[T]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006)
26 September 2015
21 September 2015
74/439 AES Annual Dinner, Friday Sept 25 in Chicopee
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| 74AES Executive Committee |
Good friends, good food, and I hear they even serve beer. RSVP to Steve.
Hey – I'm coming in hopes of seeing Steve in lederhosen!
10 September 2015
Master Sergeant Richard Matte Has Passed
Dick Matte has died.
It hurt a lot to read Steve Caraker’s email with that news, even though it was sure to come. Dick’s long struggle with illnesses showed strength and bravery beyond what most of us can imagine…heart transplant, heart attacks, the loss of his legs and so much more suffering.
It hurts all of us to lose him, and our condolences to his family. He joins Mayleen Adams, Bob Boyd, Giff, Cliff Turcotte, Mike Lieb, Bill Schindler, General Walker and so many others for whom we cared. His arrangements are here.
Matte made the front page of the Boston Globe last June! He was featured in an article addressing the VA’s reluctance to deal with C-123 Agent Orange exposures and illnesses, and that coverage helped bring the public’s attention to this issue and its resolution on June 19. Secretary McDonald’s welcome decision to provide C-123 veterans our disability benefits was due in good part to Dick’s story told so publicly in the Globe.
Thanks to Arch Battista, John Harris and the Yale Veterans Legal Clinic, Dick's VA claim was honored and benefits established even before the VA decision. He and Paul Bailey are the only two C-123 veterans whose claims were awarded before VA decided to care for all of us.
As his friend Steve Carr wrote, we’ve lost a fellow airman and a good soldier. Dick’s faith grew even stronger with all struggles. Now he rests in the peace he knew was ahead. God Bless.
04 September 2015
Study finds link between Agent Orange, bone cancer precursor
Stars and Stripes
Servicemembers exposed to Agent Orange during the Vietnam War are at higher risk of developing the precursor stage of a bone marrow cancer, according to a study published Thursday in the Journal of the American Medical Association Oncology.
The study provides the first scientific evidence for a link between the precursor stage of multiple myeloma — a cancer of white blood plasma cells that accumulate in bone marrow — and veterans exposed to the herbicide Agent Orange, according to the study’s 12 authors, who are associated with medical centers across the U.S. The precursor, called monoclonal gammopathy of undetermined significance, or MGUS, is not in and of itself a problem.
“MGUS is not a cancer,” said Dr. Nikhil Munshi, who specializes in multiple myeloma at the Dana-Farber Cancer Institute at Harvard Medical School in Boston. “A very large majority of patients with MGUS remain MGUS all through their lives with no real consequence.”
MGUS virtually always precedes multiple myeloma, but the mechanisms that trigger its onset are not fully understood, said Munshi, who was not involved in the study but wrote an editorial published in the same issue of JAMA Oncology.
Previous studies have linked other insecticides, herbicides and fungicides to higher risks of MGUS and multiple myeloma.
Agent Orange was used during Operation Ranch Hand in Southeast Asia to clear jungle foliage from 1962 to 1971. It was usually sprayed via aircraft. Since then, Agent Orange has been linked to a host of health problems and diseases in many servicemembers.
The Veterans Administration maintains a list of “presumptive diseases” assumed to be related to military service that automatically qualify them for VA benefits. The Institute of Medicine has identified seven cancers with a positive association to Agent Orange, including chronic lymphocytic leukemia, Hodgkin lymphoma and non-Hodgkin lymphoma — all of which have been accepted by the VA as presumptive diseases.
Multiple myeloma is a VA presumptive disease, but it has been classified as having “limited or suggestive evidence” of a link to Vietnam War veterans’ exposure to herbicides, the authors of the JAMA study wrote.
The study looked at specimens from two groups of Air Force veterans that had been collected and stored in 2002 by the Air Force Health Study. A group of 479 veterans who had been exposed to Agent Orange during Operation Ranch Hand were compared with a second group of the same size that had similar duties in Southeast Asia from 1962 to 1971 but were not involved with the herbicide.
The Air Force Health Study had sampled servicemembers in the two groups in 1987, 1992, 1997 and 2002 for exposure to Agent Orange and to 2,3,7,8-Tetrachlorodibenzo-p-dioxin, or TCDD, which is an unintended contaminant of the herbicide considered the culprit for so many of its adverse effects.
The researchers found that the prevalence of MGUS in Ranch Hand veterans was twice as high as in the comparison group, with 34 of the 479 Ranch Hand veterans having MGUS compared with 15 out of 479 in the control group.
That translated to a 2.4-fold increased risk of MGUS for Ranch Hand veterans over their counterparts when adjusting for factors such as age, race and other physical traits. “That’s an important number,” Munshi said. Researchers also found significantly higher levels of TCDD in the Ranch Hand veterans who had developed MGUS, he said.
