Details of Wednesday's Intro of Agent Orange Equity Act of 2008

Congressman Bob Filner [D-CA], Chairman of the House Veterans Affairs Committee is introducing the Agent Orange Equity Act of 2008 on Wednesday at noon, on the Cannon Terrace, Cannon Office Building, adjacent to the Capitol, Washington D.C.

The bill will fully restore Agent Orange Presumption to Blue Water Navy Veterans and Air Force Veterans of the Vietnam War. [hooray!] It will override the recent decision in Haas, and do much more.

The day's events will begin at 10 AM with a screening of the film "All the Way Home", about Iraq and Afghanistan Veterans. At 11, a Q&A session about the film, followed by a Meet & Greet with Congressman Filner, the guests and Congressional staffers.

At noon, action moves to the Cannon Terrace for the public introduction of the Agent Orange Equity Act of 2008.

These events are open to the public, and Veterans are encouraged to attend.

Blue Water Navy Veterans should contact us at the VNVets Blog email address on the left sidebar, with their name, email address, and home town if they plan to attend. We need a good turnout for this occasion.

This is the victory that we have been fighting for over the past five years.

House Committee on Veterans Affairs:
334 Cannon House Office Building

[located southeast of the Capitol on a site bounded by Independence Avenue, First Street, New Jersey Avenue, and C St. SE]

Suggest you find parking in large parking garages as close as you can.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Urgent: Filner to release Agent Orange Equity Act of 2008!!

This just in: Representative Bob Filner, Chairman of the House Veterans Affairs Committee is looking to schedule a release of the Agent Orange Equity Act of 2008 next Wednesday, July 23, at the Capitol.

We need to have a presence there to support this legislation and Representative Filner's efforts. I will be attending, and am looking for as many more Blue Water Navy Vietnam Veterans as we can get to muster on station at the Capitol next Wednesday.

If you can go, please contact me ASAP via the "email Me" link on the sidebar.

NOTE: This is still in the planning stage, and may not come off until after the summer Congressional recess in August, but we are shooting for next Wednesday!

Please include an email address, your name, and your hometown. Come on folks, this will be worth the trip!

Ladies and Gents, this is our chance...this is our hour. Let's make the most of it.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

VA Announces On-Line Claims Applications

The following is a VA Press Release:

WASHINGTON (July 16, 2008) - The Department of Veterans Affairs (VA) announced today that on-line applications are now accepted from veterans, survivors and other claimants filing initial applications for disability compensation, pension, education, and vocational rehabilitation and employment benefits without the additional requirement to submit a signed paper copy of the application.

Effective immediately, VA will now process applications received through its on-line application website (VONAPP) without the claimant's signature. The electronic application will be sufficient authentication of the claimant's application for benefits. Normal development procedures and rules of evidence will still apply to all VONAPP applications.

VONAPP (www.va.gov/onlineapps.htm) is a Web-based system that benefits both internal and external users. Veterans, survivors and other claimants seeking compensation, pension, education, or vocational rehabilitation benefits can apply electronically without the constraints of location, postage cost, and time delays in mail delivery.

VONAPP reduces the number of incomplete applications received by VA, decreasing the need for additional development by VA claims processors. The on-line application also provides a link to apply for VA health care benefits and much more.

Over 3.7 million veterans and beneficiaries receive compensation and pension benefits from VA and approximately 523,000 students receive education benefits. Approximately 90,000 disabled veterans participate in VA's Vocational Rehabilitation and Employment program.

For more information about VA benefits, go to VA's website at www.va.gov or call our toll-free number at 1-800-827-1000.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Attn: Blue Water Vets with NHL or CLL

Non-Hodgkins Lymphoma (NHL)
If you are a Blue Water Veteran of the Vietnam War and you have been diagnosed with Non-Hodgkins Lymphoma [NHL], you need to understand that you are in a different category than the rest of us. You do not have to prove exposure to Agent Orange, and you do not have to prove "feet on the ground"!

Paragraph 3.307 of 38 CFR states

(iii) A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.

Notice there is no comma in '“Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.' The VA uses this paragraph to deny Agent Orange benefits to Blue Water NAvy Veterans who have not set foot on the ground.

