NEW: Agent Orange linked to ‘aggressive’ bone marrow cancers in Vietnam veterans

(forwarded by Paul Bergeron)
Agent Orange exposure is a recognized risk factor for several types of bone marrow cancers, and is a presumptive condition for U.S. veterans seeking health and disability benefits. These include multiple myeloma and, based on recent research, myelodysplastic syndromes (MDS). 

Confirmed Bone Marrow Cancers:
VA officially recognizes the following bone marrow-related conditions as presumptively linked to Agent Orange exposure:

1. Multiple Myeloma: This is a cancer of the plasma cells, a type of white blood cell found in the bone marrow. The VA considers it a presumptive condition, which means affected veterans do not have to prove a direct connection between their service exposure and the disease to be eligible for benefits.
2. Chronic B-cell Leukemias: This group of blood cancers affects B-cells, which also originate in the bone marrow and are part of the immune system. 

Emerging Evidence: Myelodysplastic Syndromes (MDS):
Until recently, the link between Agent Orange and myelodysplastic syndromes (MDS) was less clear, creating barriers for veterans seeking care and disability benefits. However, significant new research, presented at the 2025 American Society of Hematology annual meeting and published in the journal Blood, has established a strong association.
The study identified genetic mutations tied to earlier diagnosis and faster progression of the disease, he said. “What we’re seeing is that Agent Orange added a mutation — and that mutation sets patients on the road to cancer 50 years later,” researchers stated.
These findings are expected to help formalize the recognition of MDS as a presumptive condition, aiding veterans in accessing the care they need. 

Key findings from this research indicate that exposed veterans:
• Have a higher risk of developing MDS.
• Tend to be diagnosed at a younger age.
• Exhibit more aggressive forms of the disease with a higher number of harmful genetic mutations.
• Are nearly twice as likely to see their condition progress to acute myeloid leukemia (AML). 

Actionable Steps for Veterans:
If you or a loved one are a veteran who was exposed to Agent Orange and have been diagnosed with a bone marrow cancer:
• Check Eligibility: Veterans who served in specific areas (e.g., Vietnam, the Korean DMZ) during defined time frames are presumed to have been exposed.
• Apply for Benefits: You may be eligible for VA health care and disability compensation. You can learn more about the process and eligible conditions on the official VA Public Health website. While many health problems such as MDS are not recognized by VA as presumptively associated with Agent Orange exposure, a claim can proceed for a case-by-case adjudication. This MDS study can help support such a claim. Seek help from an accredited veterans service officer, such as from DAV, VFW, state or local governments.
• Seek Specific Care: The findings from recent studies suggest that Agent Orange-related MDS has unique genetic patterns, which might influence specific treatment decisions. Consult with a hematology specialist. Make sure your health care providers are aware of your Agent Orange exposure history!
• Get an Exam: Eligible veterans can receive a free Agent Orange Registry health exam to document exposure-related health concerns. 

Newest Claims Project: Peripheral Neuropathy

 I've drafted a sample VA disability claim for peripheral neuropathy as SECONDARY to diabetes. Vietnam War and C-123 veterans are presumed exposed to Agent Orange and already get service connection for diabetes if diagnosed. The effort here will be to illustrate how a veteran can get service connection by using diabetes type 2 (and other causes) and then peripheral neuropathy as a secondary issue.

Many vets have complained that their peripheral neuropathy claims long after Vietnam are denied due to VA's one year for symptoms requirement – this effort is an alternate approach using peripheral neuropathy as secondary to another illness or injury already recognized by VA as service connected. It’s for anyone, not just Agent Orange folks. Many other ailments are associated with peripheral neuropathy and if you have PN, you'd be wise to investigate.

C-123 Aircraft Agent Orange Exposure –disability medical care and compensation

Our C-123 Agent Orange effort began at Westover in 2010 and has now impacted over 30 other Active Duty and Reserve Units, and thousands of veterans! Thus far, veterans and their families have received over $80 million in medical care, disability compensation, and survivor benefits.
If you had regular contact with C-123 aircraft while serving as an active-duty service member or Reservist, or are the survivor of such a veteran, you may be eligible for VA disability or other compensation. Call the VA today!
Active-duty units

Unit	Base location	Service dates
1st Special Operations Wing (SOW)	Hurlburt Auxiliary Field, Eglin Air Force Base, Florida	1970 to 1973
24th Special Operations Wing (SOW)	Howard Air Force Base, Panama	1970 to 1973
51st Air Base Wing (ABW)	Osan Air Base, South Korea	1970 to 1973
56th Air Base Wing (ABW)	Luke Air Force Base, Arizona	1970 to 1973
309th Special Operations Squadron (SOS)	Tainan Air Field, Taiwan	1969 to 1970
310th Special Operations Squadron (SOS)	Tainan Air Field, Taiwan	1969 to 1970
405th Fighter Wing (FW)	Clark Air Force Base, Philippines	1969 to 1970
4410th Combat Crew Tactical Wing (CCTW)	Hurlburt Auxiliary Field, Eglin Air Force Base, Florida	1970 to 1973
4500th Air Base Wing (ABW)	Langley Air Force Base, Virginia	1962 to 1963, 1970 to 1973

