Our association's second response to proposed new VA regulation on veterans' hazardous exposure issues.

Our association has posted a second response to the proposed new VA regulation covering veterans' hazardous exposure issues. (First response here.)

The proposed regulation does much to address a wide range of exposure locations and does finally address members of the Reserve Components. It does not mention three earlier failed assurances by the Department of Veterans Affairs in the Federal Register that it would care for veterans who did not serve in the Republic of Vietnam, but were exposed to herbicide agents. Pages from the Federal Register are attached (Federal Register Vol. 66, No. 89, May 8, 2001 and Vol. 73, No. 74, April 16, 2008 and Vol. 75, No. 168, August 31, 2010.)

Instead, Veterans Benefits Administration took steps to insure veterans were refused all care and benefits they should have received for their exposures,  dishonoring VA responses published in the Federal Register.

Between 2001 and 2010, the Department of Veterans Affairs proposed important regulatory changes in the care offered veterans exposed to military herbicides. Responding to public concern for veterans exposed in situations outside the Republic of Vietnam, in three separate and deceptive answers, the VA specifically said no regulatory changes were needed or would be made because:

"If a veteran who did not serve in the Republic of Vietnam, but was
to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e)). 

We therefore believe that there is no need to revise the regulation based on this comment."

By implication, these three deceptive VA responses it also assured Congress that no legislation would be necessary for protection of the affected veterans because the VA had already arranged to offer the same full range of exposure benefits provided Vietnam War veterans.

VA was deceptive between 2001 and 2015 in that, despite assuring the public and Congress that veterans exposed to military herbicides would receive benefits, it instead routinely refused to honor virtually all such claims. A VBA physician and Agent Orange subject matter expert with the "Agent Orange Desk" stated to the Associated Press, "We have to draw the line somewhere." 

The C-123 Veterans Association believes any such "line" may only be drawn in accord with law and regulation, not the preference of VBA staffers determined to block veterans' valid herbicide exposure claims.

VA Regulation M21-1 required it check with the Joint Services Records Research Agency for support of non-Vietnam exposures, but then refused confirmation when offered unless the Agent Orange Desk first requested such confirmation. In many instances, the Agent Orange Desk either refused to make such a request or wouldn't accept JSRRC confirmation even when offered.

This is not ancient history. Veterans and their families were assured of exposure benefits by theVA with empty, dishonored promises made in the Federal Register but were denied those benefits. Note must be made as VA seeks to publish this newest regulation to address earlier failures and deceptions on the same subject.

Respectfully submitted,

W. Carter, The C-123 Veterans Association

Federal Register posts our comment on the VA's new Agent Orange regulation

https://www.regulations.gov/comment/VA-2024-VBA-0006-0044

BVA Appeal Decisions Reference Wrong AFSC Codes for C-123 Agent Orange Eligibility

Here is one more example of how well-meaning VA folks have let benefits-related publications be used to deny veterans' perfectly valid C-123 Agent Orange exposure claims.

First: Kudos to the VA: I'm very happy that our effort to get exposure benefits for C-123 post-Vietnam veterans has led to seven active duty bases' personnel also considered for entitlement. But that doesn't make up for the harm done our Reserve veterans in the way VA spelled out eligibilities.

Look carefully at the second paragraph below. Notice the AFSC codes....do any of them look familiar to you? Probably not, because the Air Force "modernized" their codes a few years after most of us left service, and our old AFSC is nothing like the current one. Click here for the old Officer AFSC codes. Click here for the old Enlisted AFSC codes.

Example: the old AFSC for aircrew life support specialist was 92250, and the VA is set to deny anyone without the current AFSC they show below, 1220-1229. The example below is from an appeal denied by the Board of Veterans Appeals, meaning even if the veteran or his claims advisor spots the technical failing of AFSC codes, that poor vet is stuck with another years-long wait to appeal, this time to the US Court of Appeals for Veterans Claims. Maybe he'll get lucky there. Disability awards shouldn't have to depend on luck!

So we're given a real disaster is when a regional office or the Board of Veterans Affairs denies one of our claims because we provided on our DD-214, AF Form 623 or other official document the old AFSC.  It conflicts with the VA's publication that honors only the new codes.

I've already written about VA's failure to include the 67th Aeromedical Evacuation Squadron, the 905th CAMS, and the VA not listing anything about enlisted aeromedical evacuation technicians and their 902XX AFSC.

I guess that means another VA IG complaint that they'll either ignore or, at best, pass along to the next unsuspecting associate to also ignore.

