* * * *
The C-123 Veterans Association, its Members and Board
August
18, 2015
The
Honorable Robert A. McDonald
Secretary
of Veterans Affairs
U.S.
Department of Veterans Affairs
810
Vermont Avenue, NW Washington, DC 20420
Dear
Mr. Secretary:
RE:
Comment Concerning Department of Veterans Affairs’ 19 June 2015 Interim Final
Rule
“Opening up eligibility for this deserving group of Air Force
veterans and reservists is the right thing to do. We thank the IOM for its
thorough review that provided the supporting evidence needed to ensure we can
now fully compensate any former crew member who develops an Agent
Orange-related disability.” - Secretary McDonald –
The
above quote from Secretary McDonald announced the VA’s duty to fully compensate
active duty Air Force veterans and Air Force Reservists (nearly all veterans
themselves) who have developed an Agent Orange-related disability in service to
the United States of America.
We
C-123 veterans agree that all these veterans need and should be fully
compensated for such disabilities.
Unfortunately,
the hesitating implementation of this Rule by the Department of Veterans
Affairs (“VA”) only provides compensation on a prospective basis as of June 19,
2015 – despite the fact that the service-connected exposure occurred, in some
cases, decades ago. Full compensation, as referenced by the Secretary, should
be provided; however, that will not happen with an arbitrary effective date
that significantly post-dates, and wholly ignores, the Agent Orange-related
disabilities suffered by certain of these veterans.
The VA
should respect the retroactivity date for benefits claims for these Air Force
Reservists to correspond with the effective dates dictated by the Nehmer class
action lawsuit and its progeny. VA refusal to grant retroactivity wrongfully
denies proper full compensation to deserving veterans and survivors.
I.
INTRODUCTION
On June
19, 2015, the Department of Veterans Affairs issued an Interim Final Rule to
amend 38 C.F.R. § 3.307 to expand the class of veterans to be granted
presumptive service connection for exposure to herbicide agents like Agent
Orange. Specifically, the Interim Final Rule designates, as eligible for such a
presumptive service connection finding, men and women who served in the Air
Force or Air Force Reserves under circumstances in which they had regular and
repeated contact with C-123 aircraft known to have been used to spray an
herbicide agent during the Vietnam era.
The
Interim Final Rule also establishes a presumption that members of this group
who later develop an Agent Orange service connected condition were disabled
during the relevant period of service. The Interim Final Rule modifies the
definition of “veteran” to include the Reservists’ time spent on C-123 planes
within service considered to be “active, naval, military or air service.”
Designating these service members as having served in “active, naval, military
or air service” for the purpose of being considered a veteran is important for
eligibility for some VA benefits.
This
clarification of what constitutes relevant service ensures that these Reservists
are eligible for VA disability compensation and medical care for any Agent
Orange-related condition, and that their surviving dependents are eligible for
dependency and indemnity compensation and burial benefits.
The
Interim Final Rule is an important step to getting our class of veterans and
our all families the benefits they have earned. VA should be applauded for
recognizing these veterans for service to the United States. By recognizing
these members of the Air Force as veterans, VA is legitimizing the dangers,
both known and unknown, faced during the Vietnam era and decades later due to
Agent Orange exposure. Unfortunately, the Interim Final Rule does not go nearly
far enough in one way where it is vitally needed– retroactivity.
The
Interim Final Rule as it is currently drafted denies retroactivity to these
veterans’ claims by making the effective date of the regulation June 19, 2015.
Veterans who served on C–123 aircraft earlier used to disburse herbicides have
suffered, sometimes for decades, with the effects of Agent Orange exposure. The
January 2015 Institute of Medicine (“IOM”) C-123 study report recognizes that
these dangerous exposure levels contributed to adverse health effects. The
report states that between 1972 and 1982 (modified to 1984 in the rule,)
approximately 1,500 to 2,100 Air Force Reserve personnel trained and worked on
C–123 aircraft that previously had been used to spray herbicides.
