A Quarter Century of VA Disability Claims: 25 years of hard lessons

A brief narrative of interest to others dealing with environmental hazards and the VA

Looking back, if I’d known how long and how hard a VA disability claim was going to be, I can’t say whether I’d have the resolve to see it through. I served in the Army and Air Force for 26 years. Only this month...October 2017...have I received VA’s final adjudication of disability claims I began submitting in 1992. Finally, 26 years after hanging up my flight suit the last time, VA seems to have finished addressing my cancers, spinal cord injuries, 21 operations, heart attacks, Agent Orange exposures plus life’s` miscellaneous little ailments, boo-boos and maladies.

First lesson: thank goodness my family and I, unlike so very many veterans, didn’t find ourselves dependent on the VA for medical care and income because that help wouldn’t materialize for many years. My Air Force disability board and retirement as a major was completed in what now seems light speed only a year after leaving Bethesda Naval Hospital in 1992 following the Gulf War. We were also blessed with ample pre-war civilian retirement and investments...we were so lucky compared to young troops disabled before having a chance to establish themselves financially. My lesson has been awareness of how financially precarious sudden military injuries leave a family. It is a bleak picture.

The rest of the lessons:

Timeline: C-123 Agent Orange Issue, 1972-2017

A PARTIAL VICTORY: Retroactive C-123 benefits for claims AFTER June 19, 2015!

ARE YOU A C-123 VETERAN WHO FILED AN AGENT ORANGE CLAIM AFTER JUNE 2015 BUT YOUR ILLNESS WAS DIAGNOSED BEFORE THEN?

Most likely, the VA started your disability compensation effective on the date you filed, not when you became ill. That may have cost you months or years of lost compensation.

I think I found a solution to recover those lost months and years of compensation, based on language a BVA veterans law judge used in a recent C-123 decision. There is a way to backdate to June 2015 some or all of the compensation due you.

Once it finishes processing an application, the VA provides disability compensation for claims based on the date filed. Many of our C-123 veterans were diagnosed with Agent Orange related illnesses before the VA rules took effect for us on June 18 2015.

Many of our vets submitted claims after that date but have Agent Orange illnesses diagnosed before then. In that situation, there is a way you can argue for compensation not based on whenever you filed after June 2015 but instead, all the way back to the June 2015, for a maximum of twelve months compensation. As an example, twelve months of prostate cancer at 100% is over $30,000, so you'll want to consider this carefully with any claim submitted after June 2015.

Read the following paragraph (taken from a C-123 retroactive compensation decision) very carefully.  1. Note that it specifies Agent Orange illnesses diagnosed prior to the date of the liberalizing law VA used to grant benefits, which for C-123 claims is June 19 2015.
2. Also, that illness must have been evident from the diagnosis to the date whenever you filed. If your prostate cancer was diagnosed in 2011 and cured in 2014, this won't apply to you. If, however, you remained on "watchful waiting" up to June 19 2016 and beyond, this rule could apply. Same thing for any of the other Agent Orange illnesses like diabetes, IHD, peripheral neuropathy, etc.
3. If your claim was submitted after June 19 2016, and your diagnosed illness continued from before June 18 2015 to the date your claim was filed, say June of 2017, could argue retroactivity only to June 19, 2015. That is because VA limits this situation to one year of back pay.

However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. Id.

I'll summarize:.

1. This is for claims for illnesses diagnosed before June 18 2015 and continuing to the date a claim was submitted to VA.

2.  VA limits this retroactive compensation to one year. If you filed after June 2016 or any later date, you may be eligible for one year of retroactive compensation.

If you think this may apply to you, please discuss with your veterans service organization...you will probably have to bring them a clipping of the paragraph I quoted from the C-123 award.

Attn: C-123 vets with Agent Orange claims before June 18, 2015

Read the old VVA press release below! In early 2015 the President of the Vietnam Veterans of America, John Rowan, insisted VA treat C-123 aircrews and maintainers as VETERANS with full Agent Orange disability benefits. But the best VA would do is cover claims from June 18 2015 forward, not back to date filed. A partial but welcome victory.