Reserve units

Unit	Base location	Service dates
74th Aeromedical Evacuation Squadron (AES)	Westover Air Force Base and Hanscom Field, Massachusetts	1972 to 1982
355th Tactical Airlift Squadron (TAS)	Lockbourne/Rickenbacker Air Force Base, Ohio	1969 to 1986
356th Tactical Airlift Squadron (TAS)	Lockbourne/Rickenbacker Air Force Base, Ohio	1969 to 1986
731st Tactical Airlift Squadron (TAS)	Westover Air Force Base and Hanscom Field, Massachusetts	1972 to 1982
758th Airlift Squadron (AS)	Pittsburgh International Airport, Pennsylvania	1972 to 1982
901st Organizational Maintenance Squadron (OMS)	Westover Air Force Base and Hanscom Field, Massachusetts	1972 to 1982
911th Aeromedical Evacuation Squadron (AES)	Pittsburgh International Airport, Pennsylvania	1972 to 1982
911th Aircraft Maintenance Squadron (AMS)	Pittsburgh International Airport, Pennsylvania	1972 to 1982
4413th Combat Crew Tactical Wing (CCTW)	Lockbourne/Rickenbacker Air Force Base, Ohio	1969 to 1986

Master Sergeant Vincent G. McCrave Jr., USAF Retired

We lost one of the best on April 11, 2024! Family and friends gathered to say farewell on April 22 in Clermont, Florida, followed by military honors.

Vinny was a leader in the 74th Aeromedical Evacuation Squadron at Westover, and one of the first men I met when I joined in 1974. In a unit full of wonderful people, he was exceptional. 

Vinny was a med tech flight examiner and Desert Storm veteran. He had years of flying the unit's C-123 aircraft, and consequently suffered many of the typical Agent Orange illnesses.

In addition to his beloved wife, he leaves two sons Vincent G. McCrave III and his wife Lynn of Bellville, IL and Michael McCrave and his wife Bev of St. Petersburg, FL. His daughter Michele Bessette of Pawtucket, RI. was especially helpful arranging Vinny's veterans benefits.

He will be missed by eight grandchildren – Dan McCrave-Bessette, Shannon Schwoebel, Britt Whitney, Meghan McCrave, Mitchell McCrave, Matthew McCrave, Thomas Bessette and Hailey Roberson.

April 1987: Vinny's son swearing him in
for another six year reenlistment.

Be at ease, Sergeant McCrave. You honored the flag all your life. Now the flag honors you.

VA Disability Claim Form VA 526EZ now includes Agent Orange C-123 details

 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!

VA 526EZ, Section IV EXPOSURE INFORMAON

Colorado LSC initial cost estimate of $4.5 million for HCR 23-1002 (TDIU) was inaccurate

The Colorado LSC initial cost estimate of $4.5 million for TDIU was inaccurate
(see revised budget impact from LSC correction below, based on this analysis)

The Cost for Total Disability for Individual Unemployability (TDIU) Property Tax Exemption

Background:

1. TDIU is regulatory, not statutory. The key section of the regulation reads:

“Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Provided that, if there is only one such disability, this disability shall be ratable at 60% or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40% or more, and sufficient additional disability to bring the combined rating to 70% or more.” (38 CFR § 4.16a.)

2. TDIU benefits granted under the VA Rating Schedule are intended to compensate veterans for the average impairment in earning capacity that results from service-connected disease or injury. TDIU is a special additional benefit to address the truly unique disability picture of a veteran who is unemployable solely from service-connected disability, but for whom the application of the Rating Schedule does not fully reflect the veteran’s level of impairment. TDIU allows the veteran to receive compensation at a rate equivalent to that of a 100% schedular award.

3. VA pays basic compensation benefits to veterans incurring disabilities from injuries or diseases that were incurred or aggravated while on active military duty. VA rates the severity of all service-connected disabilities by using its Schedule for Rating Disabilities. The schedule lists a multitude of disabilities and assigns each disability a percentage rating, which is intended to represent an average earning impairment the veteran would experience in civilian occupations because of the disability. Veterans awarded service-connected disabilities are assigned single or combined (in case of multiple disabilities) ratings ranging from 0 to 100%, in increments of 10%, based on the rating schedule; this is known as a schedular rating. Diseases and injuries incurred or aggravated while on active duty are called service-connected disabilities. To avoid an unfair “one size fits all” disability evaluation, disability compensation can be increased to the full 100% level if VA determines that the veteran is factually unemployable (not able to engage in substantially gainful employment) based only on the service-connected disability exceeding in severity anticipated in the rating schedules. VA can assign a total disability rating of 100% to veterans who cannot perform substantial gainful employment because of service-connected disabilities, even though their schedular rating is significant but less than 100%...but is in fact totally disabling.

The cost estimate of $4.5 million if approved by the public is inaccurate. Several facts need to be considered that should reduce this significantly:

1. Most importantly, the GAO reports that 54% of TDIU veterans are age 65 or older, and thus already eligible for the senior property tax exemption if in their home ten years or more. Those TDIU veterans present no additional burden for the property tax exemption program. An unknown number of TDIU veterans under age 65 have partners over age 65 and thus otherwise eligible for the exemption.

