VA proposes vast new coverage for non-Vietnam Agent Orange exposures. We offered comment on the new regulation.

AR10-Proposed Rule-Adjudication Regulations for Disability or Death Benefit Claims Related to Exposure to Certain Herbicide Agents

COMMENT BY THE C-123 VETERANS ASSOCIATION:

We commend the Department of Veterans Affairs for advancing benefits to affected veterans in this manner and, on the whole, this change is comprehensive and in accord with current law and regulations. There are some flaws. This proposed regulation is not in accord with numerous earlier entries by VA regarding non-Vietnam Agent Orange exposures 

The proposal fails to reference prior commitments made in the Federal Register by VA on this issue. The Department repeatedly assured Congress over the decades that every veteran who did not serve in the Republic of Vietnam but was exposed to Agent Orange during active military service would, upon proof, be offered presumptive service connection for the list of diseases associated with that herbicide. (see Federal Register Vol. 66, No. 89, May 8, 2001 and Vol. 73, No. 74 April 16, 2008 and Vol. 75, No. 168, August 31, 2010). It never met this obligation and denied virtually all such claims.

When affected veterans sought presumptive service connection, even when citing VA promises in the Federal Register, the Department’s Veterans Health Administration Post-Deployment Public Health Section and its Agent Orange Veterans Benefit Administration Agent Orange Desk blocked claims specifically because exposed veterans lacked Vietnam service or, in some cases, because veterans failed to scientifically prove an exposure plus subsequent “bioavailability.” Per the Federal Register entries, proof of exposure alone was all that was required. Redefining the concept of exposure to require “bioavailability” was never in accord with any law or regulation dealing with veterans and Agent Orange. Rather, it was an unofficial office policy. It was also bad science. 

VA denying the fact of an exposure by also requiring proof of bioavailability was deceptive. Bioavailability is a related but separate concept in toxicology, as confirmed by the Director, National Institute for Environmental Health Sciences. Specifically addressing VA using the issue of bioavailability to deny Agent Orange exposure claims, she wrote, “In all my years as a toxicologist, I have never heard bioavailability as part of the exposure definition.” 

The Department’s failure with firm commitments first made in 2001 has been to the great disservice of affected veterans and their families. VA repeatedly assured Congress that it needed no new legislation or revision to regulations to meet its obligation. VA withstood Congressional concern with Agent Orange claims for veterans’ exposures outside the Republic of Vietnam using deceptive assurances while at the same time denying virtually all such claims. The Federal Register must account for earlier entries from the Department of Veterans Affairs in its submission of this newer regulation or else muddy the Register’s historical record. Clearly, “exposure” was the sole requirement for presumptive service connection, yet VA failed to honor the three assurances made to Congress. Cited below is the Federal Register Vol. 66, No. 89, May 8, 2001, the first of these failed assurances:

“…if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e).”

Respectfully submitted,

The C-123 Veterans Association

Attn: C-123 vets with Agent Orange claims before June 18, 2015

Read the old VVA press release below! In early 2015 the President of the Vietnam Veterans of America, John Rowan, insisted VA treat C-123 aircrews and maintainers as VETERANS with full Agent Orange disability benefits. But the best VA would do is cover claims from June 18 2015 forward, not back to date filed. A partial but welcome victory.

Now we finally have two possible approaches to fix that and recover what is due. That's why I've been trying to get the name, telephone and SSAN of everyone who filed claims for Agent Orange illnesses prior to June 2015. VVA is helping by putting the word out on their web site. WE NEED YOUR HELP TO HELP YOU: CONTACT WES CARTER IF YOU'RE ONE OF THESE VETS, and get the word to our crewmates to do the same. A major law firm is providing pro bono help to us.

The lawyers are doing this for free, just as they did the C-123 claim settled on October 12 that awarded our comrade over four years of his 100% disability the VA owed...you can do the math!! (P.S.: $2,950 x 48 = $141,000.)

Spread the word, please. All I need is the name, year the first claim was filed, email and phone, and Social Security or VA claim number.

YOU CAN DO THIS – it wraps up six years of my hard work on your behalf and I want to do something else with my life!

VA DECEPTIONS USED TO DENY C-123 AGENT ORANGE CLAIMS, 2011-2015

   Every C-123 Agent Orange claim ever submitted was denied until June 2015, but still, VA insisted it had no blanket denial policy. How else are ten years of 100% denials described? With instructions like the examples below, there clearly was an official blanket denial policy. This denied Due Process, misled Congress when it tried to help us, ignored VAM21-1MR and provisions of US statutes and Federal Regulations. It was deceptive and an amazing abuse of discretion.