Now we finally have two possible approaches to fix that and recover what is due. That's why I've been trying to get the name, telephone and SSAN of everyone who filed claims for Agent Orange illnesses prior to June 2015. VVA is helping by putting the word out on their web site. WE NEED YOUR HELP TO HELP YOU: CONTACT WES CARTER IF YOU'RE ONE OF THESE VETS, and get the word to our crewmates to do the same. A major law firm is providing pro bono help to us.

The lawyers are doing this for free, just as they did the C-123 claim settled on October 12 that awarded our comrade over four years of his 100% disability the VA owed...you can do the math!! (P.S.: $2,950 x 48 = $141,000.)

Spread the word, please. All I need is the name, year the first claim was filed, email and phone, and Social Security or VA claim number.

YOU CAN DO THIS – it wraps up six years of my hard work on your behalf and I want to do something else with my life!

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

C-123 vets sue for USAF line of duty determination

Yesterday afternoon C-123 veterans filed suit  in the US District Court of Washington D.C., seeking USAF line of duty determinations (LOD) to recognize our Agent Orange exposures. We are represented by the firm of Perkins Cole LLP of Washington, D.C.

The military LOD is vital in protecting veterans' disability benefits from the Department of Veterans Affairs.

Retroactive Disability Compensation: Today We WON!

–TODAY C-123 VETS WON A BIG ONE FROM THE VA! –

NOTE: I NEED TO HEAR FROM ALL C-123 VETS WITH CLAIMS SUBMITTED PRIOR TO JUNE 2015!

C-123 veterans have been barred from disability compensation for our Agent Orange claims
submitted prior to June 2015. That's when the VA finally started honoring our claims but not going back to the date submitted for those of us who filed before VA's June 2015 decision. TODAY WE BEGAN TO CHANGE THAT AND GET OUR BACKDATED BENEFITS!

The VA's Board of Veterans Appeals, acting on a vet's C-123 claim first submitted back in 2011, on Thursday approved his appeal that sought retroactive benefits to the date first filed, thus picking up four years of retroactive disability compensation due him.

How was this done? I'd read about the restrictions on retroactive benefits with liberalizing rules and was a party to the negotiations with Secretary McDonald that left us so dismayed by loss of benefits for which we'd waited years.

An idea formed: I'd also read that reservists with line-of-duty injuries can achieve legal veteran status. It was easy to find a couple citations on the BVA web site, so it seemed possible to anchor a C-123 Agent Orange claim or appeal with a C-123 hearing loss disability. The claim would be on a "fact-proven" basis because VA already recognizes our exposures and there would be no need for the liberalizing rule to convey veteran status via presumptive service connection. We owe sincere thanks to the C-123 pro bono team (Chicago and Denver) at Faegre Baker Daniels, plus the National Veterans Legal Services Project for their input.

Most of us have some hearing loss, and this particular vet had earlier submitted a straightforward hearing loss claim, earning the small disability VA typically grants for hearing loss and tinnitus, based on the vet's flying activities. Those activities included C-123 duty, so the hearing loss triggered legal veteran status during the 1972-1980 period he was also being exposed to Agent Orange.

With legal veteran status established by his hearing injury, the Agent Orange illnesses for this vet simply became additional illnesses that VA covered.

Although this particular vet was already 100% disabled for other issues besides Agent Orange, if he hadn't already been receiving a VA check this decision would give him compensation from 2011 to June 2015, or about $110,000...serious pocket change, indeed! His claim was meant to be our association's "poster-child" claim to try to pave the way for others.

What's this mean for you? If your claim was submitted to VA on or after June 19, 2019, nothing. If it was submitted before and you are neither retired military nor already on VA disability, it means your claim can be appealed, or re-appealed, citing this decision, so long as you have a claim you can also make for hearing loss or some other disability. BVA decisions don't set precedent, but VA administrative law judges do give them great weight on similar claims.

