14 August 2015

C-123 Veterans' Eligibility for Retroactive Compensation

The recent decision in McKinney v McDonald recognizes both the ability, and the obligation, of the Department of Veterans Affairs to provide retroactive disability compensation for fact-proven military herbicide exposures of Vietnam-era Active Duty and post-Vietnam Air Force Reserve C-123 veterans with diagnosis of Agent Orange-presumptive illnesses. VA has the duty to provide retroactive disability compensation per the date of claim by C-123 veterans.

Having experienced a decade of close contact with resultant inhalation and ingestion of the toxin, these veterans had a unique and damaging buildup in their livers and adipose tissue. Multiple studies establish that long-term low-dose TCDD exposures are more harmful than short-term high-dose exposures due to the body’s accumulation over time.

The Institute of Medicine January 2015 report on C-123 Agent Orange exposures was clear: the veterans were exposed. Input to the IOM from the CDC/Agency for Toxic Substances and Disease Registry detailed the 200-fold greater cancer risk than the screening value to these veterans as well as their having exceeded by 182-times screening level described in the US Army TG312.  Further, CDC/ATSDR and IOM took note that the exposures were per aircraft testing completed in 1994, whereas the C-123s flown by Air Force Reserve units were exposing their crews 22 years earlier when the contamination would have been much more intense, being decades closer to the last Vietnam Agent Orange spray missions.

The Secretary of Veterans Affairs has acknowledged the fact-proven C-123 veterans’ exposures, as noted in the interim final rule:
“…this action results from a recent decision by the Secretary of Veterans Affairs to acknowledge that individuals who had regular and repeated exposure to C-123 aircraft that the United States Air Force used to spray the herbicides in Vietnam during Operation Ranch Hand were exposed to Agent Orange.”
Because exposure to Agent Orange constitutes an “injury,” these Reservists qualify as having active military service under 38 U.S.C. § 101(24). This conclusion is confirmed by judicial precedent and by the VA’s own interpretation of the relevant statute in a binding precedential memorandum from the VA Office of General Counsel, including VAOPGCPREC 4-2002 holding that harmful “exposure to a foreign substance” constitutes an injury under §101(24) and (2.) Further, OGC in VAOPGCPREC 08-2001 recognized that illness or injury recognized only post-service but clearly associated with ACDUTRA or INACDUTRA also provide veteran status.

Recognition of the Active Duty C-123 veterans’ exposures and injuries was appropriate and therefore, so too their retroactive compensation. The interim final rule obstruction of retroactive compensation for Reserve Component servicemembers was based on the mistaken premise that they weren’t “veterans.” But this is in obvious error, because Reserve Component servicemembers diagnosed with one of the Agent Orange-presumptive illnesses are veterans per 38 U.S.C. 101(2) and the binding precedential OGC opinions. Further, servicemembers with coincidental service-connected disabilities such as hearing loss were already veterans per 38 U.S.C. 101(24)(B) and (C) and thus, like their Active Duty C-123 counterparts, entitled to retroactive compensation to date of claim receipt (or intent to file) by the Department of Veterans Affairs.

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