Because all cases of multiple myeloma originate from MGUS, the study has provided the first scientific evidence for a direct link between Agent Orange and multiple myeloma, he said.
02 September 2015
Finally Heard from VA – HURRAH
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| Good work, VA! |
Mr. Murphy insisted he was right, and the scientists and government agencies, including the Department of Defense, were wrong. In his office on February 28 2013, Mr. Murphy explained the issue had already been decided by VA's Post Deployment Public Health group in Veterans Health Administration and that no C-123 claims were to be approved. None. That's apparently what VA leaders meant by "every C-123 claim evaluated on a case-by-case basis" when the Senate accused them of a C-123 blanket denial policy. Clearly, VA had a universal blanket denial of C-123 claims, however VA chose to describe their 100% denial record.
Mr. Murphy's insistence that Agent Orange was harmless, later referred to by VA officials as "an unfortunate phrasing," doomed the claim despite reams of medical and scientific justification which first led the Portland VARO to recommend approval. Apparently VBA's Agent Orange Desk was the originator of the Murphy opinion, and for years that staffer wrote that VA had "an overwhelming preponderance of evidence against C-123 claims...not because there was any such evidence but because he felt the claims must be prevented. Actually, the overwhelming preponderance of evidence was, as the Institute of Medicine concluded, C-123 veterans were exposed and were harmed.
My claim for Agent Orange benefits per the 1991 Agent Orange Act to address Agent Orange illnesses caused by Agent Orange exposure was denied because Mr. Murphy wrote that Agent Orange is harmless. A great surprise to science and medicine which consider TCDD a potent human carcinogen.
So, too, does the CDC. They wrote VA that C-123 veterans were exposed to Agent Orange at 182-times safety threshold, and face a 200-fold greater cancer risk. Mr. Murphy wrote that CDC was not qualified to comment, nor were any other scientists qualified to comment. On February 28 2913 he explained to me that VA had already determined none of the C-123 claims were to be approved. Regardless of the amount of evidence from whatever source, every claim was to be denied because VHA Post Deployment Health had already decided the issue. Mr. Murphy expressly stated that no amount of evidence would suffice...the decision was already made to deny every C-123 claim.
Compensation and Pension ordered my claim denied. They didn't use those exact words...they just said it couldn't be approved. Seems like the same thing to me. Then VA insisted to everyone that each claim "was carefully evaluated on a case-by-case basis" before it was automatically denied.
So yesterday was wonderful. I had a good conversation with an expert claims worker and now I feel encouraged that after more than four years, my claim seems to be moving along. VA is also looking over my appeals, so perhaps those won't have to wait more years in the BVA queue.
29 August 2015
C-123 Veterans' Agent Orange – Mission Complete
We're done here!
• In April 2011, C-123 veterans from Westover AFB began pursuit of Agent Orange exposure disability benefits from the Department of Veterans Affairs for toxic injuries resulting from duty aboard the former Operation Ranch Hand spray aircraft between 1972-1986.
• In January 2012 the CDC informed VA that C-123 post-Vietnam veterans had been exposed to harmful levels of Agent Orange, and that the planes were so contaminated aircrews should have been flying in full HAZMAT protection.
• In March 2013 the DOD Joint Services Records Research Center confirmed C-123 veterans' Agent Orange exposures to VA's Agent Orange desk in Veterans Benefits Administration, which opted to disregard the input despite VAM21-1MR and the Veterans Claims Assistance Act.
• In August 2013, VA approved via DRO the only C-123 veteran's claim to ever be approved without resort to the Board of Veterans Appeals (LtCol Paul Bailey.) Every C-123 claim before and since has been denied, all with VA insisting it considered each "on a case-by-case basis"without mentioning that VA HQ ordered every C-123 claim denied
• In January 2015 the Institute of Medicine, acting under contract from the VA, issued its report to Secretary Bob McDonald confirming the C-123 veterans' exposure and likely toxic injuries.
• In June 2015 the Secretary issued his interim final rule acknowledging the IOM's conclusions, and provided formal veteran status to C-123 veterans with diagnosed Agent Orange-related illnesses, with benefits to date from June 19 2015 forward, but blocking retroactive compensation and other benefits otherwise due claims in process before the interim final rule. The first C-123 veteran's disability claim under this scheme was processed within sixteen days (LtCol Ed Kosakoski.)
• In August 2015 the Secretary of Veterans Affairs announced a compromise of a one-year retroactive disability compensation scheme. This concluded all issues of concern to the C-123 Veterans Association. [NOTE: BIG MISTAKE. A FEW DAYS LATER VA STAFFERS EMAILED US. VA "MEANT TO SAY" NO TO RETROACTIVE PAY.]
Mission Complete.
