Our association's second response to proposed new VA regulation on veterans' hazardous exposure issues.

Our association has posted a second response to the proposed new VA regulation covering veterans' hazardous exposure issues. (First response here.)

The proposed regulation does much to address a wide range of exposure locations and does finally address members of the Reserve Components. It does not mention three earlier failed assurances by the Department of Veterans Affairs in the Federal Register that it would care for veterans who did not serve in the Republic of Vietnam, but were exposed to herbicide agents. Pages from the Federal Register are attached (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.)

Instead, Veterans Benefits Administration took steps to insure veterans were refused all care and benefits they should have received for their exposures,  dishonoring VA responses published in the Federal Register.

Between 2001 and 2010, the Department of Veterans Affairs proposed important regulatory changes in the care offered veterans exposed to military herbicides. Responding to public concern for veterans exposed in situations outside the Republic of Vietnam, in three separate and deceptive answers, the VA specifically said no regulatory changes were needed or would be made because:

"If a veteran who did not serve in the Republic of Vietnam, but was
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)). 

We therefore believe that there is no need to revise the regulation based on this comment."

By implication, these three deceptive VA responses it also assured Congress that no legislation would be necessary for protection of the affected veterans because the VA had already arranged to offer the same full range of exposure benefits provided Vietnam War veterans.

VA was deceptive between 2001 and 2015 in that, despite assuring the public and Congress that veterans exposed to military herbicides would receive benefits, it instead routinely refused to honor virtually all such claims. A VBA physician and Agent Orange subject matter expert with the "Agent Orange Desk" stated to the Associated Press, "We have to draw the line somewhere." 

The C-123 Veterans Association believes any such "line" may only be drawn in accord with law and regulation, not the preference of VBA staffers determined to block veterans' valid herbicide exposure claims.

VA Regulation M21-1 required it check with the Joint Services Records Research Agency for support of non-Vietnam exposures, but then refused confirmation when offered unless the Agent Orange Desk first requested such confirmation. In many instances, the Agent Orange Desk either refused to make such a request or wouldn't accept JSRRC confirmation even when offered.

This is not ancient history. Veterans and their families were assured of exposure benefits by theVA with empty, dishonored promises made in the Federal Register but were denied those benefits. Note must be made as VA seeks to publish this newest regulation to address earlier failures and deceptions on the same subject.

Respectfully submitted,

W. Carter, The C-123 Veterans Association

HELPED ANOTHER VET WIN HIS VA CLAIM – MY COLLEGE ROOMMATE FROM 1969

Paul (left) and Wes, San Diego 1967

PAUL HANSEN, my roommate from college days and friend through half a century, is very deaf. He hears sounds but needs powerful hearing aids to grasp the words. He and I were roommates during and then after college because I joined IBM in San Diego and recruited him. We even were occasional bunkmates in the Army, and travels over the years gave us the opportunity to stay in touch. I'm writing this note to remind all veterans that military service has made us  brothers and sisters; we should always help others, including getting them help from the VA when needed.

Paul was supposed to be best man at my wedding on June 14, 1969, but he instead found himself headed off for Army basic training. While at Fort Bragg he had an incident on the rifle range leaving him but totally deaf for days. He was seen at the base medical clinic but the damage was done: he gradually regained most of his hearing after a week of rest, but then year after year, each ear "rang" louder and louder as Paul's tinnitus developed. And so did his bilateral hearing loss worsen. A lot!

This was a half century ago. SP5 Paul Hansen was a traditional Army reservist, serving his initial six months of Active Duty, but no active duty after that to qualify him as a veteran, nothing making him eligible for VA care and benefits. Paul finished his service obligation and began life's journey in earnest.

Because we kept in touch and visited occasionally, I was able to notice Paul's hearing loss and urged him to apply to the VA. In fact, I even filled out his disability claim somewhere around 2014 or so. But Paul is a perfect example of procrastination, and the application lay somewhere, ignored until it got shuffled into some pile of documents never to be seen again. Okay, I'm a nag. Phone call after phone call, "how ya doin" was followed by reminding him to file with the VA.

