[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)
Reference VA Form 526EZ disability claim form.
I hadn't noticed but Veterans Benefit Administration now includes C-123 veterans in their Agent Orange exposure section. BTW: if you haven't checked with VA for their full range of toxic exposure disabilities, do so NOW!
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| VA 526EZ, Section IV EXPOSURE INFORMAON |
Our association has posted a second response to the proposed new VA regulation covering veterans' hazardous exposure issues. (First response here.)
The proposed regulation does much to address a wide range of exposure locations and does finally address members of the Reserve Components. It does not mention three earlier failed assurances by the Department of Veterans Affairs in the Federal Register that it would care for veterans who did not serve in the Republic of Vietnam, but were exposed to herbicide agents. Pages from the Federal Register are attached (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.)
Instead, Veterans Benefits Administration took steps to insure veterans were refused all care and benefits they should have received for their exposures, dishonoring VA responses published in the Federal Register.
Between 2001 and 2010, the Department of Veterans Affairs proposed important regulatory changes in the care offered veterans exposed to military herbicides. Responding to public concern for veterans exposed in situations outside the Republic of Vietnam, in three separate and deceptive answers, the VA specifically said no regulatory changes were needed or would be made because:
"If a veteran who did not serve in the Republic of Vietnam, but was
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)).We therefore believe that there is no need to revise the regulation based on this comment."
By implication, these three deceptive VA responses it also assured Congress that no legislation would be necessary for protection of the affected veterans because the VA had already arranged to offer the same full range of exposure benefits provided Vietnam War veterans.
VA was deceptive between 2001 and 2015 in that, despite assuring the public and Congress that veterans exposed to military herbicides would receive benefits, it instead routinely refused to honor virtually all such claims. A VBA physician and Agent Orange subject matter expert with the "Agent Orange Desk" stated to the Associated Press, "We have to draw the line somewhere."
The C-123 Veterans Association believes any such "line" may only be drawn in accord with law and regulation, not the preference of VBA staffers determined to block veterans' valid herbicide exposure claims.
VA Regulation M21-1 required it check with the Joint Services Records Research Agency for support of non-Vietnam exposures, but then refused confirmation when offered unless the Agent Orange Desk first requested such confirmation. In many instances, the Agent Orange Desk either refused to make such a request or wouldn't accept JSRRC confirmation even when offered.
This is not ancient history. Veterans and their families were assured of exposure benefits by theVA with empty, dishonored promises made in the Federal Register but were denied those benefits. Note must be made as VA seeks to publish this newest regulation to address earlier failures and deceptions on the same subject.
Respectfully submitted,
W. Carter, The C-123 Veterans Association