• We accomplished most objectives, with failures along the way including four years intolerable delay by VA which we were unable to overcome.
• We must count as failure the suffering and loss of our veterans these last four years.
• The final failure was the inability to persuade VA to award full retroactive disability compensation due veterans with claims submitted before the interim final rule, settling instead for the compromise of one year retroactivity.
This very difficult effort, led only by Westover's veterans with some financial help from other units' members, served all the men and women who flew C-123s at Westover, Rickenbacker and Pittsburgh as well as scattered Active Duty units and airmen. We did the best we would, we achieved more than experts thought possible, and we won a small measure of success when VA agreed to at least a one year retroactive program.
I believe at this point our only work is to assist fellow C-123 veterans with their claims and to serve the needs of veterans in all situations.
Thank you everyone for your support, especially the encouragements and help covering some of the expenses. As Senator Burr said, "this shouldn't have taken this long or been this hard." If I'd known how bad it was going to be when I first worried about this mess back in 2011, which was when I picked up the phone to call Paul Bailey and see how he was doing, I'd never have gotten started! I wish Paul was still here to see how things resolved for our crewmates.
Today the Dean of the School of Law at Yale said we were "fierce, strategic and unrelenting." We shouldn't have had to be – no veteran should have to self-advocate or waste years of medical retirement struggling to get VA to do its job. Four years ago VA should have called us with some reasonable solution to this horrible problem. They didn't call. Instead they fought us every step of the way.
Our duty is to make certain no other veteran faces VA alone.
God Bless America.
26 August 2015
VA Agent Orange Consultant & Others Take Action to Oppose C-123 Veterans' Disability Claims
Included in the public comments submitted to REGULATIONS.GOV regarding the VA's C-123 interim final rule, about 52 responses were received and 48 accepted for posting.Except for four, all encouraged VA to recognize the legal and moral argument for providing retroactive disability compensation to C-123 veterans and survivors whose claims were submitted prior to June 19 2015. The rule only provides for compensation after June 19, even if claims have been in to VA for years already.
The VA consultant explained his opposition by submitting a copy of the challenge he sent to the IOM C-123 committee, detailing the committee's scientific failures (from his perspective.) The highly-paid consultant, known for disagreeing with Agent Orange being harmful, didn't address concerns we raised about his clipboarded Internet photos taken about 2000 but which he told IOM represented 1971 restoration and reconditioning of C-123 aircraft. The photos were of #664, which never even was an Agent Orange spray airplane. Very creative but misleading wordsmithing, indeed.
Prompts bought further challenges from some Ranch Hand aircrews who disagree with others aircrews' Agent Orange cancers being treated by VA, and by a scientist who actually did testing on the Davis-Monthan C-123 fleet then in surplus storage. This testing was done around 2009.
Such challenges were already weighed by the IOM C-123 committee and found wanting, compared to the body of evidence submitted from the CDC, DOD, US Public Health Service, EPA, NASA, National Toxicology Program, National Institute of Environmental Health Sciences, and dozens of independent scientists, physicians and research centers.
The VA paid $600,000 via his unusual no-bid, sole source contract to its Agent Orange consultant to oppose C-123 and other exposure claims, and to affirm all VA decisions and positions already assumed by the Department. The VA permitted no expense to support the veterans' perspective of having been exposed, and the veterans themselves paid nothing to the experts whose opinions supported our exposure claims...we didn't have to and we couldn't anyway...no money.
We had to pay our own way, depending on a handful of checks from fellow veterans very few of whom are included in this effort because most of us are Vietnam vets, retired military, or already totally disabled with the VA...so the final results, however VA writes them up, mean nothing to us other than the invaluable satisfaction of serving our fellow crews, both Active and Reserve.
And yes, we draw special satisfaction having won for them the benefits flowing to our Active Duty C-123 brothers and sisters!
21 August 2015
Title 38 United States Code 501(a), 1116(a)(3), and 1821)
Here is the basis for Agent Orange claims of Vietnam veterans, Korea DMZ veterans, and C-123 veterans. These are the three groups considered "presumptively exposed" as described in Title 38 United States Code 501(a), 1116(a)(3), and 1821.) C-123 veterans join the others as the only groups covered by VA's automatic presumption of exposure and coverage for illnesses recognized by VA as associated with Agent Orange.
I recommend veterans beginning the claims process include the VA C-123 Fact Sheet and the Title 38 USC C-123 page when you meet with VA or veterans service organizations – this is a new topic for everyone and very few understand our entitlements.
I recommend veterans beginning the claims process include the VA C-123 Fact Sheet and the Title 38 USC C-123 page when you meet with VA or veterans service organizations – this is a new topic for everyone and very few understand our entitlements.
