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VA UPDATES "BLUE WATER NAVY" CLAIMS PROCESSING PROCEDURES --

Letter from Acting Director of Compensation & Pension Service lays out

interim procedures for controlling claims affected by the U.S. Court

of Appeals for Veterans Claims decision in Haas v. Nicholson.

 

 

The VA continues to "fine-tune" their policy on handling claims from "Blue Water Navy" veterans.

Background on the Haas or "Blue Water Navy" decision here...
 http://www.vawatchdog.org/old%20newsflashes%20AUG%2006/newsflash08-18-2006-4.htm

However, the VA appealed the pro-veteran decision and all claims are stalled...more here...
http://www.vawatchdog.org/old%20newsflashes%20OCT%2006/newsflash10-31-2006-6.htm

And, here is the latest on the legal proceedings by the National Veterans Legal Services Program:  The Secretary’s brief is due to be filed in the Haas appeal on January 8. Our brief will be due to be filed 40 days after the Secretary’s brief is served on us. The Secretary then may file a reply brief 14 days after that. Therefore, the briefing will likely be completed by early March, but there is a small possibility that either party may ask for, and be granted, extensions for those filings. The Court will then likely schedule oral argument and, after it hears the argument, issue a decision. The decision will likely be issued several months after the oral argument. We will almost certainly post something on our site once a decision is issued.  Richard V. Spataro, Staff Attorney, National Veterans Legal Services Program, 1600 K Street, NW, Suite 500, Washington, DC 20006-2833

Below is the latest letter from the VA to all the Regional Offices.

This letter was sent to me by email and includes some HTML glitches

Letter below:

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DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington , D.C.  20420

 

December 11, 2006

 

Director (00/21)                                                                       In Reply Refer To: 211A

All VA Regional Offices and Centers                                        Fast Letter 06-26

 

SUBJ:  Haas v. Nicholson

This letter provides interim procedures for controlling claims affected by the U.S. Court of Appeals for Veterans Claims (CAVC or Court) decision in Haas v. Nicholson.  The enclosure provides general answers to typical questions employees may receive during interviews or when answering telephones.

Background

On August 16, 2006, the Court determined that Vietnam veterans who served in the waters off Vietnam and did not set foot in Vietnam are entitled to a presumption of exposure to herbicide agents, to include Agent Orange.  This class of veterans is generally known as �blue water� Navy veterans; but any claim, regardless of branch of service, may be a Haas case.  Prior to this decision, VA�s interpretation of 38 CFR 3.307(a)(6)(iii) was that a service member had to have actually set foot on Vietnamese soil or served on a craft in its rivers (also known as �brown water�) in order to be entitled to the presumption of exposure to herbicides.

Specifically, the Court held the following:

�        The reference to service in �Vietnam� as used in the statute was ambiguous because there are many definitions of the territory of a nation.

�        VA�s regulation defining Vietnam service for purposes of granting the presumption of exposure to herbicides, 38 CFR 3.307(a)(6)(iii), is ambiguous when viewed together with 38 CFR 3.313, which also defines service in Vietnam.  The Court pointed to the use of different conjunctions, �and� in � 3.307 and �or� in � 3.313, as well as the differing placement of a comma in each regulation to prove the ambiguity and observed that VA had merely �replac[ed] legislative ambiguity with regulatory ambiguity.�

�        Because of its determination that ambiguity was present, the Court looked to a procedural manual (M21-1) provision from 1991 that stated that possession of

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Director (00/21)

 

a Vietnam Service Medal (VSM) would be conceded as proof of Vietnam service in the absence of �contradictory evidence.�  The Court held this to be a substantive rule establishing entitlement to the presumption of exposure to herbicides.  It held that VA�s �attempted rescissions� of that M21-1 provision were void because they failed to comply with the notice and comment requirements of the Administrative Procedures Act (APA).  The Court also held that within the meaning of VA�s manual provisions: 1) proof that a veteran had blue water service without setting foot on mainland Vietnam would not necessarily be �contradictory evidence,� but 2) proof that a veteran served in a location �that reasonably precluded exposure to Agent Orange� could be considered �contradictory evidence.�

 

Current Status

VA has appealed the Haas decision to the U.S. Court of Appeals for the Federal Circuit.  Haas issues will not be adjudicated until this litigation is resolved.  When claims with Haas issues are received, they will be acknowledged with specific language approved by the Office of General Counsel and controlled as indicated in this letter.

 

Language Approved by General Counsel

The following language will be used to acknowledge receipt of a claim for service connection that includes Haas issues:

�We have received your claim for (insert the disability(ies)) based upon claimed herbicide exposure.  Your claim may be affected by recent judicial action by the Court of Appeals for Veterans Claims in Haas v. Nicholson.  VA has appealed that action to the Federal Circuit.  We must await the outcome of that appeal and receive guidance from the Department of Veterans Affairs General Counsel prior to taking further action on your claim.  We will advise you further when we receive guidance.�

 

Haas Claims

Claims affected by Haas include those based on herbicide exposure for which the only evidence of exposure is receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.

