Tinnitus: A Frequent Disability of C-123 Veterans. Should You File a Claim?

Yes. Absolutely submit a VA disability claim!

"It's a fact aircrews know well. Service members who work in and around aircraft are more likely to suffer hearing deficits!" (VA publication)

Aircrew duty in a C-123, C-130 and other military aircraft frequently causes (or worsens) hearing loss and/or ringing in the ears (tinnitus.) Hearing loss is the most common disability claimed by veterans and it is serious. Hearing loss and tinnitus is usually permanent, cumulative, and worsens with aging well past the years of your military service.

When a veteran submits a claim, the VA arranges a hearing test (a "Compensation and Pension Exam.") Then, if the problem meets VA standards, the vet is granted a disability rating, typically ten percent. In 2024 that's about $171 per month, tax-free, for the rest of your life. They also provide medical care with free audiology exams and high-end hearing aids if required. The compensation dates from the day VA receives a claim, so it makes sense to apply immediately if you believe you have the problem. Claims can be submitted on-line or by mail. Major veterans organizations such as DAV, VFW and the American Legion offer free claims assistance, as do all state veterans service departments and most counties.

It is important to know hearing problems can also lead to other, even more serious disabilities. The VA considers these "secondary conditions." Linking these secondary conditions to the initial hearing loss disability can lead to an increased overall disability rating, vital VA medical care for those problems and  greater monthly compensation.

Example: My college roommate had an incident during Army Reserve basic training in 1969 which affected his hearing and was documented. However, that documentation was misfiled into his dental records. Over the years following military service the hearing loss increased greatly and he was convinced (he resisted years of my urging!)  to submit a VA disability claim. He was initially granted a 30% disability rating due to the severity of the hearing problem but his secondary condition of depression related to hearing loss lead to a 100% total disability rating. He initially received a check for around $32,000 and qualified for full federal and state veterans benefits, something Reservists and National Guard personnel don't usually qualify for without active duty service.

This was a significant financial benefit, much needed in his situation. I referred him to Katrina Eagle, an experienced veterans attorney who discovered the "lost" Army documentation for the original 1969 hearing injury, and she convinced the VA to make this veteran's 100% disability rating retroactive - to 1969! The final check for that backdated VA compensation was well over $100,000.

That was certainly an unusual situation, but secondary conditions are important for the VA to address, both in medical care and compensation. Let's look at hearing injury secondary conditions:

Secondary Conditions Related to Aviation Tinnitus or Hearing Loss:

Migraine Headache Conditions Secondary to Tinnitus or Hearing Loss: (continued below)

VA Disability Claim Form VA 526EZ now includes Agent Orange C-123 details

 Reference VA Form 526EZ disability claim form.

I hadn't noticed but Veterans Benefit Administration now includes C-123 veterans in their Agent Orange exposure section. BTW: if you haven't checked with VA for their full range of toxic exposure disabilities, do so NOW!

VA 526EZ, Section IV EXPOSURE INFORMAON

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

Flight Nurse Wins Unique C-123 Agent Orange Claim

The VA Board of Veterans Appeals recently published their decision on a Westover C-123 veteran's Agent Orange claim, and it granted full benefits. There was no question about this veteran's eligibility for Agent Orange benefits but the disability claimed was not one VA presumes associated with exposure. The claim was submitted in August 2015, denied in October 2015, and finally won on appeal effective retroactive to the date first submitted.

Winning a claim for a disability VA doesn't associate with Agent Orange exposure is difficult. I won my claim for, among other things, avascular necrosis, and here VA accepted a type of cancer not on their list. It can be done but requires persistence and lots of skillful argument.

Congratulations are due here for the years this veteran invested in pursuit of the justice due C-123 veterans for our Agent Orange exposure!

Review: Our two goals for C-123 Veterans' Agent Orange Benefits

Simple. A mostly successful seven-year effort. Many folks chipped in funds to help and I never wrote thank-you cards. That is because all I did was work and the contributors know it and know their help was vital.