VA has published a list of military units who had regular and repeated exposure to contaminated C-123 aircraft.  The affected reserve units and dates of service for affected crew members are as follows: Pittsburgh International Airport, Pennsylvania (1972-1982), Westover Air Force Base and Hanscom Field Air Force Base, Massachusetts (1972-1982), and Lockbourne/Rickenbacker Air Force Base, Ohio (1969-1986). The affected active duty units and dates of service for affected crewmembers are Hurlburt Auxiliary Field, Eglin Air Force Base, Florida (1970-1973), Langley Air Force Base, Virginia (1962-1963, 1970-1973), Luke Air Force Base, Arizona (1970-1973), Tainan Air Field, Taiwan (1969-1970), Howard Air Force Base, Panama (1970-1973), Osan Air Base, South Korea (1970-1973), and Clark Air Force Base, Philippines (1969-1970).
VA has also published a list of specialty codes for military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. Those codes for enlisted personnel are flight engineer/aircraft loadmaster (1130-1149), aircrew life support specialist (1220-1229), and aircraft maintenance specialist/flight technicians (4314-4359). See https://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf.
In order to warrant a presumption of exposure based on contact with a C-123, a veteran must have had duties at one of the above listed places during the time frame specified, and the veteran must also have had a duty which entailed that he or she regularly and repeatedly operated, maintained or served onboard C-123 aircraft.

VA extends Agent Orange benefits to Blue Water Navy Vietnam Vets January 1, 2020

Law also affects survivors of Veterans, certain dependents and Veteran homebuyers 

WASHINGTON – The U.S. Department of Veterans Affairs (VA) begins deciding Blue Water Navy Vietnam Veterans Act of 2019 claims, Jan. 1, 2020, extending the presumption of herbicide exposure that include toxins such as Agent Orange, to Veterans who served in the offshore waters of the Republic of Vietnam during the Vietnam War.

Prior to the measure, only Vietnam War Veterans who served on the ground in Vietnam or within Vietnam’s inland waterways were eligible to receive disability compensation and other benefits based on a presumption of herbicide exposure. (CORRECTION: certain post-Vietnam War C-123 veterans are also entitled to a presumption of exposure to Agent Orange.)

Signed into law June 25, the law specifically affects Blue Water Navy (BWN) Veterans who served as far as 12 nautical miles offshore of the Republic of Vietnam between Jan. 6, 1962 and May 7, 1975, as well as Veterans who served in the Korean Demilitarized Zone (DMZ) between Jan. 1, 1967 and Aug. 31, 1971. These Veterans can apply for disability compensation and other benefits if they have since developed one of 14 conditions that are presumed to be related to exposure to herbicides such as Agent Orange. Veterans do not need to prove that they were exposed to herbicides. The specific conditions can be found by searching Agent Orange on www.va.gov.

“For six months, VA worked diligently to gather and digitize records from the Naval History and Heritage Command in order to support faster claims decisions,” said VA Secretary Robert Wilkie. “These efforts will positively impact the claims process for Veterans filing for these benefits.”

Qualifying recipients, in addition to affected Veterans still living, are certain survivors of deceased BWN and Korean DMZ Veterans.

Survivors can file claims for benefits based on the Veteran’s service if the Veteran died from at least one of the 14 presumptive conditions associated with Agent Orange. The law also provides benefits for children born with spina bifida if their parent is or was a Veteran with certain verified service in Thailand during a specific period. The Blue Water Navy Act also includes provisions affecting the VA Home Loan Program. The law creates more access for Veterans to obtain no-down payment home loans, regardless of loan amount, and the home loan funding fee is reduced for eligible Reservists and National Guard borrowers who use their home loan benefits for the first time. Certain Purple Heart recipients do not pay a funding fee at all. VA’s website describes these and other benefits. 

Veterans who want to file an initial claim for an herbicide-related disability can use VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits or work with a VA-recognized Veterans Service Organization to assist with the application process. Veterans may also contact their state Veterans Affairs Office.

BWN Veterans who previously filed a claim seeking service connection for one of the 14 presumptive conditions that was denied by VA may provide or identify any new and relevant information regarding their claim when reapplying. To re-apply, Veterans may use VA Form 20-0995, Decision Review Request: Supplemental Claim. As a result of the new law, VA will automatically review claims that are currently in the VA review process or under appeal.  

For more information about the Blue Water Navy Act and the changes that will take effect visit https://www.benefits.va.gov/benefits/blue-water-navy.asp.

