Showing posts with label OMB. Show all posts
Showing posts with label OMB. Show all posts

24 September 2016

VA ESTIMATE OF C-123 VETERANS' AGENT ORANGE DISABILITY COMPENSATION? $46,000,000

 $46,000,000

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.

03 June 2015

Active Duty, Reserve Duty, AFTP & LEGAL Veteran Status...what's all the confusion?

It's important. The VA operates under laws which permit and require it to do different things and fundamental to the Department of Veterans Affairs is the legal definition of veteran which is carefully defined in the law. (click for just who is a veteran.)

It's complicated, as well as important. Throughout most laws dealing with the Department of Veterans Affairs the term "veteran" is used, rather than a less specific "servicemember" or similar word. Thus, what makes a C-123 aircrew or maintenance Reservist a veteran is important.

The first lesson we learned is that once earned, a person is a veteran forever. The next lesson we learned is that the first lesson is untrue.

It turns out that one is a veteran for issues dealing with the particular time period of an injury or illness only if veteran status is earned at that time. Thus, we may have been Vietnam veterans (many were) and/or Gulf War veterans (many were) or both, but still were probably not veterans in the full legal sense during the period we flew the C-123s unless we somehow qualified during those years of 1972-1986 (yes, VA extended the time period per Rickenbacker's years.)

How could we have earned veteran status while flying in the Reserves? The usual ways...active duty for a period of time, an injury or illness with line of duty determination, but without satisfying the legal requirements DURING THE TIME WE FLEW/MAINTAINED THE C-123s, we are not legal veterans for purposes of veterans' benefits sought for whatever happened during those Reserve years.

I'll give my case as an example. I'm a traditional Reservist with prior Army Reserve time and AF enlisted time before commissioning, and activated during the Gulf War. Thus I'm a legal veteran. I was injured during the Gulf War and am now 100% service connected. BUT...still not a veteran for the time 1974-1980 that I flew the C-123s?

Except: In 1978 I had surgery to sever nerves to my left thigh to stop a mysterious burning sensation. If VA ever agrees, this means I had the qualifying illness or injury during my Reserve years associated with Agent Orange because that sensation is now called "peripheral neuropathy, one of the Agent Orange presumptive illnesses. If VA doesn't agree, then I'm a vet per the Gulf War and forever after, but not a vet for purposes of Agent Orange exposure during our C-123 years.

Why bring my own ailments into the conversation? To illustrate that we're all different, and that we'll be treated as different individuals under the VA's final rules for C-123 VETERANS. Also because I can just imagine somebody trying to tell Big John Harris he's not actually a veteran...not of the C-123 era, yet.

The language VA has given the White House to cover our new rule is "Presumption of Herbicide Exposure and Presumption of Disability During Service For Reservists Presumed Exposed to Herbicide." Given all the preparation for this, we shouldn't have to presume any problem getting their program for us into action.

The White House Office of Management and Budget, which has to approve the language used in the new rule, has had it under review since May 13, but for some reason (we trust, not a deception of any sort) the abstract of the rule hasn't been posted so we don't know the details. It had better include retroactivity as we are simply not going to leave our widows and widowers behind on this, nor the folks who've had claims in for so many years. Those were flaws in the VA's proposed legislation which we opposed so loudly in April, and I don't expect that VA will do an end run this time.

Questions on my mind:
• Does this make us veterans under the law for the time period involved, or just convey parallel benefits to others with Agent Orange illnesses? Important for many reasons, for instance, many states offer disabled veterans benefits only to those the VA has rated as disabled veterans...any other status will leave us at a disadvantage.
• Will our families needing it receive CHAMP-VA medical benefits?
• C-123 claims are to be forwarded to St Paul VA for specialized handling by subject matter experts. Will this slow down claims? What about denied claims, and those in BVA appeals? We have asked that there be a fast track on getting these claims processed, and asked that appeals and denied claims not yet appealed be given quick Decision Review Officer examination rather than wait the years required for BVA processing and the inevitable remand.
• Will we have any opportunity for input? So far, no communications since the April 16 meeting at the Senate Russell building with VA Office of General Counsel, Senate and House advocates and veterans service organizations. We're in the dark with lots at stake.

24 May 2015

VA Has Submitted Rule Covering C-123 Vets to Office of Management & Budget for Analysis




On May 13, Secretary McDonald submitted to the Office of Management and Budget VA's proposed rule to cover C-123 exposures. When approved, this will be effected via Presidential Executive Order.

Now, we're all awaiting OMB's action to move things forward. The current state is "interim final rule" and is titled "Presumption of Herbicide Exposure and Presumption of Disability During Service For Reservists Presumed Exposed to Herbicide"

How it works:

Following the submission to VA of the C-123 report from IOM, a working group is convened, consisting of representatives from several different parts of the VA. Based on the IOM study findings, review of other relevant academic literature, and possible input from various stakeholders, the working group determines whether there is sufficient scientific evidence to support giving any disease(s) special consideration with respect to disability presumptions.

Following deliberations, the working group generates a report, which makes recommendations to an internal VA Task Force based on pre-established legal standards by which the VA Secretary’s final decision is bound. The VA internal review Task Force typically consists of high-level officials who report directly to the Secretary. The Task Force reviews the findings of the Working Group and may provide a separate, but similar, report to the VA Secretary based on the Working Group’s recommendations.

If the Task Force recommends that a new disability presumption be established, and the Secretary concurs, the Veterans Benefits Administration (VBA) will submit a cost estimate and draft regulations for the presumption(s) to the Office of Management and Budget (OMB) for review. If approved by OMB, the proposed rule is then published in the Federal Register. After the allotted period for public comment, the VBA will then prepare a final rule to be submitted to the Federal Register.