Thursday, May 29, 2008

Tom Philpott: Sailors' Agent Orange Win Reversed

Sailors' Agent Orange Win Reversed
Tom Philpott May 29, 2008

A federal appeals court has delivered a stinging defeat to 'Blue Water' sailors and Coast Guard veterans of the Vietnam War who have been fighting for disability compensation from illnesses they contend resulted from shipboard exposure to deadly herbicides including Agent Orange.

A three-judge panel for the U.S. Court of Appeals for the Federal Circuit ruled 2-1 on May 8 that the Department of Veterans Affairs (VA) acted lawfully and reasonably in 2002 when it cut off Agent Orange-related disability payments and began to deny new claims from veterans who served on ships off the coast of Vietnam but never actually "set foot" in country.

The decision reversed a 2006 ruling by the U.S. Court of Appeals for Veterans Claims in the case of Haas v. Nicholson. That three-judge panel unanimously rejected as "unduly restrictive" VA's interpretation, by revised regulation, of qualifying "service" in Vietnam under the Agent Orange Act.

The U.S. military sprayed herbicides over Vietnam from 1962 through 1971 to strip away foliage under which enemy forces could hide, to destroy crops and to clear vegetation from around facilities and fire bases.

Over the last two decades, Congress and VA expanded the list of illnesses linked to Agent Orange exposure and for which veterans can receive disability compensation. The list of ailments includes prostate cancer, type-2 diabetes, non-Hodgkin's lymphoma, certain soft-tissue sarcomas, chloracne and skin conditions, Hodgkin's disease, various respiratory cancers, leukemia and multiple myeloma.

VA officials worried that if the 2006 Haas decision survived a government appeal, the pool of veterans eligible for disability pay if they contract illnesses tied Agent Orange would jump by 830,000 and VA benefit costs would rise by $3.3 billion over 10 years.

But from 1991 until early 2002, the VA was paying Agent Orange-related claims filed by sailors who only served off waters of Vietnam, said Barton F. Stichman, an attorney with the National Veterans Legal Services Program. NVLSP lawyers have represented the claimant in this case, Jonathan L. Haas, a retired Navy Reserve commander.

Stichman said sea service veterans for a decade won claims based on ailments linked to Agent Orange with relative ease. A manual used by VA claim adjudicators advised them to make awards based on presumptive service-connection of certain diseases if sea service veterans had received the Vietnam Service Medal. The VSM had been awarded to all military members who served from July 3, 1965 through March 28, 1973, in Vietnam, its contiguous waters or even in its airspace.

Haas served on an ammunition supply ship, USS Mount Katmai from August 1967 to April 1969. The ship operated off Vietnam but didn't dock there and he never went ashore. By 2001, Haas had developed type-2 diabetes, peripheral neuropathy and loss of eyesight which he claimed were caused by herbicide exposure off Vietnam.

His regional VA office denied the claim, saying service connection couldn't be established because Haas had not gone ashore. The Board of Veterans Appeals agreed. It turned out VA had reinterpreted the Agent Orange Act of 1991 regarding the phrase "service in the Republic of Vietnam," requiring at least a brief visit on land to be considered exposed to Agent Orange and eligible for disability pay for herbicide-related ailments.

The veterans' claims court reviewed Haas' appeal with a three-judge panel so the decision would affect all claims filed by Blue Water veterans. It found the VA was being too restrictive, in part because ships along the coast might have been exposed to at least as much toxin from windborne coastal area spraying as service members deemed exposed from brief visits ashore.

But the U.S. Court of Appeals for the Federal District, in a 51-page opinion, has reversed the decision for Haas and fellow sailors, finding VA's stricter interpretation of service in Vietnam permissible.

The court acknowledged that in a 1990 regulation VA had defined service in Vietnam to include veterans offshore. It also noted that, even today, a VA regulation informed by a Center for Disease Control study allows presumption of service-connected Agent Orange exposure for sailors who served only offshore in Vietnam but suffer from non-Hodgkin's lymphoma.

The two-judge majority said Congress left ambiguous the meaning of having "served in the Republic of Vietnam" under the Agent Orange Act, and Haas pointed to no single clarifying statement in the legislative record. But Congress did give to the VA authority to interpret such ambiguities and those interpretations are "entitled to substantial deference," the court said.

The appeals court rejected the 2006 veteran claims court findings that the VA had applied its regulations inconsistently and that its tighter interpretation of law and regulation was both erroneous and unreasonable.

But the third appeals court judge, Jeremy Fogel, dissented. He said judicial deference to administrative agencies is important but the appeals court should note that the intent of Congress has been to make it easier, not more difficult, for veterans to assert claims for exposure to Agent Orange.

"I agree with the Veterans Court," Fogel wrote, "that in the absence of any scientific evidence in the records that support a 'foot on land' requirement, the VA's position is unreasonable."

Stichman said Haas will seek a fresh review of the case from a full or en banc panel of seven appeals court judges. Such reviews are granted only sparingly. If that fails, an appeal to the Supreme Court will be weighed.

Veterans can learn more about the lawsuit on line at
http://www.nvlsp.org/ or at http://www.bluewaternavy.org/.

http://www.military.com/features/0,15240,168739,00.html

Tom Philpott

Thanks Tom - well put.

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

"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.

Friday, May 23, 2008

Downgraded Diagnoses

Here is an open letter to the Congressional Veterans Affairs Committee Chairmen:

To: Senator Daniel K. Akaka, Chairman, Senate Committee on Veterans Affairs
Congressman Bob Filner, Chairman, House Committee on Veterans Affairs
Honorable Members of Both Committees

From: Kurt Priessman, MSgt, USAF (Ret), B.A., M.B.A., Veterans Advocate
The Veterans of this Great Nation from All Wars

Subject: This is not an Isolated Incident

Chairman Akaka and Filner, Ranking Members, honored members of the Committees on Veterans Affairs, interested Senators and Representatives, ladies and gentleman of the presenting panels, Veterans and Citizens of the United States of America,

Today is a special day, a day not for exercises in obfuscations or excuses, nor grandstanding or indignation, but a day to shed light on a system that is broken, a corporate culture rife with adversarial processes, denials, cover-ups, and rule-making ad infinitum. This country’s veterans deserve better.

Suicides and PTSD among veterans are nothing new; they have just become more prevalent in the media which has covered them more attentively. Veterans today are faced with combat unlike any before, where the enemy is vicious and use the populace as shields, where human suffering seems unending. And unfortunately the suffering does not end after the battles in the Afghan mountains, or the streets of Sadr City or Basra, it continues in the constant bureaucracy, outlandish, outrageous procedures and requirements of proof, and trivial excuses of a system that is forced to cover-up statistical information that verifies its own failures.

