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Veterans Benefits report

BY DAVID L. HOUPPERT, Esq., DIRECTOR, VETERANS BENEFITS

Many veterans who served in Vietnam have been able to qualify for presumptive disability compensation for exposure to Agent Orange. Unfortunately, the application of presumptive coverage has resulted in many inequities for veterans and their families. An example of this can be seen in how the VA has granted presumptive service connection to service members who served on boats and ships off the coast of Vietnam. Although these veterans received the Vietnam Service Medal, many have had claims denied by VA for presumptive disability due to AO exposure because they did not set foot on the ground in Vietnam.

When making a determination on these types of claims, VA refers to the U.S. Code and the VA Adjudication Procedures Manual (M21-1). The Code states:

“For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection under this section, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.”

The VA, believing this section was unclear, exercised the powers of the Secretary and promulgated regulations to resolve the ambiguity of the phrase “service in Vietnam.” The previous provision, in effect, generally allowed for presumptive service connection based upon receipt of the VSM. In 2002, the VA replaced this provision with a new one that greatly limited presumptive-service connection for exposure to AO. The new provision states:

“Verifying Vietnam Service for Claims Involving Exposure to Herbicide Agents.

(1) It may be necessary to determine if a veteran had “service in Vietnam” in connection with claims based on exposure to herbicide agents. A veteran must have actually served on land within the Republic of Vietnam (RVN) to qualify for the presumption of exposure to herbicides. 38 CFR Sec. 3.307(a)(6). The fact that a veteran has been awarded the Vietnam Service Medal does not prove that he or she was “in country.” Service members who were stationed on ships off shore, or who flew missions over Vietnam, but never set foot in-country, were sometimes awarded the Vietnam Service Medal. To verify service in RVN, you should review the veteran’s DD-214 to determine if it shows such service (e.g., “Foreign Service: Republic of Vietnam”).

“(2) If a veteran claims service connection for exposure to herbicide agents and alleges service on a ship in the waters offshore of Vietnam, review the record for evidence that the ship was in the waters off Vietnam and that the veteran’s service involved duty or visitation on land.”

The inequities of the application of the AO presumptions for Navy veterans may be about to change due to a recent decision rendered by the Court of Appeals for Veterans Claims. A retired member of the U.S. Navy who served in the waters offshore of Vietnam but never set foot on the ground appealed a Board of Veterans’ Appeals denial for service connection for diabetes mellitus, with peripheral neuropathy, neuropathy, and retinopathy as a result of exposure to herbicides during his Vietnam-era service. In its denial, the Board “determined that although Mr. Haas had served in the waters off the shore of the Republic of Vietnam, such service did not warrant application of the presumption of exposure to herbicides under 38 C.F.R. 3.307(a)(6)(iii) (2004), which, the Board concluded, required a service member to set foot on land in the Republic of Vietnam.”

The issue on appeal was “whether VA’s asserted regulatory definition of ‘service in the Republic of Vietnam’ is a permissible interpretation of the authorizing statute, 38 U.S.C. 1116(f), and whether the Board’s interpretation is a reasonable interpretation of VA’s regulation, 38 C.F.R. 3.307(a)(6)(iii).”

The veteran served on active duty in the U.S. Navy from 1959 to September 1960 and from 1963 until June 1970, and later in the Naval Reserves. He served on an ammunition ship supplying boats and ships that patrolled the coastal waters with ammunition, food, fuel, and other stores. Due to the risk of sabotage and enemy fire, the ammunition ship did not enter port but stayed off the coast of Vietnam. The veteran was awarded four Vietnam Service Medals.

In 2001, the veteran submitted an application for VA disability compensation seeking service connection for diabetes mellitus, peripheral neuropathy, and loss of eyesight, resulting from exposure to AO. In response to his application, the VA Regional Office informed him that, for the presumption of service connection for diabetes mellitus due to exposure to AO, he must “have physically served or visited in the Republic of Vietnam, including service in the waters offshore if the conditions of service involved duty or visitation in Vietnam. This means the ship must have come to port in the [Republic of Vietnam] and you disembarked.” Because the veteran did not disembark in Vietnam, his claim was denied.

The veteran filed an appeal with the Board in January 2003, arguing that the VA’s interpretation of “service in the Republic of Vietnam” was “arbitrary and capricious” and contrary to regulation and law. As expected, the Board denied the veteran’s claim for presumptive service connection because he never set foot in Vietnam. The Board made no mention of a possible claim for direct service connection due to exposure to AO.

In response to the Board’s denial, the veteran appealed to the CAVC. He made the following arguments:

  1. VA’s regulatory definition of what constitutes “service in the Republic of Vietnam” contradicts the plain meaning of the authorizing statute, 38 U.S.C. section 1116(f).
  2. If the Court finds the language of the statute to be ambiguous, VA’s gap-filling regulation is not a permissible interpretation of what may constitute “service in the Republic of Vietnam.”
  3. VA’s provisions addressing the application of the presumption of service connection for herbicide exposure are substantive and have the force and effect of law, and VA committed an error by retroactively applying the February 2002 version of M21-1, paragraph 4.24(g).

VA made the following arguments:

  1. The term “Republic of Vietnam” contained in the statute is not ambiguous given the language and the context within which it was enacted; however, if the Court concludes that the term is ambiguous, then the VA’s regulatory definition of what constitutes service in the Republic of Vietnam is permissible and a reasonable interpretation of that language.
  2. The M21-1 provisions at issue are interpretive rather than substantive in nature; thus they do not have the force and effect of law and do not dictate an award of presumptive service connection in this case.
  3. That a remand is necessary for the Board to consider entitlement to service connection for diabetes mellitus on a direct service-connection basis.

Following the submission of formal briefs and oral arguments by the parties, the Court rendered a decision favorable to Vietnam veterans who served in the waters offshore of Vietnam. In its ruling, the Court concluded, because the statute does not specifically limit the application of the presumption of service connection for herbicide exposure to those who set foot on Vietnamese soil, the VA’s regulatory interpretation, while a permissible exercise of its rule-making authority, does not clearly preclude the application of the presumption to service members who served aboard ships and boats in close proximity to Vietnam. These service members usually were awarded the VSM, which the VA provisions recognized as awarded for service in Vietnam.

VA subsequently rescinded those provisions. Fortunately for veterans, the recession was done without published notification in the Federal Register allowing for notice and comments from the public.
The requirements for notice and comments are required in accordance with the Administrative Procedures Act, since the M21-1 essentially has the same effect as VA regulations and, thus, has the force of law.

In this case, the Court held that the VA’s attempt to rescind the old version of the M21-1 was ineffective because the VA failed to comply with the requirements set forth in the Administrative Procedures Act. As a result, the Court reversed the Board’s decision that the appellant was not entitled to presumptive service connection for exposure to AO. The Court remanded the claim to the Board to apply the presumption of service connection.

Due to this decision, it is extremely likely that the VA will seek a recession and revision of the provision regarding “service in the Republic of Vietnam.” Until the VA successfully completes a revision, the decision in this case is the controlling law. If you have a similar claim, or had a similar claim denied in the past, please submit the claim ASAP before the regulation is changed. Claims submitted in the interim should be granted in accordance with this decision.

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