Paragraph 3.313 38 CFR states

Claims based on service in Vietnam.

(a) Service in Vietnam. “Service in Vietnam” includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.
(b) Service connection based on service in Vietnam. Service in Vietnam during the Vietnam Era together with the development of non-Hodgkin’s lymphoma manifested subsequent to such service is sufficient to establish service connection for that disease. (Authority: 38 U.S.C. 501(a))

Again, notice the comma in the phrase '“Service in Vietnam” includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam." Because the other phrase, without the comma, is used to deny benefits to the Blue Water Navy Veterans, this phrase, with the comma cannot be used the same way. Since this definition refers exclusively to NHL [see the second paragraph (b)], then NHL Veterans must be presumptively eligible for benefits.

If you have a claim pending and you have been diagnosed with NHL, get your Veterans Service Officer to get the VA moving on your case under this provision: Title 38, Part 3, Subpart A, Paragraph 3.313.

Chronic lymphocytic leukemia (CLL)
We have reason to believe that if you have been diagnosed with CLL, at some point it may develope into NHL. See your doctor and ask for tests specific to NHL.

If you should become diagnosed with NHL get your Veterans Service Officer to pound the VA to process your claim for that under Title 38, Part 3, Subpart A, Paragraph 3.313.

We do not wish any of the Agent Orange diseases on anyone, but in their presence, the Veteran should take advantage of what is available. Perhaps once your claim is approved the removal of the stress involved in dealing with the VA will help alleviate symptoms.

Best of luck, Sailors!

[Note: This comment just came in from one of our Blue Water Sailors with NHL:

You are correct in saying that NHL is a presumptive disease recognized by the VA.

However you need to know that the VA is holding ALL NHL cases under Haas. I am one of those cases right now. I have my case before the U.S. Court of Appeals and the they have issued a demand from the VA to respond within thirty days to explain why they are holding my case, when it is clear they should not be, even by the VA's own rules.

The best thing for anyone with a claim for NHL is to get a lawyer and have them file what is called "A Writ of Mandamus". They should file it with the court of appeals and skip the VA.

Thanks, for this excellent piece of advice.]

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Need a Military Record Researcher?

We have been contacted by a college trained archive researcher who performs research at such places as the Naval Historical Center, the National Archives, and so on. Tim Frank will, for example, research and if possible, obtain copies of documents you may need to pursue your claim with the VA.

Please pay very close attention to this:

You very likely noticed something in the comments filed during the VA's Public Comment Period for re-defining the meaning of "service in Vietnam," and in the legal briefs recently filed as part of the motion to request a review of the recent Haas decision by the U.S. Court of Appeals for Federal Claims. Like it or not, there has been a lot of talk about the "12 mile limit," and if and when a favorable resolution of the Blue Water Navy Vietnam Veterans issue arrives, it may be limited to the 12 mile limit of sovereign territory recognized by the international community. That may be the best we can get. [We don't think so, and we don't hope that is all, but we must be ready for that if it comes!]

How would you prove that your ship sailed within the 12 mile limit during combat ops off Vietnam?

The best way would be with your ship's deck logs. These are not the green notebooks you used when you were standing in-port watches, and the ship's quartermaster used when underway. These are the smooth copies with entries made by a rotating set of junior officers which showed positions, courses and speed when engaged, and noon sightings for navigational purposes, and major activities of the ship and crew. Your XO's Mast for being a half-hour late coming back from liberty will not be in there. But the counter battery fire from your ship's guns while a mile off the coast of North Vietnam will be in there.

Additionally, there are other documents that can help prove your claim. Many ships have a detailed ship's history in the Dictionary of Naval Fighting Ships, or DANFS. This is available online at the Naval Historical Center's website.

Other documents that can be helpful include After Action Reports, Incident Reports, and other records the ship produced when operating under combat conditions off the coast of 'Nam. Finally, each ship's captain was tasked with providing a year-end ship's history, a narrative of all the ship did that year, and submitting that history to the CNO.

Any, or all of such documents can augment your personnel files in supplying documentary proof for your claim.

Do yourself a favor and start working on obtaining this stuff now. Because most of you would find it difficult to get to the Washington, D.C. area, we have decided to recommend a research service. That service is Tim Frank. Tim has a website at Military Research Associates, LLC. You can browse his website to get his rates, and contact him with any questions you might have.

