26 November 2015

VA Forbids C-123 Veterans' Retroactive Compensation Due Our Agent Orange Claims

In June 2015, VA published its Interim Final Rule (IFR) which recognized C-123 Agent Orange exposures. It set the date for honoring C-123 claims as June 19 2015. It has been interpreted to deny C-123 veterans' retroactive benefits for claims filed even years before the Interim Final Rule.

Years earlier, VA regional claims offices and the Board of Veterans Appeals had started receiving C-123 exposure claims with virtually all being denied. But not all.

Honored before the June 2015 Interim Final Rule were claims from Paul Bailey and Dick Matte (74th Aeromedical Evacuation Squadron, Westover) and a handful of others from Hanscom and Rickenbacker. Just a few honored versus dozens denied.

Why were at least some honored? Because over the years that C-123 vets began experiencing Agent Orange illnesses at least some VA claims officers and BVA adjudicators obeyed the law. At least a very few claims (we've only found five) were properly interpreted by claims officers and BVA adjudicators who resisted HQ VA pressures and considered the evidence of DOD, CDC, US Public Health Service and other expert input. The law and VA 21-1MR were obeyed and at least these few claims honored. Here's why:
66 Fed. Reg. 23166 (May 8, 2001). VA explained for non-Vietnam veterans exposed to an herbicide agent defined in 38 C.F.R. 3.307(a)(6) during active military service and with diseases on the list of presumptive service connection (which includes diabetes mellitus type II and ischemic heart disease), VA will presume that the diseases are due to the exposure. 66 Fed. Reg. 23166; 38 C.F.R.  3.309(e).“ 
It turns out that one of the two the Interim Final Rule accomplishments was to make clear the legal "veteran" status of exposed C-123 maintainers and aircrew, but that was already accomplished by earlier Federal Register postings and binding Office of General Counsel precedential opinions.

The other major accomplishment of the Interim Final Rule was to block retroactive benefit awards due C-123 veterans!

Thats right...the VA's new rule served principally just to clean up the VA's opposition to our claims and to prevent our retroactive compensation due all veterans whose claims sit before the VA for years while the Department stalls. 

The loss to our veterans? In some cases, up to $200,000 each! Our claims, many filed as early as 2007 but denied justice until June 18 2015, are denied the retroactive compensation which the few C-123 claims honored before the IFR received in full, as per the law and federal circuit court actions.

We're now denied retroactive compensation which all other veterans receive once VA honors their claims.

In 2013, before the IFR was imposed on us, one of the men I worked with was overcome with emotion when he called to say the VA had deposited the $120,000 due him in retroactive compensation, money due him from the date VA first received his claim.

But this can't happen today. Even though we flew the former Agent Orange spray C-123 in manday status or annual tour (thus meeting the law's "active duty" definition described above) VA has maneuvered us out of all compensation due each of us...compensation dated from the submission of our disability claims to the VA. Even DOD regulations and VA's own rules say we were veterans once we were exposed to Agent Orange while on manday or annual tour status, but not VA today as they act behind their IFR action!

FulI Disclosure: I'm retired military and already VA 100% disabled so none of the VA's C-123 actions affect me...I'm already receiving all the VA owes me and it all comes out of my AF retirement. But anyone else in my situation, as an example, with a claim filed in May 2011 and with a total disability with special circumstances, would be due around $236,000.

But our vets won't ever see their retroactive pay, thanks to the sneaky Interim Final Rule. In at least a few situations prior to June 2015, such as with Bailey and Matte, our vets' claims were properly resolved and their retroactive pay due them was awarded. But after June 2015...not a penny will anyone ever see.

VA disregarded dozens of suggestions posted in the Federal Register prior to implementation of the IFR...just as they'd already decided to do. VA ignored our having established veteran status per the law, and instead pretended it had to construct veteran status for us and further pretended their action prohibited all retroactive compensation.

And that was their intent all along. VA was faced with the inevitable recognition of C-123 veterans'
exposure claims once the C-123 January 2015 report was released from the Institute of Medicine. VA stalled for six more months so as to block claims then, faced with action by several senators to block confirmations, yielded to permit the claims but also slapped us in the face with their scheme to block retroactive claims which we'd been waiting patiently for over these years.

Sneaky. And very wrong!

Here's what we've said to VA leaders:
A great deal of Reserve flying is accomplished in "man day" status, distinct from Annual Tour, Unit Training Assembly and Additional Flight Training Period status. Frequently, these man day tours were between a week and a month long, sometimes several times a year to accomplish cross-country or overseas airlift. 
DOD policy and AF Instruction 39-2619 state that man day tours are considered regular active duty tours, however brief. Thus, shouldn't C-123 Agent Orange exposures experienced during these periods of active duty tours entitle affected Reservists to the same presumptive service connection as other servicemembers in other active duty periods? The precedential opinions come into play here, I believe. 
If not, in what way are these Reservists' exposure injuries during man day active duty tours disqualifying as regards VA care and benefits for other active duty situations? Can I have an explanation to better inform our membership? 
Doesn't the Interim Final Rule seem to serve principally to limit (as to the June 19 2015 date) rather than facilitate, VA benefits, at least in some situations? 
It would be great if VA acted on our complaint but that's not likely. Instead, we'll have to continue bringing this injustice to the attention of our legislators and veterans organizations, and perhaps to another forum with authority to direct VA to do the right thing! Stay tuned.

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