During
that period, the aircraft were used for military airlift, medical transport,
and cargo transport operations in the U.S. and around the world. As discussed
in the remainder of this comment, we encourage VA to reconsider its decision
about retroactivity. In the interests of equity, Air Force Reservists, now
considered veterans and determined by the IOM to suffer the effects of Agent
Orange exposure, deserve retroactivity. Moreover, as veterans, they should
receive retroactivity of their claims to the same extent as any other veteran
covered by the Nehmer class action decision.
Therefore,
we request that VA reconsider its decision about retroactivity. If VA decides
not to extend retroactivity, then VA should respond to this comment by
explaining why these veterans should not be granted the same retroactivity
granted other veterans under the Nehmer class action decision, and further, why
the Department’s earlier precedential opinions are disregarded.
II. THE
INTERIM FINAL RULE INCORRECTLY DENIES RETROACTIVITY Certain issues which for
decades remained unsettled are no longer in dispute.
First,
Air Force Reservists were indeed exposed to Agent Orange and other herbicides.
Second,
this exposure contributed to adverse health effects.
Third,
Air Force Reservists, who served on C–123 aircraft used in Vietnam to disburse
herbicides, are veterans for VA purposes and eligible for some VA benefits.
Finally, there is a “factual presumption that disability occurred during the
period of service as required under section 101(24) when an individual has a
present disability now scientifically associated with exposure to an herbicide
agent.”
A.
Retroactivity In general, VA is not required to make retroactive the effective
date of a new regulation. For an original claim for benefits, the effective
date is the date VA receives the claim, or the date that entitlement to the
benefit arose, whichever is later.
For a
reopened claim for benefits, the effective date is the date VA received the
reopened claim, or the date that entitlement to the benefit arose, whichever is
later. If VA grants a reopened claim for benefits that has previously been
finally denied, the general rule prohibits VA from assigning as the effective
date the date it received the original claim for the benefits. In order to
receive an effective date of the date VA received an original claim that has
already been finally denied, the claimant must prevail on a claim for revision
based on clear and unmistakable error.
The VA
should not consider these general rules to be binding on its decision of
retroactivity for the C-123 Interim Final Rule. Instead, as discussed in the
following section, veterans granted service connection for a disease caused by
exposure to Agent Orange should receive retroactive effective dates in
accordance with the special rules developed by the courts in the Nehmer class
action case and its progeny.
B. The
Nehmer Class Action Requires Retroactivity
1.
History of the Nehmer Class Action
A
history of VA’s handling of Agent Orange claims and the Nehmer class action is
in order to explain why these veterans should be included in the class of
veterans affected by the order.
Prior
to the Nehmer class action, VA denied tens of thousands of claims for
disability or death compensation that Vietnam veterans and their survivors
attributed to Agent Orange exposure. At the time VA maintained that Agent
Orange exposure was only associated with a skin condition called chloracne. The
Nehmer class action along with other converging forces forced the VA to
acknowledge that many types of cancer and other serious diseases are related to
Agent Orange exposure.
A
veteran who served in Vietnam during the Vietnam era and who suffered from one
of the diseases that VA regulations listed as related to Agent Orange would be
granted service-connected disability compensation. In addition, surviving
family members are entitled to DIC due to the veteran’s death due to exposure
to Agent Orange regardless of whether, at the time of death, the C-123 veteran
was receiving service-connected disability compensation.
The
Nehmer Order dictated new rules governing effective dates for Agent Orange
connected diseases. Although the Nehmer Order was given in 1991, it took VA
until 2003 to incorporate these rules into the regulations at 38 C.F.R. §
3.816. In those rules, if the VA denied compensation for the same covered
herbicide disease between September 25, 1985 and May 3, 1989, the effective
date of the award will be the later of the date VA received the claim on which
the prior denial was based or the date the disability arose; for a disability
claim pending before VA on May 3, 1989, or received by VA between that date and
the effective date of the statute or regulation establishing a presumption of
service connection for the covered disease, the effective date of the award
will be the later of the date the claim was received or the date the disability
arose.
