VA C-123 Agent Orange Claims: Not "Case by Case" – Instead, All Are Ordered Denied

C-123 veterans have long maintained, and the VA disagreed, that all C-123 Agent Orange exposure claims are treated with a blanket denial. 

Indeed, the C-123 disability claims are all denied, and have been since the first was submitted over a decade ago.

Perhaps we and VA differ in our choice of words for describing this situation, but the fact of the matter is that every single C-123 exposure claim is directly or indirectly ordered denied. Veterans call it a blanket denial. VA calls the blanket denial a "case by case consideration." After which, VA orders all claims denied.

VA opposes our assertions of their blanket (or just insert a term such as universal, uniform, categorical, absolute, complete, total)  C-123 claims denial program because they want an image of more thoughtful, legal consideration of veterans' claims. VA is also somewhat mindful of the United States Constitution and its Fifth Amendment. Included in that amendment is the concept of Due Process. 

VA seeks to deny due process of C-123 veterans' claims but avoid characterization of such an action as a denial of Due Process...VA instead terms their total denial program "case by case consideration." 

That phrase implies VA's determination to carefully examine the merits under law and regulation of each claim, but in fact, it means VA denies 100% of the claims...one by one, each and every one of them, and carefully trains its claims adjudicators in the convoluted process, necessarily bizantine to prevent claim approvals without actually stating it directly.

Friday, commenting on its VA "case by case" process, spokesperson Bessie Griseto told the Dayton Daily News that "No case is the same." 

We beg to differ: C-123 cases are all the same because they are all denied. Every single one of them. Identical. All refused, despite complete satisfaction with VA's own VAM21-1MR regulation, denied with the pretense of just and fair consideration.

Here's how.

VA trains its service officers carefully, including with training lessons on Agent Orange exposures. Some rating officials even go so far as to state that "regulations prohibit" such awards. When Senate staffers pointed out to VA no such regulations exist, VA simply told the raters to continue denying claims but use different language. Say something else, but make sure you deny the claims, seems their approach.

In fact, any veteran establishing fact-proven Agent Orange exposure is to be treated with the same presumption of service connection as Vietnam veterans. Here's how VA instructs claims service officers, incorrectly. VA writes that exposure claims can only be approved under either presumption of exposure, or concession by VA to an exposure event claim. VA then states that because neither of these apply to C-123 and other claims, there is no legal basis for an award. 

from page 13, "TRAINING VSO LESSON THIRTEEN
AGENT ORANGE-RELATED CLAIMS"

VA: C-123 Veterans' Service Connection – NOW!

The C-123 Veterans association is joined by other service organizations in calling on Secretary McDonald to recognize our aircrew and maintainers' Agent Orange presumptive service connection. 

It has been long enough.

BVA Gives VA C-123 Agent Orange Committee Example to Follow

VA's C-123 Committee should be guided in large part by Board of Veterans Appeals decisions over these last many years.

VA should realize that existing regulations, a decade of very specific Federal Register publications, well-established science even before the 9 January 2015 Institute of Medicine report, and the historical record all led Veterans Law Judges to their 100%* approval of C-123 appeals.

Every single one*. Even without the impact of the IOM report. Before the Joint Services Records Research Center began confirming C-123 aircraft exposures per VA M21-1MR (clearly detailed in Part IV Subpart ii Chapter C Section C.) With no new regulation, no new legislation, no need for additional Federal Register explanations. No need for any delay keeping our veterans from submitting claims for fair consideration, and on award finally allowed to enter VA hospitals.

No reason and certainly no excuse for VA to continue saving money by keeping our folks out of their hospital wards. A simple field training letter should do the trick.

Decisions by the Board of Veterans Appeals do not set precedent for other veterans' claims.

Everyone, including C-123 veterans, understands that quite well. What those decisions do, however, is offer an example of expert thought process by the Veterans Law Judges.

That example is an important one which the committee set up within Veterans Benefits Administration and Veterans Health Administration might consider carefully.

Because every BVA decision has been in favor of Reserve and Air Guard C-123 veterans.*

The point is that all claims which have been denied by BVA (and that is every single C-123 claim that ever was submitted*) have been reversed and awarded by the careful consideration at BVA.

BVA Veterans Law Judges had available to them in their decisions today's VA regulation VA M21-1MR, the veterans' medical information, and the historical and scientific information about these former Vietnam War Agent Orange spray warplanes.

BVA decisions are based on applicable law and the interpretation of the overall situation. Awards are made when the law's requirements are met. Any question, any interpretation, is made in a pro-veteran and non-adversarial manner. Issues in dispute are resolved in the veteran's favor if evidence reaches "as likely to as not" threshold.

BVA judges have shown for years that C-123 veterans' claims need nothing more in law or regulation to be awarded when appropriate. VA could do it today.

Friends of veterans, C-123 aircrews, maintainers and aerial port veterans have reached and far surpassed that threshold!

VA has benefited hugely by blocking C-123 claims for these years. Our vets have been denied VA medical care, pharmacy, rehab, counseling, independent living assistance, Chapter 20, children's educational benefits and allowances, burial, prosthetics, and compensation for their service-associated illnesses.

Any further delay, any further effort by VA to save more money by postponing the full inclusion of C-123 veterans into the Veterans Health Administration and Veterans Benefits Administration protections is unconscionable.

