What Does Secretary McDonald Need For C-123 Agent Orange Presumptive Eligibility?

Nothing. Everything is in place already for VA to act now to provide C-123 veterans Agent Orange presumptive eligibility. He should just hit the big red button to the right, and ACT NOW.

Nothing else required. No new law. No new legislation. No new regulations. No new rules.

Nothing. For many years, VA has had everything to do its job for C-123 vets, with far, far more effort put into blocking these veterans than in helping them.

For most of the C-123 veterans' needs, VA has all authority to begin providing care today. Perhaps some related issues such as veteran definition, BVA actions or other questions will need fine tuning via new regulation. Nothing that can't be resolved quickly.

The bulk of C-123 veterans need only VA's decision to obey the law and stop the improper blanket denial of all claims. VA can and should make that decision immediately.

The 1991 Agent Orange Act, Title 38, and VAM21-1MR are all in place and address our veterans' needs. VA even has repeatedly stated in the Federal Register that nothing else is needed – non-Vietnam veterans exposed to Agent Orange are provided presumptive eligibility.

Their 2010 Federal Register statement used the language "we wish to make clear" that exposed veterans will receive presumptive service eligibility, and with that, recognition of Agent Orange illnesses as line-of-duty illnesses. VA used the language "We therefore believe there is no need to revise the regulation..."

Mr. Secretary, no new rules are needed to make clear what VA has already made perfectly clear. Mr. Secretary, the VA Office of General Counsel already defined Reservists as "Veterans" under the law:

"The VA Office of General Counsel has held if the evidence establishes that an individual suffers from a disabling condition as a result of administration of an anthrax vaccination during inactive duty training, the individual may be considered disabled by an "injury" incurred during such training as the term is used in 38 U.S.C. §101(24). Consequently,such an individual may be found to have incurred disability in active military, naval, or air service for purposes of disability compensation under 38 U.S.C.§1110 or 1131. VAOPGCPREC4-2002,69 Fed.Reg.25176(2004).
In the VA Office of General Counsel opinion, the Veteran was a former member of the Army Reserve who received two anthrax inoculations during inactive duty training. The Veteran alleged suffering from chronic fatigue and chronic Lyme-like disease as a result of these inoculations. The General Counsel held that the Veteran may be considered to have been disabled by an injury in determining whether the member incurred disability due to active service. The General Counsel reasoned that inoculation with a vaccine involves the introduction of a foreign substance into the body and that, while the substance is intended to and generally does have a beneficial effect,adverse reactions,sometimes of a severe nature,may result. Additionally,the term "injury" in section 101(24) may be interpreted to include harm not only from a violent encounter but also from exposure to a foreign substance, such as a vaccine. The General Counsel found that the concept of "trauma," which is recognized as the cause of "injury," encompasses a broader definition that includes serious adverse effects on body tissue or systems resulting from introduction of a foreign substance. Thus, an adverse reaction to a vaccination may be considered an "injury" as that term is used in 38 U.S.C.§101(24). See VAOPGCPREC4-2002"

Mr. Secretary, there is no need to turn to Congress for legislation because VA has already told Congress no extra legislation is needed for VA to meet its responsibilities to C-123 veterans.

Veterans can take the VA at its word, especially when thrice-published to Congress and the public in the Federal Register. VA has made it clear that no new regulations are needed for C-123 veterans, as well as any other veterans, who have been exposed to Agent Orange to be treated for that exposure by the presumptive service connection.

VA has even added a little extra justification for recognizing C-123 veterans, perhaps the only step ever taken that helped these vets. Because some staffers in VA challenged the C-123 veterans' exposure and the bioavailability of the dioxin from the airplane, VA sought input from the Institute of Medicine which confirmed the airplanes' contamination and the veterans' exposure. And harmful effects of that exposure. First proposed in 2012 but canceled by VA, the study has made veterans wait another year to complete but is now in hand for VA to do what it should have done with the first C-123 veteran's claim in 2007.

In fact, VA lacks any regulation or rule permitting Compensation and Pension Service to deny all our claims as they now do, their blanket denial even though that phrase is not used. VA has no authority for refusing these qualified claims, especially now that Joint Services Records Research Center confirmation has been received.

Mr. Secretary, it is past time for that announcement you promised the Senate!

(VA's Federal Register post, 31 Aug 2010)