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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