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The C-123 Veterans Association, its Members and Board
The C-123 Veterans Association, its Members and Board
August 18, 2015
The Honorable Robert A. McDonald
Secretary of Veterans Affairs
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW Washington, DC 20420
Dear Mr. Secretary:
RE: Comment Concerning Department of Veterans Affairs’ 19 June 2015 Interim Final Rule
“Opening up eligibility for this deserving group of Air Force veterans and reservists is the right thing to do. We thank the IOM for its thorough review that provided the supporting evidence needed to ensure we can now fully compensate any former crew member who develops an Agent Orange-related disability.” - Secretary McDonald –
The above quote from Secretary McDonald announced the VA’s duty to fully compensate active duty Air Force veterans and Air Force Reservists (nearly all veterans themselves) who have developed an Agent Orange-related disability in service to the United States of America.
We C-123 veterans agree that all these veterans need and should be fully compensated for such disabilities.
Unfortunately, the hesitating implementation of this Rule by the Department of Veterans Affairs (“VA”) only provides compensation on a prospective basis as of June 19, 2015 – despite the fact that the service-connected exposure occurred, in some cases, decades ago. Full compensation, as referenced by the Secretary, should be provided; however, that will not happen with an arbitrary effective date that significantly post-dates, and wholly ignores, the Agent Orange-related disabilities suffered by certain of these veterans.
The VA should respect the retroactivity date for benefits claims for these Air Force Reservists to correspond with the effective dates dictated by the Nehmer class action lawsuit and its progeny. VA refusal to grant retroactivity wrongfully denies proper full compensation to deserving veterans and survivors.
On June 19, 2015, the Department of Veterans Affairs issued an Interim Final Rule to amend 38 C.F.R. § 3.307 to expand the class of veterans to be granted presumptive service connection for exposure to herbicide agents like Agent Orange. Specifically, the Interim Final Rule designates, as eligible for such a presumptive service connection finding, men and women who served in the Air Force or Air Force Reserves under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.
The Interim Final Rule also establishes a presumption that members of this group who later develop an Agent Orange service connected condition were disabled during the relevant period of service. The Interim Final Rule modifies the definition of “veteran” to include the Reservists’ time spent on C-123 planes within service considered to be “active, naval, military or air service.” Designating these service members as having served in “active, naval, military or air service” for the purpose of being considered a veteran is important for eligibility for some VA benefits.
This clarification of what constitutes relevant service ensures that these Reservists are eligible for VA disability compensation and medical care for any Agent Orange-related condition, and that their surviving dependents are eligible for dependency and indemnity compensation and burial benefits.
The Interim Final Rule is an important step to getting our class of veterans and our all families the benefits they have earned. VA should be applauded for recognizing these veterans for service to the United States. By recognizing these members of the Air Force as veterans, VA is legitimizing the dangers, both known and unknown, faced during the Vietnam era and decades later due to Agent Orange exposure. Unfortunately, the Interim Final Rule does not go nearly far enough in one way where it is vitally needed– retroactivity.
The Interim Final Rule as it is currently drafted denies retroactivity to these veterans’ claims by making the effective date of the regulation June 19, 2015. Veterans who served on C–123 aircraft earlier used to disburse herbicides have suffered, sometimes for decades, with the effects of Agent Orange exposure. The January 2015 Institute of Medicine (“IOM”) C-123 study report recognizes that these dangerous exposure levels contributed to adverse health effects. The report states that between 1972 and 1982 (modified to 1984 in the rule,) approximately 1,500 to 2,100 Air Force Reserve personnel trained and worked on C–123 aircraft that previously had been used to spray herbicides.
During that period, the aircraft were used for military airlift, medical transport, and cargo transport operations in the U.S. and around the world. As discussed in the remainder of this comment, we encourage VA to reconsider its decision about retroactivity. In the interests of equity, Air Force Reservists, now considered veterans and determined by the IOM to suffer the effects of Agent Orange exposure, deserve retroactivity. Moreover, as veterans, they should receive retroactivity of their claims to the same extent as any other veteran covered by the Nehmer class action decision.
Therefore, we request that VA reconsider its decision about retroactivity. If VA decides not to extend retroactivity, then VA should respond to this comment by explaining why these veterans should not be granted the same retroactivity granted other veterans under the Nehmer class action decision, and further, why the Department’s earlier precedential opinions are disregarded.
II. THE INTERIM FINAL RULE INCORRECTLY DENIES RETROACTIVITY Certain issues which for decades remained unsettled are no longer in dispute.
First, Air Force Reservists were indeed exposed to Agent Orange and other herbicides.
Second, this exposure contributed to adverse health effects.
