Hanscom AFB C-123 Maintenance Vet Gets Agent Orange Claim Corrected

Problem Solved. I received a message a few minutes ago that Joe Collins' cancer claim, at first denied, was corrected by senior VA leadership.

A few days ago I noticed a decision by the BVA about a veteran claiming C-123 Agent Orange exposure while a mechanic at Hanscom AFB back in the early '1970's – but his claim was denied and his appeal also denied! The vet's name was withheld but we tracked him down though Andy's Old Guys Network...Joe Collins.

VA had lots of text detailing Joe's service as an ART, and explained that such duty didn't convey veteran status for the period of his exposure. The denial also noted his Reserve duty, but still nothing triggered recognition of his benefits per the VA C-123 Interim Final Rule of June 2015. That made all post-Vietnam C-123 aircrews and maintenance folks veterans per the statute if claiming any recognized Agent Orange illnesses.

(Note 23 Sept 2016: VA leadership resolved this thru BVA, and Joe's claim is being expedited! Problem solved, but still a question left unanswered – how could the Boston regional claims office and the Boston BVA have screwed this up so completely?)

Thanks to our community of C-123 veterans, we were able to identify the C-123 vet whose claim was so terribly screwed up. Joe Collins is our guy, and today I had the pleasure of speaking with Joe and his wife.

We got his name and SSAN to authorities in VA to reconsider his claim and June 2016 denial.

Let's hope VA moves on this one: Joe's claim dates from 2007!

Did USAF Decide to Save Money But Sacrifice Aircrews? Seems like it!

When C-23K Tail #362 ("Patches") was decontaminated at the USAF Museum, the cost for the commercial HAZMAT contractor was $60,000. A substantial sum!

Air Force paid that $60,000 because of everyone's overwhelming desire to keep the historical Patches in the Museum. The Air Force did not decontaminate any other C-123s. Faced with a potential $3.4 billion EPA illegal HAZMAT storage fine, in 2009 the Air Force opted to decontaminate by shredding and smelting all remaining aircraft at Davis-Monthan's Boneyard, turning them into aluminum blocks for the auto industry.

• Question: 
Since the Air Force knew the Agent Orange spray history of the ten or twelve former UC-123K spray birds as well as the results of the Conway report in 1979 (same year the Air Force Health Study began on Operation Ranch Hand veterans) why weren't all the airplanes properly decontaminated to protect aircrews and maintainers?

• Answers: 
1. Innocence and ignorance: In the '70s, there was growing concern about Agent Orange but little solid knowledge available to decision makers. Tests for deadly TCDD weren't even available in 1979 for the Conway report. Net result of the '79 test: (1) aircrew safety was assured (wrongly) and (2) aircrews were actually told the Air Force Material Command to continue scraping residue from nooks and crannies in the airplane, and to use air freshener to mask the nauseating stench, and scrub the C-123s with Dawn detergent. These steps all proved completely useless, as proven by the 1994 toxicological inspection of Patches that found it still "heavily contaminated with dioxin on all test surfaces" and "a danger to public health."
2. The end-of-life for the C-123 fleet was fast coming, and the Air Force was extremely hesitant to invest $60,000 for the couple years of remaining use of the transports.
3. Records vaguely suggest 24 UC-123K former Agent Orange spray birds were still in use by three squadrons. At $60,000 each, decontamination would cost the Air Force $1,400,000, plus it would take the airplanes out of service for an uncertain time.
4. The Big Reason*: if the Air Force moved to decontaminate the C-123s, it would be an announcement to the aircrews and maintainers that they'd already been exposed to deadly dioxin for several years. The illnesses and deaths of veterans between 1972 and whatever date a decontamination might occur would instantly have an association with Agent Orange exposure and veterans would apply to VA for disability benefits.

• Pound Wise-Penny Foolish!

Initially, the Air Force "saved" $1,400,000 by skipping the necessary decontamination of its C-123s. However, the June 2015 Interim Final Rule for C-123 veterans is estimated by the White House Office of Manpower and Budget to cost over $47,000,000 plus medical care. So the decision was a big money loser.