If you are serious about your claim, and see the potential for needing the kind of information mentioned above, as we can see it, then we recommend contracting a service such as Tim Frank's. His rates are very reasonable, he lives in the area, and has established a rapport with the people who keep the records. [This is something very important when doing historical research. We know this because we do such research in an area not related to the Blue Water Navy.]

We will add this post to the list of helpful posts on the sidebar, and we will also add a picture ad for Tim Frank's Military Research Associates.

We know it should not come to this, but we would rather see you prepared in advance, rather than sitting there waiting several months to get the proof you need so your claim can proceed.

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Lost At Sea: The Vietnam “Blue Water Navy” Vets Case

Lost At Sea: The Vietnam “Blue Water Navy” Vets Case
by Mark Weitz

For ten years, between 1965 and 1975, three million young Americans, many of them still boys, answered their country’s call and served as soldiers, sailors, airman, and marines in Vietnam. Some were drafted, but many volunteered, and at the time the cause seemed clear: stop the spread of communism. By the late 1960’s the goal became obscure. The war fell out of favor as Americans began to question our involvement in a conflict that drained both human and financial resources and seemed to bring few tangible results. In the end Vietnam became a symbol of the limits of American power and influence. Sadly, a foreign policy and military set back became a national tragedy as the denunciation of the war at home evolved into a rejection of those who fought. Over fifty-eight thousand never returned and those who did brought back scars, both physical and emotional, that never healed. Overt ridicule gradually dissipated, only to be replaced with a callous indifference to the sacrifice these men made. It would only get worse for many of these veterans because what no one knew at the time was that they had carried back the seeds of their own destruction, seeds sown not by their enemy, but by their own country.

Known as “Operation Ranch Hand” the defoliation of Vietnam’s jungles exposed American servicemen to a toxic and deadly chemical. Spread over 3.6 million acres, Agent Orange not only killed the jungle down to the root, but by the 1980’s it was permanently disabling and killing Vietnam veterans by the tens of thousands. In 1984 Dow Chemical, Monsanto, and other chemical companies involved in the manufacture of Agent Orange agreed to a 180 million dollar class action settlement to be paid to Vietnam Veterans. However, when spread out over the hundreds of thousands of eligible vets the amount was woefully inadequate. In many cases, the money provided the means to bury them as they succumbed to the diseases caused by the toxin. In 1995 this author’s uncle, William P. Weitz, was laid to rest in Phoenix, Arizona after losing his battle with lung cancer. His part of the settlement afforded him a small box in which his cremated remains were placed and then interned in a barren, sun scorched portion of a cemetery close to his home, leaving only a few thousand dollars for his widow.

In an effort to address this deadly legacy of the war that had become an epidemic, the United States Congress passed the Agent Orange Act of 1991. Section 2 of the Act contains one of the most important aspects of the legislation. It provides for a presumption of a service related connection between the diseases and conditions identified in the Act and the spraying of Agent Orange. In other words, if one served in Vietnam, it is presumed that the cancer or other condition he or she suffered from was caused by Agent Orange. Legally this presumption is crucial. Without it, the veteran bears the burden of proving his or her condition was caused by Agent Orange. The cost alone would destroy a vet’s ability to prove his claim. Even if he or she could afford to pay the experts necessary to argue the claim, showing the direct connection would in many cases be impossible.

The Veterans Administration (VA) was directed to implement a program under the Act whereby veterans would be compensated for the effects of exposure. The VA directed that any service man or woman who “served in Vietnam” would be presumed to have been exposed for purposes of receiving compensation. In many cases the receipt of a Vietnam Service Medal was all that was required. As one might expect hundreds of thousands of claims poured in, and the VA began paying. Among those who filed claims were the sailors of the United States “Blue Water Navy.”