    Look at the following list of promises of case-by-case consideration. All of them, however earnestly offered, are shown to be false in the memo authored by VBA's Agent Orange expert, Mr. James Sampsel. He wrote, "If we were to adopt a case-by-case plan, an additional problem would be how to determine whether a particular post-Vietnam C-123 crew member was flying stateside on a former Ranch Hand aircraft." 

    See the point? He's discussing VA adopting a case-by-case plan, making it clear VA never had one! Why? Because VBA wanted to avoid the "slippery slope" his memo warned of.

VA has the means to punish veterans making false claims, but veterans have nothing except outrage to deal with VA's abuse of discretion and false promises.

      – FALSE VA PROMISES OF PROPER C-123 CLAIMS  –

"Scouts' Honor?"

• "All claims are considered on a case-by-case basis." – former Secretary Shinseki

• "All claims considered on case-by-case basis." – Under Secretary Hickey

• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel

• "All claims are considered on a case-by-case basis." – VA Deputy Chief Consultant Post-Deployment Health

• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26, 2012, May 23, 2014

• "Makes a case-by-case determination..." – VA Office of General Counsel

• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee

• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page

• "These claims will be decided on a “case-by-case basis" – VA Agent Orange consultant

• "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service

    • "Claims are evaluated on a case-by-case basis." – VA Public Affairs

   – FALSE EXCUSES VA CITED TO DENY C-123 CLAIMS –

"I cannot tell a lie!...except about C-123s"

     VBA informed regional offices how to deny all claims, and when ROs asked CS for they were told how to deny C-123 claims (VBA and VHA leaders made similar statements.)
     Every one of these was eventually shown to be in error, yet VA has never made right the harm done affected veterans.

•  "Therefore, there was no exposure"

• "We have to draw the line somewhere" 

•  "VA has an overwhelming preponderance of evidence against exposure"

• "Comp Svc has never had a policy of supporting such "remote" or  "secondary" AO exposure"

•  “VHA has already informed CS that no C-123 exposure claims will be approved because there was no exposure” (Mr. Tom Murphy to Wes Carter and Major Marlene Wentworth, NC USAF on 28 Feb 2013, in his office)

•   "No amount of proof from whatever source will permit a C-123 claim approval. Because we've already determined there was no exposure." (Dr. Mike Peterson VHA to Wes Carter and Mr. Brooks Tucker [Senator Burr's staff] at Senate Hart Building meeting, May 2012)

•  "TCDD in post-Vietnam C-123s cannot be absorbed by the human body in any significant amounts and there is no scientific evidence for long-term health effects from such 'exposure' "

•   "Preponderance of scientific evidence does not support TCDD “exposure” in post-Vietnam aircraft and VA laws and policy do not generally support service connection on this basis"

•   "VHA and independent scientists have stated that this solidified TCDD could not be absorbed by the human body and could not cause long-term health effects"

•   "There is no legal basis for providing this disability benefit and insufficient scientific evidence to establish long-term health effects from any such 'remote' exposure"

•  "VA does not recognize such 'secondary' or 'remote' exposure to Agent Orange"

•  "VA regulations do not allow us to concede exposure to herbicides for Veteran's who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals"

•  "Evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional

•  "No 'presumption' or 'acknowledgment' of exposure to AO based on indirect, secondary, or remote contact with aircraft or equipment previously used in Vietnam"

• "The majority of scientists on record, including those with VHA, state that any solidified TCDD in post-Vietnam aircraft is not active in the environment and cannot biologically enter the human body in any significant amount; therefore no TCDD 'exposure' "

•  "VHA's medical expertise on lack of evidence for long-term health effects speculative evidence for "high levels" of exposure from his supporters (CDC/ATSDR, NIH, USPHS, NIEHS, Committee of Concerned Scientists & Physicians) who are not qualified to provide the medical nexus"

•  "The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially zero.

•  “C-123 vets are 'Trash-haulers. Freeloaders looking for a tax-free dollar. I have no respect.'"

• "The potential for exposure to TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially nonexistent. As a result, there is no scientific basis for VA to establish the  presumption of Agent Orange exposure among this group of Veterans."