Retiring Veterans Court judge calls VA appeals system a 'tragedy'

(Note: Appeals to the VA Board of Veterans Appeals now take between three and seven years. The Court of Appeals for Veterans Claims can take another three or more years to hear a case. Most often, cases decided in the veteran's favor are returned to regional offices where more delay eats up yet more time.)

By NIKKI WENTLING | Stars and Stripes | Published: March 12, 2019

WASHINGTON — The retiring chief judge for the U.S. Court of Appeals for Veterans Claims told lawmakers Tuesday that the Department of Veterans Affairs appeals system is “ancient” and “inefficient” and in need of drastic change.

While testifying before a House Appropriations subcommittee, Chief Judge Robert Davis said the pressure on VA employees to get through a large backlog of benefits claims leads to poor decision-making and a high number of appeals. Davis, a Navy veteran, has held a seat on the Court of Appeals for Veterans Claims for nearly 15 years. The court, often referred to as “Veterans Court,” provides veterans an impartial review of decisions made by the VA Board of Veterans’ Appeals.

“I think it’s a tragedy, the way the system operates currently,” Davis said. “I think we’ve been tied to a structure that is ancient and inefficient. The sooner Congress and all of us in this area look at this system from a 50,000-foot level and say, ‘We need to make these kinds of adjustments,’ the sooner we’ll be able to meet the needs of our veterans in a much better way.”

Davis has been critical of the VA system. The topic was brought up Tuesday by Rep. Matt Cartwright, D-Penn., who cited an August article by the Wall Street Journal in which Davis criticized the appeals process as “horribly flawed.” “We can’t ignore that when you come here to testify, chief judge,” Cartwright said.

‘Cautiously optimistic’ about new law

Davis elaborated Tuesday on his comments to the Wall Street Journal. He said he remains skeptical of a new law implemented last month that VA officials promised would allow veterans to receive decisions on their benefits claims in days or months, instead of years.

The new law, titled the Veterans Appeals Improvement and Modernization Act, was approved by Congress in 2017 and went into effect Feb. 19. It involves multiple avenues for veterans to appeal their claims, including an option to get a review from a higher-level adjudicator or go directly to the Board of Veterans’ Appeals.

Under the old system, veterans waited three to seven years to reconcile their appeals. The new one could get veterans through the process in as few as 125 days, VA officials vowed. Officials also said the new system would help cut down the backlog of appeals, which included 402,000 cases as of last month.

“I’m cautiously optimistic that this modernization act may help the system, but in my view, congressman, it is tinkering around the edges, when a larger fix is needed,” Davis said. “And it’s a fix that might be viewed as radical by some.”

When pressed for specifics, Davis suggested using mediation to negotiate a settlement between the VA and veterans or providing them general pensions. He said there were “a lot of possibilities” that he believed should be discussed with the VA secretary.

Once he retires from the court, Davis agreed to discuss the issue further with Rep. Debbie Wasserman-Schultz, D-Fla., who is chairwoman of the House Appropriations Subcommittee on Military Construction, Veterans Affairs and Related Agencies.

Court experiences a ‘second surge’

Davis appeared before the subcommittee Tuesday to discuss the court’s budget request for fiscal year 2020, which totals $35.4 million. The proposed amount — released Monday as part of President Donald Trump’s budget plan — didn’t increase from the fiscal year 2019, though Davis said the court experienced a surge of work in 2018.

The court had its first surge in 2009, when its case load increased from about 2,000 cases each year to more than 4,000. That year, Congress temporarily approved two more judges to join the court, bringing it from seven judges to nine.

Davis described a “second surge” last year, during which the case load rose from about 4,000 to more than 6,800.

The VA touted last year that the Board of Veterans’ Appeals had worked through a record number of cases – about 85,000, up from 52,000 cases the previous year. Davis attributed the surge at the Court of Appeals for Veterans Claims to the board’s increased pace.

He warned appropriators Tuesday that the court might soon need congressional approval for an additional two judges, bringing the total to 11. Of the nine judges now on the court, two – including Davis – are scheduled to retire at the end of their 15-year terms in December 2019.

“We’re watching our numbers carefully to track the very real possibility that nine judges may not be sufficient to keep pace with this growth trend,” Davis said.

wentling.nikki@stripes.com
Twitter: @nikkiwentling
 

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

ANOTHER C-123 VETERAN'S AGENT ORANGE APPEAL TRASHED BY UNCARING BVA

WHAT A MESS! This elderly Massachusetts C-123 veteran served at Hanscom AFB before the 731st moved to Westover. His cancer claim was submitted years ago, and on appeal was heard in June...but was denied!

Read through it below. Look how the BVA and its aggressive attorney trashed this qualified veteran's appeal by simply ignoring everything the VA did last year in recognizing our Agent Orange veterans' benefits.