Third, Air Force Reservists, who served on C–123 aircraft used in Vietnam to disburse herbicides, are veterans for VA purposes and eligible for some VA benefits. Finally, there is a “factual presumption that disability occurred during the period of service as required under section 101(24) when an individual has a present disability now scientifically associated with exposure to an herbicide agent.”
A. Retroactivity In general, VA is not required to make retroactive the effective date of a new regulation. For an original claim for benefits, the effective date is the date VA receives the claim, or the date that entitlement to the benefit arose, whichever is later.
For a reopened claim for benefits, the effective date is the date VA received the reopened claim, or the date that entitlement to the benefit arose, whichever is later. If VA grants a reopened claim for benefits that has previously been finally denied, the general rule prohibits VA from assigning as the effective date the date it received the original claim for the benefits. In order to receive an effective date of the date VA received an original claim that has already been finally denied, the claimant must prevail on a claim for revision based on clear and unmistakable error.
The VA should not consider these general rules to be binding on its decision of retroactivity for the C-123 Interim Final Rule. Instead, as discussed in the following section, veterans granted service connection for a disease caused by exposure to Agent Orange should receive retroactive effective dates in accordance with the special rules developed by the courts in the Nehmer class action case and its progeny.
B. The Nehmer Class Action Requires Retroactivity
1. History of the Nehmer Class Action
A history of VA’s handling of Agent Orange claims and the Nehmer class action is in order to explain why these veterans should be included in the class of veterans affected by the order.
Prior to the Nehmer class action, VA denied tens of thousands of claims for disability or death compensation that Vietnam veterans and their survivors attributed to Agent Orange exposure. At the time VA maintained that Agent Orange exposure was only associated with a skin condition called chloracne. The Nehmer class action along with other converging forces forced the VA to acknowledge that many types of cancer and other serious diseases are related to Agent Orange exposure.
A veteran who served in Vietnam during the Vietnam era and who suffered from one of the diseases that VA regulations listed as related to Agent Orange would be granted service-connected disability compensation. In addition, surviving family members are entitled to DIC due to the veteran’s death due to exposure to Agent Orange regardless of whether, at the time of death, the C-123 veteran was receiving service-connected disability compensation.
The Nehmer Order dictated new rules governing effective dates for Agent Orange connected diseases. Although the Nehmer Order was given in 1991, it took VA until 2003 to incorporate these rules into the regulations at 38 C.F.R. § 3.816. In those rules, if the VA denied compensation for the same covered herbicide disease between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose; for a disability claim pending before VA on May 3, 1989, or received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date the claim was received or the date the disability arose.
On numerous occasions after the Nehmer Order, VA violated the order by interpreting the special effective date rules incorrectly. Through subsequent litigation, VA has slowly been drawn into compliance with the Order and the regulations. For example, VA amended its regulations in 2000 to add type 2 diabetes to the list of diseases associated with Agent Orange exposure. As a result, tens of thousands of veterans applied for disability benefits. When VA adjudicated these claims, starting on July 9, 2001, VA assigned that date as the effective date, instead of the earlier date on which the first diabetes claim was received by the VA. As a result, VA agreed to re-review the claims and change the effective date to the date VA received the first claim, so long as the first diabetes claim had been filed before July 9, 2001.
More recently, when chronic lymphocytic leukemia (“CLL”) was added to the Agent Orange regulations as presumptively service connected, VA stated that it believed that the Nehmer Order did not apply. In 2005, the courts determined that Nehmer effective dates applied not only to CLL, but to any disease the VA may service connect due to Agent Orange exposure until at least 2015, when the Agent Orange Act of 1991 is set to expire. In its action hardly considered pro-veteran, VA appealed, and the Ninth Circuit affirmed.
Retroactivity of compensation itself is not a concern of the VA, as it recognizes the date of claim for any Agent Orange illness of Active Duty C-123 veterans specified in the Rule.
2. The Application of the Nehmer Class Action to the Interim Final Rule
The Nehmer class action, if applied correctly to these veterans, would necessitate retroactivity of some benefits payments. The argument that follows centers on the premise that the Air Force Reservists at issue in the Interim Final Rule are now considered veterans for purposes of VA benefits, and therefore as veterans, the Reservists should be considered like any other veteran for purposes of Nehmer and its retroactivity dates.
Although the Nehmer class action and its progeny have taken a complicated road to require VA to implement Nehmer’s effective date rules, the rules are straightforward in their application. Likewise, VA has taken decades to recognize the many groups of veterans who are even eligible for benefits coverage under the Agent Orange rules.
