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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:
- 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).
- 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.”
- 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:
- 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.
- 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.
- 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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