There were essentially two navies serving in Vietnam. The “Brown Water Navy” patrolled the rivers and inlet waterways of Vietnam, while the “Blue Water Navy” served offshore, both inside and beyond Vietnam’s twelve mile territorial limit. Many of the countless air strikes both on North Vietnam and in close air support of U.S. soldiers fighting in the south and the DMZ came from carrier based aircraft. U.S. Destroyers provided myriads of combat related services, including close artillery support for land-based operations, and transporting troops and supplies, often close to shore and under enemy fire. It is virtually inconceivable that anyone could ever doubt that the men who served in the “Blue Water Navy” fought in Vietnam. In addition to receiving the Vietnam Service Medal, many were decorated for valor. Sadly, the inconceivable occurred.

Shortly after George W. Bush took office in 2001 the VA redefined “serving in Vietnam.” In a directive issued in 2001 the VA took the position that service in Vietnam now required “foot on land.” If a veteran could not show that he or she actually set foot in-country, they would not be afforded the presumption that their medical condition or disease was caused by Agent Orange. In one bold stroke the sailors of the “Blue Water Navy” lost their ability to successfully prosecute their claims for benefits. The VA offered no study or empirical evidence for this complete reversal of policy other than the assertion that direct exposure to Agent Orange required being on land.

Not only did the VA alter its policy without any reasonable basis, but it also ignored the fact that “Blue Water” sailors were suffering and dying from the same diseases that their land-based comrades experienced. However, without the presumption afforded by the Agent Orange Act they could not prove their claims for benefits. By 2003 the benefits that “Blue Water” sailors had been receiving stopped completely. Today many are owed almost five years of back benefits that for many vets totals well into the six-figure range. The goal of the 1991 Act was to make it easier for veterans to prove their claims and receive compensation. The VA’s position flies directly in the face of that goal. But while the U.S. government found a way to punish its sailors for their service, other nations took a closer look, and their approach makes the VA’s actions toward the “Blue Water Navy” all the more disgraceful.

Sailors from Australia also served in Vietnam. As time passed Australia began to notice that veterans of its Royal Australian Navy (RAN) were dying at a rate greater than the land-based Aussies who fought in Vietnam. The conditions that were killing these men were the diseases associated with Agent Orange. Food for the RAN came directly from Australia, there was no record of a RAN ship ever being directly sprayed, and few of the sailors ever set foot on land. However, rather than conclude that members of the RAN were not exposed and thus were not entitled to benefits, the Australian government probed deeper. Australia’s investigation generated a report that explained how its sailors were exposed.

Warships require a constant supply of freshwater and that supply is replenished by distilling sea water. The sea water is fed into an evaporator where it is boiled, condensed, and then fed into holding tanks. While the process removed the salt from the water, it did not filter out the toxins associated with Agent Orange. This process routinely took place within close proximity to shore as military operations did not allow a ship to cease its mission, travel out to sea, replenish its water supply, and then return. The Australian study concluded that Agent Orange sprayed in the jungles close to shore found its way into the ocean and that when the RAN ships replenished their water supply, they unknowingly contaminated their sailors and exposed them to Agent Orange.

The VA is aware of this study, but rather than use it as a basis to help the “Blue Water Navy” sailors, it has chosen to discount the findings and deny that these men served in Vietnam for purposes of the 1991 Act. In August 2001, Jonathan Haas, a veteran who served on the U.S.S. Katmai, filed his claim for benefits under the 1991 Agent Orange Act. Consistent with their change in policy the VA rejected his claims because it was undisputed that Haas never set foot in Vietnam. Mr. Haas appealed to the Veterans Court where a three-judge panel reversed the Veterans Board decision, holding that the VA definition of service that required “foot on land” was too restrictive and was unreasonable. The Court concluded that Mr. Hass was entitled to the presumption. In most instances that would have ended the debate; Mr. Haas and the other veterans could have advanced their claims with the benefit of the presumption they were rightfully entitled to claim. However, that is not what happened.

On May 8, 2008, in a 2-1 decision, the U.S. Court of Appeals for the Federal Circuit reversed the Veterans Court and upheld the VA’s definition that “service in Vietnam” required foot on land. Admitting that they “ordinarily will not hear appeals from the Veterans Court in cases the Veterans Court remands to the Board of Veteran’s Appeals,” the Court not only made an exception, but used the exception to destroy the ability of the “Blue Water Navy” veterans to prove their Agent Orange claims. In holding that the VA’s definition was “reasonable” the Federal Circuit in effect completely discounted the sacrifices made by this branch of the U.S. military, sacrifices that they continue to suffer for today.

