Saturday, March 29, 2008

Some Haas cases have a disconnect

We note here that in several months we will hit the second anniversary of the Haas decision in the US Court of Appeals for Veterans Claims in August of 2006, and very few have seen the benefit of it. We are nearing the end of the fifth month since the oral arguments for the VA's appeal of that decision at the US Court of Appeals for the Federal Circuit last November.

Justice frequently is painfully slow in this country.

Some Haas cases will suffer from a disconnect of sorts because they have been denied since the 2002 manual change, and the Veteran either did not appeal, or appealed and was denied. Many have filed new claims since the Haas victory in the Veterans' Court.

The worst case scenario would be for the current panel of judges to render a decision reversing the lower court. That would pretty much make permanent the manual change the VA made illegally in 2002 barring any Blue Water sailors from Agent Orange benefits.

We don't think that will happen.

The court could issue a decision that is in our favor, but make no mention of how the VA should proceed, leaving that matter up to them. That may be almost as bad.

In this case we suspect the VA, unless it is otherwise instructed by the court, will slowly issue a memo to allow only those claims that are in active status at any level within the VA Claims System, that is either at the VA Regional Office or VARO, at the VARO for review, at the Board of Appeals, or at the US Court of Appeals for Veterans Claims to be processed. This of course would result in a minimum payout by the VA.

However, we prefer to think [and pray] that the court will indeed instruct the VA to proceed with the processing and approval of valid Blue Water Navy Agent Orange claims with all dispatch, and will also instruct them to back date any claims denied as a result of the 2002 Manual change to the filing date of those claims, connecting any previously denied claims to current claims with no gap, and activating automatically any claims that were denied and never reopened. In other words, reversing all claims that were denied based on the manual change of 2002 and instituting where valid, full benefits to Blue Water Navy Veterans.

We queried Rick Spataro of the National Veterans Legal Service Program, the group which is shepherding the Haas case through the legal system on the disconnect issue. Of course Rick would have no idea how the court would rule, but apparently the NVLSP has been anticipating the possibility that they would need to argue in court to connect those disconnected benefits.

So, a likely scenario is that all current claims on hold under the stay issued during the VA's appeal of the Haas decision will be processed, and probably fairly quickly, but any disconnected claims will require a precedential case similar to Haas to get a court decision to force the VA to go back and reverse their erronious denials that were based on the 2002 manual change. Winning that case could take a few years, too, though it should not.

Indeed, the VA erred when it made that manual change without putting it out for public comment prior to instituting the denial policy for Blue Water Veterans in 2002. As a result, all such denials based on that error should be reversed automatically by the VA.

Once again, we pray that the coming Haas decision will address that issue and include orders to the VA to go back and reverse all those denials based on the 2002 manual change.

Our best advice at this point is to not be surprised by anything that happens when the court rules on Haas, but be aware of the different possibilities in the decision. And there are probably other scenarios that are possible as well.

In the meantime, we urge you all to please donate to the National Veterans Legal Service Program, as they do their excellent work pro bono [free], but their work is not without cost.


"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. Anonymous23:27

    Sunday, March 30, 2008
    There are more than some disconnects

    As the article notes, some Haas cases will suffer disconnects because of denials. Others are being illegally held by VA Regional Offices under the Ribaudo stay of Haas.

    On Wednesday, March 26th, 2008, I had a conversation with an attorney who is taking over as Executive Director of NOVA. After briefly explaining my claim, I was advised to file a pro se request for extraordinary relief through a writ of Mandamus. This had also been advised by another veteran’s legal organization.

    As an Air Force retiree, I filed a claim which involves diseases that are presumptive due to exposure to AO while twice traveling through Vietnam (boots on the ground), and direct causation due to exposure to herbicides while at U-Tapao RTNAB and Korat RTAFB, Thailand proven through the authorization to use herbicides in Thailand (USMACTHAI/JUSMAGTHAI Memorandum: Mission Policy on Base Defense), my duties as a Military Working Dog Handler patrolling on the perimeters of the aforementioned bases, and the use of herbicides specified in reports (Project CHECO Report: Base Defense in Thailand).

    In addition, my DD Form 214 specifies the award of the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the AF Outstanding Unit Award w/Valor. In the accompanying letter of correction from HQ AFPC/DPPPR, dated July 27, 2007, the letter states, “ We also verified your entitlement to the AFOUA w/2 OLC (1 silver oak leaf cluster and 1 bronze oak leaf cluster), while assigned to the 35 FS, 354 TFW & 355 TFW. In addition, we also verified 2 Bronze Service Stars (2BSS) to the Vietnam Service Medal (VSM), Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P), while serving in Vietnam, and the Korea Defense Service Medal, while serving in Korea.”

    While listening to the SVR show on Wednesday night, I had a brief conversation with another advocate that indicated that I needed to insure I had exhausted all administrative remedies before filing the above writ.

    On Thursday morning at 10:37 a.m. CST, March 27, 2008, I called the Department of Veterans Affairs Office of Legal Counsel. I was transferred to another office, and put in contact with Ethan C. Kallet, Esq., the staff attorney on the DVA’s Federal Circuit appeal of the Court of Appeals for Veterans Claims Haas decision.

    I stated my case, asking him what recourse he could recommend. He rendered the same determination that the other two attorneys had. My case was not one that should have been stayed by the Regional Office, and he seemed quite upset that Regional Offices were being too stringent on determining which cases to stay, and that he was going to contact someone at the Waco Regional Office concerning the situation. He recommended I should request a meeting with the Veterans Service Center Manager to present my case.

    While not expecting immediate results, I called Mr. Lloyd Coffman, Veterans Outreach Director at the Waco Regional Office that afternoon at 1:39 p.m. CST. I got the same runaround as usual. He indicated that the Service Center Manager didn’t meet with veterans, that there were at least ten people between him and me. Despite the recommendation of the OGC counsel, Mr. Coffman also said there was nothing he could do to help; the Regional Offices had been told to stay all AO cases “outside of Vietnam”. He suggested I meet personally with my VFW Service Officer to explain to me why my case was being held, which to me meant that there appears to be an accept “whatever they tell you“ attitude by the VFW.

    Based on this incident, and the conversation with OGC, it seems evident that the Department of Veterans Affairs, Veterans Benefit Administration, Disability and Pension Office, and their Regional Offices, Claim Adjudicators, and Service Representatives are ignoring the advice of their attorneys and are holding or denying cases not covered in the CAVC’s stay.

    Additionally, with the cancer and diabetes findings in Veterans of Ranch Hand reevaluated by Dr. Michalek and Dr. Pavuk M., the fact of the matter is that the IOM findings based on the original Ranch Hand Study are erroneous, and that there are possibly hundreds of thousands of cases of denials, claims un-filed, or not re-filed because the Departments of Defense and Veterans Affairs got the answers they originally wanted.

    Posted by Kurt Priessman, MSgt, USAF (Ret) at 10:25 p.m.