2. 2847 Colorado TDIU veterans who are permanently and totally disabled from line-of-duty injuries are barred from the exemption. Colorado has 13589 VA 100% permanently and totally disabled veterans, 76% of whom are homeowners No VA data seems available to determine how many of these are “P&T (permanent and total)” to qualify for the current property tax exemption. VA reports the ratio of TDIU/100% veterans is about 45/100, and 46% of TDIU veterans are age 65 or younger. Thus, Colorado is ignoring the needs of 20% of our totally disabled homeowning vets under age 65. The exemption for TDIU veterans would be under $2 million annually.

3. Colorado seems unique among the states in distinguishing between VA 100% schedular and TDIU. Military.com rates Colorado, prizing ourself as “Veteran Friendly,” only as a mediocre 27th among the states offering veterans’ benefits.

4. 60%+ of TDIU veterans are in the World War II-Vietnam era. The age group 50-65 represents 28% of all TDIU recipients. Their participation in a property tax exemption program is just for a few years before aging into the senior exemption...they “age out” of any potential TDIU burden on the state.

According to the National Center for Veterans Analysis and Statistics, the total veteran

population is set to decline from 20.8 million in 2015 to 12.0 million by 2045; total annual change is -1.8

5. 27.2% of Colorado’s veteran households have an “extraordinarily high” burden of total income for housing. 6.9% of veterans live below the poverty line, although totally disabled veterans’ disability benefits are above that level unless family size is considered.

6. 35% of TDIU beneficiaries have mental health conditions as their major diagnosis (of which more than two-thirds are posttraumatic stress disorder [PTSD] diagnoses), followed by musculoskeletal conditions (29%), and cardiovascular conditions (13%.)

7. Of all Colorado veterans receiving disability compensation, 6% are rated as 100% permanently and totally disabled. 4.5% of Colorado’s total veteran population have a disability rating of TDIU.

8. It is absolutely incorrect to refer to this category of veterans as “individually

unemployed.” Rather, they are totally disabled veterans who, solely because of their military injuries or illnesses, have been carefully assessed by VA physicians, claims officials and vocational specialists as being totally and permanently disabled, unable to work above any marginal employment. The term “total disability for individual unemployability” should be used throughout, rather than “unemployed!” TDIU veterans aren’t unemployed; they have left active duty service physically unable to work, whereas VA-rated 100% disabled veterans are often able to continue useful employment, trained for other opportunities, other careers, and are encouraged to find work for obvious financial and mental health reasons. “Extraneous” factors, such as nonservice-connected disabilities, injuries occurring after military service, availability of work, or voluntary withdrawal from the market are not considered as factors for TDIU ratings.

Where the rating schedule is found to be inadequate to fairly compensate a veteran for the inability to be gainfully employed, Veteran Benefit Administration (the administrative portion of VA) may refer cases consideration of a TDIU rating on an “extrascheduler” basis

9. The US Department of Veterans Affairs has two categories of veterans assessed to be totally and permanently disabled due to their injuries or illnesses. There are no differences in their federal benefits or compensation.

a. VA “100% permanent and total schedular.” is a rating schedule which assigns a degree of total disability using a formula set by law ( 38 CFR 3.340, 38 CFR 3.341(a), and 38 CFR 4.16) for a full range of illnesses and/or injuries suffered by veterans while on active duty (or, for Reserve Components, while on active training status for when called to federal service.)

b. The second is TDIU, a unique program created in 1933 to “fill the gap” in situations where a veteran’s line-of-duty illnesses or injuries are far more serious and exceed the schedular provisions, or when the combination of the veteran’s active duty illness or injuries are at least 70% but when considered with with other, lesser military injuries or illness have made the veteran totally disabled. This involves separate medical and administrative assessments: one evaluating military-related disabilities and a second to consider whether those military disabilities alone make employment impossible. This leaves the TDIU veteran at a fixed disability compensation at the 100% level, never able to continue productive employment.

TDIU criteria for unemployability are quite similar to those used by the Social Security Administration to determine total disability, except TDIU is far more restrictive, being based solely on military line-of-duty injuries or illnesses. SSDI considers the broader picture, including all military and civilian issues to determine total disability. A veteran can be SSDI-eligible for overall disability yet unqualified for TDIU unless military disabilities make anything above-marginal employment impossible. Note that many veterans having between 10%-90% VA disability (neither 100% nor TDIU) but are qualified to receive SSDI. Between SSDI, VA 100% disability and TDIU, TDIU is the most serious and restrictive disability scheme.

Like SSDI, a TDIU veteran is monitored for their continuing total disability. Earned income, whether employed or self-employed, other than sheltered workshop or below-poverty level income is disqualifying. Such a situation would result in termination of federal TDIU and any related state benefits. This limit applies only to the veteran's earnings, and not to the veteran's unearned income or household income. Managing TDIU benefits involves not only assessing initial eligibility for benefits, but also ensuring beneficiaries’ ongoing eligibility by identifying those who are not in compliance with the earnings limit.

