05 January 2016

VA Needs to Hear Our Argument on Retroactive Disability Compensation

Here’s the law for veterans and the VA on retroactive disability compensation (38 C.F.R. 3.114)
“(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, 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. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.”
C-123 veterans ask that VA more closely follow this section of 38 C.F.R. and further, interpret when possible in the most pro-veteran manner. Our exposures constitute injuries, which satisfy both our service’s and the VA’s requirements for statutory veteran status. Having all eligibility criteria met when the liberalizing benefit was promulgated, and having continuously maintained that eligibility, retroactive compensation is appropriate and not proscribed by 38 C.F.R. but instead provided for by it.

There is no justification in VA21-1M or 38 U.S.C. to prohibit Reservists and Guardsmen exposed to toxins which science and also VA acknowledges result in subsequent disabling injuries, illnesses and death. Indeed, prior to June 18 2015 and the C-123 Interim Final Rule, there was no prohibition to granting service connection for those exposures and grants were made repeatedly for Air Force Reservists’ C-123 exposure claims, including by different Boards of Veterans Appeals over many years.

Since early 2011 VA leaders, from the Secretary to more junior staffers, knowing that nearly all of the claims would be from Reservists, assured veterans and our legislators that each C-123 exposure claim would be considered on a case-by-case basis. This assurance was accompanied with directions to regional offices that no possibility existed to honor C-123 exposure claims and that VA regulations prohibited doing so. Secretary Shinseki published his June 7 2013 C-123 Fact Sheet through Senator Burr, in which he repeated that assurance and commitment. Any prohibition against retroactivity only arises from the June 18 2015 Interim Final Rule inclusion of an unnecessary liberalizing rule.

Between 1972 and June 2015, there have been no denials of C-123 Agent Orange exposure claims for Air Force Reservists, either at VARO-level or BVA, on the only recently raised question of veteran qualification. When BVA decisions addressed the issue of Reserve veteran status at all, it was to specify that the exposure injury, dating from the exposure, satisfied the statutory requirements.

This comports with binding VA OGC precedential opinions, which themselves have frequently been cited in VARO, DRO and BVA decisions on different illnesses and injuries.

The VA has stated it cannot permit awards retroactive from the date the Secretary’s dates for new rules. If that is the case, certainly VA cannot attempt to make retroactive the prohibition of retroactive compensation for claims properly submitted to Veterans Benefits Administration prior to the Interim Final Rule.  That, too, is blocked by the Secretary’s inability to effect changes for his rules prior to the rules taking effect.

It is proper for VA to determine it has the authority to deny retroactive benefits only for claims not filed before the June 2015 Interim Final Rule, and proper to also determine that it has authority to provide or deny retroactivity for claims received after the rule’s promulgation. Again, the Secretary’s authority to prevent retroactive compensation only derives from the Interim Final Rule but on a prospective basis, not prior to June 2015 for claims already submitted. Claims received by VA prior to June 2015 must be considered on a case-by-case basis with full retroactive effect of any awards. After June 18 2015 VA can apply both its barrier to retroactivity and presumptive service connection.

The Board of Veterans Appeals has repeatedly acknowledged the “veteran” status of Reservists exposed to toxins, BVA Docket 06-18 270 in 2007 held that a Reservist exposed to Agent Orange aboard my own C-123 aircraft (citing in particular #362 which I flew) at my own base(s) (Westover AFB and Hansom AFB, both in MA and both of which were bases I flew from) during the same time period, satisfy statutory requirements: The Board concluded:
“The Board will concede that the veteran was exposed to an herbicide during service. The service and museum (USAF Museum Dayton Ohio re: C-123 #362) records document the veteran’s reserve service in 1972 and 1973, the presence of that C-123 at Hansom in 1972 and 1973, the use of that C-123 in spreading defoliant in Vietnam, and service of that aircraft in Vietnam in 1972.
The board accepts that the veteran was exposed to an herbicide during service. The veteran was diagnosed with type 2 diabetes after service. The Board presumes that the veteran’s diabetes is service connected, and grants his claim.”
Another BVA case dealing with Air Force Reservists flying the same C-123s, concluded in its 2001 decision:
“Therefore, the Board resolves such reasonable doubt in favor of the veteran to find that the veteran was exposed to an herbicide agent used in support of the United States and its allied military operations in the Republic of Vietnam during, his active duty for training performed at Rickenbacker Air Force Base between 1970 and 1975. 38 U.S.C.A. 5107(b) (West Supp. 2001); 38 C.F.R. 3.102.
Other BVA decisions addressing Air Force Reservists in 2013 and 2014 (Matte [2014, Boston DRO] and Bailey [2013, Manchester DRO]) paralleled the several earlier decisions. In fact, there are no known BVA decisions addressing C-123 Air Force Reservists which did not acknowledge assume their satisfaction of statutory requirements for veteran status.

