Joint Services Records Research Center – how this little-known DoD agency responded to C-123 Veterans' Agent Orange claims

It is amazing and totally confusing, the countless government agencies littering the landscape that veterans and other citizens must navigate. Agencies that impact thousands of lives while  we have no idea about their powers or even their existence. In pursuing C-123 veterans' Agent Orange claims, I encountered ATSDR, NIESH, NTC, JSRRC, AFPMB, M21-1MR, ACDC, USAFSAM, USCAVC, USAFPMB, and AFBCMR. Alphabet confusion!

One agency with its unrevealing initials is the JSRRC, the “Joint Services Records Research Center.” JSRRC turned out to be pretty darn important to all veterans with Agent Orange exposure or PTSD claims. JSRRC is part of the Department of Defense but run by the US Army, and operates out of Fort Belvoir, Virginia.

JSRRC and our C-123 veterans' Agent Orange issues came together in late 2011. By early 2012  my VA disability claim was initially approved by the Portland VA claims office citing CDC confirmation, but then denied on review by Washington authorities. 

As I read the denial of my C-123 Agent Orange exposure claim submitted over a year earlier, I saw it was authored by Tom Murphy, then VA director of compensation and pension in the Veterans Benefits Administration (VBA.) Our association used my own Agent Orange claim as a representative claim because I was already 100% VA disabled for spinal cord injuries; I could argue without any appearance of personal gain.

Today Tom is acting Under Secretary for Veterans Benefits. Murphy dismissed every issue I raised in my claim. What has interested everyone concerned about Agent Orange ever since was his oft-quoted line, “There is no conclusive evidence that TCDD exposure causes any adverse human health effects.” WOW!

Agent Orange is harmless? Note the use of “conclusive,” cleverly chosen because few diseases such as prostate cancer or ALS can be pinned to Agent Orange with any such "conclusive" certainty. Instead, as Murphy and respected VA researchers like Dr. Mark Garzatto at VA Portland know perfectly well, the situation is our odds of getting these diseases are much worse having been exposed than if not. 

Sometimes, even twice-worse, as Dr. Garzotto's research proved. But never absolutely “conclusive” proof as with a broken arm. 

This point is well-known in science and throughout the VA, but here Murphy hid behind the confusion he would cause. In a similar manner, we know asbestos is harmful, as is certain radiation and many different toxins; exposure to such things isn't "conclusive" but the probability of resultant disease is greatly worse than not.

What an amazing statement! Murphy actually wrote in denying my Agent Orange prostate cancer claim his official top-level response that TCDD, the known carcinogen in Agent Orange is harmless. This would come as startling news to VA physicians and scientists, VA, WHO, and every other government agency having already concluded decades ago that Agent Orange and its TCDD contaminant is the most poisonous man-made toxin on earth.

Murphy and his staff dismissed evidence supporting my claim from the Air Force, Columbia University, the Committee of Concerned Scientists and Physicians, Oregon Health Sciences University, the Agency for Toxic substances and Disease Registry, the National Institute for Environmental Health Sciences, and other sources. Nothing persuaded Murphy or his subject matter experts that I’d had Agent Orange exposure. Nothing. 

Nothing until all these truly persuasive sources ganged up on the VA in 2014 at Institute of Medicine hearings, the IOM concluding VA had been wrong all along. Later Murphy was to earn the moniker “Agent Orange denier” from veterans’ organizations like DAV and VVA.

I met with Murphy in his DC office on February 28, 2012. Murphy explained that he would only accept exposure proofs from the Joint Services Records Research Center, not what veterans ourselves might submit. His response explained why materials we send were disregarded at VA. 

The regional office working claims like mine was required by VA regulation to contact the Joint Services Records Research Center ("JSRRC".) Initially, JSRRC had reported it" could not verify that the Veteran was exposed to Agent Orange” but subsequent reports were more affirming. The most startling thing Murphy told me was that no amount of evidence would ever permit a C-123 claim to be approved – VA had already determined there could have been no exposure aboard our airplanes. As he ushered me out, for any further inquiry he recommended Dr. Terry Walters in Veterans Health Administration.

Nothing at all was resolved by meeting with Murphy. However, reading more and more  about his VA rules for claims and appeals, it was clear JSRRC needed to be provided our evidence but also convinced of its relevance. I read through procedural VA manuals and regulations once again. 

Whether or not Murphy gave much JSRRC credence, VA rules were there in print and, along with Murphy and Walters,  they’d been the death-knell to so many veterans’ claims from men and women. The governing VA regulation is  “M21-1, Part IV, Subpart ii, Chapter 1, Section H - Developing Claims for Service Connection (SC) Based on Herbicide Exposure.” This VA claims manual states:

“Regional offices (ROs) must submit a request for verification of herbicide exposure to JSRRC using the Defense Personnel Records Information Retrieval System (DPRIS) web application when
• a Veteran provides, or military records contain, the information JSRRC requires, but
• service records do not confirm the Veteran served in an area associated with herbicide exposure.”

