C-123 VETERANS: OUR PRO BONO LAW FIRM IS READY FOR YOUR CALL! S0...CALL TO SEE IF YOU CAN RECOVER

YOU'RE INVITED TO ASK FOR FREE LEGAL HELP.

Situation:

     Most of us who submitted C-123 Agent Orange disability claims before June 2015 ended up denied some compensation because VA decided to pay our claims only from that month forward. Others of us were diagnosed with AO illnesses but submitted our VA claims well after then, and by waiting also lost months of compensation. 

     There may be pro bono legal help to recover denied compensation. The National Veterans Legal Services Project (NVLSP, "Lawyers Serving Warriors") has skillfully helped C-123 veterans for years, and also the Vietnam Veterans of America and most other veterans' organizations. Here's a great video describing them.

     If your disability claim predates June 2015 I urge you to contact NVLSP. They'll review your situation with you. 

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.

More $$ AMMO $$ Contributed for C-123 Veterans Association Work in Washington DC

A certain Chief Master Sergeant from Westover sent in a check to help toward our expenses in Washington. It is much appreciated ammo toward solving our remaining issue of retroactive disability compensation! Thanks, Chief H.

More such help is welcome.

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.

Vietnam Veterans of America Comment to VA on C-123 Interim Final Rule

VVA's president Mr. John Rowan issued this statement today strongly challenging VA's proposed interim final rule restricting C-123 Agent Orange benefits. The concern of all veterans is on VA's failure to respect retroactive compensation based on date of claim submission.