Friday, July 11, 2008

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!


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.

8 comments:

  1. Anonymous10:33

    Isn't it amazing that Agent Orange can't get past the coastline of Vietnam unless you have NHL...then, somehow, astoundingly, it managed to get out there and do the job.
    How does the DVA justify such a selective attribute of Agent Orange?? If it is presumtive for NHL how can someone, even someone right out of an insane asylum, not think it presumptive for anything else??

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  2. Here's the secret. The CDC, and the DVA have no idea what caused the high level of NHL in Blue Water Navy Veterans. None. Zip. Zilch!

    And that is because when the CDC did its report in the late 1980s, they said it could not be from Agent Orange because they served out at sea!

    Here we are 20 years later, and the DVA ius relying on a so called scientific study by the CDC that would get you an F in high school biology class. The key phrase in that study is nothing more than an assertion. It is not based on anything in their study. There is no science behind that assertion. Yet the DVA clings to this as the "proof" that you must have been on land to get exposed to AO!

    Bad science, worse politics, and horrible accountability.

    And, yes, it defies all logic.

    I can only ascribe this to a mid-level and up management in the DVA rife with left-over anti-Vietnam war liberals who are determined to make as many Vietnam Vets pay a further sacrificial price for their service.

    To answer the second part of your comment, the DVA does not ascribe the NHL in Blue Water Veterans to Agent Orange, only to "service in Vietnam".

    Essentially the CDC was caught off guard by the high incidence of NHL in Navy Vets who served off shore. They could not explain it, assuming AO never got out that far.

    Enough science has come along since that the DVA should be convinced that the BWN Vets WERE contaminated by AO, and AO is the cause of the NHL. But they stubbornly cling to the myths that they built years ago.

    None of this is done on the basis of Congressional action. It is all by the DVA.

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  3. Anonymous12:24

    Yet, for a period of time during the 90'd, the DVA DID allow Agent Orange as the presumtive cause for Blue Water veterans.....as I understand it, it was only 5 or 6 years ago that the DVA decided that Agent Orange couldn't make it past the coastline and that what Congress REALLY meant was "Boots on the ground" Is this not true?

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  4. You are absolutely correct. The DVA paid Blue Water Vietnam Veterans from the inception of hte Agent Orange Act in 1991 until the application of VAOPGCPREC 27-97 [See my post on The Basis for Blue Water Navy Ban: VAOPGCPREC 27-97. Find it on the right sidebar under Useful Posts.]

    The DVA began stripping AO benefits from Vietnam Vets in 1992 when another Precedent issued by the VA's Office of the General Counsel was put into effect stripping Air Force Veterans of eligibility for AO benefits.

    Congress has been wholly gutless on this matter. Blue Water Sailors have no real friends in Congress. None.

    Feedback from the few responding Congresscritters who passed the original 1991 AO Act have indicated the intent was to include both Air Force Veterans and Navy Veterans.

    The courts know this, too.

    So legal teams, like the NVLSP has to go the extra mile to beat them at their own game.

    A sad state of affairs, to say the least.

    "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

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

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  6. Anonymous14:06

    I almost don't dare ask this but....what happened to the Blue Water vets who got their AO disability benefits approved in the 90's?? I sure hope the DVA didn't go back and cancel them after they dreamed up "Boots on the ground" Do you know?

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  7. I think they went after the back benefits, but got their pee-pees whacked for it. I believe if you got them before you are still getting the benefits, but new claims were denied starting in 2002. Mine was denied in 2003.

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  8. Jeff,
    Here is another one that seems to have never made it through to you. I will take your word that you don't delete posts because you are my fellow brother in this fight for compensation. The following is very important and should be brought to everyones attention on the board.
    The result of taking my case to the U.S. Court of Appeals is as follows and I will quote straight from the legal papers submitted to the court.
    "According to personnel with the Compensation and Pension service, a statement will be made for the field offices on the next Veterans Service Center Managers conference call explaining that any claim for NHL from a Vietnam Veteran should be developed and evaluated under 38CFR 3.313 and Should not fall under the HAAS case stay."
    What this means is that any Veteran with an claim for NHL currently should go to their RO and have their case pulled and have them start to evaluate it.

    This order is dated July 23, 2008 and signed by Brian P Tierney Office of the General Counsel. Please make sure that every sees this so that they can start the process rolling.

    ReplyDelete