Thursday, March 19, 2009

Haas Case Resurfaces

In a March 10th Decision, the United States Court of Appeals for Veterans Claims [CAVC] remanded the Haas case back to the Board of Veterans Appeals [BVA]. With instructions. And with a message.

In refusing to hear the Haas case, the Supreme Court essentially let stand the rather narrow decision from the United States Court of Appeals for the Federal Circuit [CAFC]. That essentially throws the ball back to the CAVC.

The justices of the CAVC have taken a different tack in then remanding the case back to the BVA.

They have essentially exposed the fact that the Department of Veterans Affairs has simply no scientific evidence to back its assertion that those who served at sea but not on land could not have been exposed to Herbicides. They took the BVA to task for not providing any evidence at all to back up their denial of Commander Haas' claim of direct exposure via drifting clouds of spray. Drifting clouds of spray are documented in the Zumwalt Report, a report commissioned by the DVA produced by the former Chief of Naval Operations, as potentially drifting as far as 27-30 kilometers, and also becoming airborne by tropical winds lifting the vapors off the top layers of the jungle canopy. You'll remember that Zumwalt lost his son, a Riverine Force Sailor, to AO related cancers, and that Zumwalt himself, as area commander of Naval Forces at the time of Vietnam [before becoming CNO] was the man who ordered the use of Agent Orange and other rainbow herbicides in the area. The DVA was so exposed by this document that they kept it under classified lock and key for ten years before it somehow was leaked out to the public.

So do not look for a precedent in the remand of the Haas case. Rather look at what the CAVC has said to the BVA. In essence, they affirmed the requirement that the DVA must provide sufficient evidence to disprove a Veteran's claim, or otherwise approve it, accepting even a claimant's statement. And the DVA does not possess that kind of evidence.

All their decisions against the TLC Veterans, the Blue Sky Air Force Veterans, and the Blue Water Navy Veterans have been "legal opinions" and "precedents" issued by their own Office of General Counsel -- legal dicta that should have been issued by a court, but instead are "findings" issued by Department Attorneys to suit a particular view or philosophy by the Secretary or the President. There is no proof or science that they are correct in this view. Because the Veteran is supposed to get the benefit of the doubt, the CAVC instructed the BVA of that fact in their remand decision.

Sooner or later some court will recognize that Agent Orange did not stop at the beach like the Center for Disease Control stated in their cancer studies, "the Navy sailors [high incidence of Non-Hodgkins Lymphoma] could not have been caused by Agent Orange because they served at sea." This is not science, even though it was produced in a scientific document [the CDC Cancer Studies of the 1980s], it is merely an assertion with no science to back it up.

This is not going to be much help to those who served on Aircraft Carriers which normally operated out at sea a great distance, or those service ships which operated with them away from the coast. But at least those inside a roughly 18 mile perimeter off shore should be able to cite spray drift or the Australian Based water study in support of their claims, and have the Regional Office [ROs] deny them, but the BVA reverse those decisions.

That is what SHOULD happen. With the DVA, however, experience has taught us that their deviousness is not to be underestimated.

It is a Cabinet Department run amok, and consumed with its own power past the point where it effectively serves those for whom it was chartered -- the American Veteran. At least one part of their chain, the CAVC is trying to put them legally back on course.

God bless them for that.

Read the Haas Remand pdf file at VNVets Files. Click on the button that says Haas Remand 03102009.

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

"It follows then as certain as that night succeeds the day, that without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

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1 comment:

  1. freeman44jm22:26

    Thanks be to our Good Lord, the news just keeps getting better for the BWN Vet. and worse for the VA==just as it should be. KEEP ON FIGHTING!!

    ReplyDelete