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january/february 2007

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The Courts Will Decide On Off-Shore Agent Orange Service Connection
BY RYANN BERNARD AND ROMAN MAJTAN

In the recent Haas v. Nicholson decision, the VA’s Court of Appeals for Veterans Claims held that veterans who served in the waters offshore of Vietnam and received the Vietnam Service Medal (VSM) are eligible to have their disabilities presumptively service-connected due to exposure to Agent Orange. This also applied to veterans for whom receipt of the VSM is the only evidence of exposure to Agent Orange. In September 2006, the Office of the Chairman of the Board of Veterans’ Appeals, per the instructions of the VA Secretary, ordered the Board to delay reviewing all cases involving blue-water veterans and presumptive service connection for Agent Orange exposure in which the veterans did not set foot, or have their “boots on the ground,” in the Republic of Vietnam.

On November 8, 2006, the Department of Veterans Affairs, through the Department of Justice, officially appealed the Haas decision to the U.S. Court of Appeals for the Federal Circuit. In the meantime, the VA has stayed or suspended deciding Haas claims and is setting these claims aside until the Federal Circuit Court makes a decision.

The attorneys representing a veteran whose claim was set aside due to the stay asked the Court to order the VA to start reviewing the claims affected by Haas. As appellate attorneys for Vietnam Veterans of America, we attended the oral arguments on the stay. VA argued that it has the authority to set claims aside without the Court’s permission. The attorneys representing the veteran argued that VA must follow the Court’s decision in Haas. The Court had not made a decision on this issue at the time this article was written.

The Court will either order review of these claims or allow the VA to continue setting them aside until a final decision on the appeal is rendered. It is expected that the Court will make its decision in January. This could, of course, be delayed due to the holiday season.

HOW YOU CAN FILE A CLAIM

The Acting Director for Compensation and Pension Service recently sent a Fast Letter to all VA regional offices instructing them on how to handle cases involving Agent Orange exposure in which the only evidence of exposure is the VSM or Vietnam offshore service. Under the guidelines set out in this letter, if you received the VSM or served offshore of Vietnam and file a claim for presumptive service connection for Agent Orange exposure, you will receive a letter from VA explaining that they received your claim, but that they will not review it until the courts make a decision or the VA’s legal department tells the VA to do otherwise. As long as the stay is in place, you will not receive a letter explaining what type of evidence would help you prove your claim, but you can still submit evidence and discuss developments with your local service representative.

The stay affects claims based on Agent Orange exposure for which the only evidence of exposure is receipt of the VSM or service on a vessel off the shore of Vietnam. If you served on land in Vietnam and are claiming presumptive Agent Orange exposure, or if you have any other claims, the VA still will be reviewing and processing those claims as usual. Work with your service representative to decide if you could be granted service connection on other grounds, and have him or her help you submit evidence of this to the VA. Keep in touch with your service representative for updates on your claim.

As mentioned in the above article, a veteran affected by the stay sought a writ of mandamus to compel the CAVC to lift the stay imposed by the Secretary of Veterans Affairs through the Chairman of the Board of Veterans’ Appeals. On January 9, 2007, hours before this issue went to press, the CAVC issued a decision in favor of the appellant Nicholas Ribaudo. The Court determined that “the head of an executive agency does not have the authority to nullify the legal effect of a judicial decision, and because the Secretary did just that by ordering the issuance of Board Chairman’s Memorandum 01-06-24 imposing a stay of indefinite duration without first seeking judicial imprimatur, the petition will be granted. In their conclusion, the Court stated, “The Secretary will decide Mr. Ribaudo’s appeal in regular order according to its place upon the docket,” and will apply this Court’s decision in Haas.” It is currently unclear if VA will seek judicial intervention in seeking the imposition of another stay on Haas-type claims.

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