Worse, many of the two thousand men and women who volunteered to fly these aircraft now suffer the illnesses associated with long-term Agent Orange exposure. Although VA now might provide medical care and compensation, that is not worth cancers, heart disease, ALS, diabetes, soft tissue sarcoma and the other recognized Agent Orange illnesses.

* The Big Reason: a little background to prove the point:

In 2009 the Air Force was in turmoil about what to do with the toxic C-123s, known throughout the service as "the Agent Orange airplanes." The DOD consultant emphasized the potential for exposed veterans learning about their exposures and turning to the VA for earned benefits. Apparently this was something the Air Force felt best avoided, principally by destroying the surplus C-123s with as little visibility as possible.

Seeking Air Staff approval for the destruction, Air Force officials repeated the consultant's cautions, and as a result veterans did not learn for several years about the exposures they experienced in the 1972-1986 timeframe:

(from 505ACSS Position Paper, Mr. Buddy Boor, 5 Aug 2009)

The consultant is the same person named by Newsday (May 1 1985) who recommended all further testing on Agent Orange be discontinued:

 "White House scientist Alvin L. Young, a toxicologist, recommends that no further research on dioxin should be funded, "because research has failed to show it causes cancer or birth defects in humans."

Thankfully, his attempt to stop research on Agent Orange and its toxic component dioxin was not accepted, and over time a much fuller appreciation of the harm caused by Agent Orange developed.

My C-123 retroactive compensation idea – shot down in flames!

Hey, I can't crash yet. Need another half hour
for an AFTP!

Well, that didn't go too well. I'd proposed a method whereby VA and the Air Force leadership would use backdated exposure injury Line of Duty determinations to satisfy statutory requirements for Title 38 "veteran" status.

"Sorry, but no" was today's response at noon from the VA.

VA leadership had their hearts in the right place, but had to turn us down. Still, we've got the principal goals for the last five years' work well-met: our people get VA benefits and disability compensation dated from June 19 2015 forward.

Half a loaf. But the best half! Sorry guys, but that's all we can push for at this time.

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.

VA Needs to Hear Our Argument on Retroactive Disability Compensation

Here’s the law for veterans and the VA on retroactive disability compensation (38 C.F.R. 3.114)

“(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.”

C-123 veterans ask that VA more closely follow this section of 38 C.F.R. and further, interpret when possible in the most pro-veteran manner. Our exposures constitute injuries, which satisfy both our service’s and the VA’s requirements for statutory veteran status. Having all eligibility criteria met when the liberalizing benefit was promulgated, and having continuously maintained that eligibility, retroactive compensation is appropriate and not proscribed by 38 C.F.R. but instead provided for by it.

There is no justification in VA21-1M or 38 U.S.C. to prohibit Reservists and Guardsmen exposed to toxins which science and also VA acknowledges result in subsequent disabling injuries, illnesses and death. Indeed, prior to June 18 2015 and the C-123 Interim Final Rule, there was no prohibition to granting service connection for those exposures and grants were made repeatedly for Air Force Reservists’ C-123 exposure claims, including by different Boards of Veterans Appeals over many years.

Since early 2011 VA leaders, from the Secretary to more junior staffers, knowing that nearly all of the claims would be from Reservists, assured veterans and our legislators that each C-123 exposure claim would be considered on a case-by-case basis. This assurance was accompanied with directions to regional offices that no possibility existed to honor C-123 exposure claims and that VA regulations prohibited doing so. Secretary Shinseki published his June 7 2013 C-123 Fact Sheet through Senator Burr, in which he repeated that assurance and commitment. Any prohibition against retroactivity only arises from the June 18 2015 Interim Final Rule inclusion of an unnecessary liberalizing rule.

Between 1972 and June 2015, there have been no denials of C-123 Agent Orange exposure claims for Air Force Reservists, either at VARO-level or BVA, on the only recently raised question of veteran qualification. When BVA decisions addressed the issue of Reserve veteran status at all, it was to specify that the exposure injury, dating from the exposure, satisfied the statutory requirements.