The “Blue Water Navy” vets are literally lost at sea, adrift on an ocean of legal technicalities and administrative burden that most if not all will never overcome if this situation is allowed to stand. Recently these veterans began to return their Vietnam Service Medals in protest of the treatment they are receiving at the hands of the very government that sent them off to war. Mr. Haas has requested an en banc review of his case before the entire panel of the Federal Circuit. That request is pending. If denied it is contemplated he will appeal to the Supreme Court. Right now the most important thing that can be done for these men is to publicize the details of their plight. At this juncture access to media outlets is crucial to educating the public as to what is transpiring, which is one reason we chose to publish this edition of the newsletter solely on this topic. Time is running out for these Vietnam veterans. Many are dying from their diseases, while others are taking their own lives as their conditions worsen and any hope for a favorable resolution diminishes. There is still a chance for America to meet its obligations to its veterans. Remember, all that is needed for wrong to prevail is for righteous people to do nothing. END OF ARTICLE.

"Legal Alert Newsletter", June 2008, a monthly publication of the Weitz Morgan Law Firm, of Austin, Texas. www.weitzmorgan.com

Dr. Mark Weitz is a practicing attorney and an historian who has joined the Blue Water Navy fight.

Thank you Mark. Well done [BZ].

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Attention All Houston, TX BWN Vets!

Attention all Blue Water Navy Veterans from the Houston, Texas area. We are mounting a push on State Senator Dan Patrick, 7th District. He seems to think the Blue Water fight is strictly a Federal issue. Let's wake Danny up with a message.

Please send us an email with your return email to this Blue Water Navy email box. An attorney from Texas will respond to you with information on how you can help get this guy moving on an effort to have the Senate of Texas get a resolution going to back the Blue Water Navy fight, and send said resolution to the Texas delegation in the US Congress!

Thanks sailors!

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Plan of the Day!

Now hear this:

Please make sure you read the directions for adding a ship to the Blue Water Navy Ships of Vietnam, and understand this is not an official definition of Blue Water Navy service we are using here. Simply put, if your ship entered port, or went up a river or other estuary, your ship is NOT eligible for inclusion in our list. Our list is NOT an official resource! Do not use it for your claim!

When making comments, you must use the comments link at the bottom of each post. If you are contacting me and looking for a response, DO NOT USE THE COMMENTS SECTION, use the emailme link on the left sidebar.

Please make sure you review your comments for spelling, and grammar; also if you are passing along facts, statistics, or other information, please make sure you cite your sources, and provide a link. For those of you concerned with "censorship" understand that the comment process is designed just for that. We have in the past rejected comments that were too political, contained objectionable words or phrases, was nothing more than an ad hominem attack, or had absolutely nothing to do with Blue Water Navy issues.

Again, if you wish to send a message to us, use the emailme link. Anonymous comments do not provide any way of identifying who the sender is, and therefore, we cannot mail any response, or questions we might have.

Whatever you do, do not give up the ship! Do not lay down and roll over because the court ruled against us. Make sure you keep that fighting attitude you had when off the coast of Vietnam.

We have not lost this fight! We just haven't won it yet! Do not secure from GQ!

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

NVLSP Files for Review of Haas Decision

The National Veterans Legal Services Program [NVLSP] filed its brief with the United States Court of Appeals for the Federal Circuit [CAFC] requesting an en banc review, or a re-hearing of the Haas case. This is the same court that in May issued the stunning reversal of the lower court [United States Court of Appeals for Veterans Claims, or CAVC] in Haas vs. Peake.

The brief lays out the case where the NVLSP attorneys believe the CAFC erred in Haas. In essence, the NVLSP contends that:

1. Congressional intent when it enacted the Agent Orange Act in 1991 was to include Blue Water Veterans. Service in Vietnam must include those who served off shore in "territorial waters" because ALL accepted legal definitions of national territorial sovereignty recognize adjacent waters as a part of the national territory. Boundaries drawn around a nation do not coincide with a shoreline, but with a territorial limit, usually 12 miles out to sea for any coastal areas. National sovereignty is extended to that maritime territorial limit.
2. The court ignored Supreme Court dicta which places deference to government agencies must always come after resolving cases of statutory ambiguity in favor of the Veteran.
3. "Foot on the Ground" policy violates all precedential case histories, and is made wholly wwithout the benefit of scientific evidence that Blue Water Sailors were NOT exposed to Dioxins.

