Saturday, January 24, 2009

ATTN: Army Korean DMZ Vets from 1967-71

Recently we were in contact with a Veterans Advocate calling for expanded AO benefits for Veterans who served in Korea during the Vietnam War.

Currently the DVA pays Veterans who served in specific Army battalions on DMZ duty during 1968-69.

What we found was typical DVA carelessness. Just as they were hoist by their own petard in oral arguments in the Haas case at the Federal level in November 2006 on the NHL issue, now they have been hoist again upon their own petard regarding Veterans who served in Korea.

The Secretary made this law regarding the Army Veterans serving in the DMZ in 1968-69, after consultation with and documentation from the Department of Defense. So the Secretary changed DVA Policy to authorize benefits for these Veterans.

But Congress did something else, too. Title 38 includes language that authorizes the payment of benefits to the families of Vietnam veterans who's children are born with Spina Bifida. It also expanded these benefits in Chapter 18 to include the children of Veterans who served in Korea, in or near the DMZ, from September 1967 through August of 1971.

Here is that paragraph:

TITLE 38 > PART II > CHAPTER 18 > SUBCHAPTER III > § 1821
§ 1821. Benefits for children of certain Korea service veterans born with spina bifida
(a) Benefits Authorized.— The Secretary may provide to any child of a veteran of covered service in Korea who is suffering from spina bifida the health care, vocational training and rehabilitation, and monetary allowance required to be paid to a child of a Vietnam veteran who is suffering from spina bifida under subchapter I of this chapter as if such child of a veteran of covered service in Korea were a child of a Vietnam veteran who is suffering from spina bifida under such subchapter.
(b) Spina Bifida Conditions Covered.— This section applies with respect to all forms and manifestations of spina bifida, except spina bifida occulta.
(c) Veteran of Covered Service in Korea.— For purposes of this section, a veteran of covered service in Korea is any individual, without regard to the characterization of that individual’s service, who—
(1) served in the active military, naval, or air service in or near the Korean demilitarized zone (DMZ), as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971; and
(2) is determined by the Secretary, in consultation with the Secretary of Defense, to have been exposed to a herbicide agent during such service in or near the Korean demilitarized zone.
(d) Herbicide Agent.— For purposes of this section, the term “herbicide agent” means a chemical in a herbicide used in support of United States and allied military operations in or near the Korean demilitarized zone, as determined by the Secretary in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971.
Now, if they pay Spina Bifida benefits for the children of Veterans who served in or near the Korean DMZ from 9/1/1967 to 8/31/1971, then why are straight up AO benefits limited to those who served only from April, 1968 to July, 1969?

Veterans who served in or near the DMZ from 67-71, and their advocates need to take the above cited portion of 38 USC, and go to the VA, submitting it as evidence of exposure to Agent Orange outside of the more narrow dates of 4/68-7-69.

Only exposure to Agent Orange has been determined to cause birth defects in children of Vietnam Veterans, and those birth defects are Spina Bifida. If you were exposed enough to qualify for benefits for a child with Spina Bifida, you were exposed enough to qualify for AO benefits if you have one of the listed qualifying AO diseases. In other words, the DVA has to expand the dates. We are NOT saying you must have a child with Spina Bifida. This is all about the dates and who set them.

Congress trumps the DVA. Public law is evidence.

Good luck Army! Go get them!

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 © 2005-2009: VNVets Blog -- Now in our Fifth Year of Service to Veterans; All Rights Reserved.

Saturday, January 17, 2009

OpPlan Equity Act

Sometime shortly after the Inauguration, the bill will be reintroduced. It will be read and then referred to the House Committee on Veterans Affairs, Chaired by Bob Filner [D-CA]. It may possibly be referred to the Subcommittee on Disability Assistance and Memorial Affairs, Chaired by John Hall [D-NY].

There will be hearings, and eventually the bill will go to the floor for a vote.

We need to apply the highest pressure to our Congressional Representatives and Senators that we have to date.

Rule 1: STOP CALLING IT HR6562! It is The Agent Orange Equity Act of 2009. HR 6562 was last year's version and it is dead and gone. No problem with referring to HR 6562 as last year's version when reminding your Congresscritters that they promised to co-sponsor and support it. But we need to go with the flow. When we get a Bill number, we will post it ASAP. Then you can call it The Agent Orange Equity Act of 2009, HR ####. If the title changes we will alert you to that, also.

Rule 2: DO NOT WRITE LETTERS! Letters are sent to a lab to be checked for anthrax and explosives. They take 30 days or more to be checked. We don't have that kind of time [...and that is good news!].

Rule 3: FAX, EMAIL and CALL!. Remind them of their promise to support and co-sponsor.

Rule 4: BE POLITE! Remember, you can catch more flies with honey, than with vinegar.