This comports with binding VA OGC precedential opinions, which themselves have frequently been cited in VARO, DRO and BVA decisions on different illnesses and injuries.

The VA has stated it cannot permit awards retroactive from the date the Secretary’s dates for new rules. If that is the case, certainly VA cannot attempt to make retroactive the prohibition of retroactive compensation for claims properly submitted to Veterans Benefits Administration prior to the Interim Final Rule.  That, too, is blocked by the Secretary’s inability to effect changes for his rules prior to the rules taking effect.

It is proper for VA to determine it has the authority to deny retroactive benefits only for claims not filed before the June 2015 Interim Final Rule, and proper to also determine that it has authority to provide or deny retroactivity for claims received after the rule’s promulgation. Again, the Secretary’s authority to prevent retroactive compensation only derives from the Interim Final Rule but on a prospective basis, not prior to June 2015 for claims already submitted. Claims received by VA prior to June 2015 must be considered on a case-by-case basis with full retroactive effect of any awards. After June 18 2015 VA can apply both its barrier to retroactivity and presumptive service connection.

The Board of Veterans Appeals has repeatedly acknowledged the “veteran” status of Reservists exposed to toxins, BVA Docket 06-18 270 in 2007 held that a Reservist exposed to Agent Orange aboard my own C-123 aircraft (citing in particular #362 which I flew) at my own base(s) (Westover AFB and Hansom AFB, both in MA and both of which were bases I flew from) during the same time period, satisfy statutory requirements: The Board concluded:

“The Board will concede that the veteran was exposed to an herbicide during service. The service and museum (USAF Museum Dayton Ohio re: C-123 #362) records document the veteran’s reserve service in 1972 and 1973, the presence of that C-123 at Hansom in 1972 and 1973, the use of that C-123 in spreading defoliant in Vietnam, and service of that aircraft in Vietnam in 1972.
The board accepts that the veteran was exposed to an herbicide during service. The veteran was diagnosed with type 2 diabetes after service. The Board presumes that the veteran’s diabetes is service connected, and grants his claim.”

Another BVA case dealing with Air Force Reservists flying the same C-123s, concluded in its 2001 decision:

“Therefore, the Board resolves such reasonable doubt in favor of the veteran to find that the veteran was exposed to an herbicide agent used in support of the United States and its allied military operations in the Republic of Vietnam during, his active duty for training performed at Rickenbacker Air Force Base between 1970 and 1975. 38 U.S.C.A. 5107(b) (West Supp. 2001); 38 C.F.R. 3.102.

Other BVA decisions addressing Air Force Reservists in 2013 and 2014 (Matte [2014, Boston DRO] and Bailey [2013, Manchester DRO]) paralleled the several earlier decisions. In fact, there are no known BVA decisions addressing C-123 Air Force Reservists which did not acknowledge assume their satisfaction of statutory requirements for veteran status.

Thus, seven years of multiple well-reasoned BVA decisions about C-123 Air Force Reservists indicate that until the June 18 2015 Interim Final Rule was published, no such barrier existed to recognize satisfaction of an Air Force Reservist’s claim to veteran status via the herbicide exposure. There was no barrier because the VA OGC opinions satisfied the issue completely – until created in June 2015.

The C-123 AO exposure claim which generated the most attention from VA leadership was that of LtCol Paul Bailey. His denial in February 2013 dealt with the claim without concern for veteran status. When his claim was reconsidered by DRO, no concern was raised regarding statutory veteran status because it was conceded.

The Bailey decision received immediate and extensive scrutiny from VA leadership, including Secretary Shinseki. After the Washington Post’s August 3 story about the grant it generated email and other correspondence from VBA Compensation and Pension, VBA Agent Orange Desk, VHA Post Deployment Public Health, the Under Secretary for Health Administration, VA OGC, Congressional Liaison, and other officials…all without concern ever raised for any statutory veteran status and the only comments being that the claim was supported by credible scientific evidence and that is was proof of VA’s promise of “case by case” consideration.

