20 October 2018

C-123 Regulation becomes FINAL on 22 October 2018

Three years on, VA on Monday October 22 2018 will make the C-123 regulations final.

This makes permanent and unchanged the C-123 interim final rule signed by Secretary Bob McDonald on June 19, 2015 following release of the pivotal Institute of Medicine C-123 Agent Orange report. In the interim rule, VA conceded that post-Vietnam C-123 veterans had been exposed and harmed by residual Agent Orange contamination in the aircraft.

The key point in this final adoption of the C-123 regulation is that there've been no changes whatever. VA received a great number of comments addressing retroactive exposure benefits, and shot them all down. Basically, VA held that exposure did not itself constitute an injury of the type that would make Reservists eligible for veteran status, much like a heart attack or broken bone on a UTA or Annual Tour would do. That destroyed any hope of our folks getting their claims back-dated, and only claims from June 19, 2015 forward are going to be compensated.

Below is the text of this important document:

Federal Register / Vol. 83, No. 204 / Monday, October 22, 2018 / Rules and Regulations 53179

38 CFR Part 3
RIN 2900–AP43
Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicides
AGENCY: Department of Veterans Affairs. ACTION: Final rule.
SUMMARY: The Department of Veterans Affairs (VA) is adopting as final an interim final rule published on June 19, 2015, to amend its adjudication regulation governing individuals presumed to have been exposed to certain herbicides. Specifically, VA expanded the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C–123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era. In addition, the regulation established a presumption that members of this group who later develop an Agent Orange presumptive condition were disabled during the relevant period of service, thus establishing that service as “active military, naval, or air service.” The effect of this action is to presume herbicide exposure for these individuals and to create a presumption that the individuals who are presumed exposed to herbicides during reserve service also meet the statutory definition of “veteran” (hereinafter, “veteran status”) for VA purposes and eligibility for some VA benefits.
DATES: Effective Date: This rule is effective October 22, 2018.
Applicability Date: This final rule is applicable to any claim for service connection for an Agent Orange presumptive condition filed by a covered individual that was pending on or after June 19, 2015.