This meant for all claims like ours VA has a legal duty to assist with claims. Turning to JSRRC for input advice or assistance is required for claims of Agent Orange exposures other than in Vietnam. Once the 1991 Agent Orange Act went into effect, regional VA claims staff outinely submitted all such inquiries to JSRRC in Fort Belvoir, Virginia. For the path forward, we figured convincing JSRRC would then force Murphy to accept our claims.

Murphy had made it clear that although a JSRRC review was required for our claims it still could be denied any real persuasive power: It seemed that VA ignored or disputed virtually everything veterans submitted. except some of what was sent by JSRRC. Even that could be disregarded. Still, getting our stacks of evidence to JSRRC for VA inquiries remained important as the next step. 

When I called to ask, JSRRC director Mr. Dominic Baldini offered an appointment on my next trip to Washington DC. I made the expedition to Fort Belvoir where Baldini met me very warmly and immediately assured me his team always sought the information necessary hoping to support veterans’ claims. JSRRC archivists, a small team of just twelve experts in researching government files, was obviously dedicated and very overworked.

A note here. I’d prepared an in-depth report, a large binder and CD with all the FOIA results, agency opinions and other proofs in hopes that JSRRC would weigh them carefully and return a more positive response to VA inquiries about C-123 veterans’ claims. Included were materials from ten universities whose scientists and physicians reported on our exposures. 

Also, I had source data from the Air Force, aircraft toxicology results, and data from other federal agencies to persuade JSRRC and give it information to persuade VA. Baldini and I half a day pouring through the major stuff point-by-point, and he seemed to assure me that JSRRC would have that source data to help affirm C-123 veterans’ exposure claims.

I was surprised, then, as every claim kept being denied. VA insisted JSRRC found no evidence supporting approving our Agent Orange claims. I wrote the manager of VA’s Agent Orange claims desk, Mr. Jim Sampsel, and copied him on the same binder of persuasive materials I’d provided to JSRRC. 

The next stall was Sampsel's when he emailed that VA would only accept input from JSRRC, and that information, to be acceptable, could only be from military and related DoD sources. All the input from Columbia University, independent scientists, state agencies and even NIH and CDC was somehow, regardless of merit, unacceptable to Sampsel and his Agent Orange desk. 

Sampsel’s ploy was obviously to prevent any input that would force a conclusion supporting our claims. In fact, JSRRC is responsible for reporting to VA on all credible information; Sampsel was deliberately putting on his blinders even with his blinders, was keeping his eyes and ears shut.

 

I accepted the challenge; I had no choice anyway. If Sampsel insisted he’ll only accept JSRRC input and it had to be only from military sources, I’d find it. Dr. Linda Birnbaum was the famous director of the National Institute for Industrial Health Sciences; she backed the ATSDR letters. If Sampsel would accept only DoD input, she'd get it for him. Dr. Birnbaum had many officers from the US Public Health Service working for her, so she had the most senior, Captain Aubrey Miller MD USPHS, write a report for Sampsel. USPHS officers are actually military officers and must be acceptable to Sampsel. Sampsel just ignored it anyway.

I double-checked and made certain Baldini still had everything I’d left for JSRRC, evidence that should have proved our case to Sampsel and his VA overlords. Baldini had been sympathetic during my visit, and I knew he had ample evidence to force Sampsel to use VA’s own narrow focus just as VA kept refining it, twisting and turning to avoid constructed accepting any such proof and keep our claims denied.

Only later I figured out that Baldini had already sent Sampsel a thoroughly documented summary of that information. It seemed all of Sampsel's obstructions against our proofs were dreamed up on the fly but even when we were able to comply he ignored everything anyway. But Baldini's carefully-worded C-123 summary was persuasive, cited the 200-times greater cancer risk, and was copied to many others.  I thought Sampsel couldn’t turn away from the strength of our evidence any longer. I was wrong again.

Sampsel, this pretzel-brained anti-veteran government one-man claim denial obstacle course, was amazing.…he developed yet another way to turn his head away from evidence. In the face of the JSRRC input, Sampsel insisted he’d accept only DoD records and once I got that he morphed requirements, his new demand being he'd accept only the JSRRC reports that he first requested, not those sent by JSRRC without a Sampsel inquiry. That way, Sampsel continued denying all C-123 claims by saying there was no supporting evidence. 

Sampsel's VA Agent Orange desk completely stopped making any inquiries to JSRRC about us. No inquiry from Sampsel at VA meant no Baldini-JSRRC response to support our exposure claims. He engineered the absence of otherwise readily available evidence of our exposures.