Eighteen Veterans die each day from suicide, seventeen more a day die while waiting for their claims to be adjudicated. It is becoming increasing clear from internal e-mails that the practices described herein are insidious, prevalent, and long-standing. This is not about anything other than a total failure of leadership gone too long, without anyone’s accountability.

I submit to the Congress that the following practices come from the highest levels of the Department of Veterans Affairs, through Secretary Peake, Deputy Secretary Gordon Mansfield and Dr. Michael Kussman, conveyed through internal memorandums and e-mails to Regional and Medical Center Directors, to Program Administrative Officers in every line of the Veterans Health Administration and the Veterans Benefits Administration. The practice of not documenting, downgrading, and denying applicable diagnoses is prevalent in the Veterans Health Administration and also in the Department of Defense.

From real experience I will give you two actual instances.

The first was a discussion with my VHA primary care provider about my military health record, in which an inch worth of visits only reflected one instance of blood pressure and temperature taken in twenty years although it was standard practice that these were taken at the onset of every visit to a military clinic, thus making my claim of service connected hypertension unproveable.

My provider responded, "Yes, I know, I had a patient walk in the other day with blood pressure of 235/178 and no diagnosis of hypertension. I called the physician of record, and he asked me if I hadn't heard about not documenting diagnoses, especially if they were compensable."

The next instance was the result of a C&P exam. I was hit by a truck while serving in Thailand and was nearly killed. I escaped through quick reflexes, as I turned my thigh towards the vehicle and stood on my tiptoes. I was flipped high in the air over the truck, rather than being run over, which saved my life. I was in the hospital three days. Shortly thereafter I began experiencing continued knee pain, back pain and back spasms.

When the C&P exam took place, the exam showed degenerative disk disease of the spine, degenerative joint disease of the spine, knee, hips, and iliac joints and arthritis. Yet the examiner stated that due to a lack of treatment it was unlikely my condition was related to the accident although I had never injured my back at any other time and my primary care provider attempted to schedule both CT scans and a MRI for three years before she finally got approval from the clinical line’s Administrative Officer. Thus denial of expensive diagnostic tests (CT scans, MRI), is another ploy used to deny benefits.

The doctor I got for an independent medical opinion, a renowned radiologist, stated that my spinal injury was common in traumatic accidents of this kind (with medical citation), and then asked the VA examiner that if she felt it was less likely than not the accident caused the condition, what did?

The answer is obvious, but unfortunately it is not medically related. The answer is that denial of nexus for service connection is just another ploy used by the Department Of Veterans Affairs. In an arrogant manner, the Department denies Veterans. They do not have to provide or explain a reason even when that reason is ungrounded by any evidence.

Additionally, although required by law, re: The Veterans Claims Assistance Act of 1991, paragraph 5103 A(3)(b) and (c), when I requested assistance in finding retiree medical records from the USAF (a governmental department) with specific information as to where and when, help was not provided. Yet the examiner cited the fact that records did not reflect treatment during that specific time period. This is exacerbated by the failure of the Department of Defense and other government to release evidence that would substantiate Veterans claims. It thus becomes obvious that another ploy to deny benefits is not to assist veterans in compliance with the law.

Another ploy is the arbitrary and capricious disregard of its own rules and regulations. Despite a requirement to give Veterans the benefit of the doubt, this is always denied and not usually remedied until a case is taken to the Court of Appeals for Veterans Claims seven years later.

The answer is tied to money, an unscrupulous corporate attitude, and a prevailing attitude among Republicans in Congress and the White House that the benefits given to Veterans are entitlements.

As a career military man, I feel that this abhorrent attitude is beyond belief. Veterans who have served and continue to serve earn every dime of every benefit the law provides. Until the attitudes towards these benefits changes in the Administration and Congress, Veterans will be faced with being nothing more than chattel, “volunteers” lining up to give their lives, only to be dismissed and left to die. Please think! The health care, disability payments and pensions, burial, educational, rehabilitative and home loan guarantees are not entitlements, are not entitlement programs, they are earned benefits.

I am sure the Secretary will state that the e-mail in no way reflects the attitude of the Department and is an isolated incident. Or that it should be obvious from their outstanding PART Report that they are the best of the best. As a former civil servant, involved in the formulation of this report for another Department, I remind you that these reports, their criteria and results, are nothing more that self initiated assessments meant to reflect positively and that negative criteria are weeded out and dismissed.

In conclusion, I ask Congress not to believe for an instant that the administrators of the Department of Veterans Affairs have not instituted "unwritten rules" intended to deny benefits to Veterans. Veterans across this country would be more than willing to testify to Congress on their experiences and if given impunity from retaliation, so would responsible providers and employees of the Department.

With sincerest thanks for your continued efforts and support,

Kurt Priessman

Kurt Priessman, MSgt, USAF (Ret0
Vernon, Texas

Proud Vietnam Veteran,
Proud Father of an Iraq/Afghanistan Veteran

Thank you Kurt!

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

"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.

Sunday, May 18, 2008

Elegy


"They that go down to the sea in ships, that do business in great waters; These see the works of the LORD, and his wonders in the deep. For he commandeth, and raiseth the stormy wind, which lifteth up the waves thereof. They mount up to the heaven, they go down again to the depths: their soul is melted because of trouble. They reel to and fro, and stagger like a drunken man, and are at their wits' end. Then they cry unto the LORD in their trouble, and he bringeth them out of their distresses. He maketh the storm a calm, so that the waves thereof are still. Then are they glad because they be quiet; so he bringeth them unto their desired haven."

Psalms, 107:23-30, KJV
One of the saddest duties is dealing with the death of a shipmate. The day after the Haas decision was announced, "Bluesman", who served gallantly in the Vietnam War on board the USS Camden AOE 2, took his own life. We do not presume to know why, but suggest that you draw your own conclusions. There are more than a few possibilities.

The fact remains that we are reduced in numbers by one more. We mourn his passing as he was our shipmate. But he has gone home now.

And so, we recall the good times, when the calm sea mirrored the many colors of the sky, the starlit night sky in warm waters, the sun that rose and set with such great speed, leaving a red-gold path between you and it.

Shakespeare talks of sailors in the Tempest:

Full fathom five thy father lies;
Of his bones are coral made;
Those are pearls that were his eyes;
Nothing of him that doth fade,
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell:
Ding-dong.
Hark! now I hear them — Ding-dong, bell.
And so we offer a final "Hand Salute" to "Bluesman"! "Two"! Calm seas, shipmate, calm seas.

"Ding-dong...Ding-dong, bell."

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

"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.

Friday, May 16, 2008

How the VA Cheats Veterans

Here is a look deep into the mindset of the Department of Veterans Affairs. It is accurate, despite the disclaimers by Secretary Peake, who, you'll remember, was the officer who brought us the Walter Reed debacle.

