Printer Friendly Page
LEGAL ANALYSIS OF "BLUE WATER NAVY" DECISION
FROM
ATTORNEY HUGH COX -- VA expected to appeal
this pro-veteran decision.
Our resident legal expert and veterans'
advocate, Hugh Cox, takes a look at the "Blue Water Navy" decision from
the U.S. Court of Appeals for Veterans Claims.
Background and decision here...
http://www.vawatchdog.org/old%
20newsflashes%20AUG%2006/newsflash08-18-2006-4.htm
Hugh's web site is here...
http://www.hughcox.com
Thanks to Hugh for his great work in
helping to make complicated legal situations easy to understand.
The word from Hugh is below:
---------------
NOTE from Larry Scott: Hugh added the
following sentence to his original analysis and it's very important ...
"The VA can be expected to appeal this case and to lobby Congress
to retroactively apply the “set foot” requirement. Veterans who can take
advantage of the facts and circumstances of this case should do so
immediately before new VA regulations are promulgated and before
Congress acts."
Review of Jonathan L. Haas v. Secretary of
Veterans Affairs, CAVC # 04-0491
On August 16, 2006, the United States Court of Appeals for Veterans
Claims (CAVC) decided that “Service in the Republic of Vietnam” included
certain “blue water” sailors in the U.S. Navy who never set foot on land
in Vietnam.
That Navy veteran, Jonathan Haas, served on active duty during 1959
through 1960 and from 1963 through 1970. In 1967, Veteran Haas received
military service medical testing that showed an abnormal glucose test,
but no follow-up about suspected diabetes was initiated. In 2001,
Veteran Haas applied for VA service connected benefits for diabetes,
neuropathy and loss of eyesight first discovered in 1980 due to Agent
Orange and radioactive materials. His claims were consistently denied
and appealed until he filed notice of appeal at the CAVC in 2004.
Timing can be everything and it worked to the advantage of Veteran Haas.
At the time of his initial application for benefits in 2001, the VA
regulation (38 Code of Federal Regulations [C,F.R.] 3.307) related to
Agent Orange presumed that any military member with diabetes who was
awarded the Vietnam Service Medal (VSM) and whose “ship was in the
vicinity of Vietnam for some significant period of time” could be
awarded service connection. The VA Regional Office ignored the
presumption in effect at the time of the initial application and applied
a later 2002 version of M21-1 (para 4.24) requiring that Navy members
actually “set foot” in Vietnam to be included in the presumption.
Veteran Haas’ testimony before the BVA related that he served on the
U.S.S. Katmai engaged in duties near the coast of Vietnam where clouds
of Agent Orange would drift out over his ship. He testified he never
“set foot” in Vietnam. His testimony was not contested by the VA.
The CAVC panel of Judges Hagel, Moorman and Lance reversed and remanded
the case and required the Secretary to decide the case again because:
1. The United States Code (38 U.S.C. 1116(f)) was
ambiguous in that it did not address the requirement of whether a
military member must “set foot” in Vietnam for the presumption to apply
and that the Secretary’s regulations did not resolve the ambiguity. VA
Regulations and directives must follow the U.S. Code.
2. The “set foot” requirement impermissibly precluded
Navy personnel who were exposed to Agent Orange under similar
circumstances of Veteran Haas and this :set foot” requirement was not
supported by the United States Code (38 U.S.C. 1116).
3. The VA retroactive application of M21-1 deprived
Veteran Haas of a more favorable treatment of his claim since the
earlier version of M21-1 should have been applied.
4. The VA failed to follow the Administrative
Procedures Act with proper notice and comment to the public before
rescinding the earlier M21-1 more favorable to Veteran Haas.
5. The BVA decision failed to consider the
relationships of primary and secondary service connection between
diabetes, neuropathy and loss of sight.
The two outstanding attorneys representing Veteran Haas, Bart Stichman
and Louis George, deserve continuing recognition for this outstanding
veteran victory. They are skilled craftsmen and champions for disabled
veterans with many court victories. Their legal professionalism brings
great credit to the National Veterans Legal Service Program ( NVLSP at
www.nvlsp.org ). These attorneys are
also among the authors of the invaluable “Veterans Benefits Manual”
published by Lexis-Nexis and Michie Publishing. Other outstanding
attorneys at NVLSP include Ron Abrams and David Applestone.
---------------
Larry Scott