(6) Diseases associated with exposure to certain herbicide agents. (i) For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.(Authority: 38 U.S.C. 1116(a)(4))(ii) The diseases listed at §3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.(iii) A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.(iv) A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See also 38 CFR 3.814(c)(2).(v) An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such 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.(Authority: 38 U.S.C. 501(a), 1116(a)(3), and 1821)
19 August 2015
Vietnam Veterans of America Comment to VA on C-123 Interim Final Rule
VVA's president Mr. John Rowan issued this statement today strongly challenging VA's proposed interim final rule restricting C-123 Agent Orange benefits. The concern of all veterans is on VA's failure to respect retroactive compensation based on date of claim submission.
18 August 2015
Statement: C-123 Veterans on VA C-123 Interim Final Rule
Submitted on behalf of The C-123 Veterans Association, regarding VA C-123 Interim Final Rule:
* * * *
The C-123 Veterans Association, its Members and Board
The C-123 Veterans Association, its Members and Board
August
18, 2015
The
Honorable Robert A. McDonald
Secretary
of Veterans Affairs
U.S.
Department of Veterans Affairs
810
Vermont Avenue, NW Washington, DC 20420
Dear
Mr. Secretary:
RE:
Comment Concerning Department of Veterans Affairs’ 19 June 2015 Interim Final
Rule
“Opening up eligibility for this deserving group of Air Force
veterans and reservists is the right thing to do. We thank the IOM for its
thorough review that provided the supporting evidence needed to ensure we can
now fully compensate any former crew member who develops an Agent
Orange-related disability.” - Secretary McDonald –
The
above quote from Secretary McDonald announced the VA’s duty to fully compensate
active duty Air Force veterans and Air Force Reservists (nearly all veterans
themselves) who have developed an Agent Orange-related disability in service to
the United States of America.
We
C-123 veterans agree that all these veterans need and should be fully
compensated for such disabilities.
Unfortunately,
the hesitating implementation of this Rule by the Department of Veterans
Affairs (“VA”) only provides compensation on a prospective basis as of June 19,
2015 – despite the fact that the service-connected exposure occurred, in some
cases, decades ago. Full compensation, as referenced by the Secretary, should
be provided; however, that will not happen with an arbitrary effective date
that significantly post-dates, and wholly ignores, the Agent Orange-related
disabilities suffered by certain of these veterans.
The VA
should respect the retroactivity date for benefits claims for these Air Force
Reservists to correspond with the effective dates dictated by the Nehmer class
action lawsuit and its progeny. VA refusal to grant retroactivity wrongfully
denies proper full compensation to deserving veterans and survivors.
I.
INTRODUCTION
On June
19, 2015, the Department of Veterans Affairs issued an Interim Final Rule to
amend 38 C.F.R. § 3.307 to expand the class of veterans to be granted
presumptive service connection for exposure to herbicide agents like Agent
Orange. Specifically, the Interim Final Rule designates, as eligible for such a
presumptive service connection finding, men and women who served in the Air
Force or Air Force Reserves under circumstances in which they had regular and
repeated contact with C-123 aircraft known to have been used to spray an
herbicide agent during the Vietnam era.
The
Interim Final Rule also establishes a presumption that members of this group
who later develop an Agent Orange service connected condition were disabled
during the relevant period of service. The Interim Final Rule modifies the
definition of “veteran” to include the Reservists’ time spent on C-123 planes
within service considered to be “active, naval, military or air service.”
Designating these service members as having served in “active, naval, military
or air service” for the purpose of being considered a veteran is important for
eligibility for some VA benefits.
This
clarification of what constitutes relevant service ensures that these Reservists
are eligible for VA disability compensation and medical care for any Agent
Orange-related condition, and that their surviving dependents are eligible for
dependency and indemnity compensation and burial benefits.
The
Interim Final Rule is an important step to getting our class of veterans and
our all families the benefits they have earned. VA should be applauded for
recognizing these veterans for service to the United States. By recognizing
these members of the Air Force as veterans, VA is legitimizing the dangers,
both known and unknown, faced during the Vietnam era and decades later due to
Agent Orange exposure. Unfortunately, the Interim Final Rule does not go nearly
far enough in one way where it is vitally needed– retroactivity.
The
Interim Final Rule as it is currently drafted denies retroactivity to these
veterans’ claims by making the effective date of the regulation June 19, 2015.
Veterans who served on C–123 aircraft earlier used to disburse herbicides have
suffered, sometimes for decades, with the effects of Agent Orange exposure. The
January 2015 Institute of Medicine (“IOM”) C-123 study report recognizes that
these dangerous exposure levels contributed to adverse health effects. The
report states that between 1972 and 1982 (modified to 1984 in the rule,)
approximately 1,500 to 2,100 Air Force Reserve personnel trained and worked on
C–123 aircraft that previously had been used to spray herbicides.
