Tuesday, October 28, 2008

Magic Number: 357 = Veto-Proof!

Haas case got you down? Depressed because the Federal Court won't review their own decision? Disappointed because HR 6562 failed to pass this session of Congress? You are not alone.

But you need to get out of your funk and get the blood flowing again!

What's wrong, you ask? Look at the numbers. The poll says you've only gotten support from slightly more than 10% of the members of the US House of Representatives. You've done better in the Senate with 29%, but that number is still far too low to guarantee the passage of the Agent Orange Equity Act of 2009, and the Agent Orange Supplemental Act of 2009 after they get introduced in January.

There are 435 voting members of the House of Representatives. To guarantee passage of the Agent Orange Equity Act of 2009 and its partner bill the Agent Orange Supplemental Act of 2009, we need a bare minimum of 218 Congressmen pledged to support the passage of the bills.

In the Senate, it is simpler. There are 100 Senators. To guarantee passage of the bills, we need the support of 51 Senators as a bare minimum.

To guaranted the bills are veto-proof, we need 290 members of Congress and 67 Senators to pledge support for the legislation.

Congress is going home to vote. They will likely be back sometime in November for a lame-duck session, so obviously, we need to concentrate on them while they are home. That is when you all have done your very best work. Now you have to turn up the heat.

Go see them. Many of them are running for office, so they will be available.

BUT! Lay off Bob Filner and John Hall. Going after them is preaching to the choir. They are already on our side.

What we need now is to concentrate on adding cosponsors in the House and the Senate and making sure they are aware that we are trying to get two bills introduced at the same time, one to restore benefits to BWN, BSAF, and TLC Vets, and the other to start benefits to those who were exposed outside of the Vietnam Theater of Operations.

Two things to be aware of that will affect our efforts. The first is the outcome of the election. What we mean is the shape of Congress, and who gets dumped in the election, and who comes in new. That changes the ball game a bit.

The other thing is the money. We have been told that "it is not about the money, we have the money" [Bob Filner, July 23, 2008]. We have also been told by his staff that while there is money, it is committed to funding other things, so if we want to fund the AO Equity Act and the AO Supplemental Act next year, something else, somewhere, has to become "defunded". You need to get this across to your Representative and your Senators that they need to fund these bills.

Finally, while writing to your Reps and Senators is a good thing, it takes far too long to be effective because your letter goes someplace else, first, where the Department of Homeland Security and the US Postal Service go over it for bad stuff [like AO, nuclear radiation...you know, the stuff they tested on us!]. So a letter will take 30-50 days to get to your Rep/Senator, and who knows how long to get a response after that, if you get one at all.

Better to write the letter, and FAX it to them. Put a nice cover sheet on, and fax it to them. That gets it to them immediately.

So, to summarize, the best strategy now is to write a letter and fax it to your Rep and your Senators. There will be a time to write a fax to Filner later on this year.

Be neat, type your letter, have someone else proof read it for you, correct the mistakes they find, then read it out loud to yourself to make sure it sounds right.

Urge them to urge Filner and the House Committee on Veterans Affairs to adopt the twin bill strategy.

Stay on this, folks, we are fighting an uphill battle but right now it is not only our best chance, it is likely our only chance.

The Magic Number is 357. That is 290 Representatives and 67 Senators. We are at 69 now. We need 288 more. Lets get them now, so they are waiting for the bills in January when the bills are hopefully introduced.

Now you know what you need to do. This is in your hands. You have the power to influence things enough to secure your legacy, your future and the future of your survivors and widows. With that much at stake, can you afford to sit back and let someone else do it? You will be amazed at all you can accomplish when you have a plan, and a target. You will be astounded at your own power when we are finally successful.

It is your future, now is the time to seize the moment. Remember, support for the bills, AND funding for them! It won't be easy. But then, neither was serving in a war. You've fought once, now you must fight again.

One of our longtime heroes is Fleet Admiral Chester Nimitz, who commanded all forces in the Pacific during World War II. He prayed, “God grant me the courage not to give up what I think is right even though I think it is hopeless.” Look at what he accomplished with that attitude. Put that attitude on, and wear 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

"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

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Thursday, October 23, 2008

Haas Appeals to Supreme Court

Legal pleadings, as reading material, are usually dry, and often filled with convoluted references to other cases and decisions, and of course, the ubiquitous legal terms that are often foreign to us and sometimes approach the opposite of what they should mean in their definitions. We must be getting used to such after reading the filings of the Haas case over the past two years. We actually understand what they are saying, now. Mostly. Pretty much.