On
numerous occasions after the Nehmer Order, VA violated the order by
interpreting the special effective date rules incorrectly. Through subsequent
litigation, VA has slowly been drawn into compliance with the Order and the
regulations. For example, VA amended its regulations in 2000 to add type 2
diabetes to the list of diseases associated with Agent Orange exposure. As a
result, tens of thousands of veterans applied for disability benefits. When VA
adjudicated these claims, starting on July 9, 2001, VA assigned that date as
the effective date, instead of the earlier date on which the first diabetes
claim was received by the VA. As a result, VA agreed to re-review the claims
and change the effective date to the date VA received the first claim, so long
as the first diabetes claim had been filed before July 9, 2001.
More
recently, when chronic lymphocytic leukemia (“CLL”) was added to the Agent
Orange regulations as presumptively service connected, VA stated that it
believed that the Nehmer Order did not apply. In 2005, the courts determined
that Nehmer effective dates applied not only to CLL, but to any disease the VA
may service connect due to Agent Orange exposure until at least 2015, when the
Agent Orange Act of 1991 is set to expire. In its action hardly considered
pro-veteran, VA appealed, and the Ninth Circuit affirmed.
Retroactivity
of compensation itself is not a concern of the VA, as it recognizes the date of
claim for any Agent Orange illness of Active Duty C-123 veterans specified in
the Rule.
2. The
Application of the Nehmer Class Action to the Interim Final Rule
The
Nehmer class action, if applied correctly to these veterans, would necessitate
retroactivity of some benefits payments. The argument that follows centers on
the premise that the Air Force Reservists at issue in the Interim Final Rule
are now considered veterans for purposes of VA benefits, and therefore as
veterans, the Reservists should be considered like any other veteran for
purposes of Nehmer and its retroactivity dates.
Although
the Nehmer class action and its progeny have taken a complicated road to
require VA to implement Nehmer’s effective date rules, the rules are
straightforward in their application. Likewise, VA has taken decades to recognize
the many groups of veterans who are even eligible for benefits coverage under
the Agent Orange rules.
Over
the years, VA expanded the list of veterans who it considered to be affected by
Agent Orange exposure. For example, certain veterans who served on open sea
ships off the shore of Vietnam during the Vietnam War (“Blue Water Veterans”)
were denied service connection for many years. Today, many Blue Water Veterans
are still not considered to qualify for service connection, but VA is
developing an “evolving list” of ships that may qualify a veteran for service
connection. If a Blue Water Veteran served on one of the ships that entered
Vietnam’s inland waterways then the veteran could receive service connection.
On its
face, the Nehmer class action might seem unrelated to the Interim Final Rule.
The Nehmer class action and its progeny have been used only to support
extending effective dates for benefits for veterans affected by diseases
presumed to be service connected to Agent Orange exposure. The Nehmer class
action has never been used to determine effective dates for a whole new class
of veterans eligible for benefits under the Agent Orange rules. However, the
historical use of Nehmer supports the argument in this comment that Air Force
Reservists, now considered veterans under the rules, should be granted
effective dates in conformity with Nehmer.
Unlike
the veterans involved in Nehmer and its progeny, the Air Force Reservists
referenced in the Interim Final Rule are not affected by a disease that has not
been granted service connection by VA. Neither are these Reservists seeking a
correction to an effective date for benefits like in the many follow-on Nehmer
cases. Instead, the Air Force Reservists referenced in the Interim Final Rule
are now, for the first time, properly considered veterans for purposes of
service connection under the Agent Orange rules. As a result, the Air Force
Reservists should be treated like any other veteran for purposes of the Agent Orange
rules and Nehmer’s effective date rules.
Air
Force Reservists referenced in the Interim Final Rule are similar to the Blue
Water Veterans who served on inland waterways. Like the veterans who served on
inland waterways and become eligible for benefits as VA’s evolving list adds
the ship where the veteran served, the Air Force Reservists are now belatedly
being included as a veteran eligible for Agent Orange benefits. In short, as a
veteran, the Air Force Reservists should receive the same treatment as any
other veteran. This means that they should be accorded the same effective dates
as dictated by the Nehmer Order. VA’s current effective date in the Interim
Final Rule is arbitrarily determined as it affects this group of veterans.