Their tact was to pretend the man wasn't a veteran...an issue resolved by Secretary McDonald's June 19 2015 Interim Final Rule which the BVA judge and the BVA attorney ignored, despite their duty under VCAA.

Citation Nr: 1622153 
Decision Date: 06/02/16    Archive Date: 06/13/16

DOCKET NO.  15-34 922 ) DATE
 )
 )

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lymphocytic leukemia (CLL).


REPRESENTATION

Appellant represented by: Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty with the United States Navy from April 1946 to April 1948, and on active duty as a member of the United States Navy Reserves from October 1950 to August 1952.  It appears that he had an additional period of active duty from August 1959 to August 1962 and a verified period of active duty for training (ACDUTRA) with the United States Air Force Reserves from October 28, 1962, to November 28, 1962.  Effective June 18, 1976, he was removed from Reserves status and assigned to the Retired Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of entitlement to service connection for CLL.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in April 2016.  A transcript of his hearing has been associated with the record.


FINDINGS OF FACT

1.  In November 2012, the Board denied service connection for CLL.

2.  Evidence added to the record since the November 2012 Board decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for CLL.


CONCLUSIONS OF LAW

1.  The November 2012 Board decision is final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 3.160(d), 20.1103 (2015).

2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for CLL.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  

The Veteran's petition to reopen the claim of entitlement to service connection for CLL was filed as a Fully Developed Claim (FDC), as a part of a VA program to expedite VA claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.   When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to the claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA.  Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  The notice that accompanies the FDC form informs a Veteran what evidence is required to substantiate a claim for service connection, a Veteran's and VA's respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the Board finds that VA's duty to notify has been met.

Moreover, there is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

With respect to VA's duty to assist, service, VA, and private treatment records have been associated with the claims file.  

Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

As noted, the Board denied the Veteran's claim of entitlement to service connection for CLL in a November 2012 decision.  

The record before the Board at the time of the November 2012 decision included evidence of a diagnosis of CLL in 2007.  It also included the Veteran's service records, showing that he performed as an Air Reserve Technician (ART) from 1970 to 1973, and that he participated in ACDUTRA as required by his enlistment in the Air Force Reserves.  

The record at the time of the November 2012 decision also included the Veteran's contention that while working as an ART at Hanscom Air Force Base from 1970 to 1973, he was exposed to Agent Orange from C-123 aircraft that had been used to spray the defoliant in Vietnam.  In this regard, the Board noted that certain civilian positions in the military departments were filled by individuals who were members of the active reserves, which, in the case of the Air Force, were known as ART positions.  Jeffries v. Dep't of the Air Force, 999 F.2d 529, 529-30 (Fed.Cir.1993).  Although they are full-time civilian employees, ARTs "are also members of the Air Force Reserve unit in which they are employed.  In addition to their civilian assignments, ARTs are assigned to equivalent positions in the reserve organization with a reserve military rank or grade."  Id. at 530.  ARTs "are required to serve as members of the Air Force Reserve one weekend a month and at least fourteen days a year of annual training."  See http://www.afrc.af.mil/shared/
media/document/AFD-070125-046.pdf.  "On these weekend Unit Training Assemblies (UTAs) and during their annual two-week tour of duty, ARTs train with fellow reservists."  Id.    At all other times, however, ARTs were civilian employees.  Id. (noting that "[d]uring the normal five-day workweek, ARTs perform as civilians-maintaining and operating the Reserve facility in direct support of their unit").

The Board also considered the possibility of service connection on the basis of incurrence of CLL during a period of ACDUTRA as required by the Veteran's Reserves status.  The Board observed that ACDUTRA was defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)  (West 2002); 38 C.F.R. § 3.6(c) (2014).  The Board also noted that inactive duty training is defined, in part, as "duty (other than full time duty) prescribed for Reserves . . . by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A) (West 2014); 38 C.F.R. § 3.6(d)(1).  "The term 'Reserve' means a member of a reserve component of one of the Armed Forces."  38 U.S.C.A. § 101(26). 

The Board indicated that when a claim was based on a period of ACDUTRA, in order to establish entitlement to benefits, there must be some evidence that the disability for which service connection is being sought was "'incurred or aggravated' during the relevant period of service."  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (quoting 38 U.S.C.A. § 101(24)(B); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); and McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 ("if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). 

