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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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2011, Vietnam Veterans of America. All Rights Reserved. 8719 Colesville Road, Suite 100, Silver Spring, MD 20910