Thus, seven years of multiple well-reasoned BVA decisions about C-123 Air Force Reservists indicate that until the June 18 2015 Interim Final Rule was published, no such barrier existed to recognize satisfaction of an Air Force Reservist’s claim to veteran status via the herbicide exposure. There was no barrier because the VA OGC opinions satisfied the issue completely – until created in June 2015.

The C-123 AO exposure claim which generated the most attention from VA leadership was that of LtCol Paul Bailey. His denial in February 2013 dealt with the claim without concern for veteran status. When his claim was reconsidered by DRO, no concern was raised regarding statutory veteran status because it was conceded.

The Bailey decision received immediate and extensive scrutiny from VA leadership, including Secretary Shinseki. After the Washington Post’s August 3 story about the grant it generated email and other correspondence from VBA Compensation and Pension, VBA Agent Orange Desk, VHA Post Deployment Public Health, the Under Secretary for Health Administration, VA OGC, Congressional Liaison, and other officials…all without concern ever raised for any statutory veteran status and the only comments being that the claim was supported by credible scientific evidence and that is was proof of VA’s promise of “case by case” consideration.

On my own initial AO denial in 2012, no issue was made of statutory veteran status. Indeed, Mr. Tom Murphy in C&P directed the claim be denied, not on the veteran issue but instead by disregarding all the scientists’ and physicians’ input and asserting no exposure – my veteran status was unchallenged as in all the other veterans’ claims mentioned above. Mr. Murphy and the other VA executives with whom I’ve exchanged communications (VA OGC, Under Secretary Shinseki, VA Office of Congressional Liaison, regional offices) a question might have been raised by now regarding statutory veteran status, especially from Mr. Murphy or General Hickey. Denying my claim and appeal for years never touched on veteran qualification. If veterans failed to satisfy statutory veteran requirements for the specific time period associated with the exposure injury, that problem should have been raised by VA years ago. Instead, but problem of the Reservists’ status was created only with publication of the June 2015 Interim Final Rule.

Between 2007 and May 2014, each of the handful of approved Air Force Reservists’ Agent Orange exposure claims were granted on the fact-proven basis of herbicide exposure, but granted only through an appeals process involving DRO, or BVA actions where each of them was successfulasd433. In January 2015 the Institute of Medicine made that point even more clearly in its answer to Secretary McDonald’s charge to the committee. Before June 2015 each veteran granted service connection for C-123 Agent Orange exposures received full retroactive compensation. Our claims were submitted in the same time frame.

I flew with these veterans and was their flight instructor and flight examiner to train and certify them on the same aircraft on the same days, and we’ve had the same illnesses, yet my own claim was “postponed” for years and only recently awarded but with retroactive compensation blocked. Thus, my students received proper retroactive compensation but I do not, nor do other similarly situated Air Force Reservists, despite how perfectly parallel all the claims are, and only because VA did not process my claims or appeals within the 52 months it had them. The significant distinction here is only that some claims were granteed prior to June 2015 and most others, afterwards but without the same retroactive compensation. This is unfairly discriminatory.

Should this request for retroactive compensation for C-123 veterans be denied, we specifically ask for assurances that every effort was made by VA leadership to take the most pro-veteran perspective on each aspect of the issue.

A ray of hope might be found in the military Line of Duty determination process. In the Air Force, this is AF Instruction 36-2910, and the overall tone is strongly pro-veteran, and protective of servicemembers' VA rights. If the Air Force can generate LODs for our C-123 exposures and injuries, VA is supposed to accept them and thus we'll have satisfied the statutory requirement for "veteran" status and injury, and hopefully, then be qualified for retroactive disability compensation dated from date of VA claim. We'll see...here's the VA policy per 38 C.F.R. 3.1.:
In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.(Authority: 38 U.S.C. 105)

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