Our first read through of Friday's filing to the Supreme Court for a review of the decision at the Federal Circuit in the Haas case was begun with intimidation. This is a case going to the Supreme Court, perhaps the only governmental entity this nation has that is closest to being something to worship. But the pleading filed by Paul, Hastings, Janofsky & Walker LLP's Stephen Kinnaird, assisted and advised by the National Veterans Legal Services Program's attorneys [NVLSP], is, for all its length, a fairly simple document. It is perhaps the most complete, and well laid out legal document we've ever read.

We have become familiar with some of the more frequently cited case precedents such as the "Chevron deference" [Chevron, U.S.A., Inc. v. NRDC], and the "Pro-Veteran Canon" [Brown v Gardner, and King v St. Vincent's Hospital].

The first gives a cabinet level department the right, duty, and authority to interpret legislation as it sees fit when translating the language of the legislation into workable, usable policy for the employees of that department to carry out. It was this precedent that the Federal Circuit Court cited as the main reason for reversing the Veterans Court decision in the Haas case.

The second, the "Pro-Veteran Canon", is a precedent established by the Supreme Court itself, which is, legislative ambiguity must be resolved in favor of the Veteran, even before applying deference [Chevron]. Translated, this means the "Pro-Veteran Canon" trumps the "Chevron deference".

In the Haas case, "Chevron" gives the Department of Veterans Affairs the right to define legislation it must administer as it sees fit to do under its charter. Therefore, it may define "Service in Vietnam" as it sees fit. This is what the Federal Circuit Court ruled in May. When the NVLSP asked for an en banc review, that is, a review by the entire Federal Circuit Court of the decision rendered in May by a two judges to one decision, it raised the question of the "Pro-Veteran Canon". The court responded by refusing the review the case, and rejecting the NVLSP claim of failure to apply the "Pro-Veteran Canon" because the NVLSP had not raised it in its pleading in the appeal.

In the pleading filed last Friday, Mr. Kinnaird takes the issue that the "Pro-Veteran Canon" need not be raised by a party to the suit, but should be applied by the courts.

He also pleads for a swift review by the Supreme Court:
"This Court’s review is justified alone by the critical importance of this case to the numerous blue-water Navy veterans who served in Vietnam and who have been (or will be) stricken with covered diseases. But it is especially critical that this Court grant review now. The Federal Circuit, which has exclusive jurisdiction over this statute, has definitively resolved this issue. Vietnam veterans who have contracted the serious diseases addressed in Section 1116 are likely to be in dire financial straits. Delay in receiving benefits could be severely prejudicial to many veterans. Many veterans will also be deprived of free, priority VA medical care available to persons with Agent Orange diseases, see 38 U.S.C. §1710(e)(1)(A), and may forego medical care altogether, with serious consequences.

"Moreover, if this Court were to deny review and the CAVC were to lift the current stay on Haas-related claims, many pending claims will be denied. Even if this Court were later to review and overturn the Federal Circuit’s rule, many claims will never be revived, and others would face a demanding standard of clear and unmistakable error. 38 C.F.R. § 20.1403(e); see also Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005). Other veterans may never file claims, and still others will lose benefits from preclaim periods if they are deterred by the decision below from filing. This Court’s immediate review is imperative."
As you can see from the above, not only does the filing take the legal question to hand and deal with it quite well, it takes the ethical question to hand as well, asking the court to show some mercy toward the already-ailing Blue Water Navy Veterans.There is much more to the brief that was filed on Friday, and most of it is technical points of law. We think the case will rise or fall on the merits of the "Pro-Veteran Canon" and the absurdity of the DVA's definition of "Service in Vietnam".

[Read the actual brief: click here, then click on the light green link labeled "Haas v Peake-Supreme Court".

Folks this is a job well done.

That said, it will be unusual for the court to agree to review the case, and even more so to overturn the Federal Circuit Court. Keep that in mind. The NVLSP hopes to have an answer sometime after the first of the year [delete: in November]
on whether the Supreme Court will review the case.

In the meantime, keep hitting your Congressional Representatives and Senators to support the Agent Orange Equity Act of 2009!

And keep recording your successes in the ongoing poll at the top right of the page.

Keep up the fight, keep up the good work.

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

"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

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.


Wednesday, October 15, 2008

More on Brown Water/Blue Water Claims

The Captain of the USS Ingersoll DD 652 went to war with the DVA and won benefits for his crew that served aboard Ingersoll while she was at anchor for shore bombardment in the Saigon River in Vietnam. The Secretary of the DVA authorized benefits for those crewmembers who were on board.

