VA Secretary McDonald's March 17 Memorandum on C-123 Agent Orange Veterans

We haven't seen it but have had references from various sources. We've heard enough to be disappointed.

We'll have faith that the Secretary of Veterans Affairs meant for VA to respond effectively to C-123 veterans, but his Office of General Counsel (OGC) has been very effective in preventing any impact that matters.

Apparently responding to the January 8, 2015 report to the Secretary by the Institute of Medicine C-123 Agent Orange Committee, Secretary McDonald has issued a memorandum summing up the VA reaction and plan going forward, but his plan was created by OGC in defiance of the committee set up by the Secretary to recommend his response. The committee recommended a much more reasonable course, but the OGC felt it best to prevent veterans' care with their own plan.

Our first response to the Secretary's action is that we're grateful that the memorandum acknowledges the IOM report, and concurs with its finding of exposure and harm to the C-123 aircrews and maintainers.

Our next response is one of bewilderment. While the VA now agrees we were exposed and harmed flying the former Agent Orange spray aircraft, the Office of General Counsel developed its extra-legal approach which prevents any medical care or benefits. Widows, widowers and disabled vets whose claims have been in for years are blocked from any VA care.

How? By the OGC decision to limit service connection from March 17 going forward, and just to those Reservists who happened to develop their prostate cancer over the weekend duty. By limiting all benefits to Reservists whose ALS developed during their two-week annual training. By limiting benefits to Reservists whose soft tissue sarcomas, or any of the other recognized Agent Orange illnesses, developed during, and only during, their Reserve duties.

But there likely aren't any aircrew or maintenance personnel affected by the Secretary's memorandum because science and medicine know perfectly well these Agent Orange illnesses take decades to manifest themselves. Thus VA yields nothing, concedes nothing. Cares about nobody. Saves VA money.

We've learned that VA's OGC approach endangers today's Guard and Reserve forces. Reserve Component volunteers who deploy on some hazardous situation in which they are exposed to horrible diseases such as ebola and return to civilian status when the mission has been completed, will be refused care and benefits from the VA when the disease completes its two week incubation period and the Reservist is struck with horrible illness.

VA has responded to the four year C-123 thorn in its side with courtroom adversarial lightning bolts. VA found a clever way to say "We care" while simultaneously preventing care for all C-123 veterans as well establishing a new and magnificent barrier to all future pesky Reserve Component disability claims.

Dengue fever, malaria, ebola, burn bits, insect bites, dirty water, any and all other environmental hazards which present an illness taking time to develop...VA will care only for personnel (read none, except sudden-type situations like snake bites or chemical burns) who develop the illnesses while on duty. If a disease in its natural course takes a few days or weeks to develop and the Reservist has returned to civilian life in the meantime, too bad. VA announced April 16 it save money and keep appointment lines in its hospitals shorter by refusing any and all benefits with firmly-expressed appreciation for their service and regrets that the volunteer dead or dying servicemembers aren't real veterans.

OGC's inventive but certainly extra-legal approach has been challenged by Senate and House leaders, by veterans service organization, legal scholars, and C-123 veterans themselves.  At this point, things seem to have stalled for weeks. The Secretary's actual plan, announced to the Senate Veterans Affairs Committee as ready for implementation by early March, still flounders.

And veterans are still refused care. And OGC has developed a whole new way to prevent care sought by today's veterans exposed to harmful biological or toxin agents. Real Perry Mason stuff, this!

By the way, let's hope the VA informs DOD of their decision, because somebody has to tell the Reserve Component servicemembers still volunteering for such duty placing them in harm's way without VA at their back.

Maybe some firm should market a special health insurance scheme for the US Army Reserve, US Marine Corps Reserve, Navy Reserve, Coast Guard Reserve, Air Force Reserve, Air National Guard and Army National Guard.

As soon as those volunteers learn that once finished with their Reserve duty, VA won't care for them and neither will DOD's health care facilities, they'll either be out of the military or well-advised to insure themselves: DOD and VA won't.

Are C-123 Veterans Actually Veterans?

No. Not if VA Office of General Counsel can prevent it!

