AGENT ORANGE LAWSUITS UPDATE 17 May 2008
Posted by Service Officer on May 17th, 2008
AGENT ORANGE LAWSUITS UPDATE 12: On 8 MAY the U.S. Court of Appeals for the Federal Circuit unfortunately reversed the decision of the U.S. Court of Appeals for Veterans Claims in Haas v. Peake. The U.S. Court of Appeals for Veterans Claims had previously found that Vietnam War blue water veterans who had served on ships off the coast of Vietnam but had never set foot within the land borders of Vietnam were entitled to a presumption of service connection disability if they suffer from one of the listed diseases associated with Agent Orange exposure. Also, they had ruled that the VA’s regulatory interpretation that the veteran needed to have “set foot within the land borders of Vietnam” was unduly restrictive. The higher Court of Appeals for the Federal Circuit reversed and ruled: “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, and we therefore reverse the judgment of the Veterans Court.” This was a 2-1 decision with a thoughtful dissent by Judge Fogel so the Claimant may attempt to appeal to the U.S. Supreme Court which Commandeer Haas has said he will do. You can find the full 57 page decision in the list of decisions at http://www.cafc.uscourts.gov/dailylog.html
Most likely VA will now move quickly to resolve (decide) claims that have been placed on hold awaiting this decision. These claims will almost certainly be denied unless they can show that their ship operated within the inland waterways of Vietnam or entered port in Vietnam. While ships logs do not routinely show crewmembers leaving their ship, they will show whether the ship entered an inland waterway (e.g. the Saigon River) or put into port. VA will generally concede the issue if service records show a veteran was attached to a ship during the period that the ship put into port in Vietnam. The negative decision in the Haas case does not relieve VA from the responsibility of making a legally correct decision that discusses all pertinent evidence and the reasons and bases for the decision. The VA in their written decision should specifically address the evidence of service in or visitation to Vietnam. They must discuss ships ‘ movements either shown by ships’ history or logs. If the veteran has admitted never setting foot in Vietnam, VA must also discuss whether evidence shows that the ship operated in the inland waterways of Vietnam.
The Haas decision does not apply if a claimant has alleged exposure to herbicides on a direct basis, such as loading drums of defoliant on board helicopters or decontaminating aircraft or helicopters, VA must discuss such allegations and resolve them. Claimants who are denied have several legal moves available to them. They can ask the Court of Appeals to review the case using all the judges on the Court. While the Court may decide to conduct an en banc review it doe not have to. Failing that, they could appeal to the Supreme Court. During any given year the Supreme Court takes up only about 1 in 20 cases to decide. Success at the Supreme Court is a long shot. [Source: TREA Washington Update & NVS Update 9 May 08 ++]