Now, mobilize, and turn up the heat. Do not attempt to call before next Wednesday at 0900 Eastern, but email and fax is now open season. Send those letters via email and fax.

Your target: Achieving the support of your Representative and BOTH Senators for the Agent Orange Act of 2009. Anyone who can gain their Senator's agreement to introduce the bill in the Senate ASAP will earn the Hero of the Year Award. We can't authorize the Medal of Honor or the Navy Cross, but that is a measure of how significant that acheivement would be. Go for it!

We are going to close the current poll at the top right and post 2 brand new ones. Please, when and if you get a response from your Representative and Senator, go to the polls and check the appropriate response.

You have engaged in combat ops before. This time is a little different. Your weapons are your wits, and your gentle assertiveness, the confidence that you have right on your side, and and the focus you place on achieving your goals. You have standing to do this as you are a Veteran of the Vietnam War, be it Marine, Coastie, Merchant Mariner, Airman, Soldier, or Sailor. Stand tall, and be strong.

I will tell you now, that no matter what, I am so proud of all you have done, and all you have been and are now. I thank you for your great service to the nation, and now to its Veterans. You have done much to be proud of, yet we ask a little more at this critical time. We ask, because we know you, and know what you can do. Can do! Welcome Home, Brothers and Sisters. Our time is come.

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 © 2005-2009: VNVets Blog -- Now in our Fifth Year of Service to Veterans; All Rights Reserved.

Friday, January 16, 2009

Court says "No"

The Supreme Court today issued writs for certiorari in six cases. Unfortunatley Haas v Peake was not among them. Today is a sad day in the judicial annals of the United States when the highest court in the land fails to take action to override clear error on the part of a lower court, particularly on a ruling canon developed by the Supreme Court itself.

Executive power continues to eat away at Legislative power.

The Haas case is now dead.

Which leaves us with one last chance: Congress.

Congress now must move quickly to pass the enabling legislation to restore the benefits to the Blue Water Navy, Blue Sky Air Force and TLC Veterans.

Note: This probably signals the end of the Haas stay, which ended a few weeks ago, but there apparently was no move to end it by the DVA. Now that the Haas case is dead, denials should begin coming through fairly soon. WE URGE YOU ALL IN THE STRONGEST TERMS TO APPEAL ALL DENIALS. We are unsure of the language of the new Agent Orange Equity Act at this time, so protect yourself from the possibility of inactive periods between claims due to failure to file an appeal.

More information as it comes in.

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 © 2005-2009: VNVets Blog -- Now in our Fifth Year of Service to Veterans; All Rights Reserved.

Tuesday, January 13, 2009

Why the Supreme Court will take on Haas

[Note: For all you Haas-watchers out there, the United States Supreme Court will be deciding in a meeting on Friday, January 16, whether it will grant a writ of certiorari in the Haas v Peake case. In all likelihood, that decision may not be made public until after the Inauguration of President-elect Obama on the 20th. However, word might still get out, so stay tuned. Keep checking here starting late Friday afternoon.]

[certiorari: requesting a full case history from a lower court for review. It is the signal that the court will hear a case, and oral arguments will be scheduled.]
Many Blue Water Navy types have been expressing their frustration over the actions of the Department of Veterans Affairs [DVA] since the enactment of the Agent Orange Act of 1991. Indeed, on the VASVW Forum last evening, one member detailed the four changes in the definition of "Service in Vietnam" starting with the one that took Blue Sky Air Force Veterans out of eligibility in 1992-3. Actually, you can start earlier than that when they actually refused to include Veterans of Thailand-Laos-Cambodia [TLC] right from the start of the 1991 Act. TLC Veterans have never been permitted by the DVA to be eligible for Agent Orange presumtive exposure.

[Note: Amici is the plural of Amicus -- short for Amicus Curiae -- friend of the court, a brief filed on behalf of one party in a case, ostensibly as a friend to the court to add clarifying argument to the case. In this case, the "friends" are The American Legion, The Military Order of the Purple Heart, and The United Spinal Association, in support of petitioner, Jonathan Haas.]
Now we have seen the Amici Brief filed in the Haas v Peake case, currently pending a decision on a request for certiorari. The brief is another extremely well written legal document filed in this case. It, too, takes to task the Federal Circuit Court that ruled against Haas last May, citing the pro-veterans canon, and that it cannot be placed under Departmental Deferernce in determining Congressional intent. It addresses the issues in the light of the power of the Department of Veterans Affairs as demonstrated by the history of the Agent Orange Act.

What we mean about the Amici Brief is that it addresses what the VASVW member was writing about, which, in plain language, is the growing power of the DVA to dictate the terms of what Congress intends, making changes without Congressional approval, or expressions of intent, and in short abusing the Department's power to carry out the will of Congress, and therefore, the will of the people.

