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