Saturday, September 20, 2008

The Haas en banc review request

The DVA has filed their reply to the NVLSP's request for an enbanc review of the Haas decision last May.

Here, in their final paragraph, is the essence of what they claim:

"Let us be clear. This appeal is not about determining whether only veterans who served on land are Vietnam War veterans. That category is far larger and encompasses a multitude of men and women, who, like Mr. Haas, honorably served their country off shore, in the air, and in other areas of the Vietnam Theater. This appeal is also not about establishing an absolute rule that veterans who served offshore can never be entitled to prove exposure to herbicides and obtain the benefit of the established presumptions of service connection based upon such exposure; Mr. Haas and others similarly situated are free to present evidence and testimony that they did, in fact, come into contact with herbicides. The issue in this appeal is a narrow one: whether the Secretary has reasonably interpreted an ambiguous statutory term to require service on land to obtain the presumption of exposure and consequently service connection provided by section 1116. Because the Panel properly concluded that the statute was ambiguous and that the agency's interpretation of its own interpretive regulation was not plainly erroneous or inconsistent with the regulation, it properly deferred to the Secretary. The petition for rehearing should be denied."
Essentially, all the DVA is saying is that the court was correct in May when it ruled that the DVA was within its rights to define "Service In Vietnam" the way they did.

In doing so, the Court ignored a tenet called the Pro-Veterans Canon that says, in the presence of legislative ambiguity, the Court should always rule first in favor of the Veteran before Departmental Deference is applied.

That said, there is minimal chance that the Court of Appeals for the Federal Circuit will review their own decision, and even less of a chance that the Supreme Court would agree to review the case, even though they created the Pro-Veterans Canon and have reinforced it several times.

It is a sad day for this nation that a citizen and a Veteran has to say that we stand a better chance of seeing justice from Congress than from the courts.


”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

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--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

"It follows than as certain as that night succeeds the day, that 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. Anonymous20:12

    Well, it's nice of the DVA to actually admit that military personnel not actually ashore in Vietnam might just be Vietnam Vets also. Nice of them to say we could get agent orange benefits if we could actually prove it was agent orange causing our problems; I have NO idea what they would allow as "proof" though....the only "proof" they seem to be at all interested in is where you put your boots..... This whole thing is like a scene from a "B" movie.

  2. Not Vietnam Vets, but Vietnam Era Veterans.

    I guess we fired our guns at Viet Cong Era Veterans.

  3. Anonymous12:04

    Another anonymous, I'm trying to prove my BWN status so I'll remain anonymous. I find it quite pathetic that I joined the US Navy to do my part for my Country and to fight the evil regime's OF "COMMUNISM" and then come home to develop 6 serious health conditions, which combined are life threatening,and find out my Country dosen't care about me. Our DOD poisoned us and rather than admit fault just dump us in some deep hole. I wished we could spray all those Government officials who fight our health conditions with a little AO, or maybe have them take a few good drinks of AO water. Then watch our Government quickly pass about 300 bills to protect themselves. I guess I was fighting the wrong communists. Is it time for another Boston Tea Party??? Isn't that what this country did when we were being treated unfairly? Now the people we fought for have turned thier backs on most VN Era Veterans! While Congress sits on thier fat butts, we suffer and die. Thier greed, immoralities, dishonesty, have shown us that we have elected the wrong people to positions of leadership. I just can not believe that our Government has so little integrity and compassion for the innocent. Does this ring a bell somewhere our AO scortched bodies. "WE THE WILLING, LED BY THE UNKNOWN, HAVE DONE THE IMPOSSIBLE FOR THE UNGRATEFUL. WE HAVE DONE SO MUCH FOR SO LONG WITH SO LITTLE WE ARE NOW EXPECTED TO DO EVERYTHING FOR NOTHING. May God bless all Veterans who served thier Country honorably and may He condem those who fail to support us.