VA rating specialists initiate TDIU evaluations when a veteran or their VA physician submits an application for TDIU benefits or his or her application for compensation benefits contains clear evidence of unemployability. In all cases, before granting benefits, rating specialists must evaluate the impact that the veteran’s service-connected disability(ies) have on his or her ability to perform gainful employment, which for decision-making purposes is generally interpreted as employment that is more than “marginal employment.”

Marginal employment for a TDIU veteran may also be held to exist, on a case-by-case basis, for a veteran maintaining employment at a sheltered workshop or family business with annual earnings at or below the poverty threshold.

VA rating specialists are to rely on various sources of information for the evidence needed to support such a determination, including an employment and earnings history furnished by the claimant, basic employment information from the claimant’s employers (if any), and a medical exam report from Veterans Health Administration (the medical side of VA.) If the claimant had received vocational rehabilitation assistance from VA or disability benefits from SSA, the rating specialist might also seek information on these services or benefit decisions. Many veterans seeking TDIU benefits seek a vocational evaluation, offered by many states’ employment agencies to assess any remaining employability.

Quality of life reduction, a serious issue and often a factor in other disability compensation programs, is not assessed in VA issues. About 30% of totally disabled veterans receive assistance from family members with activities of daily life impairments, thus greatly reducing household income.

Wes Carter, Chair

The C-123 Veterans Association

COLORADO VETS SEEK TDIU STATE BENEFITS

Colorado's veterans with a VA rating of TDIU seek state disabled veteran property tax exemption benefits. This video explains our campaign.
See more at www. codisabledvet.blogspot.com

VETERANS: Put your flags out!

This is a good time to have our flag waving!

God bless our medical warriors and keep them safe.

Review: Our two goals for C-123 Veterans' Agent Orange Benefits

Simple. A mostly successful seven-year effort. Many folks chipped in funds to help and I never wrote thank-you cards. That is because all I did was work and the contributors know it and know their help was vital.

GOAL ONE. VA designation of C-123 veterans as "presumptively exposed" to Agent Orange, thus entitling us to VA medical care and other benefits.
STATUS: MET ON JUNE 19 2015

GOAL TWO: Get our VA disability claims honored from the earliest date submitted, if earlier than what VA limits for retroactivity (June 19 2015 at the earliest.) This is because many C-123 vets had claims in prior to that date, but were met with the then-automatic VA denial. And VA did deny...100% of all our claims were refused.

STATUS: ONLY VERY PARTLY MET

At least the VA barrier to our retroactive claims has been broken down a little. A handful of C-123 vets had claims approved via BVA appeals (Paul Bailey, Dick Matte) but VA has been firm in limiting retroactive claims to June 19 2015 and no earlier. It has to do with Reservists not being entitled to disability benefits unless disabled during the Reserve duty.

For some, this has cost tens of thousands in anticipated, but denied, "catch-up" checks. An example: a claim submitted in 2007 but denied at the time, then honored by VA once its C-123 rule was published on June 19 2015. If the vet was due a 100% disability rating, that's eight years of compensation VA won't pay...about $200,000 lost by the vet because of VA's limit of retroactivity set at June 2015.

The good news: at least one claim has been awarded retroactive Agent Orange benefits from the date submitted (in this case, March 2011. On the vet's appeal the BVA determined that C-123 exposure itself was a disabling injury that would date from "back in the day" while flying the Provider. That decision meant the affected Reservist satisfied the law's requirements regarding a disabling injury to trigger statutory veteran status, and the claim was honored back to the date the vet first filed for Agent Orange disabilities. That was a lot of money, with thanks due to the National Veterans Legal Services Project and their cooperating pro bono attorneys!

FORBES MAGAZINE: The Shocking Health Effects Of Agent Orange Now A Legacy Of Military Death"

Memorial Day, 2018
   
Nicole Fisher , CONTRIBUTOR, FORBES Magazine

Sadly though, as time goes by we are finding that those who made it home oftentimes brought the deadly echoes of war home with them.

Despite little coverage of the herbicide for decades, its deadly effects have impacted the children, grandchildren and great-grandchildren of those who interacted with the chemical.'

While honoring those who made the ultimate sacrifice during war, Memorial Day also presents an opportunity for Americans to reflect upon the loss of life because of war. Memorial Day (unlike Veteran’s Day which honors those who served) pays tribute to those who died on the battlefield for our country. Sadly though, as time goes by we are finding that those who made it home oftentimes brought the deadly echoes of war home with them. This is particularly true for soldiers of the Vietnam War. And, the repercussions of war-time actions in Vietnam are still being felt, more than four decades later, as the decedents of those brave men and women battle health issues related to a frightening ghost of their ancestor’s past: Agent Orange.

The Vietnam Memorial lists the names of more than 58,000 Americans who died overseas. However, the wall does not document any names of the estimated 2.8 million U.S. vets who were exposed to the poisonous chemical while serving and later died.

