Thursday, November 29, 2007

A Different View

Lets step back from things for a moment and take a deep breath.

In reviewing the announcement of the proposed changes to the VA's Manual that hit the presses the other day, we need to make sure we understand a couple of things about the process.

When Congress passes enabling legislation like the Agent Orange Act of 1991, the affected Department(s) re-write the law into the language of policy and regulation. So, Congress enacts a bill and it becomes a citation under United States Code or USC, the agency re-writes it into regulation entered into the Code of Federal Regulations or CFR. If the agency or department wishes to make a change to the CFR, it must announce that change in the daily called the Federal Register, which serves as the "public announcement" for the government. To make a change, the proposed change must undergo a period of public comment, in this case a 60 day period during which public comments will be accepted. The agency or department MUST accept all comments, but they are NOT compelled to act on them. Those that do are being responsible. Those that don't...

The announcement yesterday issued by DVA Acting Secretary Gordon Mansfield announced the recission of the manual change they unilaterally and without public comment instituted in 2002 and brought us all to this situation today. The action is being announced in anticipation of a loss in the Haas case. Remember, it was the DVA that appealed.

I don't believe they would have taken this action unless they were almost certain the Circuit Court's rulling will uphold the lower court's ruling in Haas against the DVA.

So what is this announcement about. On the surface it is ONLY about the recission of the manual change. Because part of the Haas decision took the DVA to task for implementing the 2002 manual change without a public comment period, the DVA is dotting its I's and crossing its T's. The DVA must ask for public comments and give details on how to make those comments.

For some strange reason, Mansfield chose to incude in this announcement the warning that he would be changing the CFR entry which defines "Service in the Republic of Vietnam". In order to do that, he would also have to put that out for public comment.

Curiously, that note, added almost as an afterthought, was very vague. Everyone assumed that it meant he would once and for all alter that section in the CFR to exclude the Blue Water Navy Veterans. But the statement does not go that far.

The change might be made to include Blue Water Navy Veterans, and accordingly,we are writing on behalf of the BWNVVA to inquire exactly what change they have in mind. So, let us cross our T's, and dot our I's as well, and slow down the attacks on the DVA. It is why I have not posted one on the Blog.

I do not believe that the DVA is willing to give up that easily, but Haas DOES include other aspects, as was evidenced by the ground covered during the oral arguments. The definition of what Service in Vietnam included was very carefully crafted into the questioning by the panel. At best guess, if there is a concession by the DVA it may be only to the 12 mile limit. Or it may go back to the Vietnam Service Medal, which I think was given to anyone who served in the Combat Zone.

So, let's take some time and find out whether we have been beating a dead horse for the past 24 hours, or whether we really should be celebrating.


"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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1 comment:

  1. I tend to agree. When one looks at the CAVC decision and listen to the oral arguments, there was a great deal of emphasis not on the award of the VSM but on the reasonableness of the VA's interpretation in rule of the legislation by the Congress. This begs the question that if the interpretation of the VA was erroneous, what good does it do to strike both interpretations just to replace them with the same unreasonable interpretation? While we can only put our two cents in to the "Notice" which they may well ignore, it is not until they attempt to implement the same faulty interpretation that veterans can take them to task. So I for one believe we should spend our time constructively by gaining support for our position, and insuring as much as possible that we ask the media to share our stories. Let us hope that the Appeals Court not only upholds the CAVC decision, but also stipulates that the VA must come up with a "reasonable" definition. Otherwise, we'll be back in court again within the wink of an eye.