• “The overwhelming preponderance of evidence is against such exposures, including a VHA website specifically stating such exposure could not have occurred” 

•  “Please tell veteran. "We are unable to verify or document that aircrew members were exposed to Agent Orange, resulting from Agent Orange residue or dioxin-contaminated aircraft or aircraft parts. Although residual TCDD. the toxic substance in Agent Orange, may be detected in C-123 aircraft by sophisticated laboratory techniques many years after its use, the Office of Public Health concluded that the existing scientific studies and reports support a low probability that TCDD was biologically available in these aircraft. “Therefore, the potential for exposure to TCDD from flying or working in contaminated C-123 aircraft years after the Vietnam War is unlikely to have occurred at levels that could affect health."

• “Veteran failed to prove his airplanes were the ones used in Vietnam

• “There is (no) evidence of exposure to herbicides during military service.”

•  "The C-123 veterans are not currently eligible for compensation"

•  "There was no exposure. (Consultant representing VA at June 2014 IOM C-123 hearing)

• "Current scientific review indicates that any residual herbicide in the post-Vietnam C-123s cannot be absorbed by the human body or cause long-term health effects."

•  "VA laws and policies related to Agent Orange exposure, whether presumptive or based on fact-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide"*


• "TCDD is believed to persist in the metallic (or painted) environment with the lack of direct sunlight; however, its exposure risk is low due to lack of bioavailability and possible routes of exposure."

• "Therefore, it can be concluded that crews who worked on C-123 aircraft after they were used in the Vietnam War were not at risk of developing TCDD/Agent Orange-related health effects"

• "The scientific evidence available to establish a medical nexus in these cases is limited and the VA Office of Public Health has provided a medical opinion that it is insufficient to establish the required nexus. While your letter**focuses on the issue of potential dioxin exposure, it does not offer an opinion on the medical nexus issue nor does it address the potential for long-term health effects or disabilities resulting from service on the post-Vietnam C-123 aircraft."

    –––––––––––––––––––––––––––––––––––––––––––––––

* Liquid Agent Orange only? A novel concept, but an outrageous one in toxicology. Agent Orange and its contaminant TCDD are deadly as a liquid, gas, solid or anything in between. The IOM concluded that, despite VA's "liquid" slight-of-hand. C-123 veterans were exposed via dermal, inhalation and ingestion routes of exposure.
** Mr. Murphy references the letter to Secretary Hickey from the Committee of Concerned Scientists and Physicians, which sought to satisfy the legal and scientific requirements for veterans' Agent Orange benefits per 38 USC and the VA's three eligibility statements in the Federal Register, i.e. exposure alone.

    ––––––––––––––––––––––––––––––––––––––––––––––––

• Here is VA's first position statement from April 2011 addressing C-123 exposure inquiries. 

• The first point is correct: at that time, only Vietnam veterans had "presumptive exposure." The law was that other claimants would have to prove exposure on a fact-proven basis as we proceeded to do.

• The next four VA points were either disproved by the IOM or, with the third point, clearly CUE.

C-123 Agent Orange Combat Related Special Compensation (CRSC) Benefits

Replaces VA Disability Offset for C-123 Retirees with Agent Orange-Related Disabilities - now considered combat related!

Did you know that if you are a military retiree with a C-123 Agent Orange-related disability you may be eligible to receive additional compensation through the Combat Related Special Compensation (CRSC) program? This is a new eligibility for C-123 veterans because Agent Orange illnesses are considered "combat related" because Agent Orange is an instrumentality of war.

C-123 Vets may be eligible to receive additional compensation.

Until 2004, there was a law on the books that prevented military retirees from receiving both military retirement pay and VA service-connected disability compensation at the same time. Military retirees could choose to receive VA disability compensation if they were eligible, but their military retirement pay would be offset by the exact amount of compensation they received from the VA. The veteran received the same total compensation as their full retirement pay, however, the spending power was greater because VA disability compensation is tax-exempt.

In 2004, a law called Concurrent Retirement Disability Pay (CRDP) was passed. CRDP allows military retirees to receive both military retirement pay and VA disability compensation if they held a VA disability rating of 50% or greater. This is a substantial increase in compensation for these veterans who are eligible to receive their full military retirement pay and their full VA disability compensation.

