RAO Davao City

United States Military Retiree Activities Office Davao City, Philippines

VA BLUE WATER CLAIMS UPDATE – May 1 2008

Posted by Service Officer on April 30th, 2008

The Department of Veterans Affairs (VA) has rescinded provisions of its Adjudication Procedures Manual M21-1. 72 FR 66218 (i.e. Manual M21-1) that were found by the U.S. Court of Appeals for Veterans Claims (Veterans Court) not to have been properly rescinded. This rescission was effective April 15, 2008. Steps leading to this change started on 27 NOV 07 when VA proposed to rescind certain provisions of its Manual M21-1. The notice was necessitated by the opinion rendered by the Veterans Court in Haas v. Nicholson, 20 Vet. App. 257 (2006). Although VA’s appeal of that decision has been submitted to the U.S. Court of Appeals for the Federal Circuit, that court has not yet issued a decision in the case. In the interim the comment period has ended which allowed VA to proceed with the proposed changes. VA received more than 75 comments, most of which were very similar and can be addressed in three categories:

(1) Citation to scientific evidence, in particular a 2002 study performed for Australia’s Queensland Health Scientific Services by their National Research Center for Environmental Toxicology, titled, Examination of the Potential Exposure of Royal Australian Navy Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans Via Drinking Water (the Australian study);

(2) Personal stories about the commenter’s experiences during service and/or their current illnesses;

(3) Arguments presented in connection with the Haas litigation.

In VA’s view the comments were not substantial enough to halt changes to M21-1 because:

• The cited scientific studies were of minimal relevance due to the manner in which they were conducted

• VA cannot presume exposure to herbicides simply because a veteran has a disease linked to exposure to herbicides.

• VA does not agree with statutory-interpretation arguments that have been presented

to the Federal Circuit in the Haas litigation. Specifically, that the language of 38 U.S.C. 1116 plainly requires that offshore service be considered service “in the Republic of Vietnam” for purposes of that statute. In VA’s opinion, the Veterans Court held that neither the language nor the legislative history of Sec. 1116 reflects a clear intent to treat offshore service as service in the Republic of Vietnam (Haas, 20 Vet. App. at 264- 68). However, they did note that this issue remains pending before the Federal Circuit.

The result of the changes is that you will no longer be able to argue that the receipt of the Vietnam Service medal has any bearing on your veterans claim to exposure to agent orange. (NOTE: if you have a pending claim in effect before or after the original Haas decision, but before the 15 APR08 VA change, whatever the Federal Appeals court decides will govern your entitlement). Bottom line Blue Water Navy can still attempt to show exposure to Agent Orange, but not based on receipt of the Vietnam Service medal (if a claim is filed after April 15, 2008). For additional info refer to http://bluewaternavy.org [Source: VALAW.org Ray B. Davis msg. 17 Apr 08 ++]

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