Monday, January 14, 2008

Time winding down for public comment

Time is winding down for making public comment on the Department of Veterans Affairs [DVA] proposal to rescind all the M21-1 Manual changes it made since the Agent Orange Act was passed in 1991. There are just about two weeks left during which comments will be accepted.

If we are correct, this is step one in altering the definition of "Service in Vietnam", to conform with whatever decisions the United States Court of Appeals for the Federal Circuit make in Haas vs. Peake.

Again, if we are correct, the DVA will not be able to replace the rescinded sections of the policy manual unless and until the change is made in the appropriate section of the Code of Federal Regulations [CFR], which is the "plain language" [yeah, right!] version of legislation passed by Congress and published as law in the United States Code. [see explanations in our earlier post: Important info on Comments about the VA's Proposed Manual Change.]

To make the change in the CFR, another public comment period will be required to allow the public to comment on the change the DVA plans to make to the language of the CFR to bring it into line with the Haas decision.

The DVA has not done so yet simply because the Court has not ruled on Haas to date. Until they do, the DVA has no way of knowing the specifics of what the definition of "Service in Vietnam" are, and what the parameters of that definition may be, based on the court ruling.

After that, the DVA will still be required to post another proposed change to their M21-1 Manual in order to add the new Haas-related definition of "Service in Vietnam" to their manual. We're fairly certain then that the current comment period is just the first of three required by law to allow the DVA to make the changes. Due Process requires these periods of public comment, that serve as public notice as well of the intent of an agency to make policy changes.

Summing up the process, the DVA needs three periods of public comment: the first one, is the current one, rescinding all the manual changes made to date; the second one, pending the Haas decision, will allow the DVA to redefine "Service in Vietnam" in the Code of Federal Regulations [CFR] to bring that definition in line with what the Court rules in Haas; the final period of public comment will see the proposed language to be inserted in the DVA's M21-1 Manual, that brings it in line with the Haas decision.

We suspect that during this time period, should the Haas decision in the United State Court of Appeals for Veterans Claims be upheld, thus denying the DVA's appeal, that the DVA will begin processing the Haas-related cases that have been on hold for nearly 12 months at this point, via an internal memo that directs the Regional Offices to apply the broad definition, hopefully receipt of the Vietnam Service Medal as qualifying criteria, to receive automatic presumption for exposure to Agent Orange.

We also suspect, and certainly our prayers include this, that the Court will require the DVA to handle all Haas related cases expeditiously, and immediately, giving them a priority, and to bridge all claims to their earliest date, regardless of appeals, appeal requirements, or appeal status. In most cases, this would certainly reduce the backlog at the Board of Appeals and Court of Appeals levels.

It should be noticed also that the DVA has been on a rather significant hiring spree of late, in part to assist with the great and ever increasing backlog of cases due to the Iraq and Afghanistan campaigns, but also to handle the anticipated increase in active claims when the Haas-related cases are released from their holding area when the Court removes the Stay Order.

For further information, including how to make a public comment on the proposed manual recission [remember, recission does not mean change! The changes must be withdrawn, first, and then proposed new sections of the manual must be put up for comment], please refer to the earlier post:
Important info on Comments about the VA's Proposed Manual Change.

We reiterate at this point that we are in favor of the DVA's action on this proposed manual recission. They are finally doing the right thing. And, it is encouraging that they have begun the process well in advance of the decision in Haas.

We have made our comment and it was a positive one in favor of the DVA's proposed action. We recommend that as many of you as possible make a short comment indicating that you favor the proposed recission of the changes made to the M21-1 Manual.

Remember, only about two weeks remain, so make your comments now!


"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. Anonymous09:20

    It seems that it would be an advantage to the VA to file an appeal to the Supreme Court, even if they anticipate a loss there. Just the time gained will result in the loss of many more veterans. Steve A

  2. You could be right...that is a distinct possibility. However, I think this fight is over. I was at the oral arguments and what the DVA presented was awfully weak, tenuous, and esoteric...nothing in the way of hard facts. It was almost as if the steam was gone from their legal engine.

    Regardless, at the very least, if Haas is in the Veterans' favor, there will be a window of time during which claims MUST be processed and approved [if they are legitimate].


  3. Michael Heimberg03:25

    Sir: I have been disabled for the last twenty five years. I served on the Oklahoma City, CLG-5 then reclassified as CG-5 for two years as a machinist mate.On July 16th of 1983 I was run over by an illegal Mexican allien and in that accident received a broken lower right leg. The fracture was a compound fracture but it should have healed in 9 to 12 weeks. It never did. For 20 years I was in and out of the hospital for infection after infection with a cronic non-union of my bones. They finaly got it to heal good enough for me to sort of stumble arround on but then the foot problems started.I have had a few amputations and more surgeries along with many long term hospital stays. They told me at the VA to file a dissability claim in somewhere arround 1996 or 7. I did but they never did anything about it. In 2005 Mike Ragusa at the Peoria, IL. VA clinic told me to file a claim so I did, I waited about 8 months to find out how my claim was and was told I did not exist, I was not in the system. I went back to talk to Mike about it and he said he would look into it. After about two weeks I talked to him and he told me that the VA lost my claim, all my medical records and personal information was gone and I had to refile. I guess this is standard operation for dissability claims, from what I have seen over the last few years they have no intension of proccessing my claim.Even though a Federal court ordered the VA to get it done a man Jim Nicholson said no. We are no longer a nation of law but rather a nation of men and coperate money that is more important than the veterans well being.The way things are going in this nation that I love I do not think I will ever get compensation for all the pain, poverty including homelessness I have suffered from my medical conditions but at least now I know why these things have happened to me. Its the dioxin exposure from service off the coast of Vietnam on the ship I served on. Its good to know that the administration is not concerned with the veterans well being but the chemical companies proffits. I'm dissabled and do not have the resources to buy justice, they on the other hand do.Justice in the United States is only for those whom can afford it..
    sincerly: Michael Heimberg