During
that period, the aircraft were used for military airlift, medical transport,
and cargo transport operations in the U.S. and around the world. As discussed
in the remainder of this comment, we encourage VA to reconsider its decision
about retroactivity. In the interests of equity, Air Force Reservists, now
considered veterans and determined by the IOM to suffer the effects of Agent
Orange exposure, deserve retroactivity. Moreover, as veterans, they should
receive retroactivity of their claims to the same extent as any other veteran
covered by the Nehmer class action decision.
Therefore,
we request that VA reconsider its decision about retroactivity. If VA decides
not to extend retroactivity, then VA should respond to this comment by
explaining why these veterans should not be granted the same retroactivity
granted other veterans under the Nehmer class action decision, and further, why
the Department’s earlier precedential opinions are disregarded.
II. THE
INTERIM FINAL RULE INCORRECTLY DENIES RETROACTIVITY Certain issues which for
decades remained unsettled are no longer in dispute.
First,
Air Force Reservists were indeed exposed to Agent Orange and other herbicides.
Second,
this exposure contributed to adverse health effects.
Third,
Air Force Reservists, who served on C–123 aircraft used in Vietnam to disburse
herbicides, are veterans for VA purposes and eligible for some VA benefits.
Finally, there is a “factual presumption that disability occurred during the
period of service as required under section 101(24) when an individual has a
present disability now scientifically associated with exposure to an herbicide
agent.”
A.
Retroactivity In general, VA is not required to make retroactive the effective
date of a new regulation. For an original claim for benefits, the effective
date is the date VA receives the claim, or the date that entitlement to the
benefit arose, whichever is later.
For a
reopened claim for benefits, the effective date is the date VA received the
reopened claim, or the date that entitlement to the benefit arose, whichever is
later. If VA grants a reopened claim for benefits that has previously been
finally denied, the general rule prohibits VA from assigning as the effective
date the date it received the original claim for the benefits. In order to
receive an effective date of the date VA received an original claim that has
already been finally denied, the claimant must prevail on a claim for revision
based on clear and unmistakable error.
The VA
should not consider these general rules to be binding on its decision of
retroactivity for the C-123 Interim Final Rule. Instead, as discussed in the
following section, veterans granted service connection for a disease caused by
exposure to Agent Orange should receive retroactive effective dates in
accordance with the special rules developed by the courts in the Nehmer class
action case and its progeny.
B. The
Nehmer Class Action Requires Retroactivity
1.
History of the Nehmer Class Action
A
history of VA’s handling of Agent Orange claims and the Nehmer class action is
in order to explain why these veterans should be included in the class of
veterans affected by the order.
Prior
to the Nehmer class action, VA denied tens of thousands of claims for
disability or death compensation that Vietnam veterans and their survivors
attributed to Agent Orange exposure. At the time VA maintained that Agent
Orange exposure was only associated with a skin condition called chloracne. The
Nehmer class action along with other converging forces forced the VA to
acknowledge that many types of cancer and other serious diseases are related to
Agent Orange exposure.
A
veteran who served in Vietnam during the Vietnam era and who suffered from one
of the diseases that VA regulations listed as related to Agent Orange would be
granted service-connected disability compensation. In addition, surviving
family members are entitled to DIC due to the veteran’s death due to exposure
to Agent Orange regardless of whether, at the time of death, the C-123 veteran
was receiving service-connected disability compensation.
The
Nehmer Order dictated new rules governing effective dates for Agent Orange
connected diseases. Although the Nehmer Order was given in 1991, it took VA
until 2003 to incorporate these rules into the regulations at 38 C.F.R. §
3.816. In those rules, if the VA denied compensation for the same covered
herbicide disease between September 25, 1985 and May 3, 1989, the effective
date of the award will be the later of the date VA received the claim on which
the prior denial was based or the date the disability arose; for a disability
claim pending before VA on May 3, 1989, or received by VA between that date and
the effective date of the statute or regulation establishing a presumption of
service connection for the covered disease, the effective date of the award
will be the later of the date the claim was received or the date the disability
arose.
On
numerous occasions after the Nehmer Order, VA violated the order by
interpreting the special effective date rules incorrectly. Through subsequent
litigation, VA has slowly been drawn into compliance with the Order and the
regulations. For example, VA amended its regulations in 2000 to add type 2
diabetes to the list of diseases associated with Agent Orange exposure. As a
result, tens of thousands of veterans applied for disability benefits. When VA
adjudicated these claims, starting on July 9, 2001, VA assigned that date as
the effective date, instead of the earlier date on which the first diabetes
claim was received by the VA. As a result, VA agreed to re-review the claims
and change the effective date to the date VA received the first claim, so long
as the first diabetes claim had been filed before July 9, 2001.