GOAL ONE. VA designation of C-123 veterans as "presumptively exposed" to Agent Orange, thus entitling us to VA medical care and other benefits.
STATUS: MET ON JUNE 19 2015

GOAL TWO: Get our VA disability claims honored from the earliest date submitted, if earlier than what VA limits for retroactivity (June 19 2015 at the earliest.) This is because many C-123 vets had claims in prior to that date, but were met with the then-automatic VA denial. And VA did deny...100% of all our claims were refused.

STATUS: ONLY VERY PARTLY MET

At least the VA barrier to our retroactive claims has been broken down a little. A handful of C-123 vets had claims approved via BVA appeals (Paul Bailey, Dick Matte) but VA has been firm in limiting retroactive claims to June 19 2015 and no earlier. It has to do with Reservists not being entitled to disability benefits unless disabled during the Reserve duty.

For some, this has cost tens of thousands in anticipated, but denied, "catch-up" checks. An example: a claim submitted in 2007 but denied at the time, then honored by VA once its C-123 rule was published on June 19 2015. If the vet was due a 100% disability rating, that's eight years of compensation VA won't pay...about $200,000 lost by the vet because of VA's limit of retroactivity set at June 2015.

The good news: at least one claim has been awarded retroactive Agent Orange benefits from the date submitted (in this case, March 2011. On the vet's appeal the BVA determined that C-123 exposure itself was a disabling injury that would date from "back in the day" while flying the Provider. That decision meant the affected Reservist satisfied the law's requirements regarding a disabling injury to trigger statutory veteran status, and the claim was honored back to the date the vet first filed for Agent Orange disabilities. That was a lot of money, with thanks due to the National Veterans Legal Services Project and their cooperating pro bono attorneys!

November 2017 activity report for C-123 Veterans Association

1. With NVLSP help, won 51 months of retroactive 100% disability compensation, with decision helpful for three avenues of approach to backdating liberalizing rule claims 2. Working on Colorado's disabled veteran property tax exemption. Last year got new law bringing CO statute into compliance with state constitution for military disabled retirees (vs VA SC,), but state still refuses to permit 8-12,000 permanent TDIU vets to receive exemption. I'm arguing that TDIU is a permanent and total disability rating complying with the original referendum, the state constitution and the enabling legislation, and that unemployability is improperly added only as a disqualifier on the application forms 3.Trying to get Veteran-Directed Home and Community Health System benefits extended throughout Colorado. Presently offered only in eight counties around Denver but not in our other 56 counties or in Wyoming. 6000 vets in my county eligible. 4. Many individual vets assistance, plus running veteran info tables at churches 5. Attended United Veterans of Colorado monthly conference to present VC-HCBS and Colorado disabled veteran issues for their support

November 2017 activity report for C-123 Veterans Association

1. With NVLSP help, won 51 months of retroactive C-123 vet’s 100% disability/SMC-R compensation, with decision helpful for three avenues of approach to backdating liberalizing rule claims

2. Working on Colorado's disabled veteran property tax exemption. Last year got new law bringing CO statute into compliance with state constitution for military disabled retirees (vs VA SC,), but state still refuses to permit 8-12,000 permanent TDIU vets to receive exemption. I'm arguing that TDIU is a permanent and total disability rating complying with the original referendum, the state constitution and the enabling legislation, and that unemployability is improperly added only as a disqualifier on the application forms

3.Trying to get Veteran-Directed Home and Community Health System benefits extended throughout Colorado. Presently offered only in eight counties around Denver but not in our other 56 counties or in Wyoming. 6000 vets in my county eligible.

4. Many individual vets assistance, plus running veteran info tables at churches

5. Attended United Veterans of Colorado monthly conference to present VC-HCBS and Colorado disabled veteran issues for their support 

It happened again last week. Another C-123 veteran's Agent Orange claim mishandled by his choice of veterans service organization ("VSO",) in his case Arizona State Department of Veterans Affairs as well as the regional office of the VA itself. The vet, however, did everything right!