Anyway, here is an article from the AP making its rounds on the various news outlets on the Internet.


E-mail from VA worker says to avoid PTSD diagnosis

May 15, 5:31 PM (ET)

By KIMBERLY HEFLING

"WASHINGTON (AP) - An internal e-mail written by a Veterans Affairs Department employee suggested avoiding a diagnosis of post-traumatic stress disorder for veterans and instead considering a diagnosis that might result in a lower disability payment.

A copy of the e-mail was distributed Thursday by the groups Citizens for Responsibility and Ethics in Washington, a congressional watchdog group, and VoteVets.org. The e-mail dated March 20 had been forwarded to VoteVets.org, an Iraq and Afghanistan war veterans lobbying group opposed to the Bush administration's handling of the war and veterans issues.

The name of the sender and the recipients were blacked out by the groups. The e-mail has the subject title "Suggestion."

"Given that we are having more and more compensation seeking veterans, I'd like to suggest that we refrain from giving a diagnosis of PTSD straight out. Consider a diagnosis of Adjustment Disorder, R/O PTSD," the e-mail said.

It also said, "Additionally, we really don't or have time to do the extensive testing that should be done to determine PTSD."

VA Secretary James Peake issued a statement calling the e-mail sender's suggestions "inappropriate" and said the employee had been repudiated and was apologetic. The VA did not release the name of the employee.

"We are committed to absolute accuracy in a diagnosis and unwavering in providing any and all earned benefits," Peake said. "PTSD and the mental health arena is no exception."

Just last week, Peake was called to Capitol Hill to answer questions about internal e-mails that surfaced during a trial that seemed to suggest VA officials were hiding the number of veterans trying to kill themselves. One e-mail started with "Shh!" Some lawmakers have said the official who wrote it should be fired, but Peake has said he has no plans to do so. Peake promised to make the agency more open.

Post-traumatic stress disorder is an anxiety disorder that can occur after a traumatic event such as war. Nightmares, flashbacks, and substance abuse can be among the symptoms.

A recent study by the Rand Corp., found that that about one in five troops who found [served?] in Iraq or Afghanistan have symptoms of major depression or post-traumatic stress disorder.

Jon Soltz, an Iraq War Veteran who is chairman of VoteVets.org, said some veterans have suspected they received a diagnosis of an adjustment disorder instead of the correct diagnosis of PTSD because the payout to them would be less.

"Many veterans believe that the government just doesn't want to pay out the disability that comes along with a PTSD diagnosis," Soltz said in a statement, "and this revelation will not allay their concerns.""
Indeed, it merely confirms what we have already realized long ago that the DVA sees its purpose solely as denying legally recognized and authorized [by Congress] services to Veterans.

Another way of looking at it is that the DVA is cheating Veterans to save money.

Well, BLAME CONGRESS for not giving th DVA the funds, or the explicitly spelled out mandates to provide services to Veterans.

Perhaps some Global War on Terrorism Veterans should consider returning their medals to Akaka and Filner.

What a despicable, horrendous way to treat our Veterans!

[Special Note: VNVets will be on hiatus for approximately 2 weeks tending to some personal business.

Keep checking daily, however, as we might grab a second to post something if we think you should be aware of it.]
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

"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.

Wednesday, May 14, 2008

Time to Mail!

We have expressed many times that it is time to march. However, in thinking through the matter, and with the assistance of two able advisors, Chuck and Rich, we have re-thought this position. Most of the Blue Water Navy Veterans are too sick to go anywhere, let alone make a march to Washington.

So we have another idea.

Let the post office do the marching.

It is time to mail your Vietnam Service Medal to Senator Akaka, and to mail your Republic of Vietnam Cross of Gallantry [the red and gold one you had to buy] and/or your Vietnam Campaign Medal [the green and white one] to Representative Filner.

Why them, and not the DVA or the White House?

Because Congress is the only entity that can fix our problem while the court case is pending. Because Congress has, for years, failed to instruct the Department of Veterans Affairs as to its intent when it wrote "military, naval, and air service in the Republic of Vietnam" into the Agent Orange Act of 1991.

Granted, in 1991 very few folks had any idea that Blue Water Navy Veterans had been exposed, or that the Agent Orange Diseases [and others] would take so long to manifest themselves becuse of the indirect way we were exposed. Nevertheless, somehow, the DVA got the idea that Congressional intent was to include not just Blue Water Navy Veterans, but also anyone else who had received the Vietnam Service Medal [VSM]. That was the policy made by the DVA based on its own interpretation of the Agent Orange Act.

It took them two years to cut Air Force personnel out of Presumptive Eligibility for Exposure to Agent Orange. Congress didn't squeak then, nor did it squeak in 2002 when the DVA divested itself of Blue Water Navy personnel. And it has not uttered more than lip service since.

Taking their cue from the DVA, apparently those of us who served on Blue Water Ships did not serve in Vietnam. Of course,
the 58 men who were Killed in Action on Blue Water Ships must have been fighting some other enemy, in some other war.

And so we offer this plan:

Mail the following letter, accompanied by your VSM to Senator Akaka:

Senator Daniel Akaka
United States Senate
141 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Akaka,

As the Department of Veterans Affairs has interpreted the Agent Orange Act of 1991 to preclude presumptive exposure to dioxins in Blue Water Navy Veterans, and as the United States Court of Appeals for the Federal Circuit has opined that such a definition is a "permissible" one, and as Congress, by its silence, has failed in its responsibility to make clear what the definition of "Service in Vietnam" is, I am returning the Vietnam Service Medal I received for Blue Water Naval Service in the Vietnam War. Apparently I did not serve in Vietnam, according to the DVA, the USCAFC, and apparently the US Congress.

Respectfully,

[sign your name]
Mail the following letter, accompanied by your Republic of Vietnam Cross of Gallantry [the Red and Gold Medal you had to buy], and your Vietnam Campain Medal [the Green and White one you received for being there more than six months],to Representative Filner:

Congressman Robert Filner
2428 Rayburn House Office Building
Washington, DC 20515

Dear Congressman Filner,

As the Department of Veterans Affairs has interpreted the Agent Orange Act of 1991 to preclude presumptive exposure to dioxins in Blue Water Navy Veterans, and as the United States Court of Appeals for the Federal Circuit has opined that such a definition is a "permissible" one, and as Congress, by its silence, has failed in its responsibility to make clear what the definition of "Service in Vietnam" is, I am returning the Republic of Vietnam Cross of Gallantry and/or the Vietnam Campaign Medal I received for Blue Water Naval Service in the Vietnam War. Apparently I did not serve in Vietnam, according to the DVA, the USCAFC, and apparently the US Congress.

Respectfully,

[sign your name]
Apparently, the only way to get Congress to move is to shame them publicly.