More
recently, when chronic lymphocytic leukemia (“CLL”) was added to the Agent
Orange regulations as presumptively service connected, VA stated that it
believed that the Nehmer Order did not apply. In 2005, the courts determined
that Nehmer effective dates applied not only to CLL, but to any disease the VA
may service connect due to Agent Orange exposure until at least 2015, when the
Agent Orange Act of 1991 is set to expire. In its action hardly considered
pro-veteran, VA appealed, and the Ninth Circuit affirmed.
Retroactivity
of compensation itself is not a concern of the VA, as it recognizes the date of
claim for any Agent Orange illness of Active Duty C-123 veterans specified in
the Rule.
2. The
Application of the Nehmer Class Action to the Interim Final Rule
The
Nehmer class action, if applied correctly to these veterans, would necessitate
retroactivity of some benefits payments. The argument that follows centers on
the premise that the Air Force Reservists at issue in the Interim Final Rule
are now considered veterans for purposes of VA benefits, and therefore as
veterans, the Reservists should be considered like any other veteran for
purposes of Nehmer and its retroactivity dates.
Although
the Nehmer class action and its progeny have taken a complicated road to
require VA to implement Nehmer’s effective date rules, the rules are
straightforward in their application. Likewise, VA has taken decades to recognize
the many groups of veterans who are even eligible for benefits coverage under
the Agent Orange rules.
Over
the years, VA expanded the list of veterans who it considered to be affected by
Agent Orange exposure. For example, certain veterans who served on open sea
ships off the shore of Vietnam during the Vietnam War (“Blue Water Veterans”)
were denied service connection for many years. Today, many Blue Water Veterans
are still not considered to qualify for service connection, but VA is
developing an “evolving list” of ships that may qualify a veteran for service
connection. If a Blue Water Veteran served on one of the ships that entered
Vietnam’s inland waterways then the veteran could receive service connection.
On its
face, the Nehmer class action might seem unrelated to the Interim Final Rule.
The Nehmer class action and its progeny have been used only to support
extending effective dates for benefits for veterans affected by diseases
presumed to be service connected to Agent Orange exposure. The Nehmer class
action has never been used to determine effective dates for a whole new class
of veterans eligible for benefits under the Agent Orange rules. However, the
historical use of Nehmer supports the argument in this comment that Air Force
Reservists, now considered veterans under the rules, should be granted
effective dates in conformity with Nehmer.
Unlike
the veterans involved in Nehmer and its progeny, the Air Force Reservists
referenced in the Interim Final Rule are not affected by a disease that has not
been granted service connection by VA. Neither are these Reservists seeking a
correction to an effective date for benefits like in the many follow-on Nehmer
cases. Instead, the Air Force Reservists referenced in the Interim Final Rule
are now, for the first time, properly considered veterans for purposes of
service connection under the Agent Orange rules. As a result, the Air Force
Reservists should be treated like any other veteran for purposes of the Agent Orange
rules and Nehmer’s effective date rules.
Air
Force Reservists referenced in the Interim Final Rule are similar to the Blue
Water Veterans who served on inland waterways. Like the veterans who served on
inland waterways and become eligible for benefits as VA’s evolving list adds
the ship where the veteran served, the Air Force Reservists are now belatedly
being included as a veteran eligible for Agent Orange benefits. In short, as a
veteran, the Air Force Reservists should receive the same treatment as any
other veteran. This means that they should be accorded the same effective dates
as dictated by the Nehmer Order. VA’s current effective date in the Interim
Final Rule is arbitrarily determined as it affects this group of veterans.
III.
THE DEMANDS OF EQUITY REQUIRE RETROACTIVITY
Finally,
even if VA decides that the Nehmer effective date rules do not apply to the Air
Force Reservists referenced in the Interim Final Rule, it should still grant
the same retroactive dates on the basis of equity. As stated at the beginning
of this comment, Secretary McDonald considers this group of veterans a
“deserving group” and is thankful that VA “can now fully compensate any former
crew member who develops an Agent Orange-related disability.” Full and proper
compensation in this situation means, at the very least, benefits retroactive
to the date the veteran first filed a claim based on the veteran’s Agent
Orange-caused disease, just like other veterans subject to Nehmer.
VA
should not think about these veterans as if they are only now becoming
veterans. Rather, these veterans served decades ago in close proximity to Agent
Orange. As a result, many have suffering health, and some have lost their
lives. This Interim Final Rule is not an addition, but rather a correction.
