[T]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006)
20 February 2024
15 February 2024
VA proposes vast new coverage for non-Vietnam Agent Orange exposures. We offered comment on the new regulation.
AR10-Proposed Rule-Adjudication Regulations for Disability or Death Benefit Claims Related to Exposure to Certain Herbicide Agents
COMMENT BY THE C-123 VETERANS ASSOCIATION:
We commend the Department of Veterans Affairs for advancing benefits to affected veterans in this manner and, on the whole, this change is comprehensive and in accord with current law and regulations. There are some flaws. This proposed regulation is not in accord with numerous earlier entries by VA regarding non-Vietnam Agent Orange exposures
The proposal fails to reference prior commitments made in the Federal Register by VA on this issue. The Department repeatedly assured Congress over the decades that every veteran who did not serve in the Republic of Vietnam but was exposed to Agent Orange during active military service would, upon proof, be offered presumptive service connection for the list of diseases associated with that herbicide. (see Federal Register Vol. 66, No. 89, May 8, 2001 and Vol. 73, No. 74 April 16, 2008 and Vol. 75, No. 168, August 31, 2010). It never met this obligation and denied virtually all such claims.
When affected veterans sought presumptive service connection, even when citing VA promises in the Federal Register, the Department’s Veterans Health Administration Post-Deployment Public Health Section and its Agent Orange Veterans Benefit Administration Agent Orange Desk blocked claims specifically because exposed veterans lacked Vietnam service or, in some cases, because veterans failed to scientifically prove an exposure plus subsequent “bioavailability.” Per the Federal Register entries, proof of exposure alone was all that was required. Redefining the concept of exposure to require “bioavailability” was never in accord with any law or regulation dealing with veterans and Agent Orange. Rather, it was an unofficial office policy. It was also bad science.
VA denying the fact of an exposure by also requiring proof of bioavailability was deceptive. Bioavailability is a related but separate concept in toxicology, as confirmed by the Director, National Institute for Environmental Health Sciences. Specifically addressing VA using the issue of bioavailability to deny Agent Orange exposure claims, she wrote, “In all my years as a toxicologist, I have never heard bioavailability as part of the exposure definition.”
The Department’s failure with firm commitments first made in 2001 has been to the great disservice of affected veterans and their families. VA repeatedly assured Congress that it needed no new legislation or revision to regulations to meet its obligation. VA withstood Congressional concern with Agent Orange claims for veterans’ exposures outside the Republic of Vietnam using deceptive assurances while at the same time denying virtually all such claims. The Federal Register must account for earlier entries from the Department of Veterans Affairs in its submission of this newer regulation or else muddy the Register’s historical record. Clearly, “exposure” was the sole requirement for presumptive service connection, yet VA failed to honor the three assurances made to Congress. Cited below is the Federal Register Vol. 66, No. 89, May 8, 2001, the first of these failed assurances:
“…if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e).”
Respectfully submitted,
The C-123 Veterans Association
09 February 2024
BULLETIN: VA to ease benefits rules for exposures to Agent Orange in the US
VA eases rules for exposures to Agent Orange in the US
Thousands of veterans exposed to Agent Orange while serving in the United States will for the first time be eligible for fast-track disability benefits under plans unveiled by the Department of Veterans Affairs on Friday. As readers of this blog are aware (and as the new rules reiterate,) C-123 veterans are already considered presumptively exposed to Agent Orange and eligible for full veterans' benefits thereby. This coverage dates from June 2015.
Over the last two years, a combination of administration moves and new legislation opened access to disability benefits for millions of veterans who incurred injuries from burn pit smoke, radiation contamination and other military toxic exposure events.
In a statement, VA Secretary Denis McDonough said the proposed moves “would make it easier for veterans exposed to herbicides who served outside Vietnam to access the benefits they so rightly deserve.
“Our goal is to provide every veteran of every era with the VA health care and benefits they deserve, and this is another step in the right direction,” McDonough said.
Rules outlining the change were filed in the Federal Register on Friday, and will still take several months before going into effect. The new proposal would give presumptive benefits status to veterans who served in “locations where herbicides were tested, used, or stored outside of Vietnam.”
That includes military locations in 12 states — Alabama, Arkansas, Florida, Georgia, Indiana, Maryland, Mississippi, Montana, New York, Tennessee, Texas and Utah — where Agent Orange was present in the 1940s, 1950s, 1960s and 1970s. A full list of the specific states and times is available on the VA website.
The rule would also cover troops stationed at Canadian Forces Base Gagetown in New Brunswick, Canada, in June 1966 and June 1967; individuals stationed in Kumbla, India, in 1945 and 1946; and expanded timelines for troops who served in Cambodia, the Johnston Atoll, Guam, American Samoa, Korea, Laos, and Thailand during the 1960s and 1970s.
A full list of these foreign locations is also available on VA websites.
Troops who served in Vietnam between January 1962 and May 1975 — either on the ground or in waterways around the country — already qualify for presumptive benefits status by the department because of Agent Orange exposure.
The toxic defoliant has been linked to a host of cancers and heart illnesses. Presumptive status means that individuals who develop certain illnesses believed caused by the chemicals do not have to document specific instances where they were exposed, but instead only provide service records showing they were in the area (or the C-123 unit) to be presumed contaminated.
As a result, advocates have pushed for broader use of presumptive status for troops who served around toxic chemicals while in the military but may not have been able to document every instance of exposure because of records lost over the years.
More information on Agent Orange presumptive benefits is available on the VA website.
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