The Gruesome Legacy

In total, the U.S. sprayed more than 20 million gallons of various herbicides over Vietnam, Cambodia and Laos from 1961 to 1971. However, according to the EPA, Agent Orange, which contains the poisonous chemical dioxin, was the most commonly used. And among those who were lucky enough to survive the trenches of Vietnam, the health issues – now generations later – have been a living nightmare. Agent Orange is linked to serious health issues including cancers, severe psychological and neurological problems, and birth defects, both among the Vietnamese people and the men and women of the U.S. military.

Despite little coverage of the herbicide for decades, its deadly effects have impacted the children, grandchildren and great-grandchildren of those who interacted with the chemical. And that’s just in the U.S. military. Those who lost their lives or faced grave physical and mental repercussions of Agent Orange include State Department officials, soldiers from countries like Australia and visitors who spent stints in the region due to war-time obligations. Additionally, more than 4 million Vietnamese citizens were subjected to Agent Orange exposure.

Charles Bailey, PhD– co-author of a new book From Enemies to Partners: Vietnam, the U.S. and Agent Orange– explained to me that, “When it comes to Agent Orange, the fog of war continued on long after the guns fell silent  in Vietnam.”

He and his co-author Le Ke Son, PhD, of Vietnam have been working to bring the U.S. and Vietnam together to resolve, to the fullest extent possible, the continuing health impact of Agent Orange. The issue had long been deadlocked, with one group looking at it exclusively as an issue of science and the other exclusively as an issue of justice. Bailey and Son helped fill in the “missing middle” between these two groups with new voices and constructive action which broke the logjam.

What they mean by that, is not only cleaning up the mess that has persisted for individuals and communities, but to begin the bilateral healing process by having the uncomfortable conversations that the American military refused to have. Lucky for them, the State Department, USAID, and Congress – specifically Senator Patrick J. Leahy (D-VT) agree. He stated on record that his goal is to, “Turn Agent Orange from being a symbol of antagonism and resentment into another example of the U.S. and Vietnamese governments working together to address one of the most difficult and emotional legacies of war.”

Emotion Meets Action

Dioxin is highly toxic (even in minute doses) and accumulates in fatty tissue. Thus, fish, birds and other animals have kept Agent Orange chemical compounds in their bodies for years - as well as continue to eat from the lands and waterways that were directly doused in Agent Orange. Because of this, most human exposure to these lethal carcinogens is now via foods. Which has caused significant diplomatic and global health troubles between our countries.

While the U.S. has aimed for decades to mend relations with the Vietnamese, our refusal to talk about the repercussions of our earlier military actions has been a huge hinderance. That is, until the last few years. Thanks to former Senator Tom Daschle (D-SD) who sponsored the Agent Orange Act of 1991, the Department of Veterans Affairs (VA) in 2015 had paid $24 billion in disability compensation to 1.3 million veterans who served in our armed forces sometime during the Vietnam era. Both the Obama Administration and the Trump Administration have supported Congress in its efforts to address the genetic consequences that Agent Orange has caused our two countries.

By recognizing that thosewho have died of dioxin-relatedhealth issues are casualties of war, and the cultural, economic and diplomatic consequences of wartime actions, the U.S. has also taken major steps to help clean up the three confirmed residual hot stops in Vietnam. Former American military bases and the Da Nang Airport have been the primary targets. And, thankfully by the middle of 2017, in line with Senator Leahy’s united vision, Da Nang Airport was dioxin free.

These actions have gone a long way in building both confidence and collaboration between our countries. And finally, the legacy of Agent Orange is beginning to cast less of a shadow. But after losing more than 58,000 American comrades on the battlefield in Vietnam, the lives of those who returned home were never the same. Half a century later many lives are still being lost due to horrific health issues and chemically-induced genetic mutations.

While they did not die on the battlefield in Vietnam, the deadly repercussions of Agent Orange have known no boundaries. So this Memorial Day, as we observe our fallen men and women through public ceremony or private prayer, let’s be sure to think about all  of the military lives lost because of war.

CAN VA AWARD A SERVICE-CONNECTION DATE PRIOR TO JUNE 2015 FOR C-123 VETS WITH AGENT ORANGE ILLNESS?

That's how I read it. 

And if I'm right, it means retroactive disability for some Reservists who happen to satisfy requirements for statutory veteran status. Translation: If a Reservist has some other service-connected disability dating from before the June 2015 liberalizing rule, such as tinnitus, the law's requirement for being a proper "veteran" for benefits is met. VA "will presume that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service."

The earlier injury for tinnitus or whatever satisfies requirements for veteran status without having to rely on the liberalizing rule's effective date of June 19, 2015. Ideas?

Here's the Federal Register C-123 posting:

Further, in consideration of the reserve component members with such service, VA will consider this presumed herbicide exposure to be an “injury” under section 101(24)(B) and (C). In turn, if such individual develops a presumptive disease listed in 38 CFR 3.309(e), as specified in 38 CFR 3.307(a)(6)(ii), “it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service.” 

C-123 VETERANS: OUR PRO BONO LAW FIRM IS READY FOR YOUR CALL! S0...CALL TO SEE IF YOU CAN RECOVER

YOU'RE INVITED TO ASK FOR FREE LEGAL HELP.