Whats the problem? ALL C-!23 CLAIMS GO TO VA ST PAUL. That office has people trained in our C-123 issues, and instead of denying our comrade's claim "for want of service in Vietnam" they'd have recognized the several buddy letters and other documentation of his C-123 experience.

Solution: Consider sending in the following page, right out of VA's own manual, when working with your choice of VSO, and insist a copy accompany your claim and write C-123 VETERAN on top of your papers, just to make sure.

++++++++++++++++++++++++++++

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A Quarter Century of VA Disability Claims: 25 years of hard lessons

A brief narrative of interest to others dealing with environmental hazards and the VA

Looking back, if I’d known how long and how hard a VA disability claim was going to be, I can’t say whether I’d have the resolve to see it through. I served in the Army and Air Force for 26 years. Only this month...October 2017...have I received VA’s final adjudication of disability claims I began submitting in 1992. Finally, 26 years after hanging up my flight suit the last time, VA seems to have finished addressing my cancers, spinal cord injuries, 21 operations, heart attacks, Agent Orange exposures plus life’s` miscellaneous little ailments, boo-boos and maladies.

First lesson: thank goodness my family and I, unlike so very many veterans, didn’t find ourselves dependent on the VA for medical care and income because that help wouldn’t materialize for many years. My Air Force disability board and retirement as a major was completed in what now seems light speed only a year after leaving Bethesda Naval Hospital in 1992 following the Gulf War. We were also blessed with ample pre-war civilian retirement and investments...we were so lucky compared to young troops disabled before having a chance to establish themselves financially. My lesson has been awareness of how financially precarious sudden military injuries leave a family. It is a bleak picture.

The rest of the lessons:

A PARTIAL VICTORY: Retroactive C-123 benefits for claims AFTER June 19, 2015!

ARE YOU A C-123 VETERAN WHO FILED AN AGENT ORANGE CLAIM AFTER JUNE 2015 BUT YOUR ILLNESS WAS DIAGNOSED BEFORE THEN?

Most likely, the VA started your disability compensation effective on the date you filed, not when you became ill. That may have cost you months or years of lost compensation.

I think I found a solution to recover those lost months and years of compensation, based on language a BVA veterans law judge used in a recent C-123 decision. There is a way to backdate to June 2015 some or all of the compensation due you.

Once it finishes processing an application, the VA provides disability compensation for claims based on the date filed. Many of our C-123 veterans were diagnosed with Agent Orange related illnesses before the VA rules took effect for us on June 18 2015.

Many of our vets submitted claims after that date but have Agent Orange illnesses diagnosed before then. In that situation, there is a way you can argue for compensation not based on whenever you filed after June 2015 but instead, all the way back to the June 2015, for a maximum of twelve months compensation. As an example, twelve months of prostate cancer at 100% is over $30,000, so you'll want to consider this carefully with any claim submitted after June 2015.

Read the following paragraph (taken from a C-123 retroactive compensation decision) very carefully.  1. Note that it specifies Agent Orange illnesses diagnosed prior to the date of the liberalizing law VA used to grant benefits, which for C-123 claims is June 19 2015.
2. Also, that illness must have been evident from the diagnosis to the date whenever you filed. If your prostate cancer was diagnosed in 2011 and cured in 2014, this won't apply to you. If, however, you remained on "watchful waiting" up to June 19 2016 and beyond, this rule could apply. Same thing for any of the other Agent Orange illnesses like diabetes, IHD, peripheral neuropathy, etc.
3. If your claim was submitted after June 19 2016, and your diagnosed illness continued from before June 18 2015 to the date your claim was filed, say June of 2017, could argue retroactivity only to June 19, 2015. That is because VA limits this situation to one year of back pay.

However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. Id.

I'll summarize:.

1. This is for claims for illnesses diagnosed before June 18 2015 and continuing to the date a claim was submitted to VA.

