Blue water Navy and Agent Orange Vietnam
Fri Oct 27, 2006 22:35

 
Subj: [raybdavisjr] Blue water Navy and Agent Orange Vietnam
Date: 10/26/2006 5:18:33 P.M. Eastern Daylight Time
From: _ray@valaw.org_ (mailto:ray@valaw.org )

Dear Readers,

RE:
http://bluewaternavy.org/vastaymemo.htm

We had posted the information about how the Veterans Court ruled that
a Navy veteran who had earned the Vietnam Service Medal for service
in the waters off South Vietnam during that war, could have the
presumption of service connection for conditions related to agent
orange exposure. SEE:
http://groups.yahoo.com/group/raybdavisjr/message/1146

Now the VA is appealing this decision to the Federal Appeals Court,
trying to overturn the Veterans Court decision, Aug. 16, 2006; Haas v
Nicholson.

You may remember that the VA also appealed the Veterans Court ruling
about bilateral tinnitus and was able to strike down the Veterans
Court.

See below my signature the VA memo about the Appeal of the Agent
orange presumptions.

IF THIS AFFECTS YOU, NOW IS THE TIME TO CONTACT THE PRESIDENT, AND
CONGRESS AND FORCE THEM TO REIGN IN THE SCOUNDRELS AT THE VA!!!!

Your Editor,
Ray B Davis, Jr.
http://www.valaw.org

--start VA memo --
BOARD MEMORANDUM
NO. 01-06-24
SUBJ: PROCESSING OF CLAIMS FOR COMPENSATION BASED ON EXPOSURE TO
HERBICIDES AFFECTED BY HAAS v. NICHOLSON—IMPOSITION OF STAY
1. REFERENCES
a. Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006).
b. 38 U.S.C. 1116; 38 C.F.R. 3.307, 3.309, 3.313.
c. VA Adjudication Procedure Manual M21-1, Part III, 4.08(k)(1)-(2)
(Nov. 1991).

2. PURPOSE OF THIS MEMORANDUM

The purpose of this memorandum is to implement a stay, by direction
of the Secretary, on the adjudication of cases affected by the recent
decision issued by the U.S. Court of Appeals for Veterans Claims
(Court) in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16,
2006), as well as to set forth procedures for handling affected
cases.

3. BACKGROUND

a. In its recent decision in Haas, the Veterans Claims Court reversed
a decision of the Board of Veterans' Appeals (BVA or Board), which
denied service connection for diabetes mellitus, with peripheral
neuropathy, nephropathy, and retinopathy as a result of exposure to
herbicides. The Board determined that, although the appellant had
served in the waters off the shore of the Republic of Vietnam, such
service did not warrant application of the presumption of herbicide
exposure because the appellant never set foot on land in that
country.
b. In reversing the Board's decision, the Court held that a VA manual
provision, VA Adjudication Procedure Manual M21-1, Part III, 4.08(k)
(1)-(2) (Nov. 1991), created a presumption of herbicide exposure
based on receipt of the Vietnam Service Medal for purposes of service
connection for diseases associated with herbicide exposure. In so
holding, the Court found the manual provision to be a substantive
rule and invalidated a subsequent amendment to that provision. The
Court also found that neither the statute nor the regulation
governing herbicide exposure claims precludes application of the
presumption of herbicide exposure to persons who served aboard ship
in close proximity to the Republic of Vietnam.
c. Accordingly, for the purpose of applying the presumption of
exposure to herbicides under 38 C.F.R. 3.307(a)(6)(iii), the Court
in Haas held that "service in the Republic of Vietnam" will, in the
absence of contradictory evidence, be presumed based upon the
veteran's receipt of a Vietnam Service Medal, without any additional
proof required that a veteran who served in waters offshore of the
Republic of Vietnam actually set foot on land.
d. The Department of Veterans Affairs (VA) Office of the General
Counsel (OGC) is preparing a recommendation that the Department of
Justice (DOJ) appeal Haas to the U.S. Court of Appeals for the
Federal Circuit.
e. There are a potentially large number of cases on appeal (exact
number not known) that may be affected by Haas. In order to avoid
burdens on the adjudication system, delays in the adjudication of
other claims, and unnecessary expenditure of resources through remand
or final adjudication of claims based on court precedent that may
ultimately be overturned on appeal, the Secretary of Veterans Affairs
issued a memorandum on September 21, 2006, directing the Board to
stay action on and refrain from remanding all claims for service
connection based on exposure to herbicides in which the only evidence
of exposure is the receipt of the Vietnam Service Medal or service on
a vessel off the shore of Vietnam.
f. As directed by the Secretary, this stay will remain in effect
until such time as either the Secretary's September 21, 2006,
memorandum is rescinded, or the General Counsel provides advice and
instructions to the Board upon resolution of the ongoing litigation.
As further noted by the Secretary, "This guidance is not intended to
affect the ability of Board members to exercise their independent
discretion in the resolution of questions presented in individual
appeals."

4. IDENTIFICATION AND SCOPE

a. The specific claims affected by the stay include all claims for
service connection based on exposure to herbicides in which the only
evidence of exposure is the receipt of the Vietnam Service Medal or
service on a vessel off the shore of Vietnam.
b. Any cases not affected by the Court's decision in Haas, such as
(1) claims based on herbicide exposure in which it is clearly
established on record that the veteran did set foot in the Republic
of Vietnam, or (2) claims based on herbicide exposure in which the
veteran did not set foot in Vietnam, did not receive the Vietnam
Service Medal, and did not serve off shore of Vietnam, should
continue to be processed in the usual manner.