Paul's hearing loss was significant, but the need was for him to establish veteran status with VA, entitling him to hearing aids but also vital health care for a multitude of other problems. The disability compensation of his claim was an insignificant concern  – Paul needed the wide range of VA benefits due disabled veterans and he'd never be one without getting around to submitting his claim.

It got to the point that we both realized it just wasn't going to get done, and with his permission I went ahead and applied to the VA for tinnitus and hearing loss disabilities. The initial obstacle of getting Paul to file finally accomplished, we next moved to finding proof of his Army rifle range problem. I filed a request with the Army's personnel records center in St. Louis and the vital proof of injury medical records were promptly sent to us. 

I then had to build an argument that even though he was a traditional from Reservist fifty years back, Paul's injury should entitle him VA care and benefits. Paul wasn't even a proper veteran per the law because he'd never performed a period of active duty after basic training. But have a medical background and I also knew a loophole: the law provides that Reservists and National Guard troops, if they have a disabling injury during their initial active duty or on subsequent training, that injury satisfies the law's requirements for full veteran status. Further, because Paul's training was during the Vietnam war he'd have a wider range of important coverages as a wartime veteran but only if he succeeded in his claim. 

I also wrote a lengthy report about the Army's history of troops' hearing injuries in the years before earplugs were even permitted on a rifle range. I quoted similar VA disability claims from other veterans where applicants had claims approved, even years later like Paul. Because of Paul's age and health, his claim needed to be approved on the first pass, not rejected for correction or appeal. Too often, claims have flaws that delay the process a year: we expected Paul would get a small 10% disability award for his hearing but worried about any delays.

This week, VA having approved his claim on the first pass, Paul Hansen became an honored disabled veteran. 40% disabled, not just 10% as I hoped. Another health issue still is under consideration and we're hoping it will put Paul over 50% disability, at which point all his medical care is provided free. Other benefits:

• #List of Benefits for Veterans 40-50% Disabled, plus compensation
  • Preventive care.
  • "Level 2" VA medical priority group
  • Inpatient (hospitalization) services.
  • Military PX and commissary use.
  • Ancillary services.
  • Mental health care.
  • Geriatrics and extended care.
  • Medical equipment/prosthetic items and aids.
  • Old age, low income pension
  • Medical travel.
  • Veteran-Directed Care program, a budget to help with activities of daily life.
  • Medication/supplies
    
    

The VA decision on his application came in the mail to announce his disability retroactive to December 2020, the date VA received his claim. Paul, faced with many health issues, is finally entitled to VA hearing aids and so many other benefits.

Here, I'll take a firm grasp on my initial urge to tell Paul what his retroactive check would have totaled if HE'D ONLY DONE AS I SUGGESTED SEVEN YEARS AGO.

A note: Paul's dad's Coast Guard bridge coat saved my life once, literally. But that's another story.

VETERANS BENEFITS FOR USAF RESERVISTS & ANG WITH TINNITUS AND HEARING LOSS

Are you ineligible for VA benefits because you're a "traditional reservist?"

If hearing injuries resulting from flight or aircraft maintenance duties might qualify you for VA compensation and other benefits. Here's how.

Traditional reservists aren't eligible for most VA benefits because our "active duty for training" doesn't count towards true veteran status. Regardless of how long one's initial active duty for basic and technical school might be, the law doesn't recognize that as "active service." VA recognizes completion of an active duty enlistment, or active duty during wartime to qualify a servicemember for benefits, but UTAs, annual tour, active duty for basic and other training are grouped into ineligible "active duty for training." No bennies.

BUT – there'a a big exception to that for any disabling injury or disease you might experience.

Tinnitus is just one such injury. That ringing in the ears, or wind noise or low hum is caused by loud noises. Noises like a C-123 or C-130 makes. Noises like an M-16 makes at 154dB.

Flyers, tank crews, infantry, artillery and others around loud noises in a military setting often suffer tinnitus, and VA recognizes that as a frequent disability - in fact, it is the most common disability veterans have.

And if you have tinnitus you might be entitled to VA care and compensation for that disability, and if you are, that makes you a veteran with all the benefits that wartime veterans receive.