Over the years, VA expanded the list of veterans who it considered to be affected by Agent Orange exposure. For example, certain veterans who served on open sea ships off the shore of Vietnam during the Vietnam War (“Blue Water Veterans”) were denied service connection for many years. Today, many Blue Water Veterans are still not considered to qualify for service connection, but VA is developing an “evolving list” of ships that may qualify a veteran for service connection. If a Blue Water Veteran served on one of the ships that entered Vietnam’s inland waterways then the veteran could receive service connection.
On its face, the Nehmer class action might seem unrelated to the Interim Final Rule. The Nehmer class action and its progeny have been used only to support extending effective dates for benefits for veterans affected by diseases presumed to be service connected to Agent Orange exposure. The Nehmer class action has never been used to determine effective dates for a whole new class of veterans eligible for benefits under the Agent Orange rules. However, the historical use of Nehmer supports the argument in this comment that Air Force Reservists, now considered veterans under the rules, should be granted effective dates in conformity with Nehmer.
Unlike the veterans involved in Nehmer and its progeny, the Air Force Reservists referenced in the Interim Final Rule are not affected by a disease that has not been granted service connection by VA. Neither are these Reservists seeking a correction to an effective date for benefits like in the many follow-on Nehmer cases. Instead, the Air Force Reservists referenced in the Interim Final Rule are now, for the first time, properly considered veterans for purposes of service connection under the Agent Orange rules. As a result, the Air Force Reservists should be treated like any other veteran for purposes of the Agent Orange rules and Nehmer’s effective date rules.
Air Force Reservists referenced in the Interim Final Rule are similar to the Blue Water Veterans who served on inland waterways. Like the veterans who served on inland waterways and become eligible for benefits as VA’s evolving list adds the ship where the veteran served, the Air Force Reservists are now belatedly being included as a veteran eligible for Agent Orange benefits. In short, as a veteran, the Air Force Reservists should receive the same treatment as any other veteran. This means that they should be accorded the same effective dates as dictated by the Nehmer Order. VA’s current effective date in the Interim Final Rule is arbitrarily determined as it affects this group of veterans.
III. THE DEMANDS OF EQUITY REQUIRE RETROACTIVITY
Finally, even if VA decides that the Nehmer effective date rules do not apply to the Air Force Reservists referenced in the Interim Final Rule, it should still grant the same retroactive dates on the basis of equity. As stated at the beginning of this comment, Secretary McDonald considers this group of veterans a “deserving group” and is thankful that VA “can now fully compensate any former crew member who develops an Agent Orange-related disability.” Full and proper compensation in this situation means, at the very least, benefits retroactive to the date the veteran first filed a claim based on the veteran’s Agent Orange-caused disease, just like other veterans subject to Nehmer.
VA should not think about these veterans as if they are only now becoming veterans. Rather, these veterans served decades ago in close proximity to Agent Orange. As a result, many have suffering health, and some have lost their lives. This Interim Final Rule is not an addition, but rather a correction. Reservists actually served the United States. This is not new research connecting a disease to Agent Orange exposure. This is a real human being who really fought for the United States military, who was really exposed to Agent Orange, on a real C–123 aircraft that unlike any ship, helicopter, tank, truck, howitzer or M-16, actually tested positive for dioxin. Only the C-123. And only Operation Ranch Hand veterans and C-123 veterans are confirmed by the IOM as having been exposed. Dr. Jeanne Stellman of Columbia University reported to the Secretary of Veterans Affairs that C-123 veterans were less exposed than Operation Ranch Hand veterans, but more exposed than Vietnam ground soldiers.
These aircraft were really used to dispense Agent Orange, and as a result contained dangerous levels of the substance decades after deployment. During the Vietnam era and far beyond, while our C-123s were still in use, every veteran serving on those planes was exposed to dangerous levels of Agent Orange. When these veterans flew in the affected C–123 aircraft our hands touched the sides of the plane – covered in Agent Orange residue, their lungs breathed in the air – full of Agent Orange-laden duty particles and vapor, and we digested Agent Orange while eating.
Instead of being cared for after exposure, these service members were told by VA at the very last minute in its considerations after years of resistance on other points finally resolved by the IOM but upon evidence in VA’s possession but disregarded or suppressed for all those years, C-123 Reservists were suddenly not considered veterans. VA now has an opportunity to remedy these missteps and provide well-earned full compensation to this group of veterans.