So make sure you write a letter to the editor of your newspaper letting them know what you are doing and why. It is time these bastards were exposed. We are tired of lip service and tired of being denied.

So spread the word, shipmates! Tell anyone who served in Vietnam about this effort, and others who were not BLue Water are welcome to send their medals back as well.

Two five dollar mailings are less expensive and less strenuous and less stressful than a trip to DC.

Now, one last step:

Send a copy of your letters, with the following cover to the New York Times:

Editor
New York Times
620 Eighth Avenue
New York, NY 10018

Editor,

Please note the attached copies of letters to Senator Daniel Akaka, and Representative Bob Filner, Chairmen respectively of the Senate and House Veterans Affairs Committees. We are returning our Vietnam medals in protest of being excluded from Benefits under the Agent Orange Act of 1991. Blue Water Navy Veterans of Vietnam are dying from Agent Orange Related diseases at a higher rate than other Vietnam Veterans at this time. We were exposed through our drinking water and occasional drifting spray while we operated close inshore.

We hope you will see fit to alert the public to this injustice.

Further information on this issue can be found at http://bluewaternavy.org/, the Blue Water Navy Vietnam Veterans Association, or at the VNVets Blog, http://NVVets.blogspot.com.

Thank you,

[sign your name]
You may also wish to send copies to other newspapers:

Editor
Los Angeles Times
202 West 1st Street
Los Angeles, California 90012

Editor
The Washington Post
1150 15th Street NW
Washington, DC 20071

General Manager
Fox News Channel
1211 Avenue of the Americas
New York, NY 10036

General Manager,
Cable News Network
One CNN Center
Atlanta, GA 30303

Michelle Malkin
c/o Creators Syndicate
5777 W. Century Blvd.
Suite 700,
Los Angeles, CA 90045
That should be enough to get some national attention finally. Feel free to send copies to your local newspaper and other national media outlets.

It's in your hands, shipmates. Remember your training...we all pull together, or we'll sink. This is your legacy we are dealing with here. It goes beyond benefits, it is returning value to your service in the Vietnam War. Do not allow the corruptors in the government to steal that from you.

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

"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.

Sunday, May 11, 2008

The CDC, The DVA, NHL, and Hodgkins Disease

An examination of the rather lengthy 1990 report by the Centers for Disease Control, The Association of Selected Cancers with Service in the U.S. Military in Vietnam reveals some very interesting passages that apply to the increased incidence of Non-Hodgkins Lymphoma AND Hodgkins Disease in Blue Water Navy Veterans.

Here is the ONE passage in the entire report that mentions Blue Water Navy Veterans of Vietnam and NHL.

"...Compared with other Vietnam Veterans, the risk of NHL tended to be higher among Navy Veterans, most of whom were stationed on ocean-going vessels. Overall, the risk tended to be higher for men based at sea than for those based on land...."
Also, this ONE quotation that mentions Blue Water Navy Veterans with Hodgkins Disease.

"...In addition, compared with other Vietnam Veterans, the risk for Hodgkins Disease did not significantly differ between those in the Navy [most of whom were stationed on ocean-going vessels with little potential for exposure to Agent Orange] and men in other service branches...."

Source: Selected Cancers Study at the CDC website.

Also see Agent Orange Brief - August 2002.

Now we don't know why the CDC or the DVA would not make a connection between these two diseases and Agent Orange when the report also found a 50% higher risk of these and other cancers among all Vietnam Veterans.

This report was written in 1990, prior to passage of the Agent Orange Act in Congress. Here we are in 2008 and the Department of Veterans Affairs still clings to these two citations as proof of Blue Water Navy Veterans NOT being exposed to Agent Orange. In the interim, the DVA did not ask for a study of Blue Water Navy Veterans, did not ask for a study of the effects of Agent Orange at sea, did not ask for a study to prove that Agent Orange never spread beyond the ocean shoreline, and never asked for a study to find out why "the risk of NHL tended to be higher among Navy Veterans, most of whom were stationed on ocean-going vessels.", especially after the Australian Study on runoff of Dioxin in seawater processed through ship's evaporators. Indeed, they have shown no interest whatsoever in any studies along these lines, continuing to cling to the CDC comment that "...[most of whom were stationed on ocean-going vessels with little potential for exposure to Agent Orange.]...", and in spite of their own-commissioned report by Admiral Zumwalt that pointed out drift of sprayed Agent Orange was capable of carrying up to 29 kilometers!

We would also note that the studies used by the CDC to construct this report were almost all based on far too small a sample population to give reliable results. Any upper level management and the Secretary of the DVA with a half a brain should have commissioned an entirely new study.

This, ladies and gentlemen is depraved indifference and criminal negligence. Depraved indifference is defined by the website
US Legal Definitions this way:

"To constitute depraved indifference, the defendant's conduct must be 'so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting."
Criminal Negligence is defined by US Legal Definitions this way:

"Criminal negligence is negligence which requires a greater degree of culpability than the civil standard of negligence. The civil standard of negligence is defined according to a failure to follow the standard of conduct of a reasonable person in the same situation as the defendant. To show criminal negligence, the state must prove beyond a reasonable doubt the mental state involved in criminal negligence. Proof of that mental state requires that the failure to perceive a substantial and unjustifiable risk that a result will occur must be a gross deviation from the standard of a reasonable person. Criminal negligence is conduct which is such a departure from what would be that of an ordinary prudent or careful person in the same circumstance as to be incompatible with a proper regard for human life or an indifference to consequences. Criminal negligence is negligence that is aggravated, culpable or gross."
We suggest that the successive Secretaries of the Department of Veterans Affairs are guilty of both of these crimes and should be brought to justice. We are prepared to fax information to the Attorney General of the United States with accumulated evidence, asking that the Justice Department charge all the Secretaries of the DVA since 1990 with both of these crimes in Federal Court.

The gloves are off now.

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

"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.

Saturday, May 10, 2008

Errata & cetera

Errata
We are in error concerning benefits for Blue Water Navy Veterans with Chronic Lymphocytic Leukemia [CLL]. There was an exchange between Judge Fogel and the DVA Attorney during oral arguments in the Haas case last November. As we recalled it, Judge Fogel initiated the exchange and the VA attorney, Mr. Hughes, mentioned how surprised the VA was by the high incidence of CLL among Blue Water Navy Veterans, and Judge Fogel commented to the effect that was why the DVA made an exception in feet on the ground for CLL.

As it turns out, it was not CLL, but Non-Hodgkins Lymphoma [NHL], and the VA claims that even though NHL is on the list of Agent Orange diseases, they are granting benefits for it not caused by Agent Orange but caused by some other agent. How they scientifically determined this escapes everyone, and apparently it must also escape the DVA as well. We apologise for the confusion regarding this. [We are looking into the CDC Report that is the basis for this. Look for more on this in a day or two.]