2.  VA limits this retroactive compensation to one year. If you filed after June 2016 or any later date, you may be eligible for one year of retroactive compensation.

If you think this may apply to you, please discuss with your veterans service organization...you will probably have to bring them a clipping of the paragraph I quoted from the C-123 award.

FREE legal help with our USAF C-123 Agent Orange claims (Westover, Pittsburgh, Rickenbacker, Howard, Clark)

The law firm that just won a C-123 veteran's disability appeal to backdate a claim four years wants to represent all others whose claims were submitted before June 2015 and denied, or were paid only from instead that June 2015 forward instead of per the date first submitted. 

Totally free, and you keep the entire amount recovered. They want to manage us as a group, not one at a time. Coordination is via the National Veterans Legal Services Project and the C-123 Veterans Association.

Reminder: If you are retired military, Agent Orange illnesses qualify for Combat Related Special Compensation

The 1448 Day Stall for Claims at Board of Veterans Appeals – why VA must adopt an initial "presumption of eligibility" on certain claims.

When a vet believes VA has made a mistake on his/her claim, VA welcomes an appeal its Board of Veterans Appeals (BVA) to set things straight. GREAT, but the only problem is the VA delay in the process leaves vets "twisting in the wind" – abandoned for four years until the system even considers righting the wrong done the vet. Actually, the delay is even longer if we include the year-long initial disability claim process. REMEMBER, this lengthy process gets started with a vet's claim for cancer, ALS, heart disease or whatever is the issue, and until VA finishes its final decision at BVA, all medical care and other essential benefits are refused the vet (unless otherwise eligible for some reason.) That's the unhappy "twisting in the wind" time. The time a vet has to get by somehow on his/her own. One of VA's most unforgivable delays is in its "Statement of the Case and Certification," which VA says takes under three hours work. Yet the most recent statistics show that this task takes the VA on average 537 days after receiving the Notice of Appeal and that it takes another 222 days before the BVA actually receives the certified appeal, for a total of 759 days. Over two years, with VA hospital doors locked as the process continues. Refusing care for cancers and heart disease...as VA did on my claim by postponing a decision for four years...can be a death sentence. A final decision from VA might come with retroactive compensation but there is no retroactive adjustment for medical care denied or family benefits like CHAMP-VA withheld. That's why VA must adopt a scheme of initial consideration of claims for PRESUMPTIVE ELIGIBILITY FOR CARE. Perhaps not all claims, but at least claims with substantial merit and instances where denying care would endanger life or limb.

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.

VA caught shredding veterans' claims documents –INCLUDING MINE!

Its happened again. VA caught shredding veterans' claims documents, either purposefully or accidentally. How matters little to a vet who waited from months to a year for the local VARO to decide his claim, or the veteran who has waited three to five years for the Board of Veterans Appeals to review his denied claim: If VA blocks a vet's medical care and other benefits because the facts and proofs originally sent to VA weren't in the C-file, he's screwed!

And I believe I've been screwed. Not only have parts of my 2011 Agent Orange claim remained denied or unresolved for five years, but there's lots of stuff missing from my C-file! By comparing two VA reports available through eBenefits. I can't say whether missing documents were actually shredded but I don't care – they're gone!

I send in most materials for my claim by using eBenefit's SUBMIT DOCUMENTS function available by navigating down from the OPEN CLAIM to VIEW DOCUMENTS. I got the idea to compare the list of materials there to my activity log. The log shows what I did on each visit to rBenefits.

If the activity log showed I submitted something when logged in on a date, that should show up in OPEN CLAIM VIEW DOCUMENTS.

But that wasn't happening.

In fact, dozens of visits showed I submitted documents to help prove my claim but they never were posted to the C-file. Dozens of proofs to my claim were missing, and there was no way to tell which specific items were absent. Still, the list itself should have interested VA in resolving  a serious problem so I brought it to VBA's attention.

And never heard back. So the problem exists today and I'll just have to hope that evidence elsewhere in my C-file will suffice to win claims and appeals. We'll see. I've waited over a year but no answer to my letter.