All presidents, when they come into office, quickly become engaged in a dispute with Congress over power. The balance of power between the executive branch and the legislative branch is struggled over in every administration. The conduct of the Department of Veterans Affairs is just a part of the struggle between the Bush Administration and a Congress which has grown more and more oppositional with every election. Make no mistake about it, the Bush team picked up where the Clinton team left off, a fight which started before the G. H. W. Bush presidency, when the Agent Orange Act of 1991 was passed. Indeed, the DVA never allowed the TLC Veterans to get their slice of the AO pie. So this phase of the fight started when the bill was put into effect by the DVA in 1991.

Whether you realize it or not, our struggle is an example of this ongoing fight between the Executive and the Legislative branches of our government, a struggle that has been conducted by every Congress and every Administration since the adoption of the United States Constitution. Indeed, the so called "balance of power" we learned about in high school civics classes is held together by the tension of this struggle. Without its ebb and flow, one branch would become too powerful. And lest we forget, from time to time, the arbiter of the struggle, the Supreme Court, enters the fray to decide an issue that epitomizes the current struggle, usually slapping down one side or the other.

Our struggle indeed is about the almost overwhelming power seized by the DVA over the past nearly two decades that has resulted in an agency that serves only itself, not those it is chartered to serve. Our struggle is the resulting example of the wretched excesses of Executive Power when neither Congress nor the Courts set things right, or when they try, the Executive Branch ignores them, or as in this case, fights them every inch of the way to keep the advances in their power that they have seized.

There are two ways to stop them. Congress can pass a resolution expressing its will as it was in 1991 that all who earned the Vietnam Service Medal should be presumed to have been exposed to Dioxins, or pass a law clarifying the Definition of Service in Vietnam [the Agent Orange Equity Act of 2008, and now 2009, that we and the VASVW strongly support].

Or, the Supreme Court can agree to hear the case [grant certiorari], and see that the DVA has corrupted the tenets of law previously set by the Supreme Court [the pro-veterans canon], and set things right that way.

We, that is the writer of this blog, and the VASVW actually favor the passage of the law, AND the Supreme Court ruling in favor of Commander Haas. That would put a clear end to the abuse of power, and the abuse of Blue Water Navy, Blue Sky Air Force, and TLC Veterans. It would force the DVA to completely back down and undo all the changes it made to the original Agent Orange Act concerning eligibility of who served where. Indeed, the proposed legislation we have submitted leaves no room for the DVA to do anything but process all those claims back to the date of the first claim, and to do so expeditiously and with all due haste. Reinforcement by the court could bring an earlier start time to this process, based on how far the Court expands the application of the case...it could issue a ruling beneficial only to Commander Haas, or it could reset the Agent Orange Act of 1991 to its original parameters.

Regardless, we believe the best course is to achive victories in both arenas, the Court AND the Congress. Then there can be no doubt. And frankly, if and when that day comes, we will celebrate and not before...because on that day, a bunch of bureacrats will have been enjoined from lying to us when they try to tell us we "did not serve in Vietnam."

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 © 2005-2009: VNVets Blog -- Now in our Fifth Year of Service to Veterans; All Rights Reserved.

Tuesday, January 06, 2009

Update on Haas

According to the United States Supreme Court's docketing record, Haas v Peake, docket number 08-525 was opened on October 17, 2008 with a Petition for a writ of certiorari [a writ from a petitioner for a court to request the procedings of a lower court for review...in this case the United States Court of Appeals for the Federal Circuit, who heard oral arguments in November of 2007, and issued their decision to overturn the ruling of the United States Court of Appeals for Veterans Claims this past May].

[note: Petitioner is Jonathan Haas, represented by the most able attorneys at the National Veterans Legal Services Program - Barton F. Stichman, Louis J. George, and Richard V. Spataro,and the law firm of Paul, Hastings, Janofsky & Walker, LLP, led my Stephen B. Kinnaird, Counsel of Record, Sean D. Unger, and Elizabeth A. Stevens.

Respondent is Dr. James B. Peake, Secretary of Veterans Affairs, and attorneys from the Department of Justice, Gregory G. Garre, Solicitor General and Counsel of Record, Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, and todd M. Hughes*.

*Mr. Hughes, you might recall, was the government attorney who argued the DVA's case at the Court of Appeals for the Federal Circuit in November 2007 oral arguments. We have used unofficial transcripts from his arguments on here to demonstrate the separate status of Blue Water Sailors with Non-Hodgkins Lymphoma [NHL], which the DVA ordered corrected in September of 2008.
On November 13th, the Department of Veterans Affairs [DVA] requested a 30 day extension to file their brief in response to the Petition of a request for certiorari.

On November 21, and amici curiae [friends of the court] brief was filed by the American Legion and others.

On December 18th, the DVA filed its response to the petitioner's request for a writ of certiorai.