The Board noted that Veterans who serve on regular active duty are entitled to several presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-to assist them in substantiating their service connection claims.  38 U.S.C.A. §§ 1111, 1112, 1153 (West 2014); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2015).  However, where a claim is based on a period of ACDUTRA, the claimant "can never be entitled to the presumption of service connection" because "[b]y definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service."  Smith, 24 Vet. App. at 47. "By contrast, for a claimant whose claim is based on a period of [ACDUTRA] to establish entitlement to benefits, there must be some evidence that his or her condition was "incurred or aggravated" during the relevant period of service."  Id.  

The Board further observed that while CLL was a disease associated with exposure to herbicide agents and thus subject to the presumption of service connection despite a lack of evidence of the disease in service, see 38 C.F.R. § 3.309(e) (2014), the logic of Smith precluded application of the presumption of service connection provided for by 38 U.S.C.A. § 1116 (West 2014).  The Board pointed out that the Veteran, as an ART, was also a member of the Air Force Reserve, and that his service would have been limited to ACDUTRA.  See http://www.afrc.af.mil/shared/media/document/AFD-070125-046.pdf. (discussing requirements of ARTS Reserve service).  The Board concluded that evidence showing incurrence or aggravation of CLL during any relevant service period was lacking, noting that CLL was not diagnosed until 2007, and that there was no evidence to suggest that the disease first manifested during any required period of ACDUTRA while the Veteran was an ART.  The Board determined that, regardless of whether the Veteran was indeed exposed to herbicides at Hanscom Air Force Base sometime between 1970 and 1973, without a showing that his CLL first manifested itself during a period of ACDUTRA, any ACDUTRA performed while an ART did not qualify as active military service, and Veteran status for purposes of the current claim has not been achieved. 

The Veteran sought to reopen his claim in February 2015.  In support of his petition to reopen, he submitted annual statements of Reserves credits for 1972 and 1973, as well as a July 1973 discharge order.  He also submitted written statements describing his work as an ART, maintaining that he was exposed to Agent Orange during that time, which included active duty.  

Also added to the record is the Veteran's April 2016 hearing testimony.  He reiterated his contention that he was exposed to Agent Orange during his time working at Hanscom Air Force Base as an ART.  He also stated that he worked on contaminated aircraft while on ACDUTRA.

As discussed, service connection for CLL was denied because the Veteran's employment as an ART did not qualify as active service, and because there was no evidence that CLL first manifested during any period of ACDUTRA.  Since the November 2012 Board decision, evidence added to the record includes the appellant's contentions that he was exposed to Agent Orange during his employment as an ART at Hanscom Air Force Base, and that he was also exposed during periods of ACDUTRA.  These contentions and theories of entitlement were before the Board at the time of its November 2012 decision and are therefore cumulative.  In consideration of the foregoing, the Board finds that as no new and material evidence has been submitted, the claim of entitlement to service connection for CLL may not be reopened.  

ORDER

New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for CLL is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Congratulations, Buckeye Wing on Your May 5-7 Reunion

Members of Ohio's Buckeye Wing are looking forward to a great reunion starting May 5 in Covington, Kentucky. Best wishes for good fellowship, restored memories of great flying events (or lies thereof) and service to one another!

(Don't forget to bring your challenge coin!)

Good news from a brother C-123 veteran. Makes the effort worth everything.

In my email box this morning: (Jan 6 note: VA leadership saw George's note with August date...and corrected his claim back to June. Good job, VA!)

Wes;Thursday I got a letter from the VA awarding me 100% for leukemia effective Aug 24 2015. I had just about given up all hope. I want thank you very much for your help, without it the C-123 VETs would have been left out in the cold. Again "THANK YOU"
George B.

God Bless George in his continuing health issues, and God Bless St Paul VARO for caring about C-123 veterans.  Isn't this wonderful?

Looking back - how VA blocked C-123 claims for so many years

How? VBA's Agent Orange desk just made up whatever VA needed to refuse C-123 claims. Here is one of their lists...every point false but sufficient to make sure all C-123 vets were denied VA medical care and other benefits. VA has refused to release their basis for these points, even under the Freedom of Information Act requirements.

Especially deceptive is the last point, as there simply no "VHA scientific data" at all...only internal policy that VHA had to "draw the line" against claims. That's exactly what VHA told the Associated Press!

Source: VBA Agent Orange Desk

Federal Court Sides With Veterans in Toxic Exposures Lawsuit

Ninth Circuit Court sides with veterans in toxic exposures suit, and includes a sly dig at the quality of VA medical care.

By KENNETH OFGANG, Staff Writer

The U.S. military must continue to alert veterans exposed to chemical and biological weapons experiments of any new information that may affect their health and provide them ongoing medical care, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed in part, and reversed in part, a ruling by U.S. District Judge Claudia Wilken.