I got into this recently to help an army reservist who had tinnitus from his time in basic training when he fired the M-14 rifle and did not have any ear protection. Noises of 85 dB and above can cause permanent hearing loss and tinnitus, and our aircraft are far noisier than that: The cockpit is steady at over 112 dB. The noise is worse in the rear!

After my altitude chamber ride at Edwards AFB I started flying in 1974. I recall that by 1975 or so we received the yellow foam earplugs and they provided some protection from noise hazards. But there was still significant noise reaching the inner ear to cause damage. This kind of damage is permanent and cumulative and can evidence itself in tinnitus and/or hearing loss even years later.

Here is my point in the VA's own words: “When a claim for service connection is based on a period of active duty for training, there must be evidence that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training.“

That is per 38 U.S.C. § 1131 (see also 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). See CAVC Hensley v. Brown – “claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.”( 5 Vet. App. 155, 164 (1993).” Also see VA Training Letter 10-02 at 15 (rescinded re: incorporation into VBA Adjudication Procedures Manual (M21-1), pt. III, subpt. iv, ch. 4, § D.1-3)

VA compensation for a tinnitus disability is a modest $144 per month, but the real importance here is that a hearing injury establishes legal veteran status with all the benefits that attach to being a wartime veteran (we've been in a period of war ever since Desert Storm.) Sometimes there are secondary issues to hearing loss like depression or hypertension. Rarely, there have been vets getting up to 50% disability ($995/month) based on hearing loss and complications.

You might not need them now, but benefits include pension rights, medical and pharmacy (perhaps with modest co-payments,) rehab, hearing aids, VA home loan, e

Retiring Veterans Court judge calls VA appeals system a 'tragedy'

(Note: Appeals to the VA Board of Veterans Appeals now take between three and seven years. The Court of Appeals for Veterans Claims can take another three or more years to hear a case. Most often, cases decided in the veteran's favor are returned to regional offices where more delay eats up yet more time.)

By NIKKI WENTLING | Stars and Stripes | Published: March 12, 2019

WASHINGTON — The retiring chief judge for the U.S. Court of Appeals for Veterans Claims told lawmakers Tuesday that the Department of Veterans Affairs appeals system is “ancient” and “inefficient” and in need of drastic change.

While testifying before a House Appropriations subcommittee, Chief Judge Robert Davis said the pressure on VA employees to get through a large backlog of benefits claims leads to poor decision-making and a high number of appeals. Davis, a Navy veteran, has held a seat on the Court of Appeals for Veterans Claims for nearly 15 years. The court, often referred to as “Veterans Court,” provides veterans an impartial review of decisions made by the VA Board of Veterans’ Appeals.

“I think it’s a tragedy, the way the system operates currently,” Davis said. “I think we’ve been tied to a structure that is ancient and inefficient. The sooner Congress and all of us in this area look at this system from a 50,000-foot level and say, ‘We need to make these kinds of adjustments,’ the sooner we’ll be able to meet the needs of our veterans in a much better way.”

Davis has been critical of the VA system. The topic was brought up Tuesday by Rep. Matt Cartwright, D-Penn., who cited an August article by the Wall Street Journal in which Davis criticized the appeals process as “horribly flawed.” “We can’t ignore that when you come here to testify, chief judge,” Cartwright said.

‘Cautiously optimistic’ about new law

Davis elaborated Tuesday on his comments to the Wall Street Journal. He said he remains skeptical of a new law implemented last month that VA officials promised would allow veterans to receive decisions on their benefits claims in days or months, instead of years.

The new law, titled the Veterans Appeals Improvement and Modernization Act, was approved by Congress in 2017 and went into effect Feb. 19. It involves multiple avenues for veterans to appeal their claims, including an option to get a review from a higher-level adjudicator or go directly to the Board of Veterans’ Appeals.

Under the old system, veterans waited three to seven years to reconcile their appeals. The new one could get veterans through the process in as few as 125 days, VA officials vowed. Officials also said the new system would help cut down the backlog of appeals, which included 402,000 cases as of last month.

“I’m cautiously optimistic that this modernization act may help the system, but in my view, congressman, it is tinkering around the edges, when a larger fix is needed,” Davis said. “And it’s a fix that might be viewed as radical by some.”

