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.

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!

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.

(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)

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.

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

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).

[2] 80 Fed. Reg. 35246 (June 19, 2015).

[3] Id. at 35246.

[4] Id.

[5] IOM Report, Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft (Jan. 9, 2015). 

[6] 80 Fed. Reg. 35246 (June 19, 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).

[8] 38 U.S.C. § 5111(a); 38 C.F.R. § 3.31 (2014).

[9] Id.; Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).

[10] Id.; see also, Livesay v. Principi, 15 Vet. App. 165, 171–72 (2001) (en banc).

[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).

[13] 38 C.F.R. § 3.816(c).

[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.

[16] Nehmer v. U.S. Veterans’ Administration, 494 F.3d 846 (9th Cir. 2007).

[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).

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.

Air Force Association Seeks VA Support for C-123 Veterans' Agent Orange Claims

US Court of Appeals Denies Korean DMZ Veterans Retroactive Benefits. What About C-123 Vets??

The U.S. Department of Veterans Affairs can expand the group of veterans who are eligible for benefits due to Agent Orange exposure without making the change retroactive, a federal appeals court held Tuesday in McKinney v. McDonald. 

The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the Federal affects veterans who were stationed in the Korean demilitarized zone between July 1969 and July 1971 and cannot prove actual exposure to Agent Orange. As a result of the ruling, they became eligible for disability benefits on Feb. 24, 2011, even if they were disabled years earlier. That's the date VA published their rule, and VA fought making any benefits retroactive.

The effect on our C-123 quest for retroactive benefits is unclear, but the Court did make an important point: veterans with proven actual exposure are entitled to those benefits from the date a claim is filed. We have that proof...the IOM made its final report citing the Air Force tests over the decades proving the contamination, and scientists Drs. Lurker, Stellman, Berman and Clapp proved the exposure via ingestion and inhalation routes. This mass of evidence should satisfy the Court, and the VA, that C-123 veterans retroactive compensation claims are not blocked by McKenny v. McDonald.

Rather, retroactivity is explicitly provided!

Injuries Make Reservist a Veteran. Here's What BVA Said in Several Decisions

Summary of this Entry: An injury to a Reservist such as hearing loss or tinnitus which results in a disability rating from the Department of Veterans Affairs SHOULD convey veteran status permitting a service connection for Agent Orange-recognized illnesses resulting from exposures experienced at the same time as the hearing loss or similar injury. So, if an Air Force Reserve C-123 pilot receives a VA disability rating for hearing loss of 10%, or any other injury or illness, that disability makes him/her a "veteran" per the statute Therefore, VA's veteran-only Agent Orange benefits apply!

Here's what we lifted from BVA decisions on the matter:

To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Service connection may also be granted for a disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(22)-(24), 106(d), 1110 (West 2014); 38 C.F.R. § 3.6(c), (d), 3.303 (2014).Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a).Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system including sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d.)

Active Service Criteria for Veteran Status (from Congressional Research Service)
"Active service also includes a period of active duty for training during which the person was disabled or died from an injury or disease incurred or aggravated in the line of duty and any period of inactive duty for training during which the person was disabled or died from an injury incurred or aggravated in the line of duty or from certain health conditions incurred during the training.
From VA Adjudication Manual, M21-1MR, Part III, Subpart ii, Chapter 6

“Active
  service" includes active duty, or any period of active duty for training during which a person is disabled or dies from a disease or injury incurred or aggravated in the line of duty, or an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to, or returning directly from, a period of active duty for training, or any period of inactive duty training during which a person is disabled or dies from an injury incurred or aggravated in the line of duty, or acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training or while proceeding directly to, or returning directly from, such training. References:  For a definition of the term “active duty,” see 38 CFR § 3.6(b)

C-123 Vets Meet With Secretary McDonald

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

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

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

We're at the DAV National Convention (Denver) - waiting for Secretary McDonald's keynote presentation

Secretary Bob McDonald is the keynote speaker here in Denver at the DAV National Convention.
With his presentation at 9AM, America's veterans will learn more about the Denver VA hospital, physician recruiting, appointment times, and probably VA's financial travails.