    It worked. At least it worked for about another year. Sampsel continued to deny every C-123 veteran's exposure claim while VA was insisting to senators and the media, and even his own senior executives that VA had no such “blanket refusal policy” for our claims and that each veteran’s claim was being carefully evaluated on its own merits.

Before June 19, 2015, no C-123 claim had ever been accepted by Sampsel at VA, although a few had been approved  by the Board of Appeals for Veterans Claims. Those appeals took years, with VA medical care refused until final resolution.

Yet Sampsel and his overlords kept repeating, kept deceiving, kept misleading – “VA will continue to adjudicate these claims on a case-by-case basis.” He did not mention that his own Agent Orange Desk in Veterans Benefit Administration had officially informed field claims offices that no basis existed for approval of a C-123 claim. One such claim from Paul Bailey in New Hampshire was denied by Sampsel's VBA and appealed, then finally granted by the White River VA claims office. 

That first unique success was featured in articles by Steve Vogel with the Washington Post, leaving Sampsel to write then-Secretary Shinseki that no basis existed for the claim but it should remain unchallenged any further to avoid political trouble.

Meanwhile, Sampsel kept refusing to accept or to request any information from Baldini’s JCSSC. But Baldini is a man of unusual integrity in such an office. Sampsel had repeatedly emailed JSRRC to push-back against C-123 proofs. Finally, pressured by the March 6, 2013 letter to him from Dr. Christier Portier, director of the CDC Agency for Toxic Substances and Disease Registry, Baldini did the right thing on March 12, 2013, despite his personal friendship with Jim Sampsel. 

CDC and other NIH offices had generated several C-123 reports to JSRRC, the VA and copies to the veterans to establish dangerous TCDD exposures. C-123 aircraft had exposed veterans to 200-times military toxin thresholds and exposed veterans to a 200-fold greater risk of cancer. Those were a paperwork trail about frightening health hazards nobody would ever be able to cover up. 

Baldini wasn’t inclined to cover this up anyway, certainly not to help Sampsel continue denying claims. Baldini sent his email to Sampsel (requested or not) and also forwarded it to several different government offices and legislators who'd asked about such evidence.  

Baldini had finally and officially informed the Veterans Benefit Administration that, as per VAM 21-1 MR, JSRRC had adequate “information of record” to report “relevant documentation” existed in the form of a very authoritative report by the CDC itself to the USAF, a report authored two years earlier by the CDC’s Agency for Toxic Substances and Disease Registry (part of the CDC) 

Sampsel had this first ATSDR report (the Sinks report) on his desk, sent to him by the CDC for over a year but disputed it while continuing to insist no such evidence existed supporting C-123 exposure claims. He insisted VA was reviewing claims “on a case-by-case” basis and did not mention that he had directed VA offices around the country to deny all those claims. 

 

At this point Sampsel took the last step available to him to forestall any claims: he acknowledged the existence of the CDC report but kept it from having any immediate effect. He put out a position statement acknowledging the JSRRC message to him, and falsely stated that JSRRC was supposed to only report DOD information. That held off the veterans another full year.

Sampsel was mistaken about limiting JSRRC input. JSRRC is charged to report to VA any and all credible support of a veteran’s Agent Orange exposure claim, particularly from federal government sources.) The faithful Dominic Baldini kept sending Sampsel, unsolicited and therefore ignored, affirmations of C-123 veterans’ exposures. The most comprehensive of these was dated May 15, 2014. Baldini figured Sampsel couldn't ignore a point-by-point from JSRRC. Sampsel didn't ignore...he couldn't as the report was being widely circulated.

 

        

.

Later, we learned that JSRRC had been submitting proof to Sampsel at VA several times during a period of nearly three years. None of which ever moved Sampsel act properly per his duties as per VA’s own VAM21-1MR rule book.

Sampsel reacted by pushing his stall as far as possible, saying VA would wait for the results of a study by the Institute of Medicine (released nearly two years later) and would continue in the interim to “evaluate” (i.e., deny 100% ) claims on a case-by-case basis. And deny he did until VA’s new regulation recognizing C-123 exposure claims was published on June 19, 2015.

N-o-t-h-i-n-g ever prompted Sampsel to action. was more than four years after the CDC report (dated January 25, 2012) established C-123 veterans’ exposures. Those were four years in which Sampsel’s antics helped VA withhold medical care and other benefits due disabled veterans from every C-123 vet claiming Agent Orange exposure.

There's an interesting point about Mr. James Sampsel, VA subject matter expert and manager of the Agent Orange Desk, responsible for complex questions arising from veterans' Agent Orange exposure claims. He was invited to brief the VA Advisory Committee on Disability Compensation. For some reason known only to him, he misleadingly informed the committee that much of the renewed attention Agent Orange was getting was merely due to media “hype” and “hysteria.” 