On my own initial AO denial in 2012, no issue was made of statutory veteran status. Indeed, Mr. Tom Murphy in C&P directed the claim be denied, not on the veteran issue but instead by disregarding all the scientists’ and physicians’ input and asserting no exposure – my veteran status was unchallenged as in all the other veterans’ claims mentioned above. Mr. Murphy and the other VA executives with whom I’ve exchanged communications (VA OGC, Under Secretary Shinseki, VA Office of Congressional Liaison, regional offices) a question might have been raised by now regarding statutory veteran status, especially from Mr. Murphy or General Hickey. Denying my claim and appeal for years never touched on veteran qualification. If veterans failed to satisfy statutory veteran requirements for the specific time period associated with the exposure injury, that problem should have been raised by VA years ago. Instead, but problem of the Reservists’ status was created only with publication of the June 2015 Interim Final Rule.

Between 2007 and May 2014, each of the handful of approved Air Force Reservists’ Agent Orange exposure claims were granted on the fact-proven basis of herbicide exposure, but granted only through an appeals process involving DRO, or BVA actions where each of them was successfulasd433. In January 2015 the Institute of Medicine made that point even more clearly in its answer to Secretary McDonald’s charge to the committee. Before June 2015 each veteran granted service connection for C-123 Agent Orange exposures received full retroactive compensation. Our claims were submitted in the same time frame.

I flew with these veterans and was their flight instructor and flight examiner to train and certify them on the same aircraft on the same days, and we’ve had the same illnesses, yet my own claim was “postponed” for years and only recently awarded but with retroactive compensation blocked. Thus, my students received proper retroactive compensation but I do not, nor do other similarly situated Air Force Reservists, despite how perfectly parallel all the claims are, and only because VA did not process my claims or appeals within the 52 months it had them. The significant distinction here is only that some claims were granteed prior to June 2015 and most others, afterwards but without the same retroactive compensation. This is unfairly discriminatory.

Should this request for retroactive compensation for C-123 veterans be denied, we specifically ask for assurances that every effort was made by VA leadership to take the most pro-veteran perspective on each aspect of the issue.

A ray of hope might be found in the military Line of Duty determination process. In the Air Force, this is AF Instruction 36-2910, and the overall tone is strongly pro-veteran, and protective of servicemembers' VA rights. If the Air Force can generate LODs for our C-123 exposures and injuries, VA is supposed to accept them and thus we'll have satisfied the statutory requirement for "veteran" status and injury, and hopefully, then be qualified for retroactive disability compensation dated from date of VA claim. We'll see...here's the VA policy per 38 C.F.R. 3.1.:

In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.(Authority: 38 U.S.C. 105)

VA Now Pushing C-123 Veterans' Agent Orange Benefits!

It is absolutely wonderful to see 54 months' hard work on C-123 Agent Orange claims now appear on VA's own benefits web pages!! 

VA Forbids C-123 Veterans' Retroactive Compensation Due Our Agent Orange Claims

In June 2015, VA published its Interim Final Rule (IFR) which recognized C-123 Agent Orange exposures. It set the date for honoring C-123 claims as June 19 2015. It has been interpreted to deny C-123 veterans' retroactive benefits for claims filed even years before the Interim Final Rule.

Years earlier, VA regional claims offices and the Board of Veterans Appeals had started receiving C-123 exposure claims with virtually all being denied. But not all.

Honored before the June 2015 Interim Final Rule were claims from Paul Bailey and Dick Matte (74th Aeromedical Evacuation Squadron, Westover) and a handful of others from Hanscom and Rickenbacker. Just a few honored versus dozens denied.

Why were at least some honored? Because over the years that C-123 vets began experiencing Agent Orange illnesses at least some VA claims officers and BVA adjudicators obeyed the law. At least a very few claims (we've only found five) were properly interpreted by claims officers and BVA adjudicators who resisted HQ VA pressures and considered the evidence of DOD, CDC, US Public Health Service and other expert input. The law and VA 21-1MR were obeyed and at least these few claims honored. Here's why:

66 Fed. Reg. 23166 (May 8, 2001). VA explained for non-Vietnam veterans exposed to an herbicide agent defined in 38 C.F.R. 3.307(a)(6) during active military service and with diseases on the list of presumptive service connection (which includes diabetes mellitus type II and ischemic heart disease), VA will presume that the diseases are due to the exposure. 66 Fed. Reg. 23166; 38 C.F.R.  3.309(e).“ 

It turns out that one of the two the Interim Final Rule accomplishments was to make clear the legal "veteran" status of exposed C-123 maintainers and aircrew, but that was already accomplished by earlier Federal Register postings and binding Office of General Counsel precedential opinions.

