The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress
August 2002
VETERANS BENEFITS UPDATESHAD Legislation Introduced In Congress
BY LEONARD J. SELFON, DIRECTOR, VETERANS BENEFITS PROGRAM During the past year, VVA has worked steadfastly to bring to light the consequences of a 1960's-era military chemical and biological weapons testing program called Project SHAD, Shipboard Hazard and Defense. This program was designed to test the vulnerability of naval and other vessels to a variety of hazardous substances, including nerve agents such as sarin and VX, biological agents such as E. coli and Q fever, and possibly radioactive particles. Simulants - or supposedly non-hazardous agents that behave the way certain toxic materials do - also were used in the more than approximately 113 SHAD-related tests.
Some of the simulants have proven to be not as harmless as originally thought. Furthermore, some of the chemicals used to decontaminate the ships have been demonstrated to be highly carcinogenic.
SHAD was part of a larger government chemical/biological weapons testing program known as Project 112. While the SHAD spraying primarily occurred in the Pacific Ocean, Project 112 tests also were conducted in the Atlantic Ocean, and around Alaska, Panama and other locations.
The problem is that not all of those exposed to these agents knew that they were test subjects. Many have reported that they were issued no special instructions or protective gear during the tests. Complicating this is that much of the documentation concerning the test dates, locations, agents used, and personnel affected remains classified. VVA has been working with Congress and the Departments of Defense and Veterans Affairs to declassify these records so that affected veterans can be notified, examined, treated, and compensated for residual disabilities.
On June 27, the Veterans Right to Know Act of 2002 was introduced in Congress. That act is designed to bring relief to veterans involved in SHAD and other testing activities by requiring DoD to declassify all SHAD and Project 112 data. It also establishes an independent General Accounting Office commission to oversee the declassification of relevant test and military personnel records, and requires the VA to notify veterans of their involvement in the tests and to identify any relationships between the agents used and possible adverse health effects. Congressional hearings on the act were scheduled for July 2002.
The declassification process already has begun. The DoD has provided the VA with information from 12 tests for approximately 4,300 participants. Based upon this information, the VA has begun to notify these veterans about the potential risk of exposure.
If you believe that you, a family member, or someone you know might have been involved in one of these tests, please contact a VVA service representative in your area. See our website for a list of local service representatives ( http://www.vva.org). You can also contact the VA directly through the SHAD helpline, 800-749-8387, or by e-mail at shadhelpline@vba.va.gov
VCAA NOTIFICATION REQUIREMENTS
In a June opinion, the U.S. Court of Appeals for Veterans Claims (CAVC) concluded that certain notification provisions of the Veterans Claims Assistance Act of 2000 apply to cases where a claimant has applied to have a previously denied claim for VA benefits reopened on the basis of new and material evidence. In Quartuccio v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002), the VA declined to reopen the veteran's claim for service connection after finding that he had not submitted new and material evidence.
Under the law, the VA cannot reconsider an unappealed denial of benefits unless the claimant submits evidence that was not previously before the VA, not duplicative or redundant, and is so significant that it must be considered to decide the claim fairly. If the VA determines that new and material evidence has been submitted, it can then reopen the claim and make a benefits decision on the merits.
In Quartuccio, the veteran attempted to reopen a previously denied and unappealed claim for service connection for a psychiatric disorder. In response, the VA sent him a letter that advised that he needed to submit new and material evidence in support of his claim, and explained what type of evidence was required. The VA Regional Office declined to reopen the claim after determining that new and material evidence had not been submitted. The veteran then filed an appeal with the Board of Veterans' Appeals (BVA). In the interim, the VA issued a Statement of the Case (SOC) which defined what "new and material evidence" means, but did not specifically explain what kind of evidence was needed to substantiate the claim.
Neither the letter nor the SOC identified the evidence the veterans was responsible for obtaining or what evidence the VA would attempt to secure on his behalf. On appeal, the BVA concluded that the veteran had not submitted new and material evidence, and refused to reopen the claim.
On appeal to the Court, the veteran argued that under The Veterans Claims Assistance Act of 2000 (VCAA), upon receipt of a substantially complete application for benefits, the VA is obligated to notify the claimant of any information or medical or lay evidence that is required for an award of the benefits sought. This duty to notify includes which portion of the information or evidence that the claimant must provide and which portion the VA will attempt to obtain on behalf of the veteran (e.g., VA medical records and Social Security Administration records). The VA argued that its letter and SOC afforded the veteran sufficient notification in compliance with the VCAA.
In its decision, the CAVC addressed the issue of whether the VCAA's duty to notify applies only to original claims for benefits alone or whether that duty also applies to claims to reopen a previous final denial of benefits. Upon examining the language of the VCAA, the Court concluded that the legal trigger for the duty to notify is the receipt of a "complete or substantially complete application" for benefits. Since the VCAA does not distinguish between an original application for benefits and an application to reopen, the Court held that the duty to notify applies to both situations.
The CAVC then determined that the information contained in the VA's letter and SOC was insufficient to notify what evidence the veteran was responsible for submitting and what evidence the VA would attempt to obtain. Accordingly, the Court remanded the claim to the VA for proper notification and readjudication of the claim for reopening.
This case is important because it emphasizes Congress's and the Court's seriousness in requiring the VA to fully assist claimants for VA benefits with the full development of their claims.
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