Wilken sided with the plaintiff class, comprised of thousands of Army veterans, in sustaining claims that the government had duties to them and that those duties were judicially enforceable. The appellate panel agreed, but also reversed a part of the judge’s order.

Wilken, while finding that the government was obligated to provide medical care to the test subjects, declined to compel the U.S. Army to provide that care on the grounds that care was available through the Department of Veterans Affairs. But the appeals court said that was an insufficient basis to deny the requested relief because there was no evidence that the care available at the VA would be “equal in scope and quality” to what the veterans are entitled to.

Health Problems

The plaintiffs sued the CIA, the Department of Defense, and others, accusing them of failing to properly treat health problems caused by the experiments, which took place between 1942 and 1975. They said the government exposed them to chemical agents, germs and drugs in researching how to defend against nontraditional weapons attacks, and failed to provide proper notice to many of the veterans about health hazards they faced by participating in the experiments.

The government has acknowledged the testing program, and in fact a 1953 DOD directive, and an Army regulation dating to 1962, require that subjects be tested only with their informed consent. A 1988 amendment adds that “[t]he duty to warn exists even after the individual volunteer has completed his or her participation in research.”

The government argued, however, that the 1988 amendment is not retroactive, a position rejected by Wilken and the appellate panel.

Fletcher’s Opinion

Judge William Fletcher, writing yesterday for the Ninth Circuit, noted that the regulation was revised in 1990 to make it explicitly applicable to “[r]esearch involving deliberate exposure of human subjects to nuclear weapons effect, to chemical warfare agents, or to biological warfare agents.” The change, Fletcher said, “would have made little sense if the notice requirement applied only prospectively.”

The government’s contrary argument, he said, was a “convenient litigating position” rather than an administrative interpretation to which a court should defer.

“We conclude that [the regulation] requires the Army to provide former test subjects with medical care for any injuries or diseases that were proximately caused by Army experiments in which they participated,” Fletcher wrote. “The fact that the VA provides medical care to some former test subjects, for reasons independent of [the regulation] does not relieve the Army of its duty….”

Fletcher’s opinion was joined by Senior Judge Mary M. Schroeder.

Senior Judge J. Clifford Wallace dissented in part, arguing that the Army regulation does not include a “specific, unequivocal command” that the Army provide medical care to former research volunteers, and that the district judge’s order denying that form of relief should be sustained “on the alternative ground that their claim is not judicially enforceable under section 706(1) of the Administrative Procedure Act (APA).”

The case is Vietnam Veterans of America v. CIA, 13-17430.

Copyright 2015, Metropolitan News Company

VA's "All Questions Answered" Message Gave Us Wrong C-123 Hotline Number

Here is the correct C-123 Hotline Number:
VA C-123 Hot Line: 1 (800) 749-8387

(thanks, Trish)

US Senators – Do I have the RIGHT to demand their assistance?

Yes, of course, if we consider the Constitutional guarantee of freedom of speech and the many ways such as print, video, websites in which that freedom can be exercised. There is nobody who would challenge me for expressing myself, given the understood exception of unlawful extremes.

What I mean is, do I have the RIGHT to demand their assistance in a way beyond the mere exercise of that freedom? Do they have to listen? Do they have to decide whether to respond or can they simply ignore me as they would any other pest?

No – they can't ignore a citizen's voice, although they do. They have to listen, although they often won't. They must respond but seldom do. I still maintain, however, it's their job to listen, their job to care and their oath of office to oblige them to these chores. Below I've listed reasons senators are obliged to listen, and in a perfect world, or in a world where the senator had to account for the resolution of each citizen's complaint...they would listen. Of course, I must emphasize the greater likelihood of them actually listening if good manners are used to conduct a civil discourse!

First reason Senators have to listen to my demands:

I spent the majority of my military career flying aeromedical evacuation. Most of it was years of training for the few days of live medevac missions in an aircraft carrying my fellow soldiers out of harm's way. 

If at any moment in my twenty-six years of service I had failed to do my duty, or failed to correct flaws or errors or mistakes, others could have suffered. 

Neither the Air Force nor our legislators would tolerate any failure on my part which could result in failure of the aeromedical evacuation mission. Too much was at stake, and still is in today's medevac. 

One can imagine the angry roar from the Hill if anybody in the aeromedical evacuation mission simply opted not to do their duty, and allowed patients to suffer and die. Every senator and congressman with patients from their states whom I'd allowed to suffer would be screaming for my head and demanding the most severe penalties under UCMJ. 