Situation:

     Most of us who submitted C-123 Agent Orange disability claims before June 2015 ended up denied some compensation because VA decided to pay our claims only from that month forward. Others of us were diagnosed with AO illnesses but submitted our VA claims well after then, and by waiting also lost months of compensation. 

     There may be pro bono legal help to recover denied compensation. The National Veterans Legal Services Project (NVLSP, "Lawyers Serving Warriors") has skillfully helped C-123 veterans for years, and also the Vietnam Veterans of America and most other veterans' organizations. Here's a great video describing them.

     If your disability claim predates June 2015 I urge you to contact NVLSP. They'll review your situation with you. 

VA CORRECTS REGULATIONS TO ADD C-123 VETERANS

VA HAS BEEN CORRECTED!

The fundamental document guiding a veteran' eligibility for VA benefits is their regulation VHA DIRECTIVE 1601A.02.

Published in June 2017 it failed to include proper information about C-123 veterans. This was pointed out to them and a corrected version (see page 9) has now been released throughout the VA and supporting agencies:

The point is that C-123 vets ONLY need to prove C-123 duty and have a diagnosis for an Agent Orange associated illness.

Here is the additional C-123 language, page 9:

This term also includes an individual who has been determined by VA to have a service connected disability related to herbicide exposure under 38 CFR 3.307(a)(6)(v) 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.

Specific laws and regulations addressing our C-123 Agent Orange benefits

Sometimes I am asked about the specific laws or regulations that address our post-Vietnam agent orange exposures a board to C-123 and the VA benefits we have earned. You can use Google to find the many VA web pages detailing our issue.

Here they are:

• 38 C.F.R. § 3.307
• 80 Fed. Reg. 35,246, 35,248 (June 19, 2015)
• VA regulation M21-1, Part IV, Subpart ii, 1.H.3.(Feb 5, 2016)

"An unfortunate choice of words" – how VA denied Agent Orange claim by insisting Agent Orange is harmless

Just received from the Department of Justice: DOJ has summarized VA's response to our inquiry regarding the famous statement used by VBA Compensation and Pension to deny a C-123 veteran's claim. VA actually ordered the claim denied by insisting there is no evidence of Agent Orange and its toxic component TCDD causing human health injuries.

Now, DOJ says that was "an unfortunate choice of words." Unfortunate but still adequate, however, for VA to have denied the claim for five years!

One of the first C-123 Agent Orange exposure claims faced the determined opposition of VBA's Compensation and Pension Service, a determined opposition which continues even years later, despite all scientific evidence.

Opposition (guided by VA's go-to consultant Dr. Al Young) which has included even denying Agent Orange claims by insisting that Agent Orange is somehow harmless and that Agent Orange benefits specified by Congress in the 1991 Agent Orange Law for Agent Orange exposure with resulting Agent Orange illnesses...claims which are to be denied on the personal whim of VA staffers annoyed at veterans seeking care. (sorry for the run-on sentence.)

C&P's view was that C-123 veterans' Agent Orange exposures are to be blocked, despite meeting the requirements of the 1991 Agent Orange Act, and VA's own regulation VAM-21-1MR.

Portland's VA Regional Office forwarded a C-123 vet's claim to VBA's Agent Orange desk as required, with the field's recommendation for approval given the vast amount of supporting evidence and compliance with the law. Compensation and Pension responded with what has continued to be their blanket denial of all such claims. Here is what was just an early example of their extra-legal injection of personal attitudes into claim denials:

My C-123 retroactive compensation idea – shot down in flames!

Hey, I can't crash yet. Need another half hour
for an AFTP!

Well, that didn't go too well. I'd proposed a method whereby VA and the Air Force leadership would use backdated exposure injury Line of Duty determinations to satisfy statutory requirements for Title 38 "veteran" status.

"Sorry, but no" was today's response at noon from the VA.

VA leadership had their hearts in the right place, but had to turn us down. Still, we've got the principal goals for the last five years' work well-met: our people get VA benefits and disability compensation dated from June 19 2015 forward.

Half a loaf. But the best half! Sorry guys, but that's all we can push for at this time.

'Bad paper' haunts vets after leaving the military – as it must, in my opinion

I stand for careful review of dishonorable discharges to insure PTSD, TBI or other causes are not involved.  Thanks to the National Veterans Legal Services Project this review is underway. Further, individuals have extensive review rights as well as the opportunity to seek redress through their service Board for Correction of Military Records.

I also stand for exclusion from any "veteran" status of an individual who so completely failed the military and his/her comrades through dishonorable conduct. A dishonorable discharge is the result of a judicial procedure with ample protection for the individual's rights.

An honorable discharge is earned by honorable service, and a dishonorable discharge should bring no benefits but instead, public awareness that the individual failed his or her duty, often through criminal acts. 

JIM SALTER | Associated Press, December 25 2015

ST. LOUIS – No medical or mental health care. No subsidized college or work training. For many who leave the U.S. military with less-than-honorable discharges, including thousands who suffered injuries and anguish in Iraq, Afghanistan and elsewhere, standard veterans benefits are off limits.