When pressed for specifics, Davis suggested using mediation to negotiate a settlement between the VA and veterans or providing them general pensions. He said there were “a lot of possibilities” that he believed should be discussed with the VA secretary.

Once he retires from the court, Davis agreed to discuss the issue further with Rep. Debbie Wasserman-Schultz, D-Fla., who is chairwoman of the House Appropriations Subcommittee on Military Construction, Veterans Affairs and Related Agencies.

Court experiences a ‘second surge’

Davis appeared before the subcommittee Tuesday to discuss the court’s budget request for fiscal year 2020, which totals $35.4 million. The proposed amount — released Monday as part of President Donald Trump’s budget plan — didn’t increase from the fiscal year 2019, though Davis said the court experienced a surge of work in 2018.

The court had its first surge in 2009, when its case load increased from about 2,000 cases each year to more than 4,000. That year, Congress temporarily approved two more judges to join the court, bringing it from seven judges to nine.

Davis described a “second surge” last year, during which the case load rose from about 4,000 to more than 6,800.

The VA touted last year that the Board of Veterans’ Appeals had worked through a record number of cases – about 85,000, up from 52,000 cases the previous year. Davis attributed the surge at the Court of Appeals for Veterans Claims to the board’s increased pace.

He warned appropriators Tuesday that the court might soon need congressional approval for an additional two judges, bringing the total to 11. Of the nine judges now on the court, two – including Davis – are scheduled to retire at the end of their 15-year terms in December 2019.

“We’re watching our numbers carefully to track the very real possibility that nine judges may not be sufficient to keep pace with this growth trend,” Davis said.

wentling.nikki@stripes.com
Twitter: @nikkiwentling
 

Benefits For Navy Sailors Claiming Agent Orange Exposure – but the vets had to wait half a century!

BIGGEST AGENT ORANGE NEWS IN THREE YEARS (Since the C-123 decision. My biggest worry: VA will appeal to the Supreme Court to fight this decision)
January 30, 201912:23 PM ET

by Rick Merron/AP

Navy veterans long denied VA benefits are declaring victory after a decision by the U.S. Court of Appeals for the Federal Circuit. The court sided with the plaintiff, a Vietnam vet with cancer who sued the Department of Veterans Affairs, demanding it recognize that his health conditions were caused by Agent Orange.

It took the government decades to acknowledge that the defoliant Agent Orange - widely used during the Vietnam War - was causing cancer and other ailments in veterans.

In 1991 Congress passed a law that vets who had come down with any of a list of cancers could presumptively link their condition to exposure to the chemical while serving in "the Republic of Vietnam." That meant the VA would pay them a disability benefit as they got sicker and dropped out of the workforce.

But the VA later took the position the presumption only applied to vets who had served on land or inland waters. "Blue Water Navy" veterans - so-called because they served at sea - would have to prove that their illness was directly connected to the defoliant.

Alfred Procopio served on the aircraft carrier USS Intrepid off the coast of Vietnam, one of about 90,000 Blue Water Navy veterans of the war. VA denied his claim that his prostate cancer and diabetes mellitus - both on the law's list of presumptive conditions - were linked to his service, and he sued.

The Court of Appeals ruled in Procopio's favor, deciding that the 1991 law was clearly meant to include vets who served off the coast of Vietnam.

"Mr. Procopio, who served in the territorial sea of the 'Republic of Vietnam,' is entitled to [the law's] presumption. We find no merit in the government's arguments to the contrary," read the court's 9-2 decision.

"The government's foot-on-land requirement, first articulated in 1997, does not provide a basis to find ambiguity in the language Congress chose," wrote Judge Kimberly Moore for the majority.

"VA is reviewing this decision and will determine an appropriate response," the agency said in a statement to NPR.

Lawyer and Navy veteran John Wells had argued the case. The group he directs, Military Veterans Advocacy, had also been lobbying Congress for years to change the law to specifically include Blue Water Navy vets. Wells said he personally knows several Navy vets who have died of conditions linked to Agent Orange exposure, which the VA failed to recognize.