More after his presentation!

VA awarding compensation for C-123 Agent Orange claims; First application granted in just 16 days!

(Veterans Affairs on their "Vantage Point" blog, 8/3/2015)

VA awarding compensation for C-123 Agent Orange claims

Acting swiftly, VA granted first claim in just 16 days

In 1997, 10 years after retiring from a 34-year career in the Army Reserve and Air Force Reserve, Edward Kosakoski was diagnosed with prostate cancer. Though his last assignment in the Reserve was as commander of the 74th Aeromedical Evacuation Squadron at Westover Air Force Base in Massachusetts, it was during the mid-1970s and early 1980s that Lt. Col. K was exposed to Agent Orange while flying training missions on several C-123 aircraft previously used for spraying the chemical defoliant in Vietnam.

Last week, VA service connected Col. K’s prostate cancer, awarding him compensation for his C-123 Agent Orange claim.

VA is acting swiftly to grant compensation to select Air Force personnel exposed to contaminated C-123 aircraft.

I’ve never met Col. K, but his story is captured in the claim file that his wife, Ingrid Kosakoski, filed on his behalf. That file shows a man who was drafted into the Army in 1953 and, after serving two years in France, had joined the Army Reserve, and who had received a commission in the Air Force Reserve after graduating from the University of Connecticut Pharmacy School in 1959. That file also shows that VA received Col. K’s claim prior to the recent regulation change.

After spending decades searching for proof of a connection between C-123s and the conditions known to be caused by Agent Orange, the Institute of Medicine issued a review that provided the supporting evidence VA needed to provide care and compensation to the Air Force and Air Force Reserve personnel who were exposed to Agent Orange through regular and repeated contact with contaminated C-123s and who also developed an Agent Orange-related disability.

When the regulation change took effect earlier this summer, it took VA just 16 days to grant Col. K’s claim. Granting this claim represents a welcomed success for hundreds of flight, ground maintenance, and medical crew members who were assigned to certain Air Force and Air Force Reserve units from 1969 to 1986.

“I have only praise for the VA personnel who handled Ed’s claim in Baltimore and St. Paul,” Ingrid said. “They were professional and compassionate, and I would urge others exposed to Agent Orange with known disabilities to file claims as soon as possible.”

In a recent phone conversation, longtime C-123 advocate and close friend of Col. K, Wes Carter, also stressed the importance of not waiting.

“The Secretary and his staff have worked hard, along with C-123 veterans in getting to this point,” said Carter, who also chairs the C-123 Veterans Association. “VA is ready and eager, already reaching out and helping our aircrews and maintenance personnel who are ill.

“This is the time for C-123 Veterans to get their claims to VA if affected by any of the Agent Orange-associated illnesses. Call the C-123 hotline at 1-800-749-8387 for any questions. I also recommend that vets ask their local VA medical center’s environmental health coordinator for an Agent Orange Registry exam.”

If you or someone you know was exposed to Agent Orange (whether in in Vietnam or its inland waterways, an area the Department of Defense has confirmed use of AO, or as in Col. K’s case aboard a C-123) AND you have a condition presumed to be related to AO, please file a claim for compensation.

If you need help filing a claim or want to talk to someone, you have many options:

• Speak with an accredited Veterans Service Officer who can help you gather records and file a claim online
• Call VA at 1-800-827-1000 for advice
• If you want the fastest decision possible, consider filing a Fully Developed Claim throughebenefits.va.gov. An FDC allows you to submit all your evidence up front, identify any federal records for VA to obtain, and certifies that you have no other evidence to submit.
• You can also complete a Disability Benefit Questionnaire with the help of your doctor

If you (or your loved one) meet certain conditions, such as financial hardship, advanced age, or terminal illness, VA can expedite your claim – just make sure we are aware of your situation. You or your VSO can notify us in writing, or by calling 1-800-827-1000. If your situation is dire, don’t wait!