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 

DISABILITY COMPENSATION: Three paths to C-123 vets' retroactive compensation

Many of us C-123 veterans were diagnosed with Agent Orange illnesses before the VA recognized our rights to disability compensation. At that time (June 2015) it seemed impossible to get VA to recognize those claims from the date filed, as VA usually does. 

Last month that changed! In our favor!

An October decision at the Board of Veterans Appeals, supported by similar decisions in years past, suggest three approaches to retroactive compensation for C-123 veterans. There is no certainty, because decisions at the BVA do not set precedent. Decisions do, however, offer guidance. VBA seeks consistency, and thus far BVA decisions are 100% behind retroactive disability benefits.

Here are three situations where I see VA awarding retroactive disability compensation to C-123 veterans. Obviously, for those vets with illnesses diagnosed after June 2015 and who file claims after June 2015, the date of filing should be the effective date for compensation if approved.

 1. Veterans who filed disability claims on or after June 2015 who were diagnosed before June 2015 and whose illnesses continued until the date of filing their claim; in those cases, it seems that up to 12 months of compensation may be recovered:

 “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.”

2. Veterans who had a disabling line of duty injury during the period (1972-1982) that they were also being exposed to Agent Orange, thus establishing veteran status:

“Exposure constitutes an injury under 38 U.S.C. 101 (24) (B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.”

3.     Veterans with VA disability claims for Agent Orange-related illnesses predating June 2015 and who were denied retroactive compensation, receiving compensation only from June 2015 forward:

“GC Precedent Opinion VAOPGEPREC 4-2002 recognizes that a reservist's adverse reaction to exposure to a toxin during ADT qualifies as an injury under 38 USC 101(24) and therefore entitles him to compensation under 38 U.S.C. 110 or 1131. Thus, the regulation that grants presumptive C-123 rule was not a liberalizing law and his benefits should pre-date the effective date of 38 C.F.R. § 3.307 (a)(6) (v).”

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

US Court of Appeals Denies Korean DMZ Veterans Retroactive Benefits. What About C-123 Vets??

The U.S. Department of Veterans Affairs can expand the group of veterans who are eligible for benefits due to Agent Orange exposure without making the change retroactive, a federal appeals court held Tuesday in McKinney v. McDonald. 

The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the Federal affects veterans who were stationed in the Korean demilitarized zone between July 1969 and July 1971 and cannot prove actual exposure to Agent Orange. As a result of the ruling, they became eligible for disability benefits on Feb. 24, 2011, even if they were disabled years earlier. That's the date VA published their rule, and VA fought making any benefits retroactive.

The effect on our C-123 quest for retroactive benefits is unclear, but the Court did make an important point: veterans with proven actual exposure are entitled to those benefits from the date a claim is filed. We have that proof...the IOM made its final report citing the Air Force tests over the decades proving the contamination, and scientists Drs. Lurker, Stellman, Berman and Clapp proved the exposure via ingestion and inhalation routes. This mass of evidence should satisfy the Court, and the VA, that C-123 veterans retroactive compensation claims are not blocked by McKenny v. McDonald.

Rather, retroactivity is explicitly provided!

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

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

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

abandon her, which is exactly what VA has done.

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

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

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

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