"Delay, deny – until you die," Wells told NPR the day before the decision came down, repeating a bitter joke many Vietnam veterans tell about their treatment by the VA.

Last year the House unanimously passed legislation to address the problem. But a Senate bill was held up by Republicans Mike Enzi of Wyoming and Mike Lee of Utah, and it died when Congress adjourned.

Former VA Secretary David Shulkin had supported the bill, but President Trump's appointment to replace him, Robert Wilkie, surprised veterans groups by coming out against the measure, citing inconclusive science and a potential cost of billions of dollars.

"While the VA and Senate stalled, innumerable veterans were denied palliative and potentially lifesaving benefits," said John Wells in a statement after the decision.

"We are thrilled by today's ruling from the Court of Appeals," Wells said. "The many people who fought this battle alongside us and the veterans whose lives have been forever changed by the VA's policy are all due thanks and credit."

Vietnam War Agent Orange Spray Ops Approved 57 Years Ago Today

THIS DAY IN POLITICS

U.S. launches spraying of Agent Orange, Jan. 18, 1962

By ANDREW GLASS

 

01/18/2019 08:32 AM EST

After a period of testing, on this day in 1962, President John F. Kennedy gave final approval to “Operation Ranch Hand” — a massive UC-123K effort to defoliate the forests of Vietnam, Cambodia and Laos with an herbicide known as Agent Orange.

It involved the spraying of an estimated 20 million gallons of powerful herbicides over rural South Vietnam to deprive Viet Cong insurgents aligned with the communist government in Hanoi of food and vegetation trail cover. To a lesser extent, areas of Cambodia and Laos were also sprayed. The U.S. Air Force flew nearly 20,000 UC-123K sorties from 1961 to 1971.

During the decade of spraying, more than 5 million acres of forest and 500,000 acres of crops were heavily damaged or destroyed. Some one-fifth of South Vietnam’s forests were sprayed at least once — at up to 50 times the concentration that would be deployed for normal agricultural use.

Kennedy insisted on approving individual spray runs until November 1962, when the president authorized Military Assistance Command, Vietnam and the U.S. ambassador to South Vietnam to approve them.

Previously, top administration officials had debated whether to allow the destruction of crops, at the risk of violating the Geneva Protocol, which the United States had signed in 1925. However, Dean Rusk, the secretary of State, had told Kennedy on Nov. 24, 1961, that "[t]he use of defoliant does not violate any rule of international law concerning the conduct of chemical warfare and is an accepted tactic of war. Precedent has been established by the British during the emergency in Malaya in their use of aircraft for destroying crops by chemical spraying.”

In early 1964, members of The Federation of American Scientists began to object to the use of defoliants. The American Association for the Advancement of Science passed a resolution in 1966 calling for a field investigation of the Vietnamese herbicide program. In 1967, 17 Nobel laureates and 5,000 other scientists signed a petition asking for the immediate end to the use of herbicides in Vietnam. The administration ignored it.

The spraying program led some 3 million Vietnamese to suffer health problems caused by exposure to Agent Orange, including a million birth defects. Additionally, the toll on members of the U.S. military who handled the chemicals or were deployed in and around the targeted drop zone areas during the war caused another 2.8 million personnel and their offspring to suffer from its long-term affect — chiefly various cancerous conditions. Post-Vietnam C-123 veterans were also affected but granted disability benefits only after June 19, 2015.

While Operation Ranch Hand ended in 1971, its impact is still being felt today. The Veterans Administration recognizes a long list of diseases associated with exposure to Agent Orange. Vietnam War and C-123 veterans who were exposed and suffer from one of these conditions receive automatic presumptions of a service linkage, making them eligible for treatment at government expense, without the need to positively prove that such connections exist.

SOURCE: “This Day in Presidential History,” by Paul Brandus (2018)

THREE MORE BROKEN VA PROMISES

Thanks for checks received! Address here is 1233 Town Center Drive, Fort Collins CO 80524

Several checks arrived from our veterans over the past couple days and I thank you all very much. If others also care to send anything here is the address:
C-123 Veterans Association
1233 Town Center Drive, Fort Collins CO 80524. Visitors welcome anytime–gets lonely out here on the Front Range!