January 22, 2015
VA Compensation and Pension Service: 

Please compare these two documents and note that VA received from me many documents between 4/2014 and 8/2014 which show on my eBenefits activity (#1) but do not show on the claims “unsolicited documents received (2).

Why were they discarded. 

Thank you.
Sincerely, etc.

Here is the comparison I made to see if documents were missing. This doesn't identify which item are missing unless I know what was sent on that day. Yellow highlight means no corresponding post of a submission in the claim file. There's a lot of yellow! I show one page but there are 33 more with varying amounts shown lost...click to expand.

C-123 Agent Orange Veterans Propose Line of Duty Investigation of Our Exposures (no answer from VA to either proposal)

In hopes that VA continues seeking a process to permit C-123 veterans' retroactive disability compensation, we reached out to VA leaders to restate our arguments. A particularly interesting tactic might be Line of Duty determinations through the Air Force for our exposure injuries to meet statutory requirements for "veteran" status. VA's Interim Final Rule liberalizing rule to grant veteran status wouldn't be necessary, and VA could reconsider its retroactive disability compensation barrier. 
Secretary McDonald' said when announcing his C-123 decision, “Opening up eligibility for this deserving group of Air Force veterans and reservists is the right thing to do,” said Secretary McDonald. “We thank the IOM for its thorough review that provided the supporting evidence needed to ensure we can now fully compensate (emphasis added) any former crew member who develops an Agent Orange-related disability."  

We say, Keep trying, VA!

Our email to VA, January 7, 2016:

If tomorrow VBA must continue denying C-123 veterans' retroactive disability compensation, we respect that endeavor but are disappointed with it.

Our C-123 folks have a different perspective. Mr. Gxxxxx Bxxxxxx is an example of one of your C-123 veterans who has waited over six years for VA to resolve the issues of his prostate cancer and, more recently, leukemia also. 

VBA approved his 2009 claim only in June 2015, and his leukemia claim in August 2015, with all retroactive compensation denied, of course. I don't know how the percentages of disability would have been calculated with his prostate cancer, but he is presently at 40%. 

Had that percentage held for the six years since VA got his claim, this vet's compensation due would be around $45,000. Compensation he has waited patiently for VA to take care of in its normal course of granting claims back to date received. Like all of us, Bradley was not expecting the negative impact of the Interim Final Rule's liberalizing effect and dismissal of the VA OGC precedential opinions.  

What he'd waited for was only partial compensation for his pain and suffering, and only partial compensation for considerable loss of working time from his cancers. There is no compensation for this veteran's reduced life expectancy.

Air Force LOD manual AFI 36-2910 has as its overall philosophy protection of the servicemember's military benefits and eventually, veterans' benefits as well. We're asking Air Force for that philosophy to have full play here. The AFI requires Air Reserve Component members to report exposure and other illnesses and injuries within the regulation's mandatory 180 days, after which only VA would have authority. 

Fortunately, this requirement is satisfied because we reported the issue in early 1979 after which the Air Force Armstrong Labs submitted its incomplete Conway Report on one of our squadron's airplanes, C-123K  #362 ("Patches") and identified military herbicide residue. Using that data and test date from 1994, CDC ATSDR confirmed to VBA in 2011, we have a 200-fold greater risk of cancer than screening values. Not 2X. 200X. CDC said we should have been flying in full HAZMAT, but that was too late to help anyone.

The VA has a caring philosophy similar to the Air Force, but with specifically, a duty of insuring all the benefits due a veteran are provided, while at the same time taking a pro-veteran, non-adversarial and paternalistic perspective with every benefit of the doubt resting with the veteran. In clearer words, do all that's right by us within the law.

Last week VBA explained why DOD JSRRC confirmation (in 2013 and again in 2014) to the Agent Orange Desk of our exposures was not required to be shared with our veterans and why it did not apply to Reservists per VA 21-1MR and the VCAA. I don't understand their logic about why our being Reservists made it necessary for VBA to hide such official government confirmation of our exposures from us until after the Institute of Medicine C-123 hearings. 

