTRA or INACDUTRA with subsequent injury noted only after conclusion of military service. In both binding opinions the Reservists were correctly deemed "veterans" per the statute and provided appropriate medical care and other benefits.
These decisions closely parallel that of the C-123 veterans. These OGC opinions should govern the Secretary's response to the Jan 8 2015 Institute of Medicine which the Secretary has acknowledged. No new legislation was needed as discussed with VA OGC on April 16 2015, when it was also pointed out that the lack of retroactivity was unacceptable and inappropriate, especially given VA's years of delay, obstruction of evidence and infringement on the veterans' rights to Due Process. While the Secretary may consider a new regulation an effective instrument for responding to these veterans' service-connected disabilities vice legislation, any such regulation must account for the earliest date of claims for exposure as with other veterans' claims. In no event should a date later than 1 January 2012 be considered, and as with other disability claims no award should be made to predate the claim itself.
Veterans' rights to property (here, any disability compensation associated with their service-connected illnesses for the period of the date their Agent Orange exposure claims were submitted and the regulation's proposed date of June 19 2015) are wrongly abridged by the proposed regulation and the arbitrary date of June 29 2015 for its effect, in violation of the Due Process Clause in the Fifth Amendment.
VA should not "benefit" through its actions in delaying valid disability claims by prohibiting veterans from retroactive compensation. Veterans cannot recover medical and other expenses incurred before service connection is awarded and the loss of other vital benefits, but there is no basis for VA withholding retroactive disability compensation. In this case, we also note the immense body of evidence submitted by the veterans, to include the March 2013 Joint Services Records Research Center confirmation of C-123 veterans' exposure, which VA did not act on or provide veterans in violation of the Veterans Claims Assistance Act and also VA's own regulation VAM21-1MR.
Please see the attached discussion, well-presented by the Yale University School of Law Veterans Legal Clinic.