Our legislators demand that people like me, people who've taken the military oath to serve and obey, will do so to the best of our abilities and to the point of death if necessary. 

It stands to reason that if they demand that and more of me because I accepted the obligation to serve and obey, and accepted an office in which I was confirmed by the Senate,  I have no less a right to demand they fulfill the duties of their own oaths of office.

Second reason Senators have to listen to my demands:

I got sick doing my duty. The science is no longer in question, having been affirmed by the Institute of Medicine report to Secretary McDonald. The law is clear. 

But still VA refuses to care for men and women like me who flew these airplanes. 

Today I'm old and ill and unable by myself to move the VA to action. I've wasted four of the last years of my life in pursuit of what VA should have offered from Day One. I seek no new legislation, but rather pressure by the Senate on the VA for Secretary McDonald to act. 

Forty-one years have passed since my first flights aboard the former Agent Orange spray airplanes. Twenty-one years have passed since the Air Force identified the heavy TCDD contamination in Patches. Four years have passed since the Air Force Surgeon General elected not to inform our C-123 veterans of our Agent Orange exposures "to prevent undue distress" (his actual words!) And just before his decision the USAF quietly destroyed all remaining C-123s as toxic waste.

Years have passed, and these were years the Senate should have been exercising its oversight in these matters to protect us airmen. Years have passed, and the only action by the Senate has been two two joint letters to the Secretary of Veterans Affairs and terrific staff support from the teams of Senators Brown, Blumenthal, Wyden, Warren, Merkley, Burr and Bennet. Seven voices among the one hundred, all of whom took an oath which obliged them to protect servicemembers, yet nobody did until Senator Burr's first efforts in 2011. 

The law says we should be eligible for VA medical care and benefits. VA says so also, but hasn't gotten around to doing anything to begin caring for surviving our C-123 veterans.  I became ill in a line-of-duty situation, the facts of which have been confirmed by numerous federal agencies, universities, VA physicians, and independent scientists. VA should act but still they hesitate. Still VA keep its hospital doors locked to us.

Members of the United States Senate, ninety-three of whom continue to stand silent when I call for help, owe me a good listen. It's their job, because I did my job. My claim, and those of the 2100 men and women I served with, is just and reasonable, provided for in law but lacking only the VA's plan for implementation.

Members of the United States Senate, I respectfully demand your consideration of our situation. I respectfully insist you show me and the veterans I represent the same loyalty and excellence in serving us as we served you and our fellow citizens. 

It's only right. At least, I can hope. The Senate owes us at least an evaluation of what VA is putting us through, and hopefully when each senator has seen enough of this mess each of you will join your colleagues in demanding VA action. Thank you.

VA Web Sites Reference C-123 Vets, But Still ORDERS ALL Our Claims Denied

VA has over the years begun mentioning C-123 veterans on their web pages. Initially, the single page with C-123 information was a solitary note dedicated to explaining VA's opposition, As time passed VA then added information from the flawed USAF 2012 C-123 Consultative Letter.

Although the authoritative Institute of Medicine C-123 report on 9 January 2015 identified fatal scientific flaws and erroneous conclusions in the USAF C-123 Consultative Letter, it remains on-line, unamended, without note as to any corrections, and cited by VA in its "Scientific Review of Agent Orange in C-123 Aircraft."

That was the sole Internet VA document for quite some time, but as more and more proofs of C-123 veterans' Agent Orange exposure evolved, VA used more Internet pages to dismiss the proofs

Today, VBA Compensation and Pension Agent Orange Desk continues to order claims denied, although the current VBA approach is often to order claims "postponed" indefinitely without decision. That step even blocks the veteran's appeal of a denied claim because the Board of Veterans Appeals only accepts denials: preventing denials by stamping "postponed" on them sends claims into a wilderness of wasted years.

• Scientific Review of Agent Orange in C-123 Aircraft 

• Agent Orange Residue on Post-Vietnam War Airplanes

• Institute of Medicine Reports on Agent Orange (VA summation page)

• Exposure to Agent Orange by Location  – Public Health

The other official document addressing C-123 exposures is Fact Sheet for the Honorable Richard M. Burr Regarding Processing of Disability Claims Based on Agent Orange (AO) Exposure Aboard C-123 Aircraft Outside the Republic of Vietnam, authored by the VBA Compensation and Pension Agent Orange Desk for Secretary Shinseki's signature. The Fact Sheet is now two years old with more current VA and IOM investigations clarifying its numerous fatal flaws, but has not been updated.