“The facts don’t always matter,” Sampsel told the committee.

The June 13, 2017 front page of Stars and Stripes, along with ProPublica and other publications, featured those amazing remarks from Mr. James Sampsel.

Sampsel felt it necessary to orient the committee by first mentioning me:
           “For the past several years there's been         an advocate, Wes  Carter.

He's a retired reservist Air Force Colonel. He was a pilot, a C-123 pilot. After the C-123 Ranch Hand planes were retired from Vietnam, they came back to the U.S. and they sat in mothballs for a while. And then they were distributed to reserve units in Pennsylvania, Massachusetts and Ohio. And they were flown for several years. And Wes Carter was an advocate for this group, the C-123 group, and he claimed that they were exposed to Agent Orange by virtue of dried, solidified Agent Orange that was still active in those planes.
Not only that, reservists do not qualify under the law. He called it bio-availability --there was no bio-availability, because it can't get through the skin. There wasn't anything to inhale, and so on. Anyway, that was the argument that was presented to the Institute of Medicine. VHA commissioned the Institute of Medicine to look into it.
I went to the hearings. One scientist from Harvard or somewhere said that dried, solidified TCDD never stops emanating molecules into the air. Hardly anybody bought that at the time, but the IOM went with it. I don't think the science supports it. Most scientists don't think the science supports it, but the law is what it is.

Sampsel was obviously far, far off base in claiming that the science doesn't support "it," the toxicity of Agent Orange. Sixteen others in that Institute of Medicine committee of physicians and scientists, "one scientist from Harvard or somewhere," along with the distinguished members of the National Academy of Sciences, plus the independent committees the IOM submitted their conclusions to for peer review, plus the Secretary of Veterans Affairs, plus the CDC, all concluded that the science did support C-123 exposure. Sampsel skipped that part, it seems.

While discussing me with the VA Advisory Committee on Disability Compensation Sampsel didn't mention that I was the principal presenter for veterans’ interests at the IOM committee hearings, and also represented the Vietnam Veterans of America that day. Then Sampsel spoke of how he and VA…and Dr. Alvin Young… handle (obstruct) Agent Orange claim. No mention was made of how his Agent Orange Desk avoided accepting JSRRC input to avoid honoring valid C-123 veterans’ claims:

 I monitor that mailbox. It's called the Agent Orange mailbox. Everyone that makes a claim, the policy is that the regional office has to send it in and I take a look at the claim. And then I take a look at the Department of Defense documents that we have on Agent Orange use, testing, storage and so on and so on. And I will send back to them and say there's no evidence for this, or maybe there is evidence. And what I use to determine that is Department of Defense documents. And who produced those Department of Defense documents was Dr. Alvin Young.

We had a contract with Dr. Alvin Young, who did, as I mentioned before, he did a lot of research in the '60s and '70s. He worked at Eglin Air Force Base, where they developed the spray nozzles. They sprayed Agent Orange over a two-square mile area for years and used the technology in Vietnam. So he did all the work for the Department of Defense.

That’s right. Sampsel credited Al Young as the expert VA turns to for careful consideration of disabled C-123 veterans’ claims. Young, the Air Force officer who weaponized Agent Orange. Young, who preceded Sampsel at the VA Agent Orange desk where for years he rejected the first waves of Vietnam veterans’ claims by saying "the evidence just isn’t there.” Young wrote Sampsel encouraging him to "hold the line" against C-123 veterans' claims.

Young, the VA contractor and former VA employee who castigated C-123 veterans as “trash-haulers, freeloaders for whom I have no respect" was "helping" VA evaluate our claims. Sampsel's boss Brad Fluhr visited that committee at their next public meeting to apologize for Sampsel's comments. I was there to hear it. Sweet.

A few more factoids about Mr. Sampsel. His personal friend Dr. Al Young was given a no-bid sole-source $600,000 contract to write Agent Orange-focused monographs, most of which opposed C-123 veterans’ claims of exposure. Throughout this contract, as he had with other such contracts, Young reported to VA through Sampsel, and submitted draft copies of his monographs to VA officials to make certain they reflected VA doctrine. 

Young later was quoted by ProPublica agreeing he'd “made millions” from his VA work opposing Agent Orange claims over the decades. Young also was noted in ProPublica and other publications for labeling Agent Orange-exposed veterans “trash-haulers, freeloaders for whom I have no respect.”

In 2014 Al Young represented the VA perspective on C-123 Agent Orange at the Institute of Medicine public hearings on the issue. Although he insisted he wasn’t there to represent the VA, he was at the time being paid over $25,000 per month for his Agent Orange monographs.