III.
THE DEMANDS OF EQUITY REQUIRE RETROACTIVITY
Finally,
even if VA decides that the Nehmer effective date rules do not apply to the Air
Force Reservists referenced in the Interim Final Rule, it should still grant
the same retroactive dates on the basis of equity. As stated at the beginning
of this comment, Secretary McDonald considers this group of veterans a
“deserving group” and is thankful that VA “can now fully compensate any former
crew member who develops an Agent Orange-related disability.” Full and proper
compensation in this situation means, at the very least, benefits retroactive
to the date the veteran first filed a claim based on the veteran’s Agent
Orange-caused disease, just like other veterans subject to Nehmer.
VA
should not think about these veterans as if they are only now becoming
veterans. Rather, these veterans served decades ago in close proximity to Agent
Orange. As a result, many have suffering health, and some have lost their
lives. This Interim Final Rule is not an addition, but rather a correction.
Reservists actually served the United States. This is not new research
connecting a disease to Agent Orange exposure. This is a real human being who
really fought for the United States military, who was really exposed to Agent
Orange, on a real C–123 aircraft that unlike any ship, helicopter, tank, truck,
howitzer or M-16, actually tested positive for dioxin. Only the C-123. And only Operation Ranch Hand veterans and C-123 veterans are confirmed by the IOM as having been exposed. Dr. Jeanne Stellman of Columbia University reported to the Secretary of Veterans Affairs that C-123 veterans were less exposed than Operation Ranch Hand veterans, but more exposed than Vietnam ground soldiers.
These
aircraft were really used to dispense Agent Orange, and as a result contained
dangerous levels of the substance decades after deployment. During the Vietnam
era and far beyond, while our C-123s were still in use, every veteran serving
on those planes was exposed to dangerous levels of Agent Orange. When these
veterans flew in the affected C–123 aircraft our hands touched the sides of the
plane – covered in Agent Orange residue, their lungs breathed in the air – full
of Agent Orange-laden duty particles and vapor, and we digested Agent Orange
while eating.
Instead
of being cared for after exposure, these service members were told by VA at the
very last minute in its considerations after years of resistance on other
points finally resolved by the IOM but upon evidence in VA’s possession but
disregarded or suppressed for all those years, C-123 Reservists were suddenly
not considered veterans. VA now has an opportunity to remedy these missteps and
provide well-earned full compensation to this group of veterans.
This is
also the opportunity for VA to consider its years of inappropriate disregard
for confirmation of C-123 veterans’ exposure submitted to the Department by the
CDC/Agency for Toxic Substances and Disease Registry, the National Institute of
Environmental Health Sciences, the Department of Defense Joint Services Records
Research Center, and the US Public Health Service, as well as dozens of
independent, unpaid scientists and physicians forming The Concerned Scientists
and Physicians (Dr. Jeanne Stellman, Columbia, Corresponding Scientist.)
“Benefit of the doubt” and “resolving all doubt in favor of the veteran” are
obligations due veterans which have seldom been more severely abused than with
C-123 veterans’ claims. * * * * * We appreciate the opportunity to comment on
VA’s Interim Final Rule expanding the regulations to include an additional
group of men and women who volunteered to serve, performing their duties in the
Air Force or Air Force Reserve while facing the hazards of aviation service but
also under circumstances forcing regular and repeated contact with C–123
aircraft known to have been used to spray Agent Orange during the Vietnam era.
The
Interim Final Rule rightly extends benefits to our category of veterans.
Unfortunately, it also denies essential retroactivity of benefits. We look
forward to working with VA to serve the veterans who served the United States.
Respectfully
submitted,
For The
C-123 Veterans Association,
Wesley
T. Carter, Major USAF Retired
Chair
[1] VA News Release, VA Expands Disability Benefits for
Air Force Personnel Exposed to Contaminated C-123 Aircraft (June 18, 2015).
[2] 80 Fed. Reg. 35246 (June 19, 2015).
