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"boots-on-the-ground" Vietnam In-country Dva Policy/requirement For Ao Claims


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Last spring, I was rejected/denied for the 4th time by the DVA for my AO claim (I have chloracne and DMII diabetes). In 1990, the Boise VAMC took tissue samples from me during an AO screening and their doctors did find dioxin/AO in my fat tissue. I was then placed on the DVA's official Agent Orange registry, but in the same 1990 notification letter...the DVA refused to acknowledge or treat my chloracne -- even though the skin sores/lesions started during my second tour in 1972-73. The Boise VAMC doctors labeled it as a form of folliculitis (<--- spelling?) and not caused by AO exposure.

I served at Nankon Phanom Air Base (NKP) in northeasternmost Thailand (across the Mekong River from Laos). As required on occasion per Task Force Alpha, I went on interdiction missions into Laos along the Ho Chi Minh trail. The HCM trail was frequently/heavily defoliated with AO, plus the perimeter of NKP was AO defoliated. I watched the C-123s spray and knew enlisted personnel on the flightline who loaded the AO onto those planes. At our commander's meetings, we "enlisted" were told it was pesticide that was being sprayed around the base perimeter for mosquito control. How stupid did our officers think we were? After those sprayings, the mosquitoes continued to thrive, while all the plantlife died.

Back to my most recent denial: for this claim attempt - I had the DAV as my representative/service officer. The resulting DVA denial letter informed me that a review of my service records showed that I had not put "boots-on-the-ground" in-country Vietnam, therefore I was not eligible for my AO DMII claim or any other AO-related claim. My state DAV service officer then told me that I could appeal, but I would be wasting my time and everyone elses since I had not been within the borders of Vietnam proper.

I did a Google search plus a search on this forum's search engine and really didn't get any definitive insight on this "boots-on-the-ground" in-country service policy requirement for AO comp claims.

For my NKP/TFA tour, I was awarded the VSM, RVCR, and the AFCM.

On the Yahoo AO "Spring-Into-Action" forum, one of the moderators told me that former DVA Secretary Principi was responsible to this "boots-on-the-ground" in-country Vietnam policy and it was done to eliminate AO-exposed veterans like myself who served in Laos, Cambodia, and Thailand from qualifying for compensation claims....strictly a beancounting measure by Principi to reduce the number of compensated claims/awards. Is this true??

Any insight or feedback would be appreciated. -- Michael

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In those cases I posted - clearly the veterans had done a lot of leg work-

the Thailand vet's documentation was quite detailed.

Something you said in your post has bothered me-

In 1990 the VA was not doing tests on veterans for dioxin-

by 1997 - The Environmental Agency Services in conjunction with the VA Central Office determined no dioxin tests would be performed by VA :

"No special Agent Orange tests are offered since there is no test to show if a veteran's medical problem was caused by Agent Orange or other herbicides used in Vietnam. There are tests that show the level of dioxin in human fat and blood, but such tests are not done by VA because there is serious question about their value to veterans. In January 1992, VA signed a contract with the National Academy of Sciences (NAS) under which, among other things, the NAS considered the feasibility and possible value of dioxin level blood tests for Vietnam veterans who apply for VA medical care or VA disability compensation. In its July 1993 report, the NAS concluded that individual TCDD levels in Vietnam veterans are usually not meaningful because of common background exposures to TCDD, poorly understood variations among individuals in TCDD metabolism, relatively large measurement errors, and exposure to herbicides that did not contain TCDD."

This is what the medical examiner said to me in 1994 when I asked for a dioxin test during autopsy of my deceased husband. His exposure had already been confirmed anyhow by the AO Settlement Fund.

You had to prove definitive exposure as well as the fact that AO was where you were.

I dont doubt your claim- dont get me wrong-

here is a Thailand vet who could prove he had a brief stopover in Vietnam before serving in Thailand:

http://www.va.gov/vetapp05/files3/0515988.txt

He was granted Service connection for AO Diabetes mellitus.

If you could prove you did have a stop over in Nam or find detailed information as to how you were exposed to AO-this is what the VA needs.