In one interesting paper, he described the 1971 toxin decontamination of C-123 aircraft No. 664, with photos of the pristine condition of the cockpit, cargo deck and exterior. His point was that #664 and all other C-123 spray airplanes had been safely decontaminated – no post-Vietnam exposures were possible.

Photos from Young's monograph #12. My "oops" balloon points to electronics not yet invented
 in 1971, 50 years ago when Young said this "USAF" photo was taken.

That wasn’t quite the case, however: Young was playing something of a shell game to deceive the IOM. Actually, C-123 No. 664 is today owned by the Air Heritage Museum in Pennsylvania, and the “reconditioning” of that plane was done by the museum itself in recent years, not by the Air Force back in 1971. 

Further, the photos Young showed the IOM and printed as part of his $600,000 no-bid sole-source contract purporting to be taken in 1971 of the “reconditioned” C-123 were copied directly from the Air Heritable Museum web site. The photos of “Ponderous Polly,” as the aircraft is named, are still there on line, just as Young copied them. They aren't USAF photos after all. 

Young’s input to the Institute of Medicine committee was the VA’s primary push-back against the veterans’ claims of exposure. The IOM report was released on January 9, 2015. Young’s with input was dismissed, tainted as “mere speculation, conjecture.” It is clear Sampsel's $600,000 of VA-money was wasted.

Revenge is sweet, however, especially when unsought and when the other guy brings it on himself. The Institute of Medicine rejected Dr. Young's arguments against C-123 veterans' Agent Orange exposure to them as "mere inadequate conjecture" when it published their decisive report on January 9, 2015. 

In 2017 Young told ProPublica that he might have been wrong. 

He was.

                               Alvin Young, PhD
                              "Dr. Orange"

VA Benefits for a “Traditional Reservist?”

Absolutely! Hearing injuries resulting from armor, heavy weapons, flight or aircraft maintenance duties might qualify you for VA compensation and other benefits. Here’s how. 

Traditional reservists aren’t eligible for most VA benefits because “active duty for training” doesn’t count towards true veteran status – even if it is a year or more such as Undergraduate Pilot Training. Regardless of how long one’s initial active duty for basic and technical school might be, the law doesn’t recognize that as “active service.” 

VA recognizes completion of an active-duty enlistment, or active duty during wartime to qualify a servicemember for benefits, but UTAs, annual tour, active duty for basic and other training are grouped into ineligible “active duty for training.” No bennies. 

BUT – there’s a big exception to that if you experience a disabling injury or disease. Tinnitus is just one such injury. That ringing in the ears, or wind noise or low hum is caused by loud noises. Noises like a C-123 or C-130 makes. Noises like an M-16 makes at 154dB.

Flyers, tank crews, infantry, artillery and others around loud noises in a military setting often suffer tinnitus, and VA recognizes that as a frequent disability - in fact, it is the most common disability veterans have. 

If you have tinnitus or hearing loss you might be entitled to VA care and compensation for that disability, and if you are, that makes you a veteran with all the benefits that wartime veterans receive. Benefits that you’ve earned from damage done your ears.

I looked into this in December 2020 to help a man who was an army reservist with tinnitus from his basic training back in 1968.  He fired the M-14 rifle and did not have any ear protection. Noises of 85 dB and above can cause permanent hearing loss and tinnitus, and our aircraft are far noisier than that: The C-130 cockpit is steady at over 112 dB. The noise is even worse in the aircraft rear! 

After my altitude chamber ride at Edwards AFB I started flying C-130 transports in 1974. I recall that by 1976 or so we received the 3M yellow foam earplugs. They only provided some protection from noise hazards but it was all we had plus our crew headsets; even together they were of little help. 

There was still significant noise reaching the inner ear to cause damage. This kind of damage is permanent and cumulative and can evidence itself in worsening tinnitus and/or hearing loss even years later. 

Here is my point in the VA’s own words: 

“When a claim for service connection is based on a period of active duty for training, there must be evidence that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training.”

That is per 38 U.S.C. § 1131 (see also 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). See CAVC Hensley v. Brown –

  “claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.”( 5 Vet. App. 155, 164 (1993).” Also see VA Training Letter 10-02 at 15 (rescinded re: incorporation into VBA Adjudication Procedures Manual (M21-1), pt. III, subpt. iv, ch. 4, § D.1-3) 

VA compensation for a 10% tinnitus disability is a modest $144 per month. For someone who served in the reserve components the real importance here isn't the money but rather a hearing injury establishes legal veteran status with all the benefits that attach to being a wartime veteran (we’ve been in a period of war ever since Desert Storm.) 

Sometimes there are secondary issues to adding to hearing loss like depression or hypertension. There can even be tertiary issues, something like hearing loss causing depression which is known to cause heart issues. Rarely, there have been vets getting up to 50% disability ( benefits plus $995/month) based on hearing loss and complications. 

