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 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.

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!

C-123 Vets Meet With Secretary McDonald

Secretary McDonald generously gave me over an hour yesterday afternoon for our private conversation tat the Denver DAV National Convention.
He was aware that our initial alarm about VA's statement to HuffPo about widows not being protected by the interim final rule was resolved by VA last Friday in their "reinterpretation" of the issue...in other words, the VA was led to do the right thing regarding widows/widowers' DIC but acted as though that was their intention all along.

Discussion:
1. VA disregarded years of confirmation from other federal agencies, failing to act when there was more than adequate "benefit of the doubt" evidence. The two VA C-123 Fact Sheets were discussed with the important point that errors littered the June 2013 letter to Senator Burr and VA failed to reveal the JSRRC information received four months earlier. VA failed their duty to be pro-veteran and non-adversarial and would be seen to have done so by the CAVC when appeals reach that forum.
2. VA disregarded (another word could be "suppressed") that 2013 Joint Services Records Research Center exposure confirmation from veterans, their attorneys, legislators, claims offices and BVA, as well as the May 2014 confirmation JSRRC began providing on individual C-123 veterans. This violated VCAA and VAM21-1MR.
I said the CAVC would find this a compelling argument in our favor and that unless retroactivity were provided appeals would be inevitable. We reviewed dates of interest, such as the May 2011 general "awakening" of C-123 vets to our exposures, and the fact all scientific information had been provided VA by the end of 2011 – all of which they ignored. We discussed the famous VA phrase, "VA has an overwhelming preponderance of evidence against C-123 claims."
3. I raised the VA OGC precedential opinions and how they should have led to veteran status per Title 38. He was already familiar with the "liberalizing" issue, and also with the fact that retroactivity had been recognized for the active duty C-123 vets, but not us. I pointed out that the DRO C-123 awards and the BVA decisions thus far had all recognized the retroactive claims. In the end, he promised to read all three essays.
I also reviewed the surprisingly small number of claims predating the June 19 2015 effective date, which if each were awarded 100% SC back to May 2011 would only total $1.2M additional cost to VA assuming the same average SC % on claims processed thus far, added to the VA OGC $47M forecast for C-123 issues (excluding medical costs)
4. I discussed my concerns about physician recruiting and retention, the need for skilled former military medics to conduct "sick calls" at VA day clinics as a physician force multiplier, acceptability of board credentials from the American Board of Physician Specialties, DO recruiting, and formation of a "VA Physician Reserve Corps" of departing docs to continue a lower level of service.

In conclusion, I was given twice the time than scheduled for our discussion and we ended only because I had to leave. He was sincere and agreed that VA could have acted sooner, and he'd review our request carefully. Thus far, I'm satisfied and now we'll wait to see if VA delivers any changes to the interim final rule.

Why has no C-123 veteran's claim ever been honored by VA?

AGENT ORANGE DESK           Regional Claims office         

Easy answer: because with encouragement from its outside consultant and instructions from VHA Public Health, the VA HQ Agent Orange desk orders all our claims to be denied.

Here's VA's deception.

For years, VA has insisted on their website, in communications with Congress and the media, and with all the veterans' organizations, that C-123 claims are evaluated on a"case-by-case basis." VA objected to our use of the phrase "blanket denial," insisting each claim receives a full, fair, impartial evaluation.

Nuts. VA bosses might somehow consider ours a case-by-case evaluation only in that each C-123 claim is individually stamped "DENIED" and then tossed into VA's trash heap with 100% of all other C-123 applications. Vigilant VA gatekeepers have insured that not a single C-123 claim got approved on their watch!

VA's rule book VAM21-1MR, requires claims from veterans who didn't serve in Vietnam but who claim Agent Orange exposure to be forwarded from the regional offices to VBA's Agent Orange desk.

And that's where all C-123 veterans' claims are denied through an automatic negative "advisory opinion." VA's Agent Orange desk has already determined that none of the C-123 veterans were exposed. They misinterpreted the 1991 Agent Orange Act and the burden veterans no longer have regarding proving medical nexus for illnesses already recognized by the Institute of Medicine and the Secretary of Veterans Affairs as among the "presumptive illnesses."

Here, VA's Agent Orange consultant is respected, very highly thought of, and his influence clearly seen. In fact, the consultant while an Air Force officer was assigned to VA's Agent Orange desk. The consultant's no-bid sole source $600,000 VA contract (2012-2014) would have its greatest impact on encouraging the Agent Orange Desk to continue rejecting C-123 claims.

Thus, personal policy at the VBA Agent Orange desk where administrators predetermined all C-123 claims were to be denied trumped the VA's assurance to Congress, veterans, and the media that each claim is evaluated on "a case by case basis."

• How can this be when the evidence shows 100% of C-123 veterans' claims are denied?

• How can this be true when VA's own paperwork trail shows, as in the Agent Orange Desk email below, that VA's Agent Orange desk informs VBA, VHA and the regional offices that "there is no basis for service connecting AO disabilities" for our veterans? Golly...why bother applying?