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Director (00/21)

Claims not affected by the Haas decision include those claims based on herbicide exposure in which it is established by record that the veteran did set foot in the Republic of Vietnam, or claims based on herbicide exposure in which the veteran did not set foot in Vietnam, did not receive the Vietnam Service Medal, and did not serve off the shore of Vietnam.  These claims should continue to be processed in the usual manner.

 

Controlling Claims Affected by Haas

Pending a final decision by the courts in Haas, regional offices must control claims from �blue water� Vietnam veterans (or veterans from another branch of service, as explained above) seeking presumptive service connection with end product 335 as explained below.

The following procedures are required when a veteran seeks either to establish entitlement to service connection for a herbicide-related disease for the first time in a new or original claim or to reopen a previously denied exposure-related claim.  These procedures are also applicable in cases where a veteran claims service connection for both an exposure-related disability and one not related to herbicide exposure.  These procedures are intended to avoid delays in the adjudication of other claims and the unnecessary expenditure of resources in handling claims that may ultimately be overturned on appeal.

Original (or new) claims involving only Haas 3.307 presumptions

 

• If a veteran�s claim for service connection for a disease associated with herbicide exposure is new, involves no other issues, and there is no basis to establish entitlement except under Haas, control the claim using end product 335, DISP to OCHAA (original claim, Haas), and defer adjudication.

• Send a letter to the claimant with the approved General Counsel language.
• Do not send a VCAA notice at this time.

Claims involving only Haas 3.307 presumptions (claims based on herbicide exposure which have previously been denied)

• If a veteran�s claim for service connection for a disease associated with herbicide exposure has previously been denied (both on a direct and presumptive basis) and there is no basis to establish entitlement except under Haas, control the claim using end product 335, DISP to OPHAA (pre-Haas denial), and defer adjudication.

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Director (00/21)

• Send a letter to the claimant with the approved General Counsel language.
• Do not send a VCAA notice at this time.

Claims involving Haas 3.307 presumptions (claims related to herbicide exposure which are raised for the first time) and non-Haas issues

• If a veteran is claiming service connection for a disability not related to herbicide exposure and also claiming service connection based on Haas-related herbicide exposure for the first time, establish the appropriate end product (010, 110, 020) on the non-Haas issue(s) and control the Haas issues with end product 335.
• Send a VCAA notice on all issue(s).  Until further notice, send only the standard MAP-D development letter.  Do not send any attachments requesting development of claims for exposure to Agent Orange or other herbicidal agents.
• Develop and rate all non-Haas issue(s).
• Develop and rate all herbicide exposure issues to be decided on a direct or presumptive basis, without resort to Haas presumptions.
• If the criteria for presumptive service connection can be established under a basis other than Haas, the claim should still be rated.  Specifically, service connection can be granted (1) on a direct basis, (2) if herbicide exposure is shown by a non-Haas means, i.e., other than by receipt of the VSM/service in offshore waters, or (3) under a presumption other than the herbicide presumption.  An example of (3) would be a claim involving a Navy veteran awarded a VSM, who was also an atmospheric nuclear test participant, and who claims service connection for lung cancer.  If the claim meets the presumptive criteria of section 3.309(d), it is not considered a Haas-related issue and should be granted.

• If stations are unable to grant Haas-related issue(s) on a direct basis or on a presumptive basis other than under Haas, continue the end product 335 control for the Haas issue and DISP to ONHAA (new Haas claim, received after Court�s decision).
• Send a decision notice letter to the claimant on non-Haas issue(s), include the approved General Counsel language on the Haas issues, and clear the controlling end product (010, 110, 020).
• If, however, there are any deferred issues other than those related to Haas, you must continue the controlling end product.

Appeals involving Haas issues

• If a veteran files an appeal on the denial of service connection for a herbicide presumptive disability because there is no evidence of in-country Vietnam service, control the appeal under end product 335 for the Haas issue and DISP to APHA (appeal of a Haas issue).

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Director (00/21)

 

• Send a letter to the claimant with the approved General Counsel language.
• Do not enter the appeal into VACOLS at this time.
• If a veteran files an appeal on a Haas issue together with an appeal of non-Haas issues, control the Haas issue as explained above.  Establish a VACOLS record for the non-Haas issues and process those issues in the standard manner.

 

Actions by the Board of Veterans� Appeals (BVA)

On September 21, 2006, the Secretary issued a memorandum directing BVA to stay action and refrain from remanding all claims for service connection based on exposure to herbicides in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.  Because the Secretary's direction indicates his view that these claims should not be decided until the litigation runs its course, BVA has suspended action on Haas claims.

For cases in which the only issue on appeal is a claim affected by the stay, BVA will retain and store the claims folder during the period of the stay.  Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed.  In multiple-issue cases, the Board will adjudicate all issues that are not subject to the stay in accordance with normal procedures, and place appropriate controls on the issue(s) affected by the stay.

If a regional office receives a decision from BVA that grants presumptive service connection under Haas v. Nicholson to a veteran who was not in-country in Vietnam, please send the folder to the C&P Policy Staff (211) prior to implementing the decision.  The point of contact is Michele Katina.

 

Questions

Questions concerning this fast letter and other issues related to Haas should be submitted to the VAVBAWAS/CO/21Q&A mailbox.

 

/s/

Bradley G. Mayes

Acting Director

Compensation & Pension Service

 

Enclosure

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Larry Scott