We would like to address the last two of these points.

One of the cornerstones of the DVA's oral arguments last November was that the Department was entitled to deference to allow it to interpret the law as the exclusive agency suited to interpreting the law it was to administer. It is, we believe, the basis for the majority decision in Haas by the CAFC last month which said the "foot on the ground" rule was "permissible". That was the majority opinion's word: "permissible".

Deference to an agency is given because the law recognizes that the agency, in interpreting Congressionally enacted laws into administrative policy should, by right, have the expertise to do so. In Haas, the Department of Veterans Affairs [DVA] argued that it pretty much didn't matter how the DVA interpreted the laws that Congress passed that dealt with Veterans Affairs because as the agency that deals in that area, they have the expertise to do so. [Agencies like the DVA frequently work with Congress in constructing laws that Congress later enacts. This adds to their expertise.] This is called the Chevron defense from the caselaw of a precedential decision.

What the brief points out is that precedential cases from the CAFC and the Supreme Court have repeatedly and historically relied on what is called the Pro Veterans Canon: "The Supreme Court has instructed that, before applying Chevron deference, any interpretive ambiguity in the statute must be resolved in the Veterans favor."[Section II on page 12 of the NVLSP brief in the Haas case.]

In reference to the Foot on the Ground policy being without scientific evidence to prove there was no Agent Orange exposure at sea, it is something we have been saying for a while here. We even emphasized it in both our recent comments on the propsed rule change of the Definition of Service in Vietnam. It is what makes Mr. Hughes [the DVA's arguing attorney in the oral Aarguments last November] so glaringly arrogant [and dishonest] when he dismissed the Australian Study as being "of questionable science". At least the Australian Study exists, and it proves the Blue Water Navy's case. But the DVA dismisses it, ignores it, supresses it, in spite of having no scientific evidence of their own to disprove it, or to prove that Blue Water Navy Veterans were not exposed.

While this request for an en banc review, or a rehearing is powerfully constructed, and damning in its laid out arguments and citations of case law precedent that were misinterpreted or ignored by the CAFC, we are still at the mercy of the court. It is only a request. The court does not have to agree to an en banc review, which would proceed on the basis of this brief to compare it to the May decision in the Haas case, or would grant a re-hearing, probably another session of oral arguments in the Washington, D. C. Court building where the CAFC convenes.

We were impressed with the brevity and terseness of this brief. We think this is an excellent petition.

Now we wait for the court to decide whether to take the case underreview, and if so, how. [Note: If the court grants the review, and overturns the decision from May, do not be surprised if it only extends to the 12 mile limit. This is hit hard in the brief filed by the NVLSP, and they do a good job of linking it to the extended Combat Zone, which generally coincides with the eligibility for the Vietnam Service Medal. Nevertheless, this was a topic hit hard in the oral arguments, and again in this brief. Just be aware of the possibility. That said, we find it very difficult to believe that the DVA would enforce that to the extent of tracking ship movements, and verifying ships positions. All the more reason to get copies of your ships' log books entries for the periods you were in the Combat Zone. You can get this information from the National Archives and Records Agministration [NARA] in College Park, Maryland. If you can't get there, you can request copies of the documents from NARA for a cost. It isn't exorbitant, but it is not cheap either. So do your own research if you can. Check your ship's website for copies, many of them do have the logs posted. You can also contact other crewmembers to see if they have copies. See the link Where to get Navy Ship's Deck Logs in the link section of the left sidebar, and our post Obtaining & Using Documents to Support Your Claim [VA and SSA] under the "Useful Posts" section of the right sidebar.

In the meantime, keep sending your medals back, keep pressuring your Senators and Representatives, the media, and all the Veterans Service Organizations. Don't sit back and wait for this to rescue you. The NVLSP has done a beautiful job in stating its case. Let's keep pushing ours.

[Read the Petition for an En Banc Review by the NVLSP]

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

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