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.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.
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.
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.]
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: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.
(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).
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.
"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
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