"You're not veterans. Even if you were veterans before or after Reserve duty or even veterans in both situations, you're not veterans for purposes of Agent Orange exposure unless you qualify as such during your Reserve tour."

That was the VA Office of General Counsel talking last Thursday at the Senate Russell Building, defending its views in front of veterans service organizations,  Yale School of Law, House and Senate staffers, the media and others. The legal definition of "veteran" was raised as a stumbling block in our path to VA health care and other benefits.

Of course, this element of the puzzle could have been raised long ago and resolved, but for some reason, VA has a record of throwing obstacles one after the other, rather than putting everything on the table for the puzzle to be seen in one piece. Having resolved the scientific question of exposure through the Institute of Medicine C-123 report released in January 2015 (a process first discussed and promised the veterans in 2012,) VA OGC identified the statutory definition of "veteran" as its next barrier to our claims.

It turns out that VA benefits are available for Reserve and Guard members only if injured during Reserve duty, or if the servicemember completes a period of recall to Active Duty during the period in question. It is the view that Reserve and Guard, even if legally qualified as veterans before or after the period in question, are not "veterans" under the law unless they meet this criteria.

Example: a Reservist sent to duty in West Africa returns home and reverts to civilian status, develops ebola two weeks later. but is not a "veteran." Reason: because the illness or injury didn't actually manifest itself while the person was in uniform, even though the exposure occurred during Reserve duty. As ridiculous as this sounds, this exact scenario was run past VA Office of General Counsel and they agreed: VA actually would refuse care to an ebola-exposed Reservist.

The example closely parallels our Agent Orange problem.  We were exposed to the toxin dioxin in Agent Orange during the C-123 years of 1972-1982. However, soft tissue sarcomas and other Agent Orange illnesses don't manifest  themselves overnight, but instead can take decades for the exposure to be manifested in disease.

VA says because we didn't actually develop prostate cancer during a drill UTA, we were not injured in our Reserve status and therefore are not seen by VA as "veterans" for purposes of protection. An exposure to a Reservist which doesn't cause an immediate injury doesn't qualify the Reservist as injured and therefore a veteran under the law.

As you can imagine, this extremely restrictive OGC view didn't go unchallenged last Thursday. Rather, everyone present was of one voice: exposed C-123 servicemembers are veterans and are due VA care and benefits. There are a couple foundations for this challenge: in 2002 VA Office of General Counsel provided a formal precedent-setting option that a Navy Reservist given an anthrax vaccine who later developed serious illness qualified as a  veteran. It held that the vaccine was a foreign substance which injured her at the time of inoculation, even though the complications became evident years later. Our point: dioxin is a foreign substance which injured us.

VA OGC didn't take this quietly, Instead, they did the amazing thing of declaring their 2002 decision to be in error and therefore not applicable to the C-123. Nobody there was willing to let VA cherry-pick or redefine their own references and it was clear any final solution doing that was headed straight for court.

Still, the conference ended without degenerating into total chaos. VA OGC agreed that proposed legislation would be withdrawn, and to rethink the opposing arguments, especially in light of the unified front against the VA position. VA also came to realize that somehow language had been inserted in the proposed legislation barring retroactive claim awards, even if those claims had been in their system for many years.

"Active Service Criteria for Veteran Status (from the Congressional Research Service

“An applicant for VA benefits must have “active military, naval, or air service” to be considered a veteran for most VA benefits. However, not all types of service are considered active military service for this purpose.

In general, active service means full-time service, other than active duty for training, as a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or as a commissioned officer of the Public Health Service, the Environmental Science Services Administration or the National Oceanic and Atmospheric Administration, or its predecessor, the Coast and Geodetic Survey.

Active service also includes a period of active duty for training during which the person was disabled or died from an injury or disease incurred or aggravated in the line of duty and any period of inactive duty for training during which the person was disabled or died from an injury incurred or aggravated in the line of duty or from certain health conditions incurred during the training.

Additional circumstances of service, and whether they are deemed to be active military service, are set out in law. For example, if on authorized travel to and from the performance of active duty training or inactive duty for training, a person is disabled or dies while proceeding directly to or returning from such duty, the duty will be considered to be active duty for training or inactive duty for training."