The U.S. Department of Veterans Affairs can expand the group of veterans who are eligible for benefits due to Agent Orange exposure without making the change retroactive, a federal appeals court held Tuesday in McKinney v. McDonald.
The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the Federal affects veterans who were stationed in the Korean demilitarized zone between July 1969 and July 1971 and cannot prove actual exposure to Agent Orange. As a result of the ruling, they became eligible for disability benefits on Feb. 24, 2011, even if they were disabled years earlier. That's the date VA published their rule, and VA fought making any benefits retroactive.
The effect on our C-123 quest for retroactive benefits is unclear, but the Court did make an important point: veterans with proven actual exposure are entitled to those benefits from the date a claim is filed. We have that proof...the IOM made its final report citing the Air Force tests over the decades proving the contamination, and scientists Drs. Lurker, Stellman, Berman and Clapp proved the exposure via ingestion and inhalation routes. This mass of evidence should satisfy the Court, and the VA, that C-123 veterans retroactive compensation claims are not blocked by McKenny v. McDonald.
Rather, retroactivity is explicitly provided!