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.

Our Testimony Supporting Senate 16-147 (April 28, 2016)

Statement of Wes Carter, Major USAF Retired

National Chairperson, The C-123 Veterans Association

also speaking for the united veterans committee of colorado

Mr. Chairman, and members of the committee,

I’m Wes Carter, National Chairperson of the C-123 Veterans Association. Today I also represent 450,000 Colorado veterans whose voice is the United Veterans Committee. Before you today is the terrible issue of suicide in Colorado and our hope that Senate Bill 16-147 can help.

I want to share some personal experiences with this issue. My town of Fort Collins lost thirteen children last year. Four were suicides. Four…over 30% if you want simple statistics. We don’t know all the causes, but we certainly know the tragedies our families were left with.

Military suicides are something I became familiar with 26 years service in the Army and then the Air Force. For twelve years I was a hospital administrator. Marvin, one of the officers who nominated me for my commission, faced demons he felt could only be driven away by ending his life. I flew medevac for several years with Diane, a flight nurse. I have a happy memory of her rushing from work to attend my wedding, without time to change from her hospital scrubs. I have been to her parent’s Massachusetts home only twice…each time for the funeral of one of her brothers, both of whom ended their lives while on active duty.

Military and veterans’ suicides. I can speak for the accumulation of life’s burdens in the military…extremely difficult technical and physical training, frequent deployments, injuries, career disappointments, loss of friends, family strife, relocations, financial stress. And then there’s all those people bombing and shooting at you. Life’s tough. We have an evolving understanding that it takes a warrior to call in help. I wish more warriors would reach out, but we see an average of one veteran’s suicide per hour, each and every day. 8000 a year, almost an Army division. Last year in our county, the 80 adults who ended their lives were 3.8% of all adult deaths, but remember what I said about the children…30% of all children’s deaths were by their own hand.

Senate Bills won’t solve everything but, along with recent action in the US Senate, they’ll help. I join Colorado’s 450,000 veterans in urging unanimous approval of Senate Bill 16-147. Thank you, Mr. Chairman.

"G.I Fairness Bill" protects benefits for wounded Guard, Reserve members

Note: Things are getting better with this kind of proposed legislation, sponsored by enlightened veteran-oriented leaders. Until recent years, men and women like me from the Guard and Reserve were guaranteed financial disaster as regulations actually required injured Guard and Reserve vets to be removed from Active Duty and permitted only a base salary until injuries were healed...no other benefits. 

No family medical care, no nothing! The vet was allowed military care for the specific wartime injury, not other health issues which might arise during recovery. Retirement and promotion credit was refused during this period, and if some additional injury or illness were to develop the vet had no protection for those issues. And, once kicked off Active Duty Reservists and Guardsmen lost all vital state and federal protections otherwise provided while activated. 

Wyden G.I. fairness bill passed by Senate committee
Sens. Ron Wyden, D-Ore., and John Boozman, R-Ark., announced Wednesday that their bill to ensure wounded members of the Guard and Reserve will receive the GI Bill benefits they’ve earned passed the Senate Veterans’ Affairs Committee

The bipartisan GI Bill Fairness Act would ensure that servicemembers of the Guard or Reserve who are wounded in combat are eligible for the same GI Bill benefits as active-duty.

Currently, wounded Guard or Reserve members are often given orders under 10 USC 12301(h) for their recovery, treatment and rehabilitation.

Unfortunately, federal law does not recognize such orders as eligible for Post-9/11 GI Bill education assistance, meaning that unlike other members of the military, these members of the Guard and Reserve actually lose benefits for being injured in the line of duty.

“There’s no reason that Guard and Reserve members who are wounded in battle shouldn’t receive the same benefits as other active duty members,” Wyden said. “Our bipartisan solution that passed the committee today will make sure these brave Americans get the benefits they’ve earned.”

"This is a step forward to ensuring equal treatment for our members of the Guard and Reserve who are injured during their service to our nation. I was proud to support this legislation in committee and will continue to encourage my colleagues to support this commonsense measure on the Senate floor,” Boozman, a member of the Senate Veterans’ Affairs Committee, said.

