Blue Water Ao Vets

[Berta]

The VA recently posted the proposed change to M21-1 below-

Ray B. Davis's comments seem to be a good take on these regs-

I posted this info at the Blue Water Navy site yesterday and havent had time yet to get their thoughts-

it IS ironic-with Haas still in the court system that Mansfield came up with this idea---

part of the Haas CAVC case involves receipt of the VSM-

any thoughts and anyone willing to comment on this reg?

You all might recal former Sec Nicholson's AO BWV moratorium did NOT comply with the law and the change in 2002 was -as Ray says-Illegal-

and now they are coming up with this ????

------------------

from Ray B. Davis-

Dear Readers,

If you have received the Vietnam Service medal and served offshore in

Vietnam during that war? The Veterans Court had decided that you

deserve the presumption of exposure to Agent Orange just as those who

set foot on mainland Vietnam. This is what the VA's M-21 manual

provisions of 1991 stated.

The VA illegally changed the rules in the M-21 manual in 2002 taking

away this right (so the court said). This is currently on appeal by

the VA.

Now the VA is seeking to correctly alter the M-21 provisions by

giving notice and a time for comment as required when an agency makes

a "substantive change".

The VA is trying to wipe out both the 1991, and 2002 M-21 manual

provisions. Laying the groundwork for a new provision which will

allow the VA to go back to the same old denying Blue water Navy the

same rights as their fellow veterans who received the Vietnam Service

medal.

And at the same time they say that if their appeal to the Federal

Courts wins, they will withdraw this change and keep the M-21 change

of 2002.

WHAT IS THE VA SAYING: they are saying; if we WIN you will lose your

rights to compensation based on the Vietnam service medal and agent

orange exposure; And if we lose the appeal we are changing the M-21

so you will still lose your right to compensation.

I have copied the submission from the Federal Registry below my

signature.

WHAT CAN YOU DO?

First Make a comment to the VA at the required location (see the text

of the VA submission for details) that they should accept the

Veterans Court decision and stop appealing, as the Acting VA

Secretary Mansfield and former VA Secretary Nicholson have done and

continue to do. And also stop trying to cheat veterans by changing

the M-21 manual in an unfair way.

Next; if you have the Vietnam Service medal and an agent orange

related condition, but only served offshore Vietnam? you should file

now before the doors are closed forever.

Your editor,

Ray B Davis, Jr

http://www.valaw.org

--Federal Register--

[Federal Register: November 27, 2007 (Volume 72, Number 227)]

[Notices]

[Page 66218-66219]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27no07-132]

======================================================================

=

DEPARTMENT OF VETERANS AFFAIRS

VA Adjudications Manual, M21-1; Rescission of Manual M21-1

Provisions Related To Exposure to Herbicides Based on Receipt of the

Vietnam Service Medal

AGENCY: Department of Veterans Affairs.

ACTION: Notice, with request for comments.

----------------------------------------------------------

-

SUMMARY: The Department of Veterans Affairs (VA) proposes to rescind

provisions of its Adjudication Procedures Manual, M21-1 (M21-1) that

were found by the U.S. Court of Appeals for Veterans Claims (CAVC)

not to have been properly rescinded.

DATES: Comments must be received by VA on or before January 28, 2008.

ADDRESSES: Written comments may be submitted through

http://www.Regulations.gov; by mail or hand-delivery to the Director,

Regulations Management (00REG), Department of Veterans Affairs, 810

Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to

(202) 273-9026. Comments should indicate that they are submitted in

response to ``Rescission of Manual M21-1 Provisions Related to

Exposure to Herbicides Based On Receipt of the Vietnam Service

Medal.'' Copies of comments received will be available for public

inspection in the Office of Regulation Policy and Management, Room

1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through

Friday (except holidays). Please call (202) 273-9515 for an

appointment. In addition, during the comment period, comments may be

viewed online through the Federal Docket Management System (FDMS) at

http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations

Staff (211D), Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: This rulemaking is necessitated by the

opinion rendered by the CAVC in Haas v. Nicholson, 20 Vet. App. 257

(2006), notice of appeal filed, No. 07-7037 (Oct. 26, 2006). In that

opinion, the CAVC concluded that certain provisions of VA's

Adjudication Procedures Manual M21-1 (M21-1) were substantive

provisions that had not been properly rescinded. Id. at 276-78. We

have appealed Haas, and if we are successful on appeal, this

rulemaking will be withdrawn. However, in the event that we do not

prevail on appeal, we now take action to properly rescind the

provisions.