This is also the opportunity for VA to consider its years of inappropriate disregard for confirmation of C-123 veterans’ exposure submitted to the Department by the CDC/Agency for Toxic Substances and Disease Registry, the National Institute of Environmental Health Sciences, the Department of Defense Joint Services Records Research Center, and the US Public Health Service, as well as dozens of independent, unpaid scientists and physicians forming The Concerned Scientists and Physicians (Dr. Jeanne Stellman, Columbia, Corresponding Scientist.) “Benefit of the doubt” and “resolving all doubt in favor of the veteran” are obligations due veterans which have seldom been more severely abused than with C-123 veterans’ claims. * * * * * We appreciate the opportunity to comment on VA’s Interim Final Rule expanding the regulations to include an additional group of men and women who volunteered to serve, performing their duties in the Air Force or Air Force Reserve while facing the hazards of aviation service but also under circumstances forcing regular and repeated contact with C–123 aircraft known to have been used to spray Agent Orange during the Vietnam era.
The Interim Final Rule rightly extends benefits to our category of veterans. Unfortunately, it also denies essential retroactivity of benefits. We look forward to working with VA to serve the veterans who served the United States.
For The C-123 Veterans Association,
Wesley T. Carter, Major USAF Retired
 VA News Release, VA Expands Disability Benefits for Air Force Personnel Exposed to Contaminated C-123 Aircraft (June 18, 2015).
 80 Fed. Reg. 35246 (June 19, 2015).
 Id. at 35246.
 IOM Report, Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft (Jan. 9, 2015).
 80 Fed. Reg. 35246 (June 19, 2015).
 The general rule is that “statutes operate only prospectively, while judicial decisions operate retrospectively.” U.S. v. Security Industrial Bank, 459 U.S. 70, 79 (1982).
 38 U.S.C. § 5111(a); 38 C.F.R. § 3.31 (2014).
 Id.; Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).
 Id.; see also, Livesay v. Principi, 15 Vet. App. 165, 171–72 (2001) (en banc).
 Nehmer v. U.S. Dep’t of Veterans Affairs, No. CV-96-6160 (N.D. Cal. May 14, 1991) (Final Stipulation and Order).
 The original Nehmer order directed that “the effective date for disability compensation or dependency and indemnity compensation (“DIC”) . . . will be the date the claim giving rise to the voided decision was filed . . . or the date the claimant became disabled or death occurred, whichever is later. In the event the basis upon which a claim for compensation benefits is granted after readjudication is different than the basis for the original claim giving rise to the voided decision, the effective date for beginning disability compensation or DIC will be the date on which the claim asserting the basis upon which the claim is granted was filed, or the date the claimant became disabled or death occurred, whichever is later. For any claim for any such disease which was not filed until after May 3, 1989, the effective date for beginning disability compensation or DIC will be the date the claim was filed or the date the claimant became disabled or death occurred, whichever is later.” Nehmer v. U.S. Dep’t of Veterans Affairs, No. CV-96-6160 (N.D. Cal. May 14, 1991) (Final Stipulation and Order).
 38 C.F.R. § 3.816(c).
 Nehmer v. U.S. Veterans’ Administration, Civ. No. 86-6160 (TEH) (Stipulation and Order Setting Timetable for the Adjudication of 13,510 Diabetes Claims Under the Parties’ 1991 Final Stipulation and Order, Jan. 10, 2002). A subsequent lawsuit, Liesegang v. Sec. of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002), bumped the effective date of those who file claims between May 9, 2001 and July 9, 2001 to the earlier date – May 9, 2001.
 A history of the Agent Orange Act is not necessary in this comment, but it should be understood that, in general, the Act established a presumption of service connection for diseases associated with herbicide exposure and directed VA to prescribe regulations that a presumption of service connection is warranted for a disease when a positive statistical association exists between Agent Orange exposure and the occurrence of that disease in humans. 38 U.S.C. § 1116.
 Nehmer v. U.S. Veterans’ Administration, 494 F.3d 846 (9th Cir. 2007).
 Blue Water Veteran Boat List, available at, http://www.publichealth.va.gov/exposures/agentorange/shiplist/index.asp.
 Courts have repeatedly acknowledged, and Congress has directed that VA act in the best interests of claimants whenever possible. See, e.g., 38 U.S.C. § 5107(b) (directing that “the Secretary shall give the benefit of the doubt to the claimant” when reviewing claims); 38 U.S.C. § 5108 (requiring the Secretary to reopen disallowed claims when new evidence surfaces); 38 U.S.C. § 5103A (outlining Secretary’s duty to assist claimant in obtaining evidence for a claim); see also Brown v. Gardner, 513 U.S. 115, 118 (1994); United States v. Oregon, 366 U.S. 643, 647 (1961) (recognizing that “[t]he solicitude of Congress for veterans is long standing”); Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (“This court and the Supreme Court both have long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant.”); Trilles v. West, 13 Vet. App. 314, 325-26 (2000) (discussing “the pro-claimant environment created by the general VA statutory scheme”).
 IOM Report, Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft at 5-6 (Jan. 9, 2015).