You might not need them now, but benefits can include elderly/low-income pension rights, medical and pharmacy (perhaps with modest co-payments,) rehab, hearing aids, VA home loan, education, and even a new program for veterans called Veteran Directed Care. 

It is for vets faced with significant loss of ADLs (activities of daily life.)
There is no disability rating required, only that a vet be enrolled in VA health care, and with it help can be offered for whatever ADL shortfalls the vet experiences.

If you believe you have tinnitus or hearing loss, or maybe some other issue that began during service and still affects you, get advice from the VA hotline, one of the veterans’ service organizations like DAV or VFW, or your city/state VA office. Get a claim entered immediately because benefits are dated from when VA gets your claim, not when they approve it months later. 

Late note: the Army reservist whose claim I helped prepare got a welcome disability rating of 40% service connection (backdated to date of his application) when VA approved his claim in early June 2021; he has a couple issues still pending that could increase the award significantly. This all went back to hearing injuries during basic training and AIT over half a century ago; good thing he saved, the documentation from his sick call and hospital treatments!

I hope this helps someone!

Wes Carter, USAF Retired

Medical Service Corps

Total Disability for Individual Unemployability (TDIU) Property Tax Exemption Briefer and TDIU slide show (QR Codes)

1. SCAN or CLICK to download TDIU Briefing File

2. SCAN or CLICK for TDIU Briefing Slides

 

What is VA "TDIU" and how does VA use that rating?

I've needed to go into an explanation what VA TDIU is (CLICK HERE for VA's factsheet) but I overlooked doing it until questions arose at Sunday night's United Veterans Coalition banquet in Denver. A gentleman at our table was from Arapaho County and asked me about helping his Army veteran son.

A skillful veteran’s service officer (VFW, DAV, state or county) can advise about eligibility for Total Disability for Individual Unemployability (TDIU, and sometimes just IU) and help one obtain this valuable benefit if qualified. These pros know the mysterious VA bureaucracy and the evidence required to obtain favorable benefit claim decisions for disabled veterans. Their objective for every disabled vet they assist is to get the maximum entitled benefit. And actually, that's VA's goal as well.

The VA requires veterans to prove their qualifications for disability benefits but even then, VA routinely denies legitimate TDIU claims. 

Qualifying for TDIU:

The VA’s Individual Unemployability (TDIU) benefit represents somewhat of a loophole for disabled veterans in the VA system. It allows assigning a total disability rating for compensation (100%) to to a vet when the vet’s actual disability exceeds the VA's rating chart. TDIU was established decades ago when VA appreciated that there were situations where the regular percentage allowed for a disability is inadequate and where the vet's particular disability (regardless of any rating chart) is in fact total. TDIU ratings account for situations where the line-of-duty disability has made employment impossible, making employment impractical. 

Total Disability for Individual Unemployability is based on the vet’s proven inability to maintain “substantially gainful employment” due to a service-connected illness or injury.

VA regulations usually require the vet to have at least one service-connected disability rated at 60% or more. Or, if the vet has multiple disabilities, at least one must be ratable at 40% or more, and in combination the vet’s disabilities confer a combined rating of 70% or more.

Veterans who do not meet the minimum disability percent rating requirements for IU may be considered if they can show exceptional or unusual circumstances, such as that their disabilities directly interfere with their employability or require hospitalization often enough to make steady employment impractical. Or, that a secondary issue such as pain from an SC back injury makes competitive employment painful and unwise to attempt.

The veteran’s claim must show that service-connected disability or disabilities are “sufficient, without regard to other factors, to prevent performing the mental and/or physical tasks required to get or keep "substantially gainful employment.”

“Substantially gainful employment” is defined as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.”

VA regulations also make it clear that substantially gainful employment is more than marginal employment, which is a secondary standard for evaluating a vet’s earnings. Marginal employment is defined as earning income that does not exceed the poverty threshold for one person as established by the Census Bureau. For 2021, that threshold is $13,100 for an individual under age 65. 

Vets in sheltered work environments, employed by family businesses or self-employed may earn more than marginal employment income and still be considered for IU.

Money earned by participating in the Veterans Health Administration’s (VHA’s) Compensated Work Therapy (CWT) Program is not counted as income for TDIU purposes.

A vet who has a 100% disability rating according to the VA rating schedule is permitted to maintain substantially gainful employment, but an TDIU benefit recipient is not.

TDIU benefits parallel those of 100% schedular. The compensation is the same with identical special allowances for dependents, clothing, aid and attendance, travel, and special monthly compensation. A prepaid $10,000 is available upon application. Rehab, pharmacy, audiology, prosthetics, optometry, and other VA medical care is the same. There are some situations where dental care is also provided. One of the most important benefits for both TDIU and 100% schedular is CHAMP-VA for Tricare-like family medical care. Often with age and increasing difficulties with SC issues, a TDIU-vet will transition into 100% schedular.

