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diabetes Haas V Shinseki
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Question
Berta
Although the Supremes would not hear Haas, and although the precedent-setting CAVC decision that Blue Water Navy AO vets hoped for-did not occur- Commander Haas's case is on remand at the BVA and contains an impetus for any BWV who can possibly prove direct SC of their disability -if not presumptive.
The remand in part:
"The Court agrees with the Secretary's concession of error. In its decision here on appeal, the
Board concluded that "[t]he appellant's service medical records are silent as to diabetes." R. at 5.
The Board's conclusion lacked an adequate statement of reasons or bases because it failed to address
the relevant SMRs noted above, and the decision frustrates judicial review. See 38 U.S.C. § 7104(a)
(requiring Board decision to be based on consideration of all evidence and material of record);
38 U.S.C. § 7104(d) (requiring Board decision to include reasons or bases for findings and
conclusions on all material issues of fact and law presented on the record); Allday v. Brown,
7 Vet.App. 517, 527 (1995) (holding that Board's statement must be adequate to enable a claimant
to understand the precise basis for its decision, as well as to facilitate review in this Court). Because
the Board's statement of reasons or bases is inadequate, remand is appropriate.
----------------------
The Commander clearly had noted in his SMRs tht he had abnormal glucose readings.This facet of his claim was obscured by the fact that he claimed presumptive AO SC and this part of his claim was what got so much attention in the advocacy community.
I think there are other members here of BWNVVA.
We had stunning defeats and did all we could to see Haas prevail for ALL BWVs.
But- the Haas remand shows that every BWNV MUST try to consider anything at all in their SMRs that could lend to a direct SC basis whether the disability is on the AO list or not-
not always possible but then again Nothing is impossible-
I was reading some info the other day from our der deceased member Jennie LeFevre (Agent Orange quilt of Tears)
A veteran herself she was denied DIC many times as her husband -an AO vet-had suffered and died from effects of an adenocarcinoma - a cancer not on the AO list.
Jennie proved that this condition had its true etiology in her husband's lung cancer-of a soft tissue sarcoma type ( which WAS on the AO list)
It just goes to show that diligence can pay off and BWN vets cannot give up. They cannot depend on Haas anymore for any precedental decision but need to fully access ALL iof their inservice military records to see if there is any basis for a direct SC award regarding AO or not.
GRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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