Here is an unofficial transcript of the discussion which occurs at the 24-27 minute mark in the oral argument recording.:

J-But they haven't ever cut back on coverage have they in this whole two decade sequence of successive legislative amendments.
VA-They haven't ever cut back on diseases that were service connected but they never specifically discussed what it means to serve in the Republic of Vietnam.
J-So you wouldn't concede then that in general Congress has had an expansive attitude to cover more people rather than fewer people?
VA-I would agree that Congress has acted to codify VA's addition of diseases routinely, yes. But they have never indicated except I think in our favor, but the legislative history is at best ambiguous on what it means to serve in the Republic of Vietnam. But in our view Congress was codifying 311.A and in all the subsequent acts and amendment to the Agent Orange Act some of these have been after VAs announced interpretation limiting it to on-shore service. They still haven't acted to amend the definition of Service in the Republic of Vietnam for the lu
J-If I understand your position correctly, you advert to 3.31 which is the Non Hodgkin's Lymphoma regulation I take it and you say that although the language is similar there is a different comma and an or. You say that was an intentional distinction from the 3.30763?
VA-I do, your honor, and let me just as I may address this as this is a big point of confusion in this case where the veterans
J-It is a little difficult to follow, but I take it your position is Congress adopted both in effect, both of those regulations even though they cover different, they have different scope importantly different scope for the purpose of this case.
VA- They adopted the addition of NHL but we don't think they adopted the addition of 3.313 and this is where I think there is some confusion. 3.313 and the service connection of NHL to service in Vietnam is not based upon herbicide exposure. It is based upon a CDC study that found a higher incidence of NHL in Vietnam veterans including those that served offshore as opposed to other Vietnam era veterans who didn't serve there. And in fact it found an even higher incidence of NHL in sailors then those who served on land. So there are several places in the record that it notes that addition of NHL under 3.313 and the CDC study essentially ruled out exposure as the basis for this. It doesn't identify the basis for this higher rate of NHL but because the sailors had a much higher rate than the on-shore people it determined probably more likely not due to exposure.
J-Or at least not to exposure to dioxin, but it was probably connected to exposure to something.
VA-I think there is no explanation for this but the VA is allowed to provide such presumptions when there is statistically significant evidence and sound medical evidence that these veterans have a higher rate. I just
J- was that, was the NHL that coverage was included in the subsequent statute, after the regulation, right after the regulation.
VA-The coverage was included in the subsequent statue, but it wasn't, we don't think codified in 3.313. We think it was based on additional scientific evidence later that NHL was now connected to exposure and
J-But as a matter of, oh go ahead.
VA-If I may anticipate, the question is why do you need that because we have 3.313 already which would cover it. There are actually different time periods so that 3.313 which covered all veterans that served on-shore and off-shore and service connected them for NHL was confined to the Vietnam era, whereas the Agent Orange Act had a broader time scope because it was used from 62 to I believe 75 when herbicides were used. So it predates the Vietnam era so the Agent Orange Act by putting NHL there expanded at least coverage for people who served on-shore who may not have been covered by the time period of the NHL regulation of 3.313 but now could be service connected based upon the fact that it was included in the Agent Orange Act itself in 1116. 3.313 is still on the books though.
As you can readily see, the DVA Attorney, Mr. Hughes frequently sidestepped the questions of Judge Fogel by providing answers to other questions that the DVA wanted read into the record. Nevertheless, there is an opportunity here for anyone with NHL to move their case forward.

Again, we apologize for confusing this issue with CLL. We heard correctly, but remembered incorrectly.

[You can listen to the recording, and even download a free copy of it by visiting the
U.S. Court of Appeals for the Federal Circuit website, click on Audio Files in the menu at the top of the page, and insert 2007-7037 into the Case Number box, then click the Search button. When the screen refreshes, scroll down and click on the audio file. To download it [it is a very large file so it will take some time], right click on the file link and select Save Target As, navigate to where you want to save the file on your computer, then click Save.]

& cetera
It occurs to us that the wording of the Haas decision of May 8th may leave some avenues open for future court action. The court wrote in its majority opinion that "...We hold that the agency’s requirement that a claimant have been present within the land borders of Vietnam at some point in the course of his duty constitutes a permissible interpretation of the statute and its implementing regulation,...".

"Permissable interpretation" does not reflect a determination of correct interpretation. We suspect that the court essentially bought the DVA's argument that the Department has the right to interpret Congressional Law as it sees fit. The DVA claimed it was entitled to deference when interpreting legislation and turning it into policy.

Now, if permissible is applied here as we suspect, then perhaps the attornies challenge should be in two forms, one that supplies a correct definition of the Definition of Service in Vietnam and requires the DVA to refute it with evidence; and two, request that the Supreme Court require all departments to not only provide interpretations that are permissible, but are also reasonable and in line with the intent of the law. The DVA never proved that Blue Water Veterans were NOT exposed to Agent Orange, nor have they ever proven that the effects of Agent Orange stopped completely at the shoreline, never touching the ocean. In the absence of such evidence, the DVA should be required to provide presumptive eligibility to Blue Water Veterans. And the Air Force as well...the very idea that Air Force personnel were not exposed to Agent Orange simply defies all reason and logic.

We return to Judge Fogel's dissenting opinion where he said, "I agree with the Veterans Court that in the absence of any scientific evidence in the record that supports a “foot on land” requirement, the VA’s position is unreasonable."

I think Judge Fogel was pointing out the path to take in the appeal.

& cetera 2
Here is a copy of the text of the public law regarding the DVA's relationship with the National Academy of Sciences:

Section 3 of Pub. L. 102-4, as amended by Pub. L. 102-83, Sec. 5(c)(2), Aug. 6, 1991, 105 Stat. 406; Pub. L. 102-86, title V, Sec. 503(a), (b)(1), Aug. 14, 1991, 105 Stat. 424, 425; Pub. L. 107-103, title II, Sec. 201(d)(2), Dec. 27, 2001, 115 Stat. 988, provided [in part here] that:

(c) Review of Scientific Evidence. - Under an agreement between the Secretary and the National Academy of Sciences under this section, the Academy shall review and summarize the scientific evidence, and assess the strength thereof, concerning the association between exposure to an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era and each disease suspected to be associated with such exposure.
''(d) Scientific Determinations Concerning Diseases. - (1) For each disease reviewed, the Academy shall determine (to the extent that available scientific data permit meaningful determinations) -
''(A) whether a statistical association with herbicide exposure exists, taking into account the strength of the scientific evidence and the appropriateness of the statistical and epidemiological methods used to detect the association;
''(B) the increased risk of the disease among those exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and
''(C) whether there exists a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the disease.
''(2) The Academy shall include in its reports under subsection (g) a full discussion of the scientific evidence and reasoning that led to its conclusions under this subsection.
''(e) Recommendations for Additional Scientific Studies. - The Academy shall make any recommendations it has for additional scientific studies to resolve areas of continuing scientific uncertainty relating to herbicide exposure. In making recommendations for further study, the Academy shall consider the scientific information that is currently available, the value and relevance of the information that could result from additional studies, and the cost and feasibility of carrying out such additional studies.
''(f) Subsequent Reviews. - An agreement under subsection (b) shall require the National Academy of Sciences -
''(1) to conduct as comprehensive a review as is practicable of the evidence referred to in subsection (c) that became available since the last review of such evidence under this section; and
''(2) to make its determinations and estimates on the basis of the results of such review and all other reviews conducted for the purposes of this section.
''(g) Reports. -
''(1) The agreement between the Secretary and the National Academy of Sciences shall require the Academy to transmit to the Secretary and the Committees on Veterans' Affairs of the Senate and House of Representatives periodic written reports regarding the Academy's activities under the agreement. Such reports shall be submitted at least once every two years (as measured from the date of the first report).

Now we believe the National Academy of Sciences has been negligent in its duties for failing to supply scientific evidence that Agent Orange effects stopped completely at the ocean shoreline, and/or that Blue Water Navy Veterans were not exposed to Agent Orange.

We believe the Department of Veterans Affairs is guilty of malfeasance in a continuing line of actions dating back to the first mention of illnesses related to Agent Orange in the 1970s. For years they denied there was any connection in spite of the fact they had not conducted any studies nor had they asked CDC or NAS to conduct any studies. [see the
Zumwalt Report for a more complete documentation of the foot dragging, and suppression of evidence by the DVA to keep from paying any Agent Orange Benefits at all.]

We believe the Department of Veterans Affairs is guilty of negligence for failing to ask for any scientific evidence concerning exposure from Dioxins in Blue Water Navy Veterans. It is symptomatic of the expectation that such proof exists and shows that Blue Water Navy veterans were indeed exposed to Agent Orange that they have not asked for such a study. It is symptomatic of their fear that they also refuse to acknowledge the Australian Study's validity because it shows that Blue Water Navy Veterans were exposed. When the Institute of Medicine tried to get the Australian Study into the most recent Agent Orange Review Report they were ordered not to do so by a high level official from the Bush Administration, likely someone from the DVA.

Here again we point out that the DVA has consistantly failed to provide due diligence to the law by refusing to ask for evidence, or seek it out in any form. It is the DVA's express duty to take those actions. Their failure is a conscious decision taken to deny Blue Water Navy and Blue Sky Air Force the benefits that Congress voted them in 1991.

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

"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.

Friday, May 09, 2008

The Day After: Some News

Okay, the bad news from yesterday has sunk in. Now you know why we have said repeatedly that "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."

But...

...we were happy as Hell this morning to see the following information posted on the website of the National Veterans Legal Services Program:
"On May 8, 2008, the Federal Circuit issued a decision reversing the Veterans Court’s decision that was in favor of Commander Haas. You can view a copy of that decision by clicking here. NVLSP intends to appeal this decision, which adversely affects all Blue Water Vietnam Veterans."
God Bless you Commander Haas, and God Bless you NVLSP!

Supreme Court here we come!

Now, pay very close attention: The NVLSP is supported by donations. Invest in YOUR future by investing in the NVLSP. They have won many victories in the fight against the Department of Veterans Affairs, and they will win many more...including Haas vs. Peake in the Supreme Court of the United States! But no organization can continue to function without funding.

Please visit the NVLSP website and make a donation soon. In fact, why not do it now?
[Click here to donate]

A donation to the NVLSP is an investment in YOUR future.

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.

Thursday, May 08, 2008

Options after Black Thursday

We are faced with a number of choices in the aftermath of the stunning loss of the Haas case. First, we must decide whether we want to continue to take action in an effort to further our case or whether we will simply accept a defeat that will come to symbolize the scourge of the American Veteran and the repudiation of the implied contract between the nation's citizenry and its warriors.

We think we know the answer that all will give: This situation must not be allowed to stand.

Thirty-five to forty-five years ago we voluntarily fought in an extemely unpopular war, cut off from home support by a wicked movement that took advantage of our absence, and then on our return, excoriated us for our patriotism. We were pushed, and shoved, screamed at, accused, and spit upon.

Today, it wasn't the citizenry that spit on us, it was the United States government.

We do not remember ever being so angry in our life.

So, what is left for us to do?

Jonathan Haas has the option of appealing today's decision to the Supreme Court of the United States. He'll be looking at a minimum of two years before he even finds out if the Supremes will hear the case.

We can, like the group of Veterans in California did, sue the Department of Veterans Affairs in Federal Court for malfeasance, and criminal negligence. We think a case could be made by taking our clue from Justice Fogel's dissent in today's opinion. Fogel gives clues to a possible path when he says,

"The statute at issue in this case, the Agent Orange Act, Pub. L. No. 102-04, 105 Stat. 11 (1991), was adopted subsequent to and informed by the issues raised in Nehmer. The Agent Orange Act required that the National Academy of Sciences conduct a comprehensive review of “all the available and future evidence on the long-term health effects of exposure” to herbicides."
Neither the National Academy of Sciences, nor its organ the Institute of Medicine has officially reviewed “all the available and future evidence on the long-term health effects of exposure” to herbicides."

These bodies are required to do so and to report their findings to the Department of Veterans Affairs. [See the Institute of Medicine's page on
Health Effects in Vietnam Veterans of Exposure to Herbicides (Agent Orange)]

First, the Institute of Medicine has never reviewed the Australian study that the DVA so callously dismisses, although there were hints at an effort to do just that by the last committee of the Institute of Medicine, only to have that effort quashed by someone in the Bush Administration. Nor has the DVA asked the Academy or the IOM to conduct their own study.

Second, the DVA has never asked for a morbidity study of Blue Water Naval Veterans, even after a limited study found that Blue Water Navy Vietnam Veterans had a markedly higher incidence of Chronic Lymphocytic Lymphoma [CLL] than normal, thus generating a policy that grants Blue Water Navy Vietnam Veterans with CLL Agent Orange benefits!

Third, the DVA has suppressed and ignored the
REPORT TO SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS ON THE ASSOCIATION BETWEEN ADVERSE HEALTH EFFECTS AND EXPOSURE TO AGENT ORANGE, As Reported by Special Assistant Admiral E.R. Zumwalt, Jr., May 5, 1990.