 VA TDIU Eligibility Requirements:

Evidence that must be part of a veteran’s disability benefits claim to obtain IU / TDIU benefits includes:

• Medical evidence of the veteran’s current physical and mental condition, e.g., results of VA examinations, hospital reports, and/or outpatient records. As in other claims, the VA may schedule a medical examination if the veteran’s medical evidence is incomplete or inconsistent.

• Employment and work history for five years prior to the date on which the veteran became too disabled to work, as well as for any work performed after this date.

• Forms completed by each employer for whom the veteran worked during the 12-month period prior to the date the veteran last worked.

• Social Security Administration reports if the vet receives Social Security Disability benefits, if the veteran’s other evidence is insufficient to award compensation

• Records from the VA’s Vocational Rehabilitation and Employment Service (VR&E) if evidence suggests rehab was undertaken but unsuccessful or was found to be medically unfeasible. VR&E testing can be requested by any vet enrolled in VA health care. Social Security Disability records are persuasive.

If the TDIU benefit is granted, the vet must complete a VA employment questionnaire each year until the age of 69 to affirm that he or she remains incapable of maintaining substantially gainful employment.

VA disability raters are trained to consider TDIU in exceptional cases, yet about 40% of all totally disabled vets get that rating and 60% or so are 100% schedular. Examiners can't consider the vet’s age or distinguish between retirement and inability due to age as opposed to a true service-connected disability resulting in unemployability.

As in other cases, VA claims examiners may request additional information at any time to supplement or clarify evidence in a veteran’s claim. This, of course, slows the process. Submit as much persuasion as can be gathered!

Good luck with your claim. NOW –  HELP OTHER VETERANS!

American Legion: Twice they helped me with veterans' concerns

Like so many others, I owe a great deal to the American Legion and their dedication of service to veterans and our families.The American Legion got the ball rolling for C-123 veterans and our Agent Orange concerns. In 2012 Dr. Jeanie Stellman and I visited the Legion's DC offices for a meeting with their national leadership. We briefed them on Stellman's research and Air Force materials that established our Agent Orange exposures, and asked the Legion to get behind us with the power of their nearly one million members.

They said yes, and for us to return the next day with a draft resolution to be voted on at their next national convention. Stellman and I wrote it that night on her MacBook Air (my computer was stolen that morning!) the Legion executives accepted it the next morning. Our resolution was eventually approved as Resolution 128 at the 2012 national convention.

The Legion also led in January 2015 after the Institute of Medicine determined we'd been exposed to Agent Orange aboard our aircraft. Along with the rest of the "Big Six" veterans organizations they insisted that VA Secretary Bob McDonald act on the IOM findings, which he finally did on June 19 2015. The Legion also got a bipartisan group of US senators and congressmen to demand Secretary McDonald act, and they withheld all confirmations until VA yielded. 2100 C-123 aircrews and maintainers, and their survivors, got VA Agent Orange benefits that day, with much thanks due the American Legion.

Over the next few years, a number of articles about C-123 veterans appeared in Legion publications. I've gathered them along with Resolution 128 for your review.

In May I asked our local post to initiate a Colorado resolution supporting Gold Star Wives property tax exemption, and it was approved by the entire state organization on June 28. Lesson for me: resolutions are the Legion's slow but steady march towards better veterans benefits.

And again...thanks Legion!

Text of American Legion resolution supporting Gold Star Wives property tax exemption

WHEREAS, Since the Revolutionary War, more than one million American soldiers have died in battle and military conflicts; their families, who have endured these losses and the accompanying grief, are known as Gold Star Families and their spouses as Gold Star Wives; and Gold Star Families are a living legacy of each fallen soldier to help us all remember and honor these heroes by name and deed, and  

WHEREAS, on April 5, 2021 the Seventy-third General Assembly of the State of Colorado issued Senate Joint Resolution 21-010, resolving on behalf of the citizens “That we, the members of the Colorado General Assembly, honor the pride and the pain of the parents and partners and children and siblings of our fallen heroes who lost his or her life serving our country and protecting our freedom; and recognize the families of these proud patriots with an expression of profound gratitude and respect” and 

 

WHEREAS, in 2006 the citizens of Colorado overwhelmingly approved by amendment to the State Constitution Article X Section 3.5 the Disabled Veteran Property Tax Exemption for totally disabled service-connected military veterans; and in 2014 the Colorado Legislature expanded the Senior and Veteran Property Tax Exemption to include surviving spouses by HB14-1373, and 

 

