(from email received from Veterans Benefits Administration on Tuesday June 23; Names redacted and quoted by permission)
Wes, I've been working on the C-123 issues on behalf of Dave Mxxxx and Dave’s asked me to respond directly to you.
Unfortunately, VA will not be able to extend any retroactive effect to Reservists’ disability compensation based on exposure to Agent Orange aboard C-123s.
The June 19th rulemaking was needed to establish Veteran status for Reservists based on the presumption that Agent Orange disabilities were incurred during active or inactive duty training, even though symptoms may have first manifested decades later.
That rule was necessary to grant benefits, and so it is “liberalizing” and subject to the effective date provisions Congress enacted in 38 USC 5110(g), which provides that:
Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.
Under the statute cited above, VA can pay Reservists C-123 Agent Orange claims as early as June 19, 2015 if those claims are submitted, or initiated online via eBenefits.va.gov, by phoning 1-800-827-1000, or at a VA Regional Office public contact center, before .
We would urge any Veteran, former Reservist or Survivor whose C-123 Agent Orange claim was previously denied to submit a reopened claim for consideration under the liberalized rule. Former Reservists whose claims or appeals are pending right now will be entitled to benefits as early as June 19, 2015 if their claims are granted.
We're sympathetic to your position that the VCAA and due process required VA to make available to decisionmakers the 2013 letter from ATSDR to JSRRC, but because C-123 Reservists were not Veterans in the absence of the rule published, and effective, June 19, 2015 rule, VA cannot provide benefits to former Reservists any earlier.
I’m sure that’s not what you wanted to hear, but we’re bound by the law and the law is pretty clear here.