Zumwalt found evidence of tampering with committees reviewing research:
"This blatant lack of impartiality lends credence to the suspicion that certain individuals may have been unduly influenced in their evaluation of various studies. Furthermore, such bias among Advisory committee members suggests that the Secretary should, in accordance with the Dioxin Standards Act, appoint new personnel to the Advisory Committee."
He also accused the Department of Veterans Affairs and the Administration of conspiring to derail efforts to compensate Veterans for Agent Orange Exposure:

"Agent Orange strongly hints at a discernible pattern, if not outright governmental collaboration, to deny compensation to Vietnam Veterans for disabilities associated with exposure to dioxin. A case in point is the Centers for Disease control ("CDC") . As concerns grew following the first studies of human exposure to Agent Orange, Congress commissioned a large scale epidemiological study to determine the potential health effects for Vietnam Veterans exposed to Agent Orange. Initially, this study was to be conducted by the VA itself.

"When evidence surfaced, however, of the VA’s foot dragging in commencing the study (and initial disavowal of any potential harm from exposure to Agent Orange), Congress transferred the responsibility for the study to the CDC in 1983.

"Unfortunately, as hearings before the Human Resources and Intergovernmental Relations Subcommittee on July 11, 1989 revealed, the design, implementation and conclusions of the CDC study were so ill conceived as to suggest that political pressures once again interfered with the kind of professional, unbiased review Congress had sought to obtain....

"...Even more disturbing, when the protocol for this "study" and the blood test procedures were examined further, there appeared to be a purposeful effort to sabotage any chance of a meaningful Agent Orange exposure analysis."
[God Bless Admiral Z!]
Indeed, even after the Agent Orange Act of 1991 was instituted the Department of Veterans Affairs started to immediately cull out whole groups of Veterans of the Vietnam War from presumptive eligibility, starting with the Air Force in 1992. The VA maintained that the Air Force flew over the Agent Orange and therefore was not exposed. Never mind the fact that a large portion of Agent Orange spraying was done by Air Force personnel in Air Force aircraft. This effort began during, and continued later in the Clinton Administration when the Department's General Counsel issued the famous "precedent" in 1997 that was ultimately used by the Bush Administration to stop benefits going out to Blue Water Navy Veterans.

Finally, the Department of Veterans Affairs is REQUIRED to accept claims that it cannot disprove by available evidence. Judge Fogel remarks on this in his dissent,

"I agree with the Veterans Court that in the absence of any scientific evidence in the record that supports a “foot on land” requirement, the VA’s position is unreasonable."
In other words, the Department of Veterans Affairs has completely and utterly failed to prove that Agent Orange did not affect Blue Water Navy Veterans of the Vietnam War, nor did they prove that Agent Orange affected only those who were under it, or that Agent Orange never left the land mass of Vietnam.

There is another option available, also, one that we have been proposing for nearly six months.
The Agent Orange Fair Compensation Act. We have requested that every Blue Water Navy Veteran of the Vietnam War seek out his Congressional Representative, and his Senators, and present them with a copy of the Agent Orange Fair Compensation Act, requesting their sponsorship and support for the proposed bill. This would reverse today's decision if it passed as written. It would express the will of Congress, something Congress has been far too unwilling to confirm one way or the other for many years. This is an election year. When you visit your elected officials, take friends, and members of the press with you.

It will take all of us to accomplish this. Each and every one of us needs to put pressure on Congress to do the right thing and rein in the Administration and their lackeys at the Department of Veterans Affairs.

One other option, that we have advocated for a long time: MARCH! March on Washington, on the Capitol, and on the Department of Veterans Affairs headquarters.

We don't know about the rest of you, but we feel dishonored by the actions of our government. It is as if to say, "You did nothing. You were not there. You deserve nothing."

We want justice! We want the government of this country to recognize that we WERE there, we fought, and some of us died while there. And we are now suffering and dying from the actions of our own government while we were there.

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.

A Sad Day for Blue Water Sailors

Unfortunately, the United States Court of Appeals for Veterans Claims has reversed the lower court in the Haas case.

Here is all that really counts:

The Court of Appeals for Veterans Claims (“the Veterans Court”) set aside the DVA’s interpretation as unduly restrictive. Haas v. Nicholson, 20 Vet. App. 257 (2006). We hold that the agency’s requirement that a claimant have been present within the land borders of Vietnam at some point in the course of his duty constitutes a permissible interpretation of the statute and its implementing regulation, and we therefore reverse the judgment of the Veterans Court.

Read the entire decision:http://www.cafc.uscourts.gov/dailylog.html, scroll down to the Haas vs Peake case.

This leaves us with one option, and that is to press Congress to pass the Agent Orange Fair Compensation Act.

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.

Sunday, May 04, 2008

Making Comments on Proposed Definition of Service in Vietnam

We wonder just what is going on with the public comments on the proposed rule change to 38 CFR 3.307(a)(6)(iii). We have made and gotten receipts for our comment four times since last Thursday. We have yet to see our comment appear on the list of comments. The list is surprisingly light. Only 10 comments appear so far. Is the VA censoring the public comments????

[Note: to see the comments, and the proposed change click here [comments].

To make a comment, go to the last entry which is the proposed change and the VA's [arrogant] justification. When that comes up look for the title: AM74 - Proposed Rule - Definition of Service in the Republic of Vietnam, and just under that title is the link to send a comment or submission. Click on that, fill in what you wish to fill in, keeping in mind it will become a public document so fill in what personal information you feel comfortable putting out there. Then put your comment into the comment box.

We suggest you first read the other comments, some of which are better than others. You need to refute what the VA is claiming, not give your personal story.

We also suggest that after reading the other comments, you put your own comments into a text document, and then go into the website to make your comment by pasting it into the comment box. This will avoid the failure of a time out. If you spend too much time generating your comment online, the site will time out and you'll lose everything.]
Here is the complete text of our comment:

"Comment on AM 74 Proposed Rule

To continue this rule as written is an affront to all Veterans who ever served. The DVA has no legitimate basis to issue such a narrow ruling.

The DVA asks for scientific papers and studies.

Why not go back to the VA Commissioned paper produced by Admiral Elmo Zumwalt from 1990? Admiral Zumwalt provided information about wind drift of aerially sprayed defoliants directing attention to the likelihood of drift carrying as far as 29 kilometers, with the general direction of the winds blowing from land to the sea.

If the DVA will not recognize a scientific study by one of our staunchest allies, the Australians, then why not allow the Institute of Medicine to examine and comment on the Australian study which dealt with runoff of dioxin contaminated water into the sea where it was processed by their ship's evaporators...and those ships were built in the USA as Charles F. Adams Class Destroyers, so they used the same evaporation systems.

Why not ask the Institute of Medicine to do a mortality study on Blue Water Navy Veterans over the past ten years and see what the results are? Perhaps that would provide evidence of exposure.