I trust that VA can and will (if leadership approves) find a path forward which respects the rules you must operate under as well as the rights and benefits needed by and due C-123 veterans who volunteered for many years to fly these toxic airplanes, and who have already waited decades for your help.

An aside, please: VA has done a wonderful job with St Paul's processing C-123 issues. VA is also doing a great job using many different channels to get the word out to our veterans. Thank you!

Our email to VA, January 4, 2016:

I have raised the concern about C-123 retroactive disability compensation, presently blocked by the liberalizing rule per the Interim final Rule. The hope is to find a compromise for at least a year of retroactive compensation, presently blocked by the statutory "veteran" issue already much discussed. 

Our view is that by late 2011 VA had ample government evidence to form "an overwhelming preponderance of evidence" supporting our claims but instead insisted it had "an overwhelming preponderance of evidence" against them. VCAA and VA21-1 should have helped the input from ATSDR, NIH, USPHS and JSRRC be considered with our claims evaluation on the "case by case" basis Secretary Shinseki and Under Secretary Hickey assured us was the case. Instead, resolution was postponed until June 2015. 

The few C-123 grants made prior to June 2015 all received full retroactive disability compensation (all were granted either by DRO or BVA decisions, none by VARO actions.)

Months ago when we met at the Senate Russell building to discuss the C-123 IOM report prior to publication of the Interim Final Rule, I raised the hypothetical concern of Ebola exposures and asked whether VA would treat Air National Guard and Reservists as "veterans" if the disease were to develop two weeks after their aircraft returned from Africa and the aircrew returned to civilian life. 

VA answered, "No," as with the C-123 veterans. The "veteran" issue blocks VA care and benefits for Reservists and Guardsmen and exposure situations.

Researching this issue further, I contacted the Air Force Reserve Command Surgeon who said he'd resolve such an issue by generating Line of Duty determinations. AFRC is where LODs on C-123 veterans would have been initiated. He'd expect VA to respect an LOD as protection for the airmen. He would consider generating LODs months or perhaps even a year or so after an event to protect the airmen, although AFI 36-2910 specifies a limit of 180 days for Air Reserve Component servicemembers. 

For four years, USAF has taken a completely hands-off position, leaving us to VA's mercy, but perhaps somebody in a blue suit or green bag will be led to do right by us at last.

Our time frame of 1972-1986 would have to be addressed with an LOD request through the Air Force Board of Correction of Military Records (AFBCMR.) While Air Force regs specify a 180 day period to submit an LOD following an event, Secretary James has complete authority in AFI 36-2910 to waive that constraint and anything else. The Board acts with the Secretary's authority.

Any airman can submit an AFBCMR request. In this instance, I ask that VA indicate to AFBCMR acceptance of such an approach for a representative C-123 vet. Further, I hope that VA can raise the issue with Secretary James and seek her acceptance.

With the Secretaries' input with their acceptance of this approach, the AFBCMR can make its decision based on the history of the issue, the supporting documentation, the IOM and other reports, JSRRC input and the flexibility built into AFI 36-2910. 

The AFI specifies:

"An LOD determination is based upon the onset of the disease, illness or injury process, not existence of symptoms."(3.4.1.1)​

​Further:

AFRCI 36-3004

The objective of the Reserve benefit system is to compensate, to the extent permitted by law, members of AFRC who experience incapacitation or loss of civilian earnings as a result of an injury, illness, or disease incurred, re-injured or aggravated in the line of duty, and provide the required medical and dental care associated with the incapacitation.

It would be better if an LOD can even be considered by the normal Air Force channels for such decisions without the time delay involved with an AFBCMR appeal.

This could provide a resolution for the "veteran" issue otherwise dependent on the liberalizing rule and permit VA to consider claims and appeals submitted prior to June 19 2015.