Seven Dates = years of VA blocking C-123 Agent Orange exposure claims

I'd like to put seven events before veterans, our legislators and the public to illustrate VBA's tortuous and wrong-headed struggle to prevent C-123 veterans' Agent Orange claims. VA dragged out justice for years, with acts I feel violated VA21-1MR, VA's pro-veteran duty, the VA duty to process claims in a non-adversarial manner, the Veterans Claims Assistance Act and the Due Process Clause in the Fifth Amendment to the Constitution.

This is an important matter because VA's misdeeds denied our veterans up to $150,000 in retroactive compensation generally awarded other Agent Orange veterans once claims are resolved. Plus, C-123 vets were denied years of vital medical care. Important issue, because it shows VA disregard for its own regulations and obligation for a pro-veteran perspective.

1. VBA's Agent Orange desk repeatedly informs veterans that JSRRC confirmation is required to acknowledge claims, saying VA cannot act and citing VA21-1MR requirements for JSRRC report
2. March 12 2013: VBA Agent Orange desk receives JSRRC director's confirmation of evidence for C-123 Agent Orange exposure which cites numerous government records
3. March 12 2013: VBA and VHA discuss JSRRC confirmation in their internal communications, its role and its availability to veterans and whether it triggers presumptive service connection; decision to disregard as irrelevant (violates VCAA and Due Process at this point)
4. May 9 2013: Two months after JSRRC official confirmation, VBA corresponds with C-123 veterans informing them JSRRC confirmation is necessary but does not reveal JSRRC confirmation already received two months earlier
5. June 10 2013: VBA Agent Orange desk drafts letter for Under Secretary Hickey to Oregon Governor, avoids mention of JSRRC and other government proofs received by VA, cites non-existent "specific scientific investigation" (which was instead a VHA staff consensus...no scientific study was ever done) against C-123 claims
6. July 10 2013: Mr. John Kruse (Director Benefits Team VA Congressional and Legislative Liaison) submits detailed letter from C-123 veterans re: JSRRC, VCAA violations and other issues to Secretary Shinseki, without response
7. May 2014: VBA begins receiving individual veteran JSRRC confirmations in May 2014 but does not act or inform veterans, stating it will delay and, await the IOM study (which resulted in the June 2015 Interim Final Rule)

Net effect: eligible deserving veterans were denied VA medical care and other benefits for over four years following CDC, NIH and US Public Health Service confirmation of our exposures, and for over two years following DOD JSRRC confirmation of our exposures which satisfied the VA's own regulation VA21-1MR but which VA ignored, violating Veterans Claims Assistance Act and Due Process Clause.

C-123 Claims Update After Denver VARO Visit

I had the opportunity to visit the Denver VARO and was kindly received by a claims officer and her supervisor who offered me an extraordinary amount of time reviewing my claims, denials and appeals. The questions I raised were about any administrative changes or developments regarding our Agent Orange claims.

First off, they had no information about C-123 issues other than the March 11 changes on VA web pages. They checked: Claims and appeals are still handled in the local VARO (at least, mine is and they had nothing about St. Paul being a centralised processing facility.

Checking carefully, they told me my last claim was "postponed" to await the C-123 IOM decision. I JSRRC had already provided one in March 2013 and another in March 2014, but she explained a new one would be required.
mentioned that report had been published in January but they had no information about it. I was told the next step would likely be, once VA (Washington) sent Denver information about the IOM report, the regional office would have to inquire through DOD to make sure I flew the C-123s. At that point Denver would request a Joint Services Records Research Center report. I mentioned

One suggestion was to submit my doctor's letter that I'm terminal as that is a faster category for processing claims and appeals. Another, of course, was to be patient. Everyone realizes that appeals take a long time. The lady helping me had been working on appeals from 2010-11, so I have several years to go because my claim wasn't denied until 2012.

SITREP: We're going nowhere fast.

Are C-123 Veterans Actually Veterans?

No. Not if VA Office of General Counsel can prevent it!

"You're not veterans. Even if you were veterans before or after Reserve duty or even veterans in both situations, you're not veterans for purposes of Agent Orange exposure unless you qualify as such during your Reserve tour."