Reservists actually served the United States. This is not new research
connecting a disease to Agent Orange exposure. This is a real human being who
really fought for the United States military, who was really exposed to Agent
Orange, on a real C–123 aircraft that unlike any ship, helicopter, tank, truck,
howitzer or M-16, actually tested positive for dioxin. Only the C-123. And only Operation Ranch Hand veterans and C-123 veterans are confirmed by the IOM as having been exposed. Dr. Jeanne Stellman of Columbia University reported to the Secretary of Veterans Affairs that C-123 veterans were less exposed than Operation Ranch Hand veterans, but more exposed than Vietnam ground soldiers.
These
aircraft were really used to dispense Agent Orange, and as a result contained
dangerous levels of the substance decades after deployment. During the Vietnam
era and far beyond, while our C-123s were still in use, every veteran serving
on those planes was exposed to dangerous levels of Agent Orange. When these
veterans flew in the affected C–123 aircraft our hands touched the sides of the
plane – covered in Agent Orange residue, their lungs breathed in the air – full
of Agent Orange-laden duty particles and vapor, and we digested Agent Orange
while eating.
Instead
of being cared for after exposure, these service members were told by VA at the
very last minute in its considerations after years of resistance on other
points finally resolved by the IOM but upon evidence in VA’s possession but
disregarded or suppressed for all those years, C-123 Reservists were suddenly
not considered veterans. VA now has an opportunity to remedy these missteps and
provide well-earned full compensation to this group of veterans.
This is
also the opportunity for VA to consider its years of inappropriate disregard
for confirmation of C-123 veterans’ exposure submitted to the Department by the
CDC/Agency for Toxic Substances and Disease Registry, the National Institute of
Environmental Health Sciences, the Department of Defense Joint Services Records
Research Center, and the US Public Health Service, as well as dozens of
independent, unpaid scientists and physicians forming The Concerned Scientists
and Physicians (Dr. Jeanne Stellman, Columbia, Corresponding Scientist.)
“Benefit of the doubt” and “resolving all doubt in favor of the veteran” are
obligations due veterans which have seldom been more severely abused than with
C-123 veterans’ claims. * * * * * We appreciate the opportunity to comment on
VA’s Interim Final Rule expanding the regulations to include an additional
group of men and women who volunteered to serve, performing their duties in the
Air Force or Air Force Reserve while facing the hazards of aviation service but
also under circumstances forcing regular and repeated contact with C–123
aircraft known to have been used to spray Agent Orange during the Vietnam era.
The
Interim Final Rule rightly extends benefits to our category of veterans.
Unfortunately, it also denies essential retroactivity of benefits. We look
forward to working with VA to serve the veterans who served the United States.
Respectfully
submitted,
For The
C-123 Veterans Association,
Wesley
T. Carter, Major USAF Retired
Chair
[1] VA News Release, VA Expands Disability Benefits for
Air Force Personnel Exposed to Contaminated C-123 Aircraft (June 18, 2015).
[5] IOM Report, Post-Vietnam Dioxin Exposure in
Agent Orange-Contaminated C-123 Aircraft (Jan.
9, 2015).
[7] The general rule is that “statutes operate
only prospectively, while judicial decisions operate retrospectively.” U.S. v. Security
Industrial Bank, 459 U.S. 70, 79 (1982).
[11] Nehmer v. U.S. Dep’t of Veterans Affairs, No. CV-96-6160 (N.D. Cal. May 14, 1991)
(Final Stipulation and Order).
[12] The original Nehmer order directed that
“the effective date for disability compensation or dependency and indemnity
compensation (“DIC”) . . . will be the date the claim giving rise to the voided
decision was filed . . . or the date the claimant became disabled or death
occurred, whichever is later. In
the event the basis upon which a claim for compensation benefits is granted
after readjudication is different than the basis for the original claim giving
rise to the voided decision, the effective date for beginning disability
compensation or DIC will be the date on which the claim asserting the basis
upon which the claim is granted was filed, or the date the claimant became
disabled or death occurred, whichever is later. For any claim for any such disease
which was not filed until after May 3, 1989, the effective date for beginning
disability compensation or DIC will be the date the claim was filed or the date
the claimant became disabled or death occurred, whichever is later.” Nehmer v. U.S. Dep’t
of Veterans Affairs, No. CV-96-6160 (N.D. Cal. May 14, 1991) (Final
Stipulation and Order).
[14] Nehmer v. U.S. Veterans’ Administration, Civ. No. 86-6160 (TEH) (Stipulation and
Order Setting Timetable for the Adjudication of 13,510 Diabetes Claims Under
the Parties’ 1991 Final Stipulation and Order, Jan. 10, 2002). A subsequent lawsuit, Liesegang v. Sec. of
Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002), bumped the effective date
of those who file claims between May 9, 2001 and July 9, 2001 to the earlier
date – May 9, 2001.