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I hope that this addresses some of your questions, TinCupMan. I've been dissed by the DVA....yet again. -- Michael

It answered the questions I had but raised additional questions. From the VA response under "Reasons and Bases" it appears they believed you were making a presumptive claim under AO exposure for service in Vietnam. If that's an accurate assumption of your claim, you can expect to be unsuccessful. I don't know of nor have I heard of any veteran making such a claim be successful. I note the decision maker's comment: "In the Republic of Vietnam means that you must have been in-country on land," to be inaccurate. I guess that represents his understanding of OGC 27-97 but nowhere does it state anything about in-country or on land. I think he is wrong in that respect since OGC 27-97 uses various phrases such as "within the borders of the Republic of Vietnam" or "in the Republic of Vietnam" or "within the boundaries of the Republic" but doesn't require one to be on land. I know of numerous blue water awards for AO presumption where the veteran served on a deep water hull that operated on the rivers and/or certain enclosed bays. They convinced both RO's and the BVA that service on a river w/o having been on land was qualifying.

None of that helps you any as your service appears to have been exclusively outside the Republic of Vietnam. In that case you will need to prove you were exposed to AO in whatever venue you served. Some veterans have managed to prove exposure in Okinawa, Guam and a few continental sites but I don't know of one that did so for Laos or Thailand to date.

You complain the VA didn't mention your 2nd tour or your AFCM. I don't know there was a requirement to mention it and even if they considered them, I can't understand how either would have made a difference in the outcome. I guess I don't understand why that's relevant. Can you explain? ISTM, if one tour of service outside the Republic of Vietnam doesn't qualify for AO presumption why would 2 tours, and how is the AFCM relevant? Now, lots of folks seem to interpret a denial of their claim to be tantamount to the government saying they didn't participate in the Vietnam experience when all it says is they don't qualify for a presumptive claim based on AO exposure.

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It answered the questions I had but raised additional questions. From the VA response under "Reasons and Bases" it appears they believed you were making a presumptive claim under AO exposure for service in Vietnam. If that's an accurate assumption of your claim, you can expect to be unsuccessful. I don't know of nor have I heard of any veteran making such a claim be successful. I note the decision maker's comment: "In the Republic of Vietnam means that you must have been in-country on land," to be inaccurate. I guess that represents his understanding of OGC 27-97 but nowhere does it state anything about in-country or on land. I think he is wrong in that respect since OGC 27-97 uses various phrases such as "within the borders of the Republic of Vietnam" or "in the Republic of Vietnam" or "within the boundaries of the Republic" but doesn't require one to be on land.

**TinCanMan: Two things that relate to OGC 27-97. First, both the initial 11/05 denial notification from the DVA and then the DVA's subsequent reply to my written disagreement of the denial decision specifically referred to OGC 27-97 when explaining why my having never been within the borders of Vietnam was the key/legal component for my AO DMII claim denial.

Secondly, after I had carefully reviewed the contents of the 11/05 DVA notice of denial, I submitted my written disagreement to both the DVA and to the National Office of DAV. Virtually all the documents that I had provided to the state DAV SO were not amongst the items (documents/records) listed by the DVA as having been part of the review for my denial decision. Without going into lengthy details, I'll just say that during our meeting - the state DAV SO did his best to discourage me from filing the claim (specifically - paraphrasing: "since the DVA has denied the AO handlers from Korat Air Base, I didn't have a chance....that I would be wasting his time, my time, and the DVA's time by filing my AO claim.) The DAV SO also told me about the DVA's relatively new "boots-on-the-ground" Vietnam in-country requirement for AO claims and my Thailand/Laos service simply meant I would be denied. At the end of our meeting, the DAV SO reluctantly took copies my documents/records.

After I had received the DVA's 11/05 denial, the state DAV SO wouldn't return my numerous call back messages. Finally, his secretary told me bluntly that my denial was exactly as he (the SO) had told me during our only meeting and that any appeal would just be a further waste of the DAV's and DVA's time and resources.

So, my written disagreement to the DVA included a complaint about the "quality" of the state DAV SO's representation, thus my reason for sending a copy to the National DAV Office.

I then received a 3/2/05 letter from Edward R. Reese, Jr. - the National Service Director at the Disabled American Veterans National Service and Legislative Headquarters.