The discharge serves as a scarlet letter of dishonor, and the effects can be severe: Ex-military members with mental health problems or post-traumatic stress disorder can’t turn to Veterans Affairs hospitals or clinics; those who want to go to college aren’t eligible for the GI Bill; the jobless get no assistance for career training; the homeless are excluded from vouchers.

“It’s an indelible mark of their service that follows them for the rest of their lives into the workforce, through background checks, social relationships, and it precludes them from getting the kind of support that most veterans enjoy,” said Phil Carter, an Iraq War vet and senior fellow at the Center for A New American Security.

The Department of Defense said of nearly 207,000 people who left the military last year, just 9 percent received what’s referred to as “bad paper.” Still, that’s more than 18,000 people last year and more than 352,000 since 2000, Defense Department data shows.

U.S. Rep. Mike Coffman, a Colorado Republican who’s on the House Armed Services Committee, believes many of those men and women suffered battle-related problems that affected their behavior, especially PTSD and traumatic brain injury.

A 2005 study showed Marines deployed to combat who were diagnosed with PTSD were 11 times more likely to receive less-than-honorable discharges, said Brad Adams, an attorney who works with the San Francisco-based organization Swords to Plowshares.

Varying levels of bad paper discharges exist. A general discharge is for those whose service was generally satisfactory, but who engaged in minor misconduct or received non-judicial punishment. Recipients are usually eligible for VA medical and dental services, VA home loans and burial in national cemeteries, but can’t receive educational benefits through the GI Bill.

Virtually no post-military benefits are available below that level.

An other-than-honorable discharge is an administrative action for those with behavior problems such as violence or use of illegal drugs. A bad conduct discharge is punishment for a military crime, and dishonorable discharges are for offenses such as murder or desertion. With those discharges, the VA doesn’t consider the former service members veterans for the purposes of VA benefits.

Maj. Ben Sakrisson, a Defense Department spokesman, said there is “substantial due process” for all cases where people receive a less-than-honorable discharge. Its statistics show that last year, 4,143 service members received other-than-honorable discharges, 637 received bad conduct discharges and 157 were dishonorably discharged.

Once people are discharged, the Department of Veterans Affairs can extend medical and mental health benefits on a case-by-case basis to those whose disabilities were service-connected, the VA said.

Studies show those who are less-than-honorably discharged are far more likely to end up in prison than honorably discharged veterans, and more likely to be suicidal.

"Never-Ending VA Appeals Process Hurts All Vets" -Yes, but appeals are for VA's errors, not veterans' greed!

Claims at VA Regional Claims Office

By Francis Rose, from Government Executive, December 2015. (Veteran's response at bottom)

One of the deepest questions philosophers have considered over the centuries is the sometimes conflict between the rights and needs of society, and the rights and needs of each individual member of that society.
The latest point in the debate over fixing the Veterans Affairs Department is a microcosm of that debate.

The claims backlog the Veterans Benefits Administration has been dealing with for years is finally below 100,000, according to numbers from late summer. The agency promoted the backlog reduction then as a sign that its management strategy was working, in contrast to scandals inside the agency’s other main branch, the Veterans Health Administration. The timing was unfortunate, though; whatever good publicity the VBA, and its then-leader Alison Hickey, might have gotten out of the news was obliterated by the scandal surrounding two employees who received enormous relocation benefits after engineering jobs for themselves outside Washington, displacing other VA officials who held those jobs.

Those numbers look different, though, in light of a Los Angeles Times article on the backlog. Given what the Times reports, it seems unlikely the agency will ever be able to make it go away. The biggest holdup to making the backlog disappear is the most politically unpalatable element of the claims process to do something about.

The biggest roadblock, the Times story makes it seem, is the veterans themselves.

The major reason the backlog doesn’t shrink any faster, the way the story tells it, is that vets submit appeals over and over again when they get outcomes they don’t agree with, hoping against hope for a different outcome. The article tells the story of one vet who did indeed get a different outcome after many tries. He’s still in the system, though – now trying to get retroactive benefits.

The reason he and the other vets do so? Because they can.

“Unlike U.S. civil courts, the appeals system has no mechanism to prevent endless challenges,” the Times’ Alan Zarembo writes. “Veterans can keep their claims alive either by appealing or by restarting the process from scratch by submitting new evidence: service records, medical reports or witness statements.”

The logistics of the backlog is complicated, and has lots of qualifications. The 100,000 number VA celebrated in August was for initial claims applications that were 125 days old. Since that number was well over half a million when the agency declared war on it two years ago, the progress looks real.

The news isn’t all good, though. The Times reports while the claims backlog has shrunk, the appeals backlog – vets who don’t like the response they get from VA and ask to have it reviewed – has climbed from 167,412 in September 2005 to 425,480 in October 2015.

“VA officials say there are two possible solutions to the bottleneck,” Zarembo writes. Those are “money to hire more lawyers, judges and other staff to process appeals, or a rewrite of the law by Congress.” In essence, the VA has pushed the backlog from claims to appeals by applying its resources to claims. It appears to be playing Whac-A-Mole with the claims/appeals process; one goes down, the other pops up.