We now have enough to cover most of the next trip to DC so checks coming from this point on go for the following effort which should be late spring early summer. Because almost all our money goes for travel if you'd rather (or can only) provide frequent flyer miles or something like that it's just as good as cash for what we need.

If you'd rather put a ticket or a hotel on your own credit card for accountability or your own preference, that's perfect as well.

I would very much appreciate the company of one of our other veterans for the next trip to Washington. It's a little more effective with two folks working the Senate and the House offices. I will even treat for lunch at the Senate dining room where you can enjoy their famous bean soup.

Specific laws and regulations addressing our C-123 Agent Orange benefits

Sometimes I am asked about the specific laws or regulations that address our post-Vietnam agent orange exposures a board to C-123 and the VA benefits we have earned. You can use Google to find the many VA web pages detailing our issue.

Here they are:

• 38 C.F.R. § 3.307
• 80 Fed. Reg. 35,246, 35,248 (June 19, 2015)
• VA regulation M21-1, Part IV, Subpart ii, 1.H.3.(Feb 5, 2016)

According to the VA glossary of terms, the terms "Environmental Contaminants" and "Gulf War Illness" are one and the same!

(Thanks for pointing this out, John. Remember, everyone, that VHA Post Deployment Health is the group which redefined "exposure" to prevent exposure claims!

– John Olin, 30 January 2016 

"Environmental Contaminants / Gulf War Illness": 

Gulf War Veterans were exposed to a wide variety of environmental hazards and potential harmful substances during their service in Southwest Asia. These include depleted uranium, pesticides, the anti-nerve gas pill pyridostigmine bromide, infectious diseases, chemical and biological warfare agents, and vaccinations (including anthrax and botulinum toxoid), and oil well free smoke and petroleum products. 

VA recognizes that there are other health risk factors encountered by Gulf War Veterans. Veterans with service during the Gulf War are eligible to receive treatment for conditions related to this service. 

If the treatment provided is for an illness or symptom that may possibly be associated with environmental contamination, copay for medical care and medication copay will not be charged. 

Conditions Associated with Environmental Contaminants: 

Persistent fatigue 

Skin rash 

Headache 

Arthralgias/myalgias 

Sleep disturbance 

Forgetfulness 

Joint pain 

Shortness of breath/chest pain 

Feverishness 

Amyotrophic Lateral Sclerosis 

However, the above language was quietly removed by the VA very recently.  

See for yourself:http://www.va.gov/healthbenefits/resources/glossary.asp#e

It now reads: 

Environmental Contaminants: Environment hazards and potential harmful substances such as pesticides and chemical and biological warfare agents. It is very important to note that the language recently removed from the glossary of terms by VA had a huge implication on claimants co-pays. "If the treatment provided is for an illness or symptom that may possibly be associated with environmental contamination, copay for medical care and medication copay will not be charged." 

VFW Magazine Details Agent Orange Application Process

Spotted by Paul Bergeron in the Oct/Nov VFW Magazine:

VA Benefits Provided 100% Disabled Veterans

Many of our C-123 veterans are becoming 100% disabled veterans, now that VA has recognized our Agent Orange exposure and resultant ailments.  It is a long list of welcome services.

But it is painful to realize that VA's opposition to our claims denied us all services and benefits the Nation wanted its servicemembers to have in substitution for the good health with which we began our flying. The logic has always been to try to provide benefits to give the injured veteran something of the life enjoyed by those who didn't serve, and at a minimum, to provide for replacement of lost earning capacity and vital medical care.

Remember that state benefits such as property tax relief can be just as important.

Correction: C-123 Widows NOT abandoned by VA Interim Final Agent Orange Rule

This is an honor I've had to do twice. It is very hard. I wouldn't

like to turn to a C-123 widow and tell her VA has decided to

abandon her, which is exactly what VA has done.

From Huffington Post (Lynne Peebles, reporter) July 21,2015:

"Meagan Lutz, a spokeswoman with the VA, confirmed that the new help is only available beginning on June 19, when the rule was published, or from the subsequent filing date. Widows of C-123 veterans, she said, will not be eligible for the disability compensation." 