That was the VA Office of General Counsel talking last Thursday at the Senate Russell Building, defending its views in front of veterans service organizations,  Yale School of Law, House and Senate staffers, the media and others. The legal definition of "veteran" was raised as a stumbling block in our path to VA health care and other benefits.

Of course, this element of the puzzle could have been raised long ago and resolved, but for some reason, VA has a record of throwing obstacles one after the other, rather than putting everything on the table for the puzzle to be seen in one piece. Having resolved the scientific question of exposure through the Institute of Medicine C-123 report released in January 2015 (a process first discussed and promised the veterans in 2012,) VA OGC identified the statutory definition of "veteran" as its next barrier to our claims.

It turns out that VA benefits are available for Reserve and Guard members only if injured during Reserve duty, or if the servicemember completes a period of recall to Active Duty during the period in question. It is the view that Reserve and Guard, even if legally qualified as veterans before or after the period in question, are not "veterans" under the law unless they meet this criteria.

Example: a Reservist sent to duty in West Africa returns home and reverts to civilian status, develops ebola two weeks later. but is not a "veteran." Reason: because the illness or injury didn't actually manifest itself while the person was in uniform, even though the exposure occurred during Reserve duty. As ridiculous as this sounds, this exact scenario was run past VA Office of General Counsel and they agreed: VA actually would refuse care to an ebola-exposed Reservist.

The example closely parallels our Agent Orange problem.  We were exposed to the toxin dioxin in Agent Orange during the C-123 years of 1972-1982. However, soft tissue sarcomas and other Agent Orange illnesses don't manifest  themselves overnight, but instead can take decades for the exposure to be manifested in disease.

VA says because we didn't actually develop prostate cancer during a drill UTA, we were not injured in our Reserve status and therefore are not seen by VA as "veterans" for purposes of protection. An exposure to a Reservist which doesn't cause an immediate injury doesn't qualify the Reservist as injured and therefore a veteran under the law.

As you can imagine, this extremely restrictive OGC view didn't go unchallenged last Thursday. Rather, everyone present was of one voice: exposed C-123 servicemembers are veterans and are due VA care and benefits. There are a couple foundations for this challenge: in 2002 VA Office of General Counsel provided a formal precedent-setting option that a Navy Reservist given an anthrax vaccine who later developed serious illness qualified as a  veteran. It held that the vaccine was a foreign substance which injured her at the time of inoculation, even though the complications became evident years later. Our point: dioxin is a foreign substance which injured us.

VA OGC didn't take this quietly, Instead, they did the amazing thing of declaring their 2002 decision to be in error and therefore not applicable to the C-123. Nobody there was willing to let VA cherry-pick or redefine their own references and it was clear any final solution doing that was headed straight for court.

Still, the conference ended without degenerating into total chaos. VA OGC agreed that proposed legislation would be withdrawn, and to rethink the opposing arguments, especially in light of the unified front against the VA position. VA also came to realize that somehow language had been inserted in the proposed legislation barring retroactive claim awards, even if those claims had been in their system for many years.

"Active Service Criteria for Veteran Status (from the Congressional Research Service

“An applicant for VA benefits must have “active military, naval, or air service” to be considered a veteran for most VA benefits. However, not all types of service are considered active military service for this purpose.

In general, active service means full-time service, other than active duty for training, as a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or as a commissioned officer of the Public Health Service, the Environmental Science Services Administration or the National Oceanic and Atmospheric Administration, or its predecessor, the Coast and Geodetic Survey.

Active service also includes a period of active duty for training during which the person was disabled or died from an injury or disease incurred or aggravated in the line of duty and any period of inactive duty for training during which the person was disabled or died from an injury incurred or aggravated in the line of duty or from certain health conditions incurred during the training.

Additional circumstances of service, and whether they are deemed to be active military service, are set out in law. For example, if on authorized travel to and from the performance of active duty training or inactive duty for training, a person is disabled or dies while proceeding directly to or returning from such duty, the duty will be considered to be active duty for training or inactive duty for training."