Since more money for more staff isn’t likely, a rewrite of laws seems more possible. And that is where the philosophical question of the needs of the many versus the needs of the individual comes in. Cutting the number of appeals vets can file would make sense from a purely logistical perspective. Some vets appeal dozens of times – or more – and never win. Is infinity the right number of allowable appeals? Probably not. Is one the right number of allowable appeals? Probably not. But where in between those two is the right number? And how does Congress make that decision, as it will inevitably have to do?

Everyone in politics today wants to “support the vets.” Certainly doing anything that appears to harm veterans individually is a ticket to political trouble; I can hear the negative ads in my head already.

But endless appeals inevitably mean endless backlogs. And the person who can make the political argument that some limit – however big or small it turns out to be – will help vets collectively, will make a huge difference for the rest of the vets waiting in line for their cases to be decided.

A Veteran's Response:

Ms. Rose's essay basically blames veterans for gaming the VA system via the appeals process. "Why do they do it," she asks. "Because they can."

I say, because we must! I can only understand VA's appeals process from my own perspective, and part of that is VA's claims process as well....they cannot be separated.

Veterans currently face an average of 315 days for an initial claim to be processed. In 2012, the Board of Veterans Appeals (BVA) overturned 28.9% of the denials issued for compensation claims, and errors were found in another 46% of appealed claims. These claims were sent back to the original VA Regional Office for an additional review.

Tom Murphy, VBA’s director of compensation services, agreed that initial accuracy has a significant role in keeping down the backlog of both repeated claims and appeals. “If you’re having quality issues, it takes longer to work a case the second or third time than it takes to get it right the first time,” 

An appeal is submitted when a veteran claims VA errored on his/her claim. A claim is an initial application for benefits – medical care as well as compensation, Yes, I agree some of my brothers and sisters do submit an inappropriate number of claims, as also appeal with faint justification VA's inappropriate VA's decisions on the claims.

But: Claims are more typically for illnesses and injuries the veteran legitimately believes tied to military service. Appeals more typically are for errors the veteran believes (correctly or not) VA made in deciding the claim. Appeals mount up because of errors made by the Veterans Benefits Administration (VBA) in evaluating claims and also because veterans and their advocates (veterans service officers from VFW, DAV, etc.) themselves made errors in preparing claims. There are many other reasons, and certainly gaming the system is one of them, but the system's errors are basically to blame.

First among them is the remand procedure. Remands are where the Board of Veterans Appeals finds mistakes by VA in processed the claim. A remand vindicates the veteran but does nothing to resolve the claim, instead squeezing it back into the workload of the regional claims staff. The VA makes mistakes on more than 50%  of all claims it processes, most of which are never appealed.

• First Solution: Better quality initial claims decisions
• Second Solution: Faster preparation by regional offices of appealed claims for forwarding to BVA
• Third Solution: BVA must be given authority to resolve an issue without a useless remand!
• Fourth Solution: Regional offices should be given reconsideration authority when VA errors are noted while preparing appealed claims before forwarding to BVA
• Fifth Solution: VA should impose a token $10 filing fee for subsequent appeals...a vet's very first appeal is free but a $5 threshold is imposed thereafter for all appeals
• Sixth Solution: Some common sense. For instance, once the C-123 issue was resolved for post-Vietnam veterans, BVA began remanding claims with airplane details but completely outside the scope (by years, location, other facts) of the C-123 Agent Orange issue

Why a failed appeals process, choking on nearly a million frustrated claims?

1. An evolving medical situation, or age, presenting additional illnesses or injuries requiring new claims
2. VA decisions which only partially address issues claimed, leaving particulars to be appealed
3. VA's evolving rules. For instance, C-123 veterans were for years denied all benefits but ground rules changed and permitted claims and appeals
4. The veteran learns from the denied claim what proofs or arguments should have been made in the initial application, and either appeals or repeats the claim with new and material evidence
5. VA's errors in deciding claims
6. VA regional offices taking years to prepare an appealed denied claim before forwarding to the BVA; BVA actually decides appeals rather quickly once received, but the majority of the years a veteran must wait for an appeal is wasted at the regional office waiting for the claim to be readied for the BVA
7. VA has an inadequate system for veterans to request reconsideration of denied claims, and veterans too often leap to an appeal rather than a faster reconsideration process
8. VA permits no input from a vet's own VA physician in support of a disability claim or appeal, yet VA staffs the BVA with medical experts to help oppose appeals. Similarly, VA staffs the BVA with attorneys to argue against veterans' claims. An appeal is thus an uphill battle for a veteran with VA bringing in big guns to oppose a claim...and leaving an incentive to appeal
9. VA's regional office Decision Review Officer (DRO) program is overburdened by its DROs working claims and not appeals
10. One need a veteran continues with claims and appeals even after 100% service connection is granted is to address Combat Related Special Compensation requirements
11. Sometimes a veteran believes strongly an important issue is unresolved even with a 100% service connected decision on a separate issue, and seeks VA acknowledgement. Awards for 100% service connection should include language to encompass all remaining but unresolved issues under the one decision
12. Veterans service organizations should exercise judgement in supporting veterans' appeals, rather than rubber-stamping them past all reason; at some point VSOs should decline to represent a veteran any further
13. Legislation is needed to help address a failed appeals system