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VICTORY FOR "BLUE WATER NAVY" IN AGENT ORANGE EXPOSURE

CASE -- U.S. Court of Appeals for Veterans Claims says VA's current

"boots on the ground" definition of "service in the Republic of

Vietnam" is "plainly erroneous...and unreasonable,

and must be SET ASIDE."

 

 

This is incredibly good news for the "Blue Water Navy" of the Vietnam era.

The old "boots on the ground" definition is being thrown out.

I am sure this will lead to the reopening of countless Agent Orange claims by former Navy members.

Be sure to pass this along to any Vietnam-era Navy veteran.

USCAVC decision here in PDF format (29 pages -- 1.14mb) ... Download or view here...

Excerpts below:

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CONCLUSION

After consideration of the appellant's and the Secretary's briefs, oral argument as presented on January 10, 2006, and a review of the record on appeal, the Court finds that VA's regulation defining "service in the Republic of Vietnam," 38 C.F.R. § 3.307(a)(6)(iii), is permissible pursuant to Chevron; however, the regulation is ambiguous.

VA's argued interpretation of the regulatory term "service in the Republic of Vietnam," affording the application of the presumption of exposure to herbicides only to Vietnam-era veterans who set foot on land and not to the appellant, is inconsistent with longstanding agency views, plainly erroneous in light of legislative and regulatory history, and unreasonable, and must be SET ASIDE. In this case, the M21-1 provision allowing for the application of the presumption of exposure to herbicides based on the receipt of the VSM controls.

The February 2004 Board decision, therefore, is REVERSED to the extent that the Board denied the appellant the presumption of exposure to herbicides and the matter is REMANDED with instructions to apply the presumption in a manner consistent with the interpretation set forth in this opinion.

If service connection for diabetes mellitus is awarded upon remand, VA should ensure appropriate processing of the appellant's claims for secondary service connection for peripheral neuropathy, nephropathy, and retinopathy, claimed as residuals of diabetes mellitus.

Furthermore, M21-1, part III, paragraph 4.24(e), change 88 (Feb. 27, 2002), is SET ASIDE pursuant to 38 U.S.C. § 7261(a)(3)(D).

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Larry Scott

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