But retirees with less than a 50% disability rating were left in the dark when it came to receiving greater compensation. While lawmakers didn’t extend the concurrent receipt laws to cover all disability ratings, they did create a similar law for veterans with a “combat related” disability, even if they do not have an overall disability rating of 50%. In 2008, Congress passed a law called the Combat-Related Special Compensation (CRSC) (10 U.S. Code § 1413a), which allows military retirees, including traditional Reservists, to receive monthly compensation to replace some or all of their VA disability offset if they have a combat-related injury. Let’s take a deeper look at CRSC, what it is, who it affects, and how C-123 vets can apply for this benefit.

What Is Combat Related Special Compensation?

Combat-Related Special Compensation was created to replace the VA disability offset for service-connected disabilities that are a direct result of combat related injuries, to include injuries that occur during combat or armed conflict, or during combat training, training that simulates war, while performing hazardous duty, or from exposure to an instrumentality of war (such as military combat vehicles, C-123 Agent Orange exposure, etc.).

Combat-Related Special Compensation provides compensation to eligible military retirees that will replace some or all of the VA disability offset. Their military retirement pay will no longer be deducted by the amount of their VA disability compensation. Instead, they will receive their full military retirement pay (based only on active duty total longevity, not percentage of disability!) and a CRSC payment based on the percentage of their disability rating that is considered combat-related. It’s important to note that CRSC payments only apply to the disabilities that are considered combat related. So it is possible that your CRSC payment can be less than your overall VA disability rating, and thus less than your VA disability offset. Like VA Disability compensation, CRSC payments are tax free.

Combat Related Special Compensation Eligibility for C-123 Veterans:

Here are the eligibility requirements, according to DFAS — To qualify for CRSC:

• You must be entitled to and/or receiving military retired pay (Active or Reserve with 20 years or creditable service; Chapter 61 medically retired with less than 20 years of service; Retired under Temporary Early Retirement Act (TERA); or  retired under the Temporary Disabled Retirement List (TDRL)).
• You must have a VA service-connected disability rating of at least 10 percent
• Your military retirement pay is currently being reduced by your VA disability compensation (VA disability offset)
• You must file a CRSC application with AFPC

Disabilities that may be considered combat related include injuries incurred as a direct result of:

• Armed Conflict / Combat: This can include direct or indirect wounds which occurred during armed conflict.
• Hazardous Duty: This can include activities such as demolition duty, diving, parachuting, aerial flight, and more.
• An Instrumentality of War: An instrumentality of war is a device such as a weapon or weapon systems specifically designed for military duty or warfare. This can include certain military combat vehicles, vessels, aircraft, or an injury or sickness caused by exposure to fumes, gases, or chemicals. C-123 Agent Orange exposure qualifies as an instrumentality of war.
• Simulated War: This can activities such as military training, exercises, airborne ops, live fire exercises, hand-to-hand combat training, and more. This does not include standard physical training such as running, jogging, or group sports activities.

Eligibility Based on Service Dates and Back Pay: Anyone can be eligible to receive benefits under CRSC as long as they meet the eligibility requirements. This means it can apply to veterans who retired decades ago, or as recently as a month ago. There is even the possibility of receiving back pay if you are determined to be eligible for this benefit. However, if you retired with full longevity (20 or more years of service), you can only receive back pay as early as June 1, 2003, which was the effective date authorized by Congress. If you were medically retired under Chapter 61 with less than 20 years of service, back pay can only go back to January 2008, which was the effective date for authorizing veterans who retired with a medical retirement.

How to Apply for CRSC Benefits

Combat-Related Special Compensation is not automatic. You will need to apply for these benefits with AFPC. They will assess your claim and determine your eligibility. To apply, you will need to fill out DD form 2860, along with the required documentation mentioned below, and send it to AFPC.

CRSC can be a complicated benefit because each case is unique. As always, it would be a good idea to consider using a Veterans Service Officer to help you with your benefits claims. They are often well-versed in applying for military and veterans benefits, and offer free assistance to veterans.

Documentation of Combat-Related Injury Required: You must be able to show a causal link between your service-connected disability rating and a combat-related event. You will need to provide documentation of your military service, including your Form DD-214 or Form DD-215, military medical records pertaining to your injuries, military personnel files, line of duty determinations, safety mishap (accident) reports, military personnel data system printouts, prior military disability board decisions, casualty reports, official orders or travel vouchers, AF Form 5s, flight orders, VA summary letters, or other official documents that can substantiate your claims. Here is the important thing to remember: your records must clearly show your injury is combat-related or associated with C-123 aircrew, AME, life support or maintenance duties.