Tuesday, June 07, 2005

01: "Welcome Aboard"

I am a United States Navy veteran of the Vietnam War. I served in a Destroyer providing, among other services, Naval Gunfire Support (NGFS) in the I Corps Operation Area just below the DMZ, covering Hue and DaNang.

Like hundreds of veterans with a similar background, I have been denied benefits by the Veteran's Administration because I never set foot on the ground inside the borders of the Republic of Vietnam. I had applied because of being diagnosed with Type II Diabetes, with a Secondary of Coronary Artery Disease.

While the Congressional intent in the original Agent Orange enabling legislation is crystal clear in its intent to include US Navy veterans who served in offshore waters, the Veterans Administration completely wiped out an entire class of veterans with it's Precedent issued by the VA's Office of Legal Counsel in 1998. This Precedent, VAOGCPRC 27-97 states in its conclusion:
  • "HELD: Service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A), as added by section 505 of the Veterans’ Benefits Improvements Act of 1996, which provides that the term “Vietnam era” means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period."

I believe this Precedent to be constituted in bad faith, in part because it relies on an incorrectly applied Supreme Court ruling citation:

  • "3. As the Supreme Court has instructed, "[t]he starting point in interpreting a statute is its language, for ‘if the intent of Congress is clear, that is the end of the matter.’" Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (alteration omitted) (quoting Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)). Thus, interpretation of the phrase “served in the Republic of Vietnam” in 38 U.S.C. § 101(29)(A) must begin with the statutory language itself. We do not believe that the language of section 101(29)(A) conclusively resolves whether service in the waters off the shore of Vietnam is included in the statutory reference to service in the Republic of Vietnam. The definition in section 101(29)(A) does not specifically address whether service “in the Republic of Vietnam” was meant to include service in the waters off the shore of Vietnam."

The enabling legislation as re-written in 2002, states clearly (Title 38 USC, Section 1116):

  • "-CITE- 38 USC Sec. 1116 01/22/02 -EXPCITE- TITLE 38 - VETERANS' BENEFITS PART II - GENERAL BENEFITS CHAPTER 11 - COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH SUBCHAPTER II - WARTIME DISABILITY COMPENSATION -HEAD- Sec. 1116. Presumptions of service connection for diseases associated with exposure to certain herbicide agents; presumption of exposure for veterans who served in the Republic of Vietnam
  • -STATUTE- (a)(1) For the purposes of section 1110 of this title, and subject to section 1113 of this title - (A) a disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in 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; and (A) a disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam, to include service in the territorial waters offshore, during the period beginning on January 9, 1962, and ending on May 7, 1975; and
    (B) each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in 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, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. (2) The diseases referred to in paragraph (1)(A) of this subsection are the following: (A) Non-Hodgkin's lymphoma becoming manifest to a degree of disability of 10 percent or more. (B) Each soft-tissue sarcoma becoming manifest to a degree of disability of 10 percent or more other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. (C) Chloracne or another acneform disease consistent with chloracne becoming manifest to a degree of disability of 10 percent or more within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. (D) Hodgkin's disease becoming manifest to a degree of disability of 10 percent or more. (E) Porphyria cutanea tarda becoming manifest to a degree of disability of 10 percent or more within a year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. (F) Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) becoming manifest to a degree of disability of 10 percent or more. (G) Multiple myeloma becoming manifest to a degree of disability of 10 percent or more. (H) Diabetes Mellitus (Type 2). (3) For purposes of this section, the term ''herbicide agent'' means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. (3) For purposes of this section, the term ''herbicide agent'' means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam,
    to include service in the territorial waters offshore, during the period beginning on January 9, 1962, and ending on May 7, 1975."

Based on the above legislation I not only believe VAOGCPRC 27-97 to be incorrectly applied, but also should have been overturned by the above legislation written 5 years AFTER the precedent.

It is hoped that the series of posts here will serve to educate Navy Veterans who served in the so called "Blue Water Navy", and are either preparing to file a claim, or an appeal after being rejected due to "not serving in Vietnam".

Keep the pressure up by applying and appealing the VA rejections under the precedent, and keep calling and writing your congressmen about it. And keep on reading! There is a lot more to come!

Leave comments and please, if you do nothing else, click on the envelope at the bottom of this post and send it to some friends, to your Congressmen and Senators, newspapers, and Veterans Service Organizations. The more pressure we put on the VA, and Congress, the greater the chance that some of these claims will finally go through.

Anyone who is interested in joining a class action suit for those of us who have been denied under the VAOGCPRC 27-97 can contact me at VNVetsathistoricalblogs.com. I have about half the numbers I need to start a class action suit.

Let's make the words "Welcome Home, Brother" become more inclusive.

"VNVets"

Copyright © 2005, VNVets. All Rights Reserved.

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