In that letter, DAV's Reese cites and includes passages from Title 38 of the CFR:

38 CFR 3.307(a)(6)(iii)

38 CFR 3.313

Plus two related VA Office of General Counsel (OGC) issued precedent opinions that further clarify the above two 38 CFR citations/passages:

VAOPGCPREC 7-93

VAOPGCPREC 27-97

All of these citations center around the qualifying criteria for being exposed to Agent Orange requiring having served/been physically present within the boundaries of Vietnam....and therefore - having served and been exposed to Agent Orange any where else within the Vietnam War's theater of operations -- such as in Laos, Cambodia, Thailand -- disqualifies any such service personnel from legally meeting the Agent Orange exposure qualifying criteria.

Two pertinent direct quotes from Reese's 3/2/05 DAV letter:

"Title 38 CFR 3.307 and 3.313, VAOPGCPREC 27-97 and VAOPGCPREC 7-93 all have a single common theme in addressing what entails service in Vietnam which ultimately triggers a presumption of Agent Orange exposure, i.e., requirement that a veteran actually have been present within the boundaries of Vietnam. Given your acknowledgment that you did not visit within the boundaries of Vietnam during the Vietnam era while you were stationed in Laos and Thailand, a presumption of Agent Orange exposure cannot legally be provided to you. Likewise, the presumption of service connection for disabilities associated with Agent Orange exposure cannot legally be provided to you."

"Mr. Lambright, DAV's Statement of Policy for Representation reads: "If the VA decides against you, we will, at your request, advise you about the appellate process and, based on the controlling laws and regulations, the probable outcome of your particular case." As controlling law and regulation specifically rule out the presumption of Agent Orange exposure and service connection that you seek, there is no legal basis to grant your claim and therefore DAV cannot put forth a legal and meritorious argument on your behalf."

So, TinCanMan, not only did the DAV concur with the DVA that my not having "been present within the boundaries of Vietnam" was legal grounds for my AO DMII claim being denied outright, but the DAV further added that they would no longer represent me if I decided to appeal ("there is no legal basis to grant your claim and therefore DAV cannot put forth a legal and meritorious agrument on your behalf").

I'm a lifetime member of DAV. That organization will never again merit any of my time or money. -- Michael

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In those cases I posted - clearly the veterans had done a lot of leg work-

the Thailand vet's documentation was quite detailed.

Something you said in your post has bothered me-

In 1990 the VA was not doing tests on veterans for dioxin-

by 1997 - The Environmental Agency Services in conjunction with the VA Central Office determined no dioxin tests would be performed by VA :

"No special Agent Orange tests are offered since there is no test to show if a veteran's medical problem was caused by Agent Orange or other herbicides used in Vietnam. There are tests that show the level of dioxin in human fat and blood, but such tests are not done by VA because there is serious question about their value to veterans. In January 1992, VA signed a contract with the National Academy of Sciences (NAS) under which, among other things, the NAS considered the feasibility and possible value of dioxin level blood tests for Vietnam veterans who apply for VA medical care or VA disability compensation. In its July 1993 report, the NAS concluded that individual TCDD levels in Vietnam veterans are usually not meaningful because of common background exposures to TCDD, poorly understood variations among individuals in TCDD metabolism, relatively large measurement errors, and exposure to herbicides that did not contain TCDD."

**Berta....no BS. Not only did the Boise VAMC doctors take blood, skin, and fat tissue samples from me in 1990....when I tried again to file the AO chloracne claim in 1995, the Albuquerque VAMC's Chief of Dermatology (a Dr. Paul Dunn....I'll never forget his name) took skin tissue and biopsy samples of my chloracne scars/sores. Two weeks later he informed me that all I had was "folliculitis" which had nothing to do with AO/dioxin exposure. When I asked for a copy the lab results, he had a snit for my having the "audacity" to question his medical expertise and veracity. I never did get to see those lab results. I just gave up and walked away....again. Gracias....Michael

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Michael

It would appear that you have never learned to read Government language. Nowhere, in the information you posted, did I see where you were told that you could not get an award for AO exposure.

What I saw, was that as long as you file under a PRESUMPTION, you cannot get it. This means a lot of work to prove that AO was present at your location, and that you were there at the time that AO was used.

Since you are dealing with ROs and DAV officials, none of whom are necessarily adept at interpretation of the written word, it behooves you to do your own reserach into the cited rules, regulations and procedures cited, to get a thorough understanding of what they actually say.

Some of the 'fambly; have a very good understanding of the relevant literature, but not all. TinCanMan, almost always knows what he is talking about, as does Berta and Alex. Hopefully, I do too, although my memory is not what it was.

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