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

DEPARTMENT OF VETERANS AFFAIRS
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.

Army Vet Wins VA Agent Orange Claim, Cites 10 Days At a Post Where AO Was Once Used

This Army vet's claim was denied at first, so he appealed and the Board of Veterans Appeals soon granted his service connection. Read...he said he was TDY to Fort Gordon where Agent Orange was once used to control undergrowth. Ten days. Without any IOM study, or CDC/ATSDR finding...just his own recollection of duty 41 years earlier!

But VA said our ten years aboard C-123s confirmed by the AF and IOM to be contaminated is insufficient evidence to award our claims. Further, the Army vet was a Reservist and BVA found no problem at all providing him statutory veteran status because his ten day of alleged exposure constituted an injury by being on post at Fort Gordon.

This is so much different from how C-123 veterans were treated. VA Office of General Counsel raised the formal veteran status challenge at the last minute and ignored their own precedential opinions as well as a firm list of similar BVA and CAVC decisions.

(http://www.va.gov/vetapp12/Files5/1235937.txt)

Based on the evidence from DoD and the VHA medical
expert's opinion, the Board finds that the
preponderance of the evidence is in favor of finding
that the Veteran was exposed to herbicides (including
Agent Orange and Agent Blue) while serving on ADT at
Fort Gordon, Georgia, from July 24, 1967 to August 4,
1967, which constitutes an injury (see e.g.,
VAOPGCPREC 08-2001).  The Board further finds that,
based on the VHA medical expert's opinion, the
preponderance of the evidence is in favor of finding
that the Veteran's type II diabetes mellitus diagnosed in February 2008 is related to his exposure to herbicides in 1967. Consequently, the Board finds hat the evidence establishes that the Veteran incurred bodily injury due to his exposure to herbicides while on ADT in 1967 and that such bodily injury is the etiology of his current type II diabetes mellitus.  Accordingly, for the purposes of granting service connection for type II diabetes mellitus,the Board finds that veteran status is established for the period of ADT from July 24, 1967 to August 4, 1967, and that the Veteran has type II diabetes mellitus as a result of injury incurred during such service.Forthese reasons, the Board finds that service connection for type II diabetes mellitus is warranted, and theVeteran's appeal is granted. 

The big difference between the lucky Army guy and us? He didn't have VBA Office of Public Health against him like we did.

He didn't have OPH redefining the word "exposure" to prevent exposure claims. He didn't have JSRRC input ignored in violation of VAM21-1MR and VCAA. He didn't have false promises of "case-by-case" claim consideration that only resulted in 100% denial of every single veteran's claim.
He didn't have the VA OGC determined to keep Air Force Reservists from the same protections awarded this Army Reservist.

VA Invents (But Ignores) Rules About Agent Orange Exposure

Faced with disability claims from C-123 veterans exposed to Agent Orange aboard our former Agent Orange spray aircraft, officials in Veterans Health Administration and Veterans Benefits Administration have been energetic in barring veterans from essential health care. And also very selective about which rules VA follows, when they ignore those rules, and how to create new ones as the occasion warrants.

Not only does VA's Office of General Counsel and VHA Post Deployment Health create unscientific redefinitions of exposure to block exposure claims, but they simply ignore the law and their own rules and regulations. Of course, at some point, justice prevails and claims are appealed and corrected...but the veterans are forced wait years while somehow finding health care elsewhere. 

Here's how VA ignores the law and breaks the President's and the Secretary's promises to veterans, forcing vets into the black hole of appeals...three to four years waiting, with a 25% chance of the claim being approved (so far, all C-123 claim reaching BVA have won,) but a 45% chance of the claims having errors forcing the claim to be remanded for more work and still more delays by the regional office.

• "A veteran who was exposed to herbicides in service and who develops one of these diseases within the applicable presumption period, if any, is presumed to have incurred the disease in service, without the necessity of submitting proof of causation."    Testimony of Dr. Leo McCay, Deputy Secretary  IGNORED

• "Presumption of service connection. VA will presume service connection where a veteran who was exposed to an herbicide agent during active military service is diagnosed with a disease listed in paragraph (e) of this section that becomes manifest to a degree of 10 percent or more within the time period"      Federal Register July 27, 2004  IGNORED

• ‘‘Evaluation of studies relating to health effects of dioxin and radiation exposure."  38 C.F.R. 1.17 IGNORED!

• Finally, we wish to make clear that the presumptions of service connection provided by this rule will apply to any veteran who was exposed during service to the herbicides used in Vietnam, even if exposure occurred outside of Vietnam. A veteran who is not presumed to have been exposed to herbicides, but who is shown by evidence to have been exposed, is eligible for the presumption of service connection for the diseases listed in § 3.309(e), including the three diseases added by this rule.   VA announcement in Federal Register 31 August 2010.    IGNORED, and the reason VHA scrambled to create its redefinition of exposure to block exposure claims.

Does the VA even have the authority to order, and then evaluate, a IOM C-123 Agent Orange study addressing bioavailability, relative to veterans' benefits under the 1991 Agent Orange Act? 

No. C-123 veterans with proof of duty aboard "Patches" or any of the other former Agent Orange spray aircraft are fully eligible right now for presumptive service connection, and for treatment of those illnesses. Indeed, it will take a new law or regulation to disqualify them.

Instead, 38CFR spells out the procedures the VA should employ evaluating outside scientific studies about the association of herbicide exposure with different illnesses, but not of the fact of exposure or the paths by which exposure may occur.  (Chapter 1, Section 1.17 (c), p. 14) Nothing indicates any procedure by which exposure itself may be denied, defined or by which VA can require bioavailability. So VA decided to invent a basis denial and a redefinition to block claims. 

VA has a very aggressive defense, and very anti-veteran. VA seeks out, or simply creates, barriers to claims rather than permitting eligible veterans to receive care for hazardous service and injuries.

• Indeed, based on current statute, the VA is not required to consider evidence on exposure magnitude or duration and all exposures are to be given equal weight when determining health effects. There is no qualification for amount of exposure, bioavailability, color, flavor or even whether it makes one robust and improves the humors – the only qualifications are (1) proof of exposure and (2) a recognized AO illness. That foundation...exposure...is exactly why VHA and the VA Office of General Counsel simply redefined exposure to block claims. Other government agencies more correctly use the CDC definition, by which there is no question as to the C-123 veterans' eligibility. CDC says exposure is contact with a substance by swallowing, breathing, or touching the skin or eyes.     IGNORED

In meeting its pro-veteran, non-adversarial obligation, VA has failed. The Law:      IGNORED

(for background, read the Congressional Research Service "Presumptive Service Connection" report)