16 May 2017

Reservists Suffering Exposure Injuries Not Eligible for VA Medical Care, Insists VA Official on March 6, 2017!

In his December 2016 and March 2017 presentations to the VA's Advisory Committee on Disability Compensation (ACDC,) Mr. James Sampsel clarified the VA prohibition on reservists and National Guardsmen receiving VA medical care or any other disability benefits for exposure incidents causing illnesses or injuries.

"As to whether somebody actually got exposed to Agent Orange, that's a different matter. There's a presumption of exposure for Vietnam veterans. It goes back to the Agent Orange Act of 1991. That is codified at 38 United States Code 1116."

"We have presumptions for certain groups and, then, we have individual case-by-case-acknowledgments." C-123 veterans know from four years' experience that his promised case-by-case evaluations only meant four years of blanket denials100% – and his instruction to ROs' that VA would not "acknowledge" any C-123 disability claims.
"Reservists do not qualify under VA law for Agent Orange long-term benefits," he assured the committee.  "That's a statutory thing. If you're a reservist, any disability you get has to occur, be directly related to your period of active duty or training, because that's what their service is called. 
Under VA law, that doesn't count for some disability that occurs 20 years later, 30 years later." 
 Or even two weeks, as I learned in 2015 from VA Office of General Counsel. No protection at all for exposure injuries wth delayed onset of symptoms.

The general topic at ACDC was Agent Orange exposure but the same VA answer applies to other biohazard exposures. Reserves and guard are on their own when an on-duty exposure of any sort (toxins, bugs, smoke,  POL, whatever – known or unknown) leads to a subsequent illness after release from duty. For any VA protection, the exposure injury must be evident before taking off the uniform.

Example: an Air Guard unit flies a humanitarian mission to West Africa and the crew returns to CONUS and goes back to civilian status. Two weeks later they develop Ebola. VA will refuse them medical care and deny their families survivors' benefits as well.

Why? Because VA only cares for veterans. It may care about all of us, but it only permits care for veterans meeting statutory definitions.

Guard and Reserve time usually don't convey statutory veteran status so because the law clearly states "veteran," the time of exposure is not a time during which the person isn't serving as a veteran, no benefits. One might have qualified as a veteran before or after the exposure but that might permit only medical care, not disability compensation or family benefits. 

There's an easy fix for this: the military service involved can issue a simple line-of-duty determination when an exposure event occurs. Only the exposure is specified, and it may or may not lead to subsequent illness. VA respects the LOD for the exposure event and should an illness develop in the normal course of the exposure, statutory veteran status is established: 
LOD (as proof of exposure) + illness ("more likely than not" diagnosis as caused by exposure)
= veteran status necessary for benefits.
Why would the military want to go along with this? Because they recognize that line of duty regulations serve largely to protect the veterans benefits due a servicemember. Also, the pure and simple justice of caring for servicemembers exposed on duty who otherwise are left to bear the burden of the environmental hazards they encountered. 

There is no "freebie" in this, but rather only the government properly caring for those injured in service whose exposure injuries are manifested only in the course of time after exposure.

In the Air Force line-of-duty regulation (AFR 36-2910) key items stand out:
1. "The Secretary of the Air Force, or his or her designee, may revise any determination made under this instruction." 
2.  "An LOD determination protects the interests of both the member and the United States Government"
3. "Veteran Benefits. The Department of Veterans Affairs (VA) may use a member’s official military records, including any LOD determinations when determining veteran benefits (38 U.S.C.)
4. "ARC only. After release from active duty or IDT, members have 180 days to ensure any illness, injury or disease that was incurred or aggravated while in a duty status is reported for LOD determination consideration." "The only avenue for addressing previously unreported illness, injury or disease is through the VA.Medical determinations relating to the etiology and onset of a disease or condition may constitute clear and unmistakable evidence when supported by the weight of medical literature."

How can we make this happen to protect reserve and air guard personnel? Have the Secretary of Veterans Affairs give the Secretary of Defense a phone call. 

Let the two of them duke it out. Until then reservists volunteering for duty where a bioenvironmental hazard might exist must consider the medical and financial consequences when the VA abandons you. Get sick, or even die, and the VA says, "You're on your own."

Whatever happens, just don't let Compensation and Pension Service wade in to do what they do best: Deny Claims!

Note: 38 CFR § 3.301 "Line of duty and misconduct."
("a)Line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs."
1. Were our exposures in the line of duty? Yes.
2. Was there misconduct, drugs or alcohol? No.

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