The biggest part of the battle was behind us. Finally, the Institute of Medicine had completed their two year study by a distinguished group of scientists and physicians, and agreed with us that we have been exposed to Agent Orange and harmed by that toxin. Their report was submitted to the Secretary of Veterans Affairs on January 9, 2015.
The IOM had a public hearing to announce their conclusions, and I attended to represent both active-duty and Reserve post-Vietnam C-123 veterans. Several attorneys from the law firm that represented us accompanied me. Observers were there from the US Air Force, the Senate, CDC, the press and the VA.
Finally, I was to meet Assistant Secretary Linda Schwartz, a medically retired Air Force flight nurse who’d flown with us on occasion "back in the day" and is herself a C-123 veteran. Four years earlier I’d met her on the Internet in her capacity as Connecticut’s Commissioner of Veterans Affairs. She immediately offered the first of many critical suggestions on the conduct of our contest with the US Department of Veterans Affairs.
We’d won. No longer could the VA insist on its imaginary “overwhelming preponderance of evidence” against our disability claims. That evidence had been shown to be a total pretense, a policy sham advanced by the VBA Agent Orange desk and the VHA Post-Deployment Public Health Section. Both of these VA functions had been policy-driven to oppose our claims and this marks their defeat. In addition, the US Air Force School of Aerospace Medicine C-123 report released in 2012 was shown to be both scientifically and medically flawed (Lurker, 2014.) The IOM accused both the VA and the military of deliberately ignoring, disputing or minimizing all proofs of our exposure to prevent our claims.
It was quite a ground-breaking moment. Never before had a single group of veterans successfully argued its case and established the facts surrounding their Agent Orange exposure. Before, as well as after us, VA always successfully argued against other veterans' claims. We’d won, but as Senator Richard Burr (R-NC), ranking member of the Senate Veterans Affairs Committee, said in his own press release, “it shouldn’t have taken this long or been this hard.”
It remained for VA to finally decide whether and how to implement the conclusions of the IOM. This was a process we were unfamiliar with and one that took VA Secretary McDonald six months to complete and publish in the Federal Register.
Because of requirements built into the 1991 Agent Orange Act regarding how VA treats IOM conclusions, it was likely that VA would acknowledge our exposures. A working group was formed within the department and it submitted its recommendations to the Secretary.
Now the internal machinations began within VA. One of the biggest was to determine how much this was to cost the government. The White House Office of Management and Budget weighed in with its estimate of $46 million to cover disability compensation. OMB made no estimate of the cost of medical care or survivor benefits each item expected to exceed the cost of disability compensation itself. In 2014, working with the Harvard School of Government, we calculated the total cost to be nearly $250,000,000!
On June 18 2015, I was invited to VA headquarters to hear Secretary McDonald’s decision:
1. • VA would acknowledge the statutory veteran status per U.S.C. Title 38 of our aircrews, aeromedical evacuation crews and aircraft maintenance technicians, if they had any of the presumptive illnesses associated with Agent Orange. This was legally necessary to permit VA to provide benefits because the law is all specified ”veterans.” Unless activated, Reservists are not considered veterans in the law. The VA decision did not award veteran status to anyone not confirmed to have an Agent Orange illness.
2. • VA would begin compensation effective June 19, 2015 and would not require claim submitted prior to that date to be resubmitted. Disappointingly, VA also decided against any retroactive compensation. This was disappointing to us because some have had claims in to VA for seven or more years.
3. • VA would give all claims submitted for the next year and effective date of June 19, 2015 in effect making those claims partially retroactive.
I had always suggested a total number of our C-123 veterans to be about 2100. VA estimates that 25% of the personnel who served in Vietnam now have disability benefits for their exposures. If that same 25% applies to us, it means an average compensation of over $88,000 per veteran. The Harvard estimate of $250 million may yet be correct calculating in survivor benefits and the cost of medical care given our veterans.
That, and the VA medical care plus other benefits were what we had fought for these last four years. One of the most important of these benefits is VA Dependents Indemnity Compensation of $1240/month for survivors, a benefit particularly important to our veterans who do not have military retirements. Another benefit is “Champ-VA” for families of totally disabled veterans without TriCare.
We’d won, and now our objectives became getting the word out to thousands of our folks now scattered throughout the country in the decades after our duty aboard the C-123 transports. We'd won, but were left without the retroactive compensation clearly due us, compensation which was supposed to be based on the date of claim application. That is our remaining objective.