[5] IOM Report, Post-Vietnam Dioxin Exposure in
Agent Orange-Contaminated C-123 Aircraft (Jan.
9, 2015).
[6] 80 Fed. Reg. 35246 (June 19, 2015).
[7] The general rule is that “statutes operate
only prospectively, while judicial decisions operate retrospectively.” U.S. v. Security
Industrial Bank, 459 U.S. 70, 79 (1982).
[8] 38 U.S.C. § 5111(a); 38 C.F.R. § 3.31
(2014).
[9] Id.; Sears v. Principi,
349 F.3d 1326 (Fed. Cir. 2003).
[10] Id.; see also, Livesay v. Principi,
15 Vet. App. 165, 171–72 (2001) (en banc).
[11] Nehmer v. U.S. Dep’t of Veterans Affairs, No. CV-96-6160 (N.D. Cal. May 14, 1991)
(Final Stipulation and Order).
[12] The original Nehmer order directed that
“the effective date for disability compensation or dependency and indemnity
compensation (“DIC”) . . . will be the date the claim giving rise to the voided
decision was filed . . . or the date the claimant became disabled or death
occurred, whichever is later. In
the event the basis upon which a claim for compensation benefits is granted
after readjudication is different than the basis for the original claim giving
rise to the voided decision, the effective date for beginning disability
compensation or DIC will be the date on which the claim asserting the basis
upon which the claim is granted was filed, or the date the claimant became
disabled or death occurred, whichever is later. For any claim for any such disease
which was not filed until after May 3, 1989, the effective date for beginning
disability compensation or DIC will be the date the claim was filed or the date
the claimant became disabled or death occurred, whichever is later.” Nehmer v. U.S. Dep’t
of Veterans Affairs, No. CV-96-6160 (N.D. Cal. May 14, 1991) (Final
Stipulation and Order).
[13] 38 C.F.R. § 3.816(c).
[14] Nehmer v. U.S. Veterans’ Administration, Civ. No. 86-6160 (TEH) (Stipulation and
Order Setting Timetable for the Adjudication of 13,510 Diabetes Claims Under
the Parties’ 1991 Final Stipulation and Order, Jan. 10, 2002). A subsequent lawsuit, Liesegang v. Sec. of
Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002), bumped the effective date
of those who file claims between May 9, 2001 and July 9, 2001 to the earlier
date – May 9, 2001.
[15] A history of the Agent Orange Act is not
necessary in this comment, but it should be understood that, in general, the
Act established a presumption of service connection for diseases associated
with herbicide exposure and directed VA to prescribe regulations that a
presumption of service connection is warranted for a disease when a positive
statistical association exists between Agent Orange exposure and the occurrence
of that disease in humans. 38
U.S.C. § 1116.
[16] Nehmer v. U.S. Veterans’ Administration, 494 F.3d 846 (9th Cir. 2007).
[18] Courts have repeatedly acknowledged, and
Congress has directed that VA act in the best interests of claimants whenever
possible. See, e.g., 38
U.S.C. § 5107(b) (directing that “the Secretary shall give the benefit of the
doubt to the claimant” when reviewing claims); 38 U.S.C. § 5108 (requiring the
Secretary to reopen disallowed claims when new evidence surfaces); 38 U.S.C. §
5103A (outlining Secretary’s duty to assist claimant in obtaining evidence for
a claim); see also Brown v.
Gardner, 513 U.S. 115, 118 (1994); United States v.
Oregon, 366 U.S. 643, 647 (1961) (recognizing that “[t]he solicitude of
Congress for veterans is long standing”); Hodge v. West,
155 F.3d 1356, 1362 (Fed. Cir. 1998) (“This court and the Supreme Court both
have long recognized that the character of the veterans’ benefits statutes is
strongly and uniquely pro-claimant.”); Trilles v. West,
13 Vet. App. 314, 325-26 (2000) (discussing “the pro-claimant environment
created by the general VA statutory scheme”).
[19] IOM Report, Post-Vietnam Dioxin Exposure in
Agent Orange-Contaminated C-123 Aircraft at
5-6 (Jan. 9, 2015).
