Lets Step Back From Things For A Moment And Take A Deep Breath.

[allan]

fwd from: BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION

Thursday, November 29, 2007

A Different View

Lets step back from things for a moment and take a deep breath.

In reviewing the announcement of the proposed changes to the VA's Manual that hit the presses the other day, we need to make sure we understand a couple of things about the process.

When Congress passes enabling legislation like the Agent Orange Act of 1991, the affected Department(s) re-write the law into the language of policy and regulation. So, Congress enacts a bill and it becomes a citation under United States Code or USC, the agency re-writes it into regulation entered into the Code of Federal Regulations or CFR. If the agency or department wishes to make a change to the CFR, it must announce that change in the daily called the Federal Register, which serves as the "public announcement" for the government. To make a change, the proposed change must undergo a period of public comment, in this case a 60 day period during which public comments will be accepted. The agency or department MUST accept all comments, but they are NOT compelled to act on them. Those that do are being responsible. Those that don't...

The announcement yesterday issued by DVA Acting Secretary Gordon Mansfield announced the recission of the manual change they unilaterally and without public comment instituted in 2002 and brought us all to this situation today. The action is being announced in anticipation of a loss in the Haas case. Remember, it was the DVA that appealed.

I don't believe they would have taken this action unless they were almost certain the Circuit Court's rulling will uphold the lower court's ruling in Haas against the DVA.

So what is this announcement about. On the surface it is ONLY about the recission of the manual change. Because part of the Haas decision took the DVA to task for implementing the 2002 manual change without a public comment period, the DVA is dotting its I's and crossing its T's. The DVA must ask for public comments and give details on how to make those comments.

For some strange reason, Mansfield chose to incude in this announcement the warning that he would be changing the CFR entry which defines "Service in the Republic of Vietnam". In order to do that, he would also have to put that out for public comment.

Curiously, that note, added almost as an afterthought, was very vague. Everyone assumed that it meant he would once and for all alter that section in the CFR to exclude the Blue Water Navy Veterans. But the statement does not go that far.

The change might be made to include Blue Water Navy Veterans, and accordingly,we are writing on behalf of the BWNVVA to inquire exactly what change they have in mind. So, let us cross our T's, and dot our I's as well, and slow down the attacks on the DVA. It is why I have not posted one on the Blog.

I do not believe that the DVA is willing to give up that easily, but Haas DOES include other aspects, as was evidenced by the ground covered during the oral arguments. The definition of what Service in Vietnam included was very carefully crafted into the questioning by the panel. At best guess, if there is a concession by the DVA it may be only to the 12 mile limit. Or it may go back to the Vietnam Service Medal, which I think was given to anyone who served in the Combat Zone.

So, let's take some time and find out whether we have been beating a dead horse for the past 24 hours, or whether we really should be celebrating.

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

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Source: http://vnvets.blogspot.com/2007/11/different-view.html

[Berta]

Yeah- I know this vet and I am agreeing with him to a certain extent-and I discussed the 12 mile limit thing with him weeks ago-when I heard the oral court arguments-- my greatest fear is -if Haas succeeds- that this unrealistic limit gets out into the reg-and I also fear the reg could also limit Thailand, Laos, Cambodia, Guan, Okinawa vets- etc who were exposed to AO-

A 12 mile limit is nothing- I think I was out over 12 miles from the coast on a Whale watch once in Boston-what about the rest of the Seventh Fleet?

Some of those vets have proven exposure and won AO claims-

but they provided considerable exposure detail that the BVA could not combat with evidence to the contrary-(regardless of what DOD says).

One good thing about this recent proposed reg- is that the VA did admit the last reg was illegal to they are correctly that unmistakable error themselves.

But what about the illegal moratorium on Haas claims-

I saw a Thailand claim the BVA included in the stay and it had nothing to do with Haas-

as it was a claim under 'direct SC regs' and not presumptive AO regs-

Also claims filed for the 6 month period last year when Haas was Law of the land are covered by that CAVC decision but the VA is putting some of them in the Stay scenario-

which doesnt make sense-Haas covered them -VA should decide them on the CAVC decision that stood before they started to fight it-

bottom line here is that the VA doesnt know what to do about Haas BWV claims and hopefully the Fed court will clarify it all.

I cant fit it into my profile but I am a member of the Blue Water Navy Vietnam Veterans Association and we are gearing up for the results of Haas.

Edited December 1, 2007 by Berta