I emphasize the issue of hearing loss...most flyers (or infantry, artillery, EOD) have it to some degree. Many of us have tinnitus, for which there is no test and a veteran need only state that ringing in the ears has become a problem. That hearing loss (or any other LOD injury) having its origins back in our C-123 days, is a disability that satisfies the law's requirements for full legal veteran status...and opens the door for your Agent Orange claim being backdated!

This appeal is in my Facebook NOTES section and HERE IS THE ACTUAL DECISION

BVA Screws Up Another C-123 Vet's Appeal?

It looks like BVA has trampled over the facts of another veteran's appeal.

In early August 2017, a denied claim was reconsidered by the VA Board of Appeals in West Virginia. The vet claimed service connection for Agent Orange exposure during his assignment to the 327th Tactical Airlift Group at Lockbourne. BVA determined that the vet wasn't exposed to C-123 Agent Orange contamination because the 317th "was nor recorded as having operated or maintained  the ORH (OPERATION RANCHHAND) C-123 aircraft."
EXCEPT: The 317rh did fly assigned C-123 transports!

A two-second Google search showed that the 317th was assigned C-123 transports between 1969-1971,

"Further, the Board's previous remand directed the RO to determine whether the Veteran serviced Operation Ranch Hand (ORH) C-123 aircraft during his military service, which are affected aircraft under the regulation. The RO determined that the Veteran was stationed at one air base, Lockbourne Air Force Base, where ORH C-123 aircraft were stationed while the Veteran was present. However, the Veteran's assigned squadron, the 317th Air Lift Group, was not recorded as having operated or maintained the ORH C-123 aircraft, and he thus was not found to have regularly and repeatedly operated or maintained affected aircraft under the regulation. Therefore, this case turns on whether the Veteran was exposed to herbicide agents as a result of his military service in Thailand."

Stations[edit]
Tachikawa Airfield, Japan, 18 August 1948 - c. 21 September 1948
Wiesbaden Air Base, Germany, c. 30 September 1948
Celle RAF Station, Germany (later: West Germany), 9 January – 14 September 1949
Rhein-Main Air Base, West Germany, 14 July 1952
Neubiberg Air Base, West Germany, 17 March 1953
Évreux-Fauville Air Base, France, 17 April 1957 – 25 September 1958; 15 April 1963 – 20 June 1964
Lockbourne Air Force Base, Ohio, 20 June 1964
Pope Air Force Base, North Carolina, 31 August 1971 – 20 August 1993
Dyess Air Force Base, Texas, 1 April 1997–present
Aircraft[edit]
C-47 Skytrain, 1942–1948
C-46 Commando, 1948
C-54 Skymaster, 1948–1949
C-119 Flying Boxcar, 1952–1957, 1957–1958
C-130 Hercules, 1957–1958, 1963–1964, 1964–1971, 1971–1993, 1997–2012
C-124 Globemaster II, 1963–1964
C-123 Provider, 1969–1971.
Lockheed Martin C-130J Super Hercules, 2010–present

Luckily, this vets' appeal was approved on other justification, but everyone involved let the vet almost get denied. BVA should have checked as should VFW, WHO REPRESENTED THE VETERAN!!

Our C-123 Philosophy:– but is it the VA's?

“[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).

VA DECEPTIONS USED TO DENY C-123 AGENT ORANGE CLAIMS, 2011-2015

   Every C-123 Agent Orange claim ever submitted was denied until June 2015, but still, VA insisted it had no blanket denial policy. How else are ten years of 100% denials described? With instructions like the examples below, there clearly was an official blanket denial policy. This denied Due Process, misled Congress when it tried to help us, ignored VAM21-1MR and provisions of US statutes and Federal Regulations. It was deceptive and an amazing abuse of discretion.