WHEREAS, the sacrifices of Gold Star Families are to be honored with respect as well as material support and 

 

WHEREAS, surviving spouses of servicemembers who die on active duty are only by the technicality of their servicememember’s death not being in receipt of the exemption thereby denied the exemption, and 

 

WHEREAS, this distinction between survivors of totally disabled veterans already in receipt of the Disabled Property Tax Exemption and survivors of active duty servicemembers (“Gold Star Wives”) denied the exemption solely due to the death of their spouse while in service is an offense to the honor of the State, contrary to the spirit expressed by the Seventy-third General Assembly of the State of Colorado Senate Joint Resolution 21-010, and contrary to the intentions of Colorado citizens’ approval of Article X Section 3.5 as presented in the 2006 Referendum E, and  

 

WHEREAS, the American Legion Department of Colorado and the Gold Star Wives are both member organizations of the United Veterans Coalition of Colorado, and  

 

WHEREAS, either a legislative or constitutional amendment process being necessary, it may suffice that a redefinition of “disabled veteran” to include a death on active duty, or other such procedure as the General Assembly shall direct; and that surviving spouses of Colorado Air and Army National Guard members who die while activated by the Governor for State service should also receive such respect and benefits, it is therefore  

 

RESOLVED, by the American Legion Department of Colorado that inclusion of unremarried Gold Star Wives and unremarried surviving spouses of Colorado National Guard members who die while activated by the Governor for State service, be included in the Disabled Veteran Survivor Property Tax Exemption because it is both necessary and proper, that the United Veterans Coalition be informed for this to be part of its state legislative objectives until acted upon with a goal of implementation before 2023. 

June 26: American Legion Votes Support of Gold Star Wives Property Tax Exemption

This morning the Department of Colorado of the American Legion, meeting at their annual conference in Colorado Springs, approved a resolution for Gold Star Wives inclusion in the Disabled Veteran Property Tax Exemption program.

The resolution initiated with the Legion post in Fort Collins. 

The Legion's resolution urges UVC to include the issue in its 2022 state legislative agenda. The coalition's agenda is yet be finalized. Obviously the legislature itself must agree to a solution during the next session.

Left unclear is whether a constitutional amendment or an act of the legislature will be the preferred approach.

The Legion's approved resolution joins that of the Military and Veterans Affairs Committee of the Colorado Bar Association, plus our own from the C-123 Veterans Association. It remains for the Gold Star Wives, not third parties, to actually initiate UVC consideration of this issue.
(click: resolution of American Legion Department of Colorado)

Colorado Legislature Wraps Up, Gets Set for 2022

All hope for Gold Star Wives' property tax exemption rose suddenly during the last few days of the 2021 legislative session...and were shot down even faster! The House passed HB21-1002 unanimously but the Senate Veterans and Military Affairs Committee destroyed hopes for this legislation with just a few minutes conversation among the Democrats. Party line vote: Dems=NO, GOP-YES, but the measure failed with Dems in the majority.

Oh, dear. I'm afraid we're back to the old drawing board.

 

United Veterans Committee Crafting State Legislative Agenda for 2022. TDIU Veterans Issue Proposed to the Committee

Among many other proposals, the United Veterans Coalition state legislative affairs committee is considering vets rated by VA as 100% Total Disability for Individual Unemployability veterans (TDIU) for the Disabled Veteran Property Tax Exemption. This issue is being weighed for inclusion in the UVC 2022 legislative agenda to be firmed up this summer for the next legislative session.

The decision will be based on input from all levels of UVC organizational members. This is an issue I've advocated about for six years. I ask everyone to get behind this agenda item, voicing your support directly to the state legislative affairs committee and the executive committee as all such potential agenda issues are being weighed this summer.  

Inclusion of TDIU veterans affects about 2,000 Colorado vet homeowners and survivors, at a cost to Colorado at about $2.6M. Voters originally approved the Disabled Veteran Property Tax Exemption as Referendum E in 2006. The Blue Book described the benefit for "totally disabled veterans unable to work" due to line-of-duty injuries and illnesses. Somehow, "unemployability" was written into the enabling legislation and statue after the amendment was approved. That's not what the voters thought we were approving.

I hope the legislature to include these ignored 100% disabled veterans by exercising its authority to redefine "qualified veteran." A revised statute can include TDIU vets. 

Colorado utilizes VA definitions for management of veterans benefits, so it is very telling to see VA's own rules from VAM21-1 on TDIU. Read carefully, and compare to the language of Referendum E, the enabling statute and the Disabled Veteran Property Tax Exemption form and instructions.

As for Gold Star Wives, the Legislative Support Staff calculated the cost to Colorado would be only $93,000, so it is very, very hard to understand why every Democrat voted against these 140 Gold Star Wives' much too small a benefit.