If the DVA pays benefits to Blue Water Navy Veterans suffering from Chronic lymphocytic leukemia, why would that disease be any different than the others on the list. Blue Water Navy Veterans suffer from all the "Agent Orange" diseases.

Obviously the DVA dislikes the intent of the CAVC, yet the CAVC was only speaking to include ships within the territorial waters of Vietnam, which would preclude a great number of ships from inclusion in presumptive eligibility. When considering this, perhaps the DVA should go back to the initial passage of the Agent Orange Act of 1991 after the DVA had written the regulations which they then translated into their internal manuals, and granted benefits to anyone who had been awarded the Vietnam Service Medal, REGARDLESS OF WHERE THEY SERVED, and continued to do so until 2002. That's eleven years of precedence that goes against this proposed rule.

Finally, since the DVA has refused to entertain any scientific evidence that proves against this rule, perhaps they should refer to the 38 United States Code section of the original law, which ends with the words:

"For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection under this section, 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 containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."

"...unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."

The Department of Veterans Affairs, in all its gyrations to block a group of honest Veterans from their due, has failed to show affirmative evidence that the Blue Water Navy Veterans were "not exposed to any such agent during that service."

Obviously, the Department of Veterans Affairs has failed to do due diligence in preparing this proposed rule change. I recommend the Department withdraw this proposed change and re-think its position. Such action would be in the best interests of the Department, and even more important, the best interests of the nation it serves."

We believe these are the primary areas of weakness in the DVA's case. One other area is the confusion between the two current CFR definitions where the difference was a comma and the words and/or. The DVA wrote those definitions and any claims that when they did it was with a mind to exclude the Blue Water Navy are absolute lies.

Again, we do not believe for one second that the DVA is acting in the best interests of the country, or its Veterans. We believe this entire effort is based on administration attempts to protect the chemical companies, and the US Government from a second class action lawsuit. Granting Blue Water Navy Veterans presumptive Agent Orange Benefits would create a new class of potential litigants. And we have seen testimony transcripts in Federal court cases that indicate the Chemical Companies will not go it alone this time, allowing the Federal Government off the hook as they did on the class action lawsuit of the late 1990s. They will insist that the Federal Government share the burden of responsibility for Agent Orange exposure to US forces in Vietnam and on the waters offshore.

It's time to pay the piper.

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.

Thursday, May 01, 2008

Repost: The Agent Orange Fair Compensation Act

We have to ask-- again -- Senators Akaka and Burr to introduce our own version of S.2026, AS A COURTESY TO THE BLUE WATER NAVY VETERANS OF THE VIETNAM WAR.
--------------------------------------
110th CONGRESS
2nd Session
S.0000

The Agent Orange Fair Compensation Act

To amend title 38, United States Code, chapter 11, to clarify that an award of benefits based on a regulatory presumption established pursuant to 38 U.S.C. 1116 after September 30, 2002, can be made effective earlier than the date the regulatory presumption was established, in effect, to the date of the first claim; and to clarify that the presumption of herbicide exposure provided by 38 U.S.C. 1116(f) applies to veterans who served in Vietnam on land or on Vietnam's inland waterways and to those who served only in waters offshore or in airspace above.

IN THE SENATE OF THE UNITED STATES

May xx, 2008
Mr. X (by request) introduced the following bill; it is co-sponsored by Senator X
A BILL
To amend title 38, United States Code, chapter 11, to clarify and show the intent of Congress that an award of benefits based on a regulatory presumption established pursuant to 38 U.S.C. 1116 after September 30, 2002, must be made effective earlier than the date the regulatory presumption was established, in effect, to the date of the first claim; and to clarify that the presumption of herbicide exposure provided by 38 U.S.C. 1116(f) applies to veterans who served in Vietnam on land or on Vietnam's inland waterways and to those who served only in waters offshore or in airspace above. The determining factor will be receipt of the Vietnam Service Medal, or the Armed Forces Expeditionary Medal issued for service in the Vietnam War.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES TO TITLE 38, UNITED STATES CODE.

(a) Short Title- This Act may be cited as the `Agent Orange Fair Compensation Act'.
(b) References- Wherever in this Act an amendment is expressed in terms of an amendment to a section or other provision, the reference shall be considered to be made to a section or other provision of title 38, United States Code.

SEC. 2. CLARIFICATION OF AUTHORITY TO ESTABLISH PRESUMPTIONS BASED ON HERBICIDE EXPOSURE; CONFIRMATION OF RETROACTIVE PAYMENT.

(a) Section 1116 is amended by adding at the end the following new subsection: `(g) Presumptions established pursuant to this section shall be considered to be presumptions established pursuant to the Agent Orange Act of 1991. Awards based on such presumptions are subject to section 5110 of this title and shall not in any event be made effective earlier than the effective date of the regulation establishing the presumption, but must be made back to the date of first claim, whichever is later.
(b) Applicability- The provisions of section 1116(g) as added by this Act apply to any determination made on or after the date of enactment of this Act, or prior to it back to the date of first claim except as the provisions of section 5110 apply, concerning a person's entitlement to benefits administered by the Secretary.

SEC. 3. CLARIFICATION OF DEFINITION OF SERVICE IN THE REPUBLIC OF VIETNAM.

(a) Paragraph (f) of section 1116 is amended by adding to the end of that paragraph the following: `For the purposes of this presumption, a veteran will be considered to have served in the Republic of Vietnam if the veteran was physically present on land in Vietnam, or on its inland waterways, or if the veteran served only on the waters offshore or in airspace above, and received either the Vietnam Service Medal or the Armed Forces Expeditionary Medal for service in Vietnam.'.
(b) Applicability- The provisions of section 1116(f), as amended by this Act, apply to any claim filed on or after February 6, 1991, that is still pending on the date of enactment of this Act, including a claim to reopen or revise a previously denied claim, and to any claim filed on or after the date of enactment of this Act. A claim is pending if it has not been the subject of a final VA decision granting or denying benefits, or if such a decision is currently on appeal before a court. Previously open claims closed subsequent to 2002 shall be reinstated in full. Benefits will be paid to the date of first claim in all cases under this authority, minus any previously paid claims, within the boundaries of section 5110. In all cases under this authority, failure to file an appeal subsequent to a denial after 2002 shall not interrupt retroactive benefits.

[Edited 05/01/2008]

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We think enough of this proposed bill to send it by FAX -- again -- to Senators Akaka and Burr with a request that they jointly introduce the bill with favorable comments, as a COURTESY to the Blue Water Navy Veterans of the Vietnam War.

We are also sending it to Representative Filner -- again.

We urge you to print copies and go face to face with your Senators and Representatives, hand it to them, and ask them to get Filner, or Akaka and Burr to sponsor it and preesent it out of committee so it can be passed before the conventions.

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

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