In an email from VA to the Vietnam Veterans of America, this "clarification" was offered late on Friday, July 31:

"I don’t know what the source of the below communication was but it is not correct.  As we discussed during our meetings with VSOs on the C-123 rulemaking, the survivor of a covered C-123 crew member would be entitled to DIC if the cause of the crew member’s death is service connected.  We would make that determination based upon a survivor’s DIC claim that is pending on or after the effective date of the regulation.  With respect to prior denials, there is nothing that prevents a survivor from reopening a claim based upon the new regulation.  To the extent that the communication alleges that we have unlawfully denied retroactive benefits, section 5110(g) of title 38, United States Code, is clear that the effective date of any award of benefits pursuant to the regulation cannot be earlier than the date that we issued it."

VA's "All Questions Answered" Message Gave Us Wrong C-123 Hotline Number

Here is the correct C-123 Hotline Number:
VA C-123 Hot Line: 1 (800) 749-8387

(thanks, Trish)

Today on VA Home Page - PATCHES!

Senate Acts to Help C-123 Exposure Claims

Thanks to Senator Merkley and his staff, the Senate Appropriations Committee has gotten involved in the C-123 Agent Orange exposure business, and has a clause dealing with us as part of the military construction, VA and related agencies appropriation bill.

This bill may or not be voted upon during the week of June 7-12 but considerable confusion exists about potential filibuster delays.

            COMMITTEE REPORTS

SENATE APPROPRIATIONS
Senate Report 114-57 - To accompany H.R. 2029
May 21, 2015

MILITARY CONSTRUCTION, VETERANS AFFAIRS, AND RELATED AGENCIES APPROPRIATION BILL, 2016

C-123 Planes and Possible Exposure to Dioxin.—The Committee is aware of the Institute of Medicine» [IOM] study of exposure to herbicide by servicemembers who served on Fairchild UC-123 “Provider” (C-123) aircraft post-Vietnam war. The report, commissioned by VA, states with confidence these servicemembers were exposed to potentially dangerous levels of dioxin. Given IOM’s recent finding, the Department is directed to report to the Committees on Appropriations of both Houses of Congress within 14 days of enactment of this act on plans to provide appropriate care and benefits to servicemembers who flew or worked on C-123 planes that carried and sprayed Agent Orange and to revisit past and existing related claims previously denied.

VA CARES...Agent Orange poster mentions Vietnam veterans AND others exposed to Agent Orange

It is very telling in VA's poster that it mentions not only Vietnam veterans, but all others exposed to Agent Orange.

Last week. Dr. Ralph Erickson in VA's Pre-9/11 Post Deployment Health authored a blog page in which he specified C-123 veterans as among the potentially exposed population.

"Fixing the VA, A Broken System Thus Far" – comments by Secretary McDonald and Deputy Secretary Gibson

The President, Secretary McDonald and Deputy Secretary Gibson are visiting VA facilities in Phoenix, Arizona this Thursday and Friday. The Arizona Republic, which has uncovered much of the turmoil in VA this last year of scandals, raised questions of these leaders.

Arizona Republic: "You inherited a malignant VA culture with dishonesty in leadership and other problems. How can you trust your subordinates to cure themselves or be honest with you?"

Secretary McDonald: "Ask every employee to recommit themselves to our mission."

Mr. Gibson: Stressed that veterans are poorer, sicker and have more mental-health problems than most patients. "These are not patients that are going to fare well in a fragmented, private-sector care environment."

Mr. Gibson's point is quite clear...veterans need the VA. Which begs the question, why has VA blocked 100% of our eligible C-123 veterans' applications for VA medical care for four years? How can VA claim to be pro-veteran and non-adversarial when it seeks every loophole to bar our care?

Little-Known Benefits From a VA Disability Rating

Our focus, of course, is always on establishing our eligibility for VA medical care: No medical care means terrific suffering and financial hardship for veterans unfairly denied earned care.

For 100% disabled veterans, VA's embrace is wonderful. Ophthalmology, audiology, counseling, rehab, dental, prosthetics, pharmacy, specialty clinics, general medicine...a wide range of vital services to help a disabled veteran recover, or improve as much as possible seeking the greatest quality of life possible.