Here is the citation from the VA website:

The USS Ingersoll (DD 652) operated as a Navy destroyer gunship providing fire support for military ground operations along the Vietnam coast during 1965. In addition to coastal duty, the USS Ingersoll traveled up the Saigon River on October 24th and 25th of 1965 to fire on enemy bases. C&P Service has reviewed the ship’s deck logs, located at the National Archives and Records Administration, and confirmed this service in the “inland waterways” of Vietnam. As a result, the presumption of herbicide exposure, as described in 38 CFR 3.307(a)(6)(i), should be extended to any crewmember who served aboard ship during October of 1965. This presumption is authorized by M21-1MR section IV.ii.2.C.10.b. Regional offices should reevaluate any disability claim based on herbicide exposure from one of these veterans that has been denied.

http://uss_ingersoll_vets.tripod.com/addendum.pdf
It follows, then, that if your ship went up a river, you should be entitled to the same benefits as the crew members of the USS Ingersoll. Additionally, since the DVA opened this can of worms for themselves, if you were in any land locked harbor or bay, or in the delta of any of Vietnam's rivers, and at anchor, you should be eligible for benefits under the Agent Orange Act of 1991 and the Secretary's announcement in the Addendum Compensation & Pension Service Bulletin issued July 31, 2007. The Secretary has established a precedent for this type of service.

Go, do not walk, run to your VARO and get them to pull your case. If you do not have deck logs, get them, but do not wait for them. The DVA should get them for you, like they did for the Ingersoll.

I only wish other skippers would go to bat like the Ingersoll's skipper did.

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

"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

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Tuesday, October 14, 2008

ALS now Service Connected

The DVA has added Amyotrophic Lateral Sclerosis [Lou Gehrig's Disease] to its list of disease with service connection. THIS IS NOT AN AGENT ORANGE DISEASE!! Any Veteran or Serving member of the military who has served 90 or more days on Active Duty, and has been diagnosed with ALS is eligible for compensation. Since the disease is incurable, and survival is generally less than 3-5 years, I suspect benefits will be at the 100% level. If you have ALS, you should file a claim immediately, and if you have a claim pending for other issues, you should amend your claim immediately to include ALS.

For a little more information visit this FRA website article.

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

"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

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

If Your Claim is in Haas Stay...

We anticipate that the Department of Veterans Affairs [DVA] will shortly issue their new rule clarifying, in their minds at least, the definition of service in Vietnam. Once they do, I suspect they will have teams in all the VA Regional Offices [VAROs] cull out all the Haas stay cases and send them mass rejections, and they may do so without checking for the validity of whether or not the claims are, indeed, Haas cases.

From the start, the DVA shunted all Navy cases into the Haas stay. That this is illegal does not seem to bother an agency that has bags of claims in Regional Offices sitting in shred bins...even claims that have never officially been opened. There are actually employees of the VAROs in NYC and Detrot who are on the street today without pay pending an investigation of their actions.

Regardless, we will issue this call once again: if your ship entered port, went up a river or estuary or anchored in the delta of any of Vietnam's Rivers, or in any of its enclosed bays, you should get your Veterans Service Officer from your Veterans organization, the one that is representing you, to GO to the VARO [with you!], and get nose-to-nose with management there to have them pull and process your claim. You might, if you ruin into resistance, indicate the probability of your filing a complaint with the United States Commission on Civil Rights, and the DVA Office of the Inspector General to investigate the VARO's claim handling. There should be enough threat in that to get them to pay attention.

The DVA, as a Department-wide policy has been putting all Navy claims into the Haas Stay, while the court directed them to stay cases only affected by the Haas case. So, once again they have been putting the screws to Vietnam Veterans.

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

"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

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Thursday, October 09, 2008

Court Denies Review of Haas Decision

In a not unexpected decision released today, the United State Court of Appeals for the Federal Circuit refused to review the Haas case.

The main reason cited is because the appellant failed to ask for a review on the basis of what was covered in the case originally heard by the Federal Circuit Court. Instead, the review request was focused on a canon that states the Department's deference in determining definitions is to be set aside and decided for the good of the Veteran.

For the record, we think this reasoning thin, and appealable. The next question is whether or not the NVLSP And Commander Haas will appeal to the Supreme Court of the United States, and whether that august body will review the case.

All the more reason to concentrate now on Congress to get the Agent Orange Equity Act of 2009 passed.

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

"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

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.