    Look at the following list of promises of case-by-case consideration. All of them, however earnestly offered, are shown to be false in the memo authored by VBA's Agent Orange expert, Mr. James Sampsel. He wrote, "If we were to adopt a case-by-case plan, an additional problem would be how to determine whether a particular post-Vietnam C-123 crew member was flying stateside on a former Ranch Hand aircraft." 

    See the point? He's discussing VA adopting a case-by-case plan, making it clear VA never had one! Why? Because VBA wanted to avoid the "slippery slope" his memo warned of.

VA has the means to punish veterans making false claims, but veterans have nothing except outrage to deal with VA's abuse of discretion and false promises.

      – FALSE VA PROMISES OF PROPER C-123 CLAIMS  –

"Scouts' Honor?"

• "All claims are considered on a case-by-case basis." – former Secretary Shinseki

• "All claims considered on case-by-case basis." – Under Secretary Hickey

• "All claims are evaluated on a case-by-case basis." – VA Office of General Counsel

• "All claims are considered on a case-by-case basis." – VA Deputy Chief Consultant Post-Deployment Health

• "Claims accepted and reviewed on case-by-case basis." – Federal Register (VA per Dr. Terry Walters), May 11, 2011, December 26, 2012, May 23, 2014

• "Makes a case-by-case determination..." – VA Office of General Counsel

• "Evaluations...conducted on a case-by-case basis." – VA response to Senate Veterans Affairs Committee

• "VA decides these claims on a case-by-case basis." – VA C-123 Agent Orange web page

• "These claims will be decided on a “case-by-case basis" – VA Agent Orange consultant

• "All claims are evaluated on a case-by-case basis.” – VBA Director Compensation & Pension Service

    • "Claims are evaluated on a case-by-case basis." – VA Public Affairs

   – FALSE EXCUSES VA CITED TO DENY C-123 CLAIMS –

"I cannot tell a lie!...except about C-123s"

     VBA informed regional offices how to deny all claims, and when ROs asked CS for they were told how to deny C-123 claims (VBA and VHA leaders made similar statements.)
     Every one of these was eventually shown to be in error, yet VA has never made right the harm done affected veterans.

•  "Therefore, there was no exposure"

• "We have to draw the line somewhere" 

•  "VA has an overwhelming preponderance of evidence against exposure"

• "Comp Svc has never had a policy of supporting such "remote" or  "secondary" AO exposure"

•  “VHA has already informed CS that no C-123 exposure claims will be approved because there was no exposure” (Mr. Tom Murphy to Wes Carter and Major Marlene Wentworth, NC USAF on 28 Feb 2013, in his office)

•   "No amount of proof from whatever source will permit a C-123 claim approval. Because we've already determined there was no exposure." (Dr. Mike Peterson VHA to Wes Carter and Mr. Brooks Tucker [Senator Burr's staff] at Senate Hart Building meeting, May 2012)

•  "TCDD in post-Vietnam C-123s cannot be absorbed by the human body in any significant amounts and there is no scientific evidence for long-term health effects from such 'exposure' "

•   "Preponderance of scientific evidence does not support TCDD “exposure” in post-Vietnam aircraft and VA laws and policy do not generally support service connection on this basis"

•   "VHA and independent scientists have stated that this solidified TCDD could not be absorbed by the human body and could not cause long-term health effects"

•   "There is no legal basis for providing this disability benefit and insufficient scientific evidence to establish long-term health effects from any such 'remote' exposure"

•  "VA does not recognize such 'secondary' or 'remote' exposure to Agent Orange"

•  "VA regulations do not allow us to concede exposure to herbicides for Veteran's who claim they were exposed to herbicides after the Vietnam war while flying in aircraft used to spray these chemicals"

•  "Evidence was found not to be competent and sufficient in this case to establish a link or nexus between your medical condition and military service or to establish that such a link has been found by a medical professional

•  "No 'presumption' or 'acknowledgment' of exposure to AO based on indirect, secondary, or remote contact with aircraft or equipment previously used in Vietnam"

• "The majority of scientists on record, including those with VHA, state that any solidified TCDD in post-Vietnam aircraft is not active in the environment and cannot biologically enter the human body in any significant amount; therefore no TCDD 'exposure' "

•  "VHA's medical expertise on lack of evidence for long-term health effects speculative evidence for "high levels" of exposure from his supporters (CDC/ATSDR, NIH, USPHS, NIEHS, Committee of Concerned Scientists & Physicians) who are not qualified to provide the medical nexus"

•  "The potential for exposure to Agent Orange and TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially zero.