On December 29th, the petitioner's response was filed.

On December 30th, all documents were distributed to the Justices for a conference on January 16th.

The Conference will result in a decision by the Justices as to whether they will hear [oral arguments in] the case, or will decline to take the case.

That is the current status of the Haas case.

The Documents noted above can be accessed by clicking on the appropriate button on the VNVets Files website.

Having read the submission of the DVA we were not at all impressed. Tortured logic is supported in many cases by mere assertions rather than a definitive citation in court cases, or in law. We believe the DVA's response to be full of obfuscations in an attempt to snow the court. That is a bad idea. The case will likey be argued in court by the Solicitor General of the United States, Mr. Gregorey Garre. But the brief smacks of Todd Hughes, the man who argued the DVA's case at the Federal Circuit level in 2007. You can see some of his twisted logic in this brief.

Of much more interest is the far easier, and actually fun to read, Haas SC Reply Brief filed by the attorneys for Haas. We think this was written, as the original petition of the writ of certiorari was, by Steven B. Kinnaird. As that petition was very logically constructed and built a case that rebutted every argument the DVA makes, it also, as we pointed out in our earlier post, Hass Appeals to the Supreme Court shows that the heart of the Haas appeal lies in the pro-veterans canon from the precedential case Brown v. Gardner,513 U.S. 115 (1994). The canon is applied when legislative ambguity exists [as it does with the definition of Service in the Republic of Vietnam] and, as Kinnaird points out in this latest brief, it must be applied before the Chevron Deference is applied. The Chevron Deference, a precedent from the case Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), allows leeway for governmental agencies to be the final arbiter of policy interpretation from enacted laws.

It was on this point the US Court of Appeals for the Federal Circuit erred in their overturning of the US Court of Appeals for Veterans Claims in May of 2008. And Mr. Kinnaird makes this point very clear in the latest response to the DVA. He does so by applying reverse logic: if Chevron were applied BEFORE the pro-veteran canon, then the pro-veteran canon is rendered pointless, useless, and of no value. This is what the VA has been claiming all along, that it is the final arbiter of what congressional language means in reference to acts passed by Congress that pertain to Veterans. Indeed, this is the point on which the Haas case will finally rest and which will make it a case which, if the Supremes see it the same way as Mr. Kinnaird, will be a precedent that will evaporate the difference between the Blue Water Navy and the Brown Water Navy as far as claims for Agent Orange presumption are concerned.

As Billy Mays says, "But wait, there's more!" Mr. Kinnaird skillfully and logically takes the entire DVA case apart one point at a time, smoothly reducing their arguments to absurdities. One gets the feeling of a hint of near-contempt when one argument after another is destroyed by crystal clear logic. This document is a joy to read, and should warm the heart of any Blue Water Sailor, or his family or survivors.

Give yourself a treat, and something to feel good about. Read the Haas SC Reply Brief We are sure you will see an absolutely exquisitely crafted legal argument. We pray the Supremes will take this case, and can hardly wait for oral arguments.

Once again, visit the VNVets Files webpage to access these documents.

Enjoy!

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 © 2005-2009: VNVets Blog -- Now in our Fifth Year of Service to Veterans; All Rights Reserved.

Sunday, January 04, 2009

Urgent Special Request for NHL Claimants

Folks, we are hearing very disturbing news from some VA Regional Offices [VAROs] that they are ignoring the September, 2008 directive of Admiral Dunne, the Under Secreteary of Veterans Affairs for Benefits, mandating prompt action on claims for Non-Hodgkins Lymphoma.

We need to gather evidence here so we can go to Admiral Dunne with proof that his directive is being ignored.

If you have a claim with the DVA for Non-Hodgkins Lymphoma, and it is being held under the Haas stay, please contactact me ASAP with the following details:

Your Name, your claim number, the VARO that is refusing to pull your case from the Haas stay for processing. Please contact me using this link: "Email Me" and send only your name and your email address. For security reasons I will send you a different email address for you to send the requested information. [This is to protect your information. I will be the only person to see the information until contact is made with the Undersecretary's office, and the information will then be given to him to act upon.] We need specific information so he can act swiftly to uncork those cases. Should we fail to get prompt action from the Undersecretary, we will proceed to contact Chairman Bob Filner of the House Committee on veterans affairs and the Sub Committee on Memorials and Veterans Health Chairman, John Hall.

PLEASE DO NOT USE THE COMMENTS SECTION BELOW. COMMENTS WILL NOT BE ACTIVATED FOR THIS POST.

Also: We need you to spread the word, also and have any of your buddies who are in the same boat come here and contact us with information. The more cases we have the better we can zero in on which VAROs are guilty of disobeying a directive.

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 © 2005-2009: VNVets Blog -- Now in our Fifth Year of Service to Veterans; All Rights Reserved.