And, of course, there is compensation. It is called that because of the philosophy of replacing, with some financial adjustment, the veteran's lost earning capacity. It is not a pension, it is not charity, it is not taking something more properly due another deserving veteran...it is earned by each veteran with a recognized service-connected illness or injury. There is no means test, of course: that's something required for a pension, but not service-connected compensation.

But there is more that veterans should be aware of (but I'm no expert...check with the VA for details!)

• State benefits, typically property tax relief, veterans bonuses, automobile licenses and waived auto fees, state veterans' homes, cemetaries, college tuition waiver, children's college tuition waiver
• Veterans Cemetery Administration. Burial in a national cemetery, state veterans cemetery. Burial allowances for service-connected deaths
• Priority One for VA medical care, with no co--pays
• Educational benefits for children; continued medical care for children disabled before age 18
• Transportation costs for medical care beyond a certain distance from a veteran's home
• Contract medical care in the community
• Long-term health care (this gets tricky...VA needs to explain if you're interested) in VA facilities or contracted local facilities; VA assistance with state nursing homes which charge fees
• One year of fee-waived VGLI (must be applied for) 

• Clothing allowance for clothing damaged by medicines, prosthetics, wheelchairs, etc.

• Independent living assistance, sometimes including home modifications, quality of life issues
• Access to VA's War Injury and Illness Treatment Centers
• Combat Related Special Compensation. Adjusts taxes on military retirement, in some cases to zero, because Agent Orange is a "weapon of war"

• Some commercial firms, like Lowes and Home Depot, offer discounts 

• Survivor's benefits, including CHAMP-VA

Why C-123 Veterans Are Affected by Institute of Medicine C-123 Agent Orange Study

In what turned out to be a critical change in VA Agent Orange policy, Public Law 102-4, the Agent Orange Act of 1991, transferred the advisory function regarding dioxin and herbicides from the VACEH to the National Academy of Sciences (NAS). The NAS, an independent and highly regarded scientific body, then took the responsibility of reviewing the scientific literature concerning the association between herbicide exposure during Vietnam service and each health outcome suspected to be associated with herbicide exposure. Since responsibility for a scientific review was formally passed to the NAS, VA terminated publication of the scientific literature review mentioned in the previous paragraph.

Following receipt of the NAS reviews, the Secretary has 60 days to determine which, if any conditions evaluated will be recognized as service-connected. The legal standard that the Secretary of Veterans Affairs must use to evaluate what conditions should be presumptively recognized for service connection is described in Chapter 6 – Disability Compensation. The standard differs from the cause-and effect.

Further, the Agent Orange Act removed the requirement that veterans of the Vietnam War must prove both exposure and medical nexus...these are now presumed to have been proven. For veterans who've been exposed to Agent Orange in situations other than Vietnam's "boots on the ground," they must prove exposure. Once exposure to Agent Orange is established, they need not prove medical nexus for any of the Agent Orange-recognized illnesses.

Thus, the IOM study is only tangentially of interest to C-123 veterans because VA carefully chose the assignment wording to avoid asking whether nor not C-123 vets were exposed.

Instead, careful wordsmithing by VA's Post Deployment Health Section gave the IOM an assignment which asks whether or not "excess" risk can be proven. So they IOM can return a finding that the risk is excessive, yet VA continue their present refusal to acknowledge our exposure and thus exclude us from coverage. If IOM returns a finding that our risk cannot be established, VA will seize upon that as definitive "proof" that we are not eligible at all.

The deck is stacked – against us! No wonder Professor Peter Kahn called the whole process unethical, despite the sincere efforts by dedicated scientists on the IOM C-123 committee. At the June 16 2014 IOM meeting, the C-123 Veterans asked the committee to exercise its independence and report back an additional answer to an unasked question...were the C-123 veterans exposed or not?

That is the only question under the law. Besides, we have already established that exposure through juried scientific articles, opinions from dozens of scientists and physicians, as well as opinions from federal government agencies such as the CDC.

We were exposed. We are barred from VA care today because of the personal preferences of VA staff in Post Deployment Health...nothing more.