In Haas, the CAVC held that a 1991 M21-1 provision required VA to

concede that Mr. Haas had served in Vietnam, and was presumed to have

been exposed to herbicides during service, because he had received

the Vietnam Service Medal (VSM). Haas, 20 Vet. App. at 270-72

(quoting in full and discussing M21-1, part III, para. 4.08(k)(1)-(2)

(1991)). In 2002, VA had issued a new M21-1 provision that more

clearly restated the 1991 provision, advising that receipt of the VSM

could indicate service on land in Vietnam but, by itself, was not

1

2

proof of such service. M21-1, pt. III, para. 4.24(e)(1)-(2), change

88 (Feb. 27, 2002). However, the CAVC held that VA's 2002 revision of

the M21-1 was ineffective because VA had not followed the notice and

comment procedures of the Administrative Procedure Act, 5 U.S.C. Sec.

553(a). Haas, 270 Vet. App. at 275-78.

As interpreted by the CAVC, the 1991 M21-1 provision requires VA, in

at least some circumstances, to concede service in Vietnam, and thus

herbicide exposure, based merely on the receipt of the VSM, even if

all other evidence indicates that the veteran did not serve on land

or on inland waterways in Vietnam and therefore was exceedingly

unlikely to

have been exposed to herbicides as a result of Vietnam service. VA

revised the M21-1 in 2002 because, although receipt of the VSM is an

indication of possible service in Vietnam, it is not definitive or

conclusive evidence of such service. It is inappropriate to include

receipt of the VSM as a sole criterion for the presumption of

exposure to herbicide agents due to service in Vietnam because a

veteran may have received this medal for service in locations other

than Vietnam. (The VSM was awarded to all members of the Armed Forces

who served between July 3, 1965, and March 28, 1973, either: (1) In

Vietnam and contiguous waters and airspace thereover; or (2) in

Thailand, Laos, or Cambodia, or airspace thereover, in direct support

of operations in Vietnam. See Army Reg. 600-8-22, para. 2-13.) The

2002 revision was intended to clarify VA's view that receipt of the

VSM does not require or permit VA to ignore other evidence indicating

that a veteran did not

serve in the Republic of Vietnam. Because the CAVC's interpretation

of the 1991 M21-1 provision does not accord with VA's intent in

issuing that provision, we propose to rescind it.

The M21-1 is an internal manual used to convey guidance to VA

adjudicators. It is not intended to establish substantive rules

beyond those contained in statute and regulation. Neither the 1991

nor the 2002 M21-1 provision, nor any intervening revision to such

provisions, was intended to establish a substantive rule. Further,

the 1991 provision was not intended to convey the rule the CAVC

imputed to that provision, treating the VSM as conclusive evidence of

service in Vietnam even if other evidence would support a finding

that the veteran did not serve in Vietnam. However, because the CAVC

held that the 1991

M21-1 provision established a substantive rule, and because that

rule, as interpreted by the CAVC, is inconsistent with VA's intent,

we are proposing to rescind the M21-1 provision.

We note as well that we will soon be revising Sec. 3.307(a)(6)(iii)

to clarify VA's interpretation of the statutory authority governing

service in Vietnam for purposes of the presumption of herbicide

exposure. In view of the confusion created by the M21-1 provisions in

the Haas case, we believe it is preferable to rescind the M21-1

provisions relating to proof of service in Vietnam, including the

1991 provision at issue in Haas, the 2002 clarifying revision to that

provision, and intervening revisions. This will enable VA to clarify

and ensure that its interpretation of the governing statutory

provisions set forth in its regulation and to minimize the

possibility of a perceived or unintended inconsistency based on VA's

internal manual.

Hence, VA proposes to rescind the following manual provisions

describing service in Vietnam for the purposes of the presumption of

exposure to herbicides: M21-1, pt. III, para. 4.08(k)(1)-(2)

(November 8, 1991); M21-1, pt. III, para. 4.24(g)(1)-(2), change 23

(October 6,

1993); M21-1, pt. III, para. 4.24(g)(1)-(2), change 41 (July 12,

1995); M21-1, pt. III, para. 4.24(g)(1)-(2), change 76 (June 1,

1999); M21-1, pt. III, para. 4.24(e)(1)-(2), change 88 February 27,

2002).

Approved: November 19, 2007.

Gordon H. Mansfield,

Acting Secretary of Veterans Affairs.

[FR Doc. E7-22983 Filed 11-26-07; 8:45 am]

BILLING CODE 8320-01-P

--end--

http://www.valaw.org

[Berta]

Her VSO should be canned.

[Stretch]

Mansfield, has let me down. I don't know how he could have tried to do this. It has his name on it.