BVA already showed the VHA committee that nothing else is needed.

All VA has to do is open their doors and understand that C-123 veterans have established presumptive service connection for the recognized Agent Orange illnesses.

Just as we have done for many, many years, only to find our claims wrongly decided against us.

To us, there is no part of "clear" remaining. All is perfectly clear: JSRRC, USAFHRA, IOM, VA M21-1MR, 1991 Agent Orange Act. Clear as can be and not needing any new regulation nor Federal Register posting to make any clearer.

Keep that word in your mind, dear VA. Clear.

Clear on 31 August 2010 in the Federal Register Volume V, No. 168, page 53205. Clear? Any effort to make more clear only clouds the issue with attendant delay in providing the medical care we're all focused on, and that is unethical and contrary to VAM21-1MR itself.

A point where we take offense. The entire VA application process is build around the term "compensation." This is deceptive. Most non-veterans, and too many folks in the media, don't understand that vets are not permitted any care until their claims...in a process called compensation claims"...are decided.

At our ages, and our illnesses, we feel the process should be termed "medical care application" instead of compensation claim. Financial compensation may indeed follow if appropriate, but even a zero percent service connection permits the medical care to be provided a veteran.

Stop making us look like we're financially motivated We take offense.

We're looking hard for VA heros...volunteers welcome! Be one!
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*All of them, other than LtCol Aaron (Tim) Olmsted's claim which was denied on appeal for the ridiculous reason given by the Board's opposing attorney that Tim hadn't shown his C-123s had ever been in Vietnam.

That was an obvious error by BVA and perhaps also an ethical question which should be raised in conversation with the attorney who skillfully blocked Olmsted's claim by such deception. VA has a duty to assist veterans in claims and the proof of Tim's airplane Agent Orange background took one email and a couple days to obtain when the veterans inquired. Why didn't the VA inquire?

Why the vicious motivation of the VA opposing attorney to win even in the face of VA's errors and the veteran's eligibility? We don't understand why the American Legion which represented Olmsted in his appeal failed to right this wrong, but it is still on the table in our conversations with VA officials.

VA Changes Their Web Pages About C-123 Agent Orange – VERY CAUTIOUS & RESERVED

Our elation over last Friday's release of the Institute of Medicine C-123 report is tempered somewhat today.

We see that VA has modified their web pages touching on C-123 veterans' issues, but used very cautious language without any suggestion of acceptance of the affirmation contained in the Institute of Medicine findings released last Friday. VA simply says the IOM report is out and they've assembled subject matter experts to consider it.

Consider it? Not accept and implement it? This is a worry. Is VA seeking ways to negatively interpret the findings or to avoid presumptive service connection? Or poke holes in it to prevent any meaningful recognition of exposure?

The VA web pages cite references, but pointedly avoid including the many which affirm our veterans' exposure (Porter, CDC, ATSDR, etc.) The IOM report itself isn't included as a reference. On the other hand, we're glad that VA did react and post web page changes...they're doing something, we just don't know the details yet.

Let's hope for the best from VA! We want to work with VA. Time is of the essence here, given our ages and illnesses. We've already paid a terrible price because the IOM has shown we were exposed from 1972 on, and many of us had illnesses during these years that can be associated with that exposure. For instance, I had surgery in 1978 to sever nerves in my thigh to stop a severe burning pain we now know could have been Agent Orange-associated peripheral neuropathy.

These four years since we've had to work against...not with...Veterans Benefits Administration and Veterans Health Administration on this concern. At this point, we should finally be on the same page.

We want to wrap up this burdensome struggle and turn to our health concerns and our families! This was not a battle we should have had to fight for ourselves, but instead a situation where VA should have turned to us, offering their care based on science and facts in hand since 2008 and even earlier.

I hope we don't have a Camp Lejeune situation where VA takes a couple years getting machinery in place to administer our situation. After all, there is no legislation needed, the VA has multiple Federal Register announcements covering this very situation, and the "veteran status" of the crews is covered in USC whether flying as ART, AD, UTA, AFTP or even points-only status.

This last weekend the C-123 Veterans Association and the VA reached out to each other to cooperate – lets hope for that cooperation and for prompt acceptance of our veterans' claims per VA M21-1MR. As I read it, we'll have to provide proof of duty aboard C-123s at some point between 1972-1982, and evidence of an Agent Orange-recognized illness. We have JSRRC confirmation available as well!

We found a hero last year in the VA when Paul Bailey's exposure claim was approved by a Manchester New Hampshire DRO. VA was right then, even though the DRO decision was made without the recent IOM report, the moral and scientific validation was still in place. We need a hero again in the VA to get the ball rolling, notify the VAROs that these claims can be approved with proper evidence, and get our folks into the VA medical system.

Some questions:
• Denied claims now awaiting appeals - can these be reconsidered rather than wait out an appeal?
• Current claims "postponed" decisions - can these be released for final evaluation?
• All claims - can we hope for another fast-track? There will be so few it won't burden VA!
• Denied claims past one year appeal date such as Aaron Olmsted's - can they be resubmitted with "new & material evidence?"
• Effective date of awards?
• Can any sort of "provisional" approval be given urgent cases?
• Invite C-123 veterans to the Agent Orange Registry and physical?

To all who've helped, especially the scientists and journalists, God Bless.