[15] A history of the Agent Orange Act is not
necessary in this comment, but it should be understood that, in general, the
Act established a presumption of service connection for diseases associated
with herbicide exposure and directed VA to prescribe regulations that a
presumption of service connection is warranted for a disease when a positive
statistical association exists between Agent Orange exposure and the occurrence
of that disease in humans. 38
U.S.C. § 1116.
[17] Blue Water Veteran Boat List, available
at, http://www.publichealth.va.gov/exposures/agentorange/shiplist/index.asp.
[18] Courts have repeatedly acknowledged, and
Congress has directed that VA act in the best interests of claimants whenever
possible. See, e.g., 38
U.S.C. § 5107(b) (directing that “the Secretary shall give the benefit of the
doubt to the claimant” when reviewing claims); 38 U.S.C. § 5108 (requiring the
Secretary to reopen disallowed claims when new evidence surfaces); 38 U.S.C. §
5103A (outlining Secretary’s duty to assist claimant in obtaining evidence for
a claim); see also Brown v.
Gardner, 513 U.S. 115, 118 (1994); United States v.
Oregon, 366 U.S. 643, 647 (1961) (recognizing that “[t]he solicitude of
Congress for veterans is long standing”); Hodge v. West,
155 F.3d 1356, 1362 (Fed. Cir. 1998) (“This court and the Supreme Court both
have long recognized that the character of the veterans’ benefits statutes is
strongly and uniquely pro-claimant.”); Trilles v. West,
13 Vet. App. 314, 325-26 (2000) (discussing “the pro-claimant environment
created by the general VA statutory scheme”).
[19] IOM Report, Post-Vietnam Dioxin Exposure in
Agent Orange-Contaminated C-123 Aircraft at
5-6 (Jan. 9, 2015).
14 August 2015
C-123 Veterans' Eligibility for Retroactive Compensation
The recent
decision in McKinney v McDonald recognizes both the ability, and the
obligation, of the Department of Veterans Affairs to provide retroactive
disability compensation for fact-proven military herbicide exposures of Vietnam-era
Active Duty and post-Vietnam Air Force Reserve C-123 veterans with diagnosis of
Agent Orange-presumptive illnesses. VA has the duty to provide retroactive
disability compensation per the date of claim by C-123 veterans.
Having
experienced a decade of close contact with resultant inhalation and ingestion
of the toxin, these veterans had a unique and damaging buildup in their livers
and adipose tissue. Multiple studies
establish that long-term low-dose TCDD exposures are more harmful than
short-term high-dose exposures due to the body’s accumulation over time.
The Institute of Medicine January 2015 report on C-123 Agent Orange exposures was clear: the
veterans were exposed. Input to the IOM from the CDC/Agency for Toxic
Substances and Disease Registry detailed the 200-fold greater cancer risk than
the screening value to these veterans as well as their having exceeded by
182-times screening level described in the US Army TG312. Further, CDC/ATSDR and IOM took note that the
exposures were per aircraft testing completed in 1994, whereas the C-123s flown
by Air Force Reserve units were exposing their crews 22 years earlier when the
contamination would have been much more intense, being decades closer to the
last Vietnam Agent Orange spray missions.
The Secretary of
Veterans Affairs has acknowledged the fact-proven C-123 veterans’ exposures, as
noted in the interim final rule:
“…this action results from a recent decision by the Secretary of Veterans Affairs to acknowledge that individuals who had regular and repeated exposure to C-123 aircraft that the United States Air Force used to spray the herbicides in Vietnam during Operation Ranch Hand were exposed to Agent Orange.”
Because exposure
to Agent Orange constitutes an “injury,” these Reservists qualify as having
active military service under 38 U.S.C. § 101(24). This conclusion is confirmed
by judicial precedent and by the VA’s own interpretation of the relevant
statute in a binding precedential memorandum from the VA Office of General
Counsel, including VAOPGCPREC 4-2002 holding that harmful “exposure to a
foreign substance” constitutes an injury under §101(24) and (2.) Further, OGC
in VAOPGCPREC 08-2001 recognized that illness or injury
recognized only post-service but clearly associated with ACDUTRA or INACDUTRA
also provide veteran status.
Recognition of
the Active Duty C-123 veterans’ exposures and injuries was appropriate and
therefore, so too their retroactive compensation. The interim final rule
obstruction of retroactive compensation for Reserve Component servicemembers was
based on the mistaken premise that they weren’t “veterans.” But this is in obvious
error, because Reserve Component servicemembers diagnosed with one of the Agent
Orange-presumptive illnesses are veterans per 38 U.S.C. 101(2) and the binding precedential OGC opinions.
Further, servicemembers with coincidental service-connected disabilities such
as hearing loss were already veterans per 38 U.S.C. 101(24)(B) and (C) and
thus, like their Active Duty C-123 counterparts, entitled to retroactive
compensation to date of claim receipt (or intent to file) by the Department of
Veterans Affairs.
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