March was a lucky month for one 439th maintainer, a C-123 veteran whose claim for Agent Orange-related diabetes was granted back in 2015 BUT who wisely pressed further.
His persistence was recognized in January by the VA Board of Veterans Appeals. In Citation A21006352 BVA backdated his claim by a year and gave him twelve more months of retroactive compensation.
You might remember that VA granted C-123 vets our Agent Orange presumptive benefits in June 2015. The legal process was called a "liberalizing regulation," and ordinarily there is no retroactive compensation possible for claims ...almost all C-123 claims date from June 19 2015 on.
But not our happy maintainer! He took advantage of VA making a "clear and unmistakeable error" in his initial claim, and often when a CUE is involved, many date restrictions are waived in the interest of fairness to the veteran.
Here's the judge's reasoning about the diabetes, the C-123 and the disability claim:When C-123 related exposure occurs during reserve or guard service during a period of non-active duty, the effective date is June 19, 2015, the date 38 C.F.R. § 3.307 (a)(6)(v) became effective, which is what allows VA to consider C-123 related herbicide exposure as an “injury” thereby allowing service connection. The law under 38 C.F.R. § 3.307 states 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 C.F.R. § 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.When C-123 related herbicide exposure occurs during a period of active duty, regular effective date rules apply under 38 C.F.R. § 3.400, because herbicide exposure is being conceded and applied under 38 C.F.R. §§ 3.6, 3.309 (a), and 3.307 (a)(6)(iii) & (iv).
In the October 2015 rating decision, the RO recognized the Veteran’s exposure to C123K aircraft while stationed at Westover Air Force Base as part of the 439th Tactical Airlift Wing and working as an aircraft maintenance specialist in the Air Force Reserves from July 18, 1979 through September 3, 1981, based on military personnel records. However, the RO erroneously failed to apply 38 C.F.R. § 3.400 (b)(2)(ii), which provides the effective date is the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later.
A review of the evidence of record reflects that on February 24, 2014, the Veteran filed both a formal claim for service connection for diabetes mellitus due to Agent Orange exposure. Military personnel records added to the Veteran’s claims file in March 2014 reflect that the Veteran was assigned to 436th Original Maintenance Squad as an aircraft mechanic during his military service. An April 2013 VA examination report reflects a diagnosis of diabetes mellitus, which was confirmed in November 2013. See Capri, June 2013; Medical Treatment Record-Non-Government Facility, February 2014. Additionally, the evidence of record contained documentation, provided by the Veteran, showing contaminated C-123 located at Westover AFB being worked on by servicemembers assigned to 439th.
It is undebatable, that at the time of the October 2015 rating decision, 38 C.F.R. § 3.400 (b)(2)(ii) was applicable and the regulation providing a presumption of exposure to herbicide was in effect.
The correct facts, as they were known at the time, were before the RO in October 2015, the regulatory provision then extant was not applied, and the failure to correctly apply the regulation manifestly changed the outcome of the October rating decision. This is not a case of a claim for retroactive benefits but rather the direct application of regulations in effect and evidence of record at the time of the decision. The criteria for service connection was satisfied. The record had evidence of a diagnosis of diabetes in April 2013, and the regulation establishing the presumption of exposure which established an injury during Reserve duty that is presumed to have been caused by that exposure.
The Board finds that the clear and unmistakable error of law committed by the RO in the October 2015 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the error not been made and the effective date of February 24, 2014 (the date VA received the claim) would have been assigned. Therefore, the Veteran’s request for revision is granted and the October 2015 rating decision is revised to reflect an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus II associated with herbicide exposure.
