Last week, the Department of Veterans Affairs issued an interim final rule to benefit Air Force Reserve service-members who trained and worked on C-123 aircraft that had been used to spray herbicide in Vietnam. Upon a request from VA, the National Academy of Sciences’ Institute of Medicine (IOM) surveyed data on the subject of residual exposure to Agent Orange from aircraft used to spray herbicide in Operation Ranch Hand in Vietnam. The IOM concluded that “it is probable that the exposure of at least some Reservists exceeded level equivalent to some guidelines established for office workers in enclosed settings.” The IOM also found plausibility in that “the C-123s did contribute to some adverse health consequences among [Air Force] Reservists who worked in [Operation Ranch Hand] C-123s after the planes returned from Vietnam.”
Consequently, VA issued the interim rule last week expanding the definition of a “veteran” to accommodate this new medical information. Under 38 U.S.C. 101, a “veteran” may be a Reservist who was “disabled” or died during a period of active duty for training (ADT) or inactive duty for training (IDT). The interim rule now interprets the word “disabled” to include exposure to Agent Orange during ADT or IDT via a C-123 that was used to spray herbicide in Operation Ranch Hand.
In the supplemental information to the interim rule, VA explains that the legislative history of 38 U.S.C. 101 does not express what Congress intended by requiring that a Reservist be ‘disabled’ during IDT or ADT to qualify as a veteran. VA does state that:
[i]t is probable that Congress required a Reserve component member to have been disabled ‘during’ training because the medical science at the time understood that, if an in-service injury were to result in disability, at least some aspect of that disability generally would be manifest contemporaneous with the injury.
A disability arising from Agent Orange exposure, however, generally does not manifest until years after regular and repeated exposure. Many herbicide related disabilities are “latent injuries.”
VA’s interim rule, amending 38 C.F.R. 3.307, states:
[a]n 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.
Elements of a Claim for Disability Based on Herbicide Exposure from a C-123 Aircraft
From this language, one can surmise that VA will look for two basic elements in a claim for disability compensation based on herbicide exposure from a C-123 aircraft. First, VA will cross-reference the unit to which the claimant was assigned with the list of units known to have received a C-123 used in Operation Ranch Hand. Second, VA will compare the claimant’s Air Force Specialty Code for flight duties, ground maintenance jobs, or flight surgeon duties. VA estimates that the interim rule will influence about 1,500 to 2,300 claims. The C-123s used in Operation Ranch Hand were transferred to a limited number of units: the 906th and 907th Tactical Airlift Groups (TAG); the 911th TAG; and the 731st Tactical Airlift Squadron. A claimant’s assignment history will need to include one of these units when the C-123s were in service. Some C-123s were sent overseas as part of defense cooperation agreement programs.
Because a Reservist’s duties do not always precisely fit the Air Force Specialty Codes (AFSC), the possibility exists that VA will reject some claims because the claimant’s AFSC does not match a flight crew, ground maintenance, or flight surgeon AFSC. For example, in the early 1970s some Air Force fire fighters were assigned the task of washing the herbicide out of C-123s used in testing programs at Eglin Air Force Base. The AFSC for a fire fighter would not match the AFSC for the flight crew, ground maintenance, or flight surgeon. So, VA would reject that claim because the claimant’s AFSC would not match the jobs listed in the interim rule. The fire fighter, however, would have received just as much exposure as a ground maintenance worker. Attorneys at Bosley & Bratch have solved this kind of problem in the past by developing very, very detailed evidence about the claimant’s duties including diagrams, maps, photos, and live testimony employing all those pieces of demonstrative evidence.
Thus, although the interim rule will be helpful, it does have limitations. Like all regulations, it cannot ‘contemplate’ all potential situations.