(Washington, D.C. ) – “Some of the inequities of the application of presumptive coverage for exposure to Agent Orange have finally been set aside,” said John Rowan, national president of Vietnam Veterans of America.
“We need to spread the word about this decision to all Navy veterans who served in the waters offshore of Vietnam and received the Vietnam Service Medal (VSM). This Court decision will allow for an untold number of veterans and their families to receive the compensation and health care they
are entitled to, as well as other VA programs,” Rowan said.
On August 16, 2006, the Court of Appeals for Veterans Claims rendered a decision in the appeal of Haas v. Nicholson. In their 31-page decision, the Court determined the Department of Veterans Affairs (VA) has been unlawfully denying presumptive disability compensation for exposure to Agent
Orange (AO) for service members who served in the waters offshore of Vietnam and earned the VSM.
Numerous veterans who served in Vietnam have been able to qualify for presumptive disability compensation for exposure to AO. Unfortunately the application of presumptive coverage has resulted in many inequities for veterans and their families. An example of this can be seen in the VA’s denials of presumptive service connection to service members who served on boats and ships off the coast of Vietnam. Although these veterans earned and received the VSM, many have had their claims denied by VA for presumptive disability due to AO exposure because they did not step foot on the ground in Vietnam.
“All veterans who served in the waters offshore need to speak with a service representative or service officer as soon as possible to see if they have a viable claim for compensation,” Rowan said. These veterans should also participate in the Agent Orange registry exam. I fully expect the VA will
attempt to rescind and revise their interpretation of the law. If you have had a claim denied or have never filed, you must do so before the regulations change again in favor of the VA.”
Blue Water Disability/DIC claims: From 1991 to 2002, the VA took the position that Navy veterans who were awarded the Vietnam Service Medal as a result of service in the waters offshore Vietnam (blue water vets) were entitled to the same presumption of exposure to Agent Orange as veterans who set foot on land in Vietnam. As a result, many Navy veterans who served offshore and their survivors were granted disability or DIC benefits based on an Agent Orange-related disease. However, in FEB 02 the VA amended VA Manual M21-1 to limit the presumption of exposure to Agent Orange to only those veterans who actually set foot on the land mass of Vietnam. As a result of the policy change the VA has been denying claims filed by blue water vets for Agent Orange related diseases since FEB 02. In addition, the VA has taken action to sever awards of service connection in some of the cases that were granted prior to February 2002.
NVLSP has appealed to the Court of Appeals for Veterans Claims many of the BVA decisions denying benefits to blue water veterans. NVLSP has argued in these cases that the VA’s change of position in 2002 violates the Agent Orange Act of 1991. On 10 JAN 06, a panel of the Court heard argument in one of NVLSP’s appeals and a decision on the legality of the VA’s set-foot-on-land requirement is expected some time this year. In any case in which you are representing yourself or another blue water Navy veteran/survivor on a claim based on an Agent Orange-related disease, you should keep the claim alive by filing a timely Notice of Disagreement (NOD) after the VA denial,and a timely substantive appeal after the Statement of the Case (SOC). If the BVA denies the claim, contact NVLSP attorney Rick Spataro so that a timely appeal can be filed with the Veterans Court. This is a prudent move because if NVLSP wins its appeal, the VA will be required to follow the Veteran Court’s decision on the pending claim. On the other hand, if the VA’s denial of the claim becomes final, there is no guarantee that the VA will consider the prior final denial to be a clear and unmistakable error even if NVLSP were to win its appeal.
[Source: NVLSP Staff Attorney msg 16 Feb 06]
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