5. VETERANS LAW JUDGE/COUNSEL HANDLING OF AFFECTED CASES

a. Notation. Upon identifying a claim that is subject to the stay, a
Veterans Law Judge (VLJ) or staff counsel should make a notation in
the lower right-hand corner of the Appeals cover sheet that it is
a "HAAS HERBICIDE STAY CLAIM."
b. Single-issue cases. Affected single-issue cases, as well as cases
involving an issue that is inextricably intertwined thereto (such as
claims for a total disability rating based on individual
unemployability (TDIU) or service connection for a disability as
secondary to the stayed claim for service connection based on
herbicide exposure), should be forwarded to the Decision Team Support
Unit for processing in accordance with paragraph 6 below.
c. Multiple-issue cases. Some multiple-issue cases may contain issues
that are subject to the stay and others that are not. In such cases,
the Board must adjudicate, as appropriate, all issues that are not
subject to the stay. See BVA Directive 8430, para. 13 (May 17, 1999).
Cases where other claims are being adjudicated and/or remanded should
contain language in the "Introduction" that is substantially similar
to the following:

The United States Court of Appeals for Veterans Claims (Court) issued
a decision in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August
16, 2006), that reversed a decision of the Board of Veterans' Appeals
(Board) which denied service connection for disabilities claimed as a
result of exposure to herbicides. The United States Department of
Veterans Affairs (VA) disagrees with the Court's decision in Haas and
is seeking to have this decision appealed to the United States Court
of Appeals for the Federal Circuit. To avoid burdens on the
adjudication system, delays in the adjudication of other claims, and
unnecessary expenditure of resources through remand or final
adjudication of claims based on court precedent that may ultimately
be overturned on appeal, on September 21, 2006, the Secretary of
Veterans Affairs imposed a stay at the Board on the adjudication of
claims affected by Haas. The specific claims affected by the stay
include those involving claims based on herbicide exposure in which
the only evidence of exposure is the receipt of the Vietnam Service
Medal or service on a vessel off the shore of Vietnam. Once a final
decision is reached on appeal in the Haas case, the adjudication of
any cases that have been stayed will be resumed.
d. After the decision and/or remand, if any, has been signed, the VLJ
should forward the case to the Decision Team Support Unit for
processing in accordance with paragraph 6 below. For any issue being
stayed, the "Stay" disposition should be chosen when a counsel or VLJ
checks out a case using the Attorney Check In or Automated DAS
programs. The name of the stay to be chosen in the drop-down box
is "Herbicide - Haas v. Nicholson."

6. MANAGEMENT AND ADMINISTRATION HANDLING OF AFFECTED CASES

a. Central Case Storage. The Central Case Storage Unit, within the
Intake Unit, will continue to distribute all cases to the Decision
Teams and Appellate Group, following normal procedures as set forth
in the Board's Central Case Storage Procedure Manual (August 18,
2006). VLJs and Board counsel will ultimately decide if a particular
appeal is subject to the stay. No action to stay a case may be
initiated by an administrative staff member, except upon direction of
a VLJ or Board Counsel.
b. Decision Team Support: Identification of a Stayed Case. Upon
receipt of a file which indicates in the lower right-hand corner of
the Appeals Cover Sheet that it includes one or more issues subject
to the stay, as identified by the notation "HAAS HERBICIDE STAY
CLAIM," the Decision Team Support Unit reviewer should make the
appropriate entry in VACOLS to reflect the existence of the stay. The
name of the stay is "Herbicide - Haas v. Nicholson."
c. Procedure.
(1) Single-issue cases. For single-issue cases in which the only
issue on appeal is a claim affected by the stay, as well as cases
involving an issue that is inextricably intertwined thereto, and for
which a Board decision is not presently being issued, the Decision
Team Support Unit will retain and store the claims folder during the
period of the stay. Upon receipt of the claims folder and a
determination that the case is subject to the stay, the Decision Team
Support Unit will send a letter to the appellant and/or the
appellant's designated representative, as appropriate. The letter
will notify the appellant of the stay imposed on the processing of
certain compensation claims, and that an adjudication of the claim(s)
will be deferred pending the appeal by VA of the CAVC's decision in
Haas. Once a final decision is reached on appeal in the Haas case,
the adjudication of any cases that have been stayed will be resumed.
(2) Multiple-issue cases. In multiple-issue cases where the Board is
finally disposing of and/or remanding some of the issues that are not
subject to the stay, action should be taken to dispatch the decision
and/or remand in accordance with normal procedures, making sure that
appropriate controls have been put in place with respect to the issue
or issues being stayed. Upon dispatch, the claims folder should be
returned to the appropriate agency of original jurisdiction/regional
office in the usual manner, and the Board's Appeals cover sheet
folder should be forwarded to the Decision Team Support Unit for
retention during the period of the stay.

7. COURT REMAND CASES

A case containing a claim affected by the Haas stay that has been
returned to the Board by the Court of Appeals for Veterans Claims
will generally be handled in the same manner as non-court remand
cases. However, the Litigation Support Division (01C2) will attempt
to identify affected single-issue cases, as well as cases involving
an issue that is inextricably intertwined thereto, and prepare and
dispatch notification letters before they are forwarded to the
Decision Teams. Any questions concerning an affected Court remand
case should be raised with the Chief Counsel for Operations or, in
her absence, the Chief Counsel for Policy or the Senior Deputy Vice
Chairman.

8. RESCISSION

This memorandum is effective until expressly rescinded, modified, or
superseded.

http://bluewaternavy.org/vastaymemo.htm
 

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