While error-laden and carefully deceptive of the senators to whom it was addressed, it remains VA's position and vehicle by which all claims continue to be denied...or "postponed." The C-123 veterans authored a response to the Fact Sheet which was submitted, with source documents but without VA response, to the Secretary of Veterans Affairs.

While cited in its own VAM21-1M1 manual for claims adjudication, the March 2014 Joint Services Records Research Center affirmation of C-123 veterans' Agent Orange exposure and harm has been ignored by VA. In the manual, and in previous denials of C-123 claims, a negative JSRRC response to a VA inquiry is cited as authority to deny a claim. Currently, all positive JSRRC responses are ignored by VA to avoid any impact on these claims and to better reflect the preferences of Compensation and Pension Service that the claims be obstructed.

VA CARES...Agent Orange poster mentions Vietnam veterans AND others exposed to Agent Orange

It is very telling in VA's poster that it mentions not only Vietnam veterans, but all others exposed to Agent Orange.

Last week. Dr. Ralph Erickson in VA's Pre-9/11 Post Deployment Health authored a blog page in which he specified C-123 veterans as among the potentially exposed population.

Paralyzed Veterans of America Adds Its Support to C-123 Veterans' Agent Orange Claims

Today the Paralyzed Veterans of America joined with other service organizations to voice support for C-123 veterans' Agent Orange claims. This was first through direct conversations with Secretary McDonald, and more recently by PVA leadership approving addition of their name to the list of C-123 supporters!

Thank you, PVA!

Wes Carter, PVA Life Member since 1991

Disgusting VA Sarcasm, Cartoons & Jokes About Veterans' Suicide

The Indianapolis Star reported a VA clinician's sarcasm aimed at veterans' suicides. The report was repeated today in the Washington Post.

Indianapolis VA sarcasm and cartoons about veterans' suicides.

I have sought help myself and wonder if this is how I was seen. Palo Alto WIISC?

Reading stacks of VA emails and letters released under the Freedom of Information Act suggests exactly that. Big joke. They not only fight us, they laugh at us. We're funny, even with a pistol to the forehead or a noose around our neck...we're funny to them.

To the point of death, the very clinicians called on to help still mock us. The VFW has called for the manager who taunted us so to be fired, but that will change nothing of substance.

This stuff is starting to hurt beyond all endurance. What is wrong with these people?

Retired Military? Agent Orange Exposure May Qualify You for Combat Related Special Compensation

Many things have changed regarding military retirements and VA disability compensation, and how they relate. Agent Orange is considered a "weapon of war" and thus may affect one's eligibility for "Combat Related Special Compensation."

VA disability compensation is tax-free, of course, and most military retirees pay tax on retirement pay. Military disability retirement is also taxed, unless the veteran entered service before 1978.

Combat Related Special Compensation (CRSC) is a program that was created for disability and non-disabled military retirees with combat-related disabilities. It is a tax free entitlement that replaces retired pay that was waived to receive VA disability compensation for combat related disabilities.

Eligibility. To qualify for CRSC you must:
• be entitled to and/or receiving military retired pay or be a reservist that is at least 60 years old or retired under Temporary Early Retirement Authorization (TERA) AND
• be rated at least 10 percent by the Department of Veteran’s Affairs AND
• waive your VA pay from your retired pay AND
• file a CRSC application with your branch of service

To learn more about this, visit HERE.

Been there, done that.

Been there, done that (although I recall dragging bags everywhere.) Off to the Herkybird office at 30,000' but first there was breakfast (SOS, of course, and huge greasy omelets) and coffee. With friends, now even more dear decades later.

Young soldiers...the men and women you serve with now are going to be among the most precious friends in later years. "Been there, done that" means shared experiences nobody else can even imagine. Enjoy their friendship now – later, you're going to savor it even more with those who've been there, and done it with you.

IOM Report Due January 9 at 11:00 Eastern

Tomorrow we'll know the recommendations made by the Institute of Medicine about our C-123 Agent Orange exposures. We hope for the best when IOM begins their briefing at 11:00 here in Washington, D.C.

A long and painful time has passed since we started our effort in the early spring of 2011, and so many kind people have done right by us.

Whatever IOM recommends, and whatever VA does with that recommendation, our thanks must be expressed for the hard work of the committee and the IOM staff, headed by Dr. Mary Paxton. Also, thanks to those many VA leaders who kept an open mind...and an open heart

Although we hope for the best, and the most comprehensive positive finding, realistically there can only be a compromise. Not on the science or the history of the C-123 exposure story, but on the consensus report selected as the format for this investigation.

Stay tuned: I'll post the IOM's conclusions as soon possible.