The other major accomplishment of the Interim Final Rule was to block retroactive benefit awards due C-123 veterans!

Thats right...the VA's new rule served principally just to clean up the VA's opposition to our claims and to prevent our retroactive compensation due all veterans whose claims sit before the VA for years while the Department stalls. 

The loss to our veterans? In some cases, up to $200,000 each! Our claims, many filed as early as 2007 but denied justice until June 18 2015, are denied the retroactive compensation which the few C-123 claims honored before the IFR received in full, as per the law and federal circuit court actions.

We're now denied retroactive compensation which all other veterans receive once VA honors their claims.

In 2013, before the IFR was imposed on us, one of the men I worked with was overcome with emotion when he called to say the VA had deposited the $120,000 due him in retroactive compensation, money due him from the date VA first received his claim.

But this can't happen today. Even though we flew the former Agent Orange spray C-123 in manday status or annual tour (thus meeting the law's "active duty" definition described above) VA has maneuvered us out of all compensation due each of us...compensation dated from the submission of our disability claims to the VA. Even DOD regulations and VA's own rules say we were veterans once we were exposed to Agent Orange while on manday or annual tour status, but not VA today as they act behind their IFR action!

FulI Disclosure: I'm retired military and already VA 100% disabled so none of the VA's C-123 actions affect me...I'm already receiving all the VA owes me and it all comes out of my AF retirement. But anyone else in my situation, as an example, with a claim filed in May 2011 and with a total disability with special circumstances, would be due around $236,000.

But our vets won't ever see their retroactive pay, thanks to the sneaky Interim Final Rule. In at least a few situations prior to June 2015, such as with Bailey and Matte, our vets' claims were properly resolved and their retroactive pay due them was awarded. But after June 2015...not a penny will anyone ever see.

VA disregarded dozens of suggestions posted in the Federal Register prior to implementation of the IFR...just as they'd already decided to do. VA ignored our having established veteran status per the law, and instead pretended it had to construct veteran status for us and further pretended their action prohibited all retroactive compensation.

And that was their intent all along. VA was faced with the inevitable recognition of C-123 veterans'

exposure claims once the C-123 January 2015 report was released from the Institute of Medicine. VA stalled for six more months so as to block claims then, faced with action by several senators to block confirmations, yielded to permit the claims but also slapped us in the face with their scheme to block retroactive claims which we'd been waiting patiently for over these years.

Sneaky. And very wrong!

Here's what we've said to VA leaders:

A great deal of Reserve flying is accomplished in "man day" status, distinct from Annual Tour, Unit Training Assembly and Additional Flight Training Period status. Frequently, these man day tours were between a week and a month long, sometimes several times a year to accomplish cross-country or overseas airlift. 

DOD policy and AF Instruction 39-2619 state that man day tours are considered regular active duty tours, however brief. Thus, shouldn't C-123 Agent Orange exposures experienced during these periods of active duty tours entitle affected Reservists to the same presumptive service connection as other servicemembers in other active duty periods? The precedential opinions come into play here, I believe. 

If not, in what way are these Reservists' exposure injuries during man day active duty tours disqualifying as regards VA care and benefits for other active duty situations? Can I have an explanation to better inform our membership? 

Doesn't the Interim Final Rule seem to serve principally to limit (as to the June 19 2015 date) rather than facilitate, VA benefits, at least in some situations? 

It would be great if VA acted on our complaint but that's not likely. Instead, we'll have to continue bringing this injustice to the attention of our legislators and veterans organizations, and perhaps to another forum with authority to direct VA to do the right thing! Stay tuned.