Perhaps technicalities make an LOD approach or any other solution difficult, but we believe it is reasonable and just, given the facts of the C-123 vets' exposure, ailments, and difficulties receiving the same benefits as their Active Duty counterparts and C-123 vets whose claims were approved prior to the Interim Final Rule.

Please forgive the inexpert phrasing of my suggestion as my ability to research and present the issue is quite limited. We count on VA to offer the most pro-veteran assistance that is permitted.

Please stop finding avenues permitting (not requiring) VA to say "no" and instead, find ways within the law to do what's right for us.

My C-123 Agent Orange Claim Approved Yesterday

1,638 days after it was first submitted, my VA claim for cancer, heart disease and several other Agent Orange presumptive ailments was finally approved. I'm service-connected for a total disability rating of 380%.

I had to work long and hard on this claim, using it to advance all C-123 veterans' claims, for nearly all of the past four and a half years for this claim. I had to spend over $22,000, plus about $11,500 contributed by other C-123 vets (most of whom are already covered by VA) to pursue the final resolution.

I detail all this only because it should have been unnecessary, but became essential when VA opted to disregard its legal and moral duties. The effort was worthwhile because it led to coverage for thousands of Active Duty and Reserve C-123 aircrew, maintainers and life support veterans, and our families.

I sincerely appreciate the unfailing support from Senators Burr and Merkley and their staffs, and the more recent efforts by VA leadership and staff to resolve my claim and those of other C-123 veterans.

But, as Senator Richard Burr (R-NC) told the Associated Press about us,
"It shouldn't have been this hard or taken this long."

The worry remains: how many other veterans are in similar situations having faced different hazards, but perhaps don't even know it or can't self-advocate?

Master Sergeant Richard Matte Has Passed

Dick Matte has died. 

It hurt a lot to read Steve Caraker’s email with that news, even though it was sure to come. Dick’s long struggle with illnesses showed strength and bravery beyond what most of us can imagine…heart transplant, heart attacks, the loss of his legs and so much more suffering.

It hurts all of us to lose him, and our condolences to his family. He joins Mayleen Adams, Bob Boyd, Giff, Cliff Turcotte, Mike Lieb, Bill Schindler, General Walker and so many others for whom we cared. His arrangements are here.

Matte made the front page of the Boston Globe last June! He was featured in an article addressing the VA’s reluctance to deal with C-123 Agent Orange exposures and illnesses, and that coverage helped bring the public’s attention to this issue and its resolution on June 19. Secretary McDonald’s welcome decision to provide C-123 veterans our disability benefits was due in good part to Dick’s story told so publicly in the Globe.

Thanks to Arch Battista, John Harris and the Yale Veterans Legal Clinic, Dick's VA claim was honored and benefits established even before the VA decision. He and Paul Bailey are the only two C-123 veterans whose claims were awarded before VA decided to care for all of us.

As his friend Steve Carr wrote, we’ve lost a fellow airman and a good soldier. Dick’s faith grew even stronger with all struggles. Now he rests in the peace he knew was ahead. God Bless.

VA starting to have good news for 74th AES C-123 veterans!

News today that two AME folks have received their VA disability decision...and both were positive!

Dick Matte, who is hospitalized and hoping to get transferred to a rehab center, received his 100% VA disability award, backdated a year (he thinks.) Dick previously got a partial award from VA and this completes things. Now, Dick will need to arrange his state benefits and the Combat Related Special Compensation program. Dick's clam was a regular claim for exposure, following an initial denial and an appeal with the help of Yale Law School. Coming before the VA's new C-123 decision, this makes Dick one of the very few C-123 vets succeeding in their claims thus far.

Ed Kosakoski, long-time commander of the 74AES, is in home hospice and VA called to say his prostate cancer has been given a 60% disability rating, with other issues still being considered. This should help both families and what a relief! Ed's claim may be the very first processed under VA's new C-123 Agent Orange exposure rule.

Good job, VA! Thanks for taking care of our friends!!

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.