•  “C-123 vets are 'Trash-haulers. Freeloaders looking for a tax-free dollar. I have no respect.'"

• "The potential for exposure to TCDD and subsequent development of any adverse health effects from flying in potentially contaminated C-123 aircraft years after the Vietnam War is essentially nonexistent. As a result, there is no scientific basis for VA to establish the  presumption of Agent Orange exposure among this group of Veterans."

• “The overwhelming preponderance of evidence is against such exposures, including a VHA website specifically stating such exposure could not have occurred” 

•  “Please tell veteran. "We are unable to verify or document that aircrew members were exposed to Agent Orange, resulting from Agent Orange residue or dioxin-contaminated aircraft or aircraft parts. Although residual TCDD. the toxic substance in Agent Orange, may be detected in C-123 aircraft by sophisticated laboratory techniques many years after its use, the Office of Public Health concluded that the existing scientific studies and reports support a low probability that TCDD was biologically available in these aircraft. “Therefore, the potential for exposure to TCDD from flying or working in contaminated C-123 aircraft years after the Vietnam War is unlikely to have occurred at levels that could affect health."

• “Veteran failed to prove his airplanes were the ones used in Vietnam

• “There is (no) evidence of exposure to herbicides during military service.”

•  "The C-123 veterans are not currently eligible for compensation"

•  "There was no exposure. (Consultant representing VA at June 2014 IOM C-123 hearing)

• "Current scientific review indicates that any residual herbicide in the post-Vietnam C-123s cannot be absorbed by the human body or cause long-term health effects."

•  "VA laws and policies related to Agent Orange exposure, whether presumptive or based on fact-found evidence, address exposure contact that occurs during the actual spraying or handling of the dioxin-containing liquid herbicide"*


• "TCDD is believed to persist in the metallic (or painted) environment with the lack of direct sunlight; however, its exposure risk is low due to lack of bioavailability and possible routes of exposure."

• "Therefore, it can be concluded that crews who worked on C-123 aircraft after they were used in the Vietnam War were not at risk of developing TCDD/Agent Orange-related health effects"

• "The scientific evidence available to establish a medical nexus in these cases is limited and the VA Office of Public Health has provided a medical opinion that it is insufficient to establish the required nexus. While your letter**focuses on the issue of potential dioxin exposure, it does not offer an opinion on the medical nexus issue nor does it address the potential for long-term health effects or disabilities resulting from service on the post-Vietnam C-123 aircraft."

    –––––––––––––––––––––––––––––––––––––––––––––––

* Liquid Agent Orange only? A novel concept, but an outrageous one in toxicology. Agent Orange and its contaminant TCDD are deadly as a liquid, gas, solid or anything in between. The IOM concluded that, despite VA's "liquid" slight-of-hand. C-123 veterans were exposed via dermal, inhalation and ingestion routes of exposure.
** Mr. Murphy references the letter to Secretary Hickey from the Committee of Concerned Scientists and Physicians, which sought to satisfy the legal and scientific requirements for veterans' Agent Orange benefits per 38 USC and the VA's three eligibility statements in the Federal Register, i.e. exposure alone.

    ––––––––––––––––––––––––––––––––––––––––––––––––

• Here is VA's first position statement from April 2011 addressing C-123 exposure inquiries. 

• The first point is correct: at that time, only Vietnam veterans had "presumptive exposure." The law was that other claimants would have to prove exposure on a fact-proven basis as we proceeded to do.

• The next four VA points were either disproved by the IOM or, with the third point, clearly CUE.