Question About Bva Decisions

[Computer Tech]

I know that BVA decisions only apply to the vet that in the decision.I'm a Air Force Thailand vet that was assigned to Korat RTAFB and worked on the perimeter of Camp Friendship which was adjsent to Korat. This spring a vet who was at Korat at the same time I was and worked in the same building on the perimeter of Camp Friendship granting him service connection for DMII due to exposure to herbicides. My question is would it benefit me to submit a copy of the decision in support of my claim for DMII and IHD.

Thanks for the help.

Rick

[Capt.]

Hello Rick,

This is a great question. And it looks like that it could mean "setting precedence" but we are talking about VA law and it is much more difficult than other courts of law, where precedence is taken as literal law and supported.

I believe that this will help in your fight but in most cases the individual that is applying for say direct exposure issues utilizing this type of evidence has usually been denied by VAROs. Because each Veterans case at the Regional Office levels eyes are just that. They are different and because the ROs do whatever they want to , legal or illegal. Adjudicating a claim at that level does not mean they have to accept this duplicate type of evidence. However this means that taken at probative value in the BVA could still not be enough until it reaches the CAVA arena. Then it can mean that it could be accepted and help win your claim. So this could be a longer more prolonged battle to get your evidence accepted but at the next level or beyond. From what I have read on CAVA cases they are a Federal Court which normally takes precedence opinions and remembering that this is the Federal Court Level and not associated with VA or BVA. It could mean a looooongggg battle.

The VARO has a continous habit of trying to deny duplicate evidence from another veteran. This subject came up not long ago and I believe it was Carlie that supplied some other comments that also showed the hostile approach the ROs have with this type of evidence presenting. However I do believe in the long run it can be used but it may be later in your battle. Our own Berta Simmons has had quite some experience with this too in some other AO cases. So you may want to search her older posts and do some archive studies of BVA cases.

I will say that there was some more discussion on James Cripps case being the first Continental US Agent Orange Case from Fort Gordon , GA. Since his claim other Fort Gordon soldiers have won theirs from the same type of evidence. And I think it was at the RO level. Maybe James will be watching this thread and comment for us. Or perhaps Carlie will add to this opinion. I will tell you that I am fighting a huge battle utilizing this type of profile of evidence and it is complicated.

I hope more will chime in on this as it is going to show up more and more especially with chemical exposure Veterans from a known area that has already been deemed as contaminated from other Veterans claims. Still at any level of the process, the Veteran must remember to ......NEVER GIVE UP. God Bless, C.C.

Edited October 31, 2012 by Capt.Contaminate (see edit history)

[halos2]

Only thing I can personally say the BVA will accept internet searches that validate an illiness and case studies and tests done on others with the same diagnoses, however they would not accept actual claims previously decided copies. I did internet searches of studies done all around the world and linked to my specific diagnose. These were accepted and used along the process in my favor. Was advised not to send case claims previously done via BVA. Guess it's like using someone's term paper for your research. Again this is my personal experience and via my VSO VFW in Washington D.C. and their attorneys/legal consultants..(Also not accepted with RO) This was a few years ago...doubt it changed but one never knows...

[broncovet]

Rick:

I think I would go "one layer deeper". Let me explain.

When you get a BVA decision, they always cite precedential case law. So, if you have a similar case, dont cite the BVA case...cite instead the precedential case law cited in the BVA decision.

Its a little more complicated to go the extra level, but if you take the time to do just that, it may well be worth it for you. You see, you probably will have to cite 3 or 4 or even more CACV decisions, rather than just cite one BVA decision. Hope this helps.

I use similar BVA decisions as a "basis of study", and then study the cited CAVC decisions.

[Computer Tech]

Thanks bronco,

I've submitted the same evidence to the RO as the vet had, in fact a lot of the stuff that he submitted I had sent him. I had been wonder if I should send a copy of the vet's BVA decision more or less to tell the RO that the BVA has already ruled that the building was near the perimeter so let's not waste time and grant me service connection. I think that I'll just wait to see what they decided on my DMII NOD and reopened IHD claim. Hopefully they'll read the evidence that I've submitted instead of ignoring it.

Rick

[Capt.]

Hello Rick,

I want you to know that I did the same thing you are doing. Sent a BVA hearing that was supportive of my claim and it was banged down at the RO level. They love to use the phrase ... OF NO PROBATIVE VALUE.I know this is not what you want to hear, but it may be your ammo will be alot hotter when it gets to the BVA or above if necessary. I personally like what you are trying to do and think it will prevail , though maybe alittle later. It still is part of the Cfile and has to be dealt with by someone who can read. I also hope you have a good VARO and not one of the ones that have had nothing but trouble and delays for Veterans. You might accidentally slip this one thru. NEVER GIVE UP. God Bless, C.C.

[Computer Tech]

Hi Capt;

I don't plan to ever give up and I've already told my boys that if anything happens to me to get my claims transfered to their mother's name. I've submitted a copy of the Checo report, a map showing where my building was located in reference to the perimeter fence, a performance report that showed I was assigned to the Audodin building on Camp Friendship along with a personal statement, a buddy letter and pictures of the area. They denied the claim saying that no herbicides were used in Thailand and seeing as I didn't serve in Vietnam I couldn't have been exposed to herbicides. When I filed my NOD for DMII I resubmitted the same evidence saying that they had ignored the evidence that I had submitted, I added a copy of the May 2010 C&P bulletin in which the VA acknowledged that herbicides were sprayed on the permiters of the air bases and army camps, I also added a second buddy letter. Now I wait, been waiting since Aug of 2011. I had also filed a claim for IHD which they closed beciasue I hadn't served in Vietnam so Nehmyer didn't apply to me. I reopened the IHD claim this past March citing their ignoring the evidence that supported my claim of being exposed to herbicides. I know that I'll eventually win but I hate the idea of having to wait another three or four years for it to get to the BVA.

My claim is at the LA RO and they are backlogged, a cliam is taking over 300 days and a NOD over 600.

Rick

[Capt.]

Hello Rick, Did you file your claims under direct exposure or presumptive?

Also any environmental agency report such as Corps of Engineers or BRAC or any other agency reports could help connect those dots for them. Ihd is also what I have I went after the direct approach and have lots of evidence and I have PN without Diab II. This really messes up the VA bad. And I have Sc for lung and now have PH. So they are must rate accordingly. Anyway let me hear alittle more on your claim as it sounds like a very wellrounded one that should succeed.

The VA always denies any chemicals used but it is also funny that when it gets brought forward to the right group they end up having to try and digest it and rated. But its always on their time and they take plenty of it. They know AO was in Thailand and our own Kurt Priessman was there and won his claim. Thanks again. NEVER GIVE UP. God Bless, C.C.

Edited November 1, 2012 by Capt.Contaminate (see edit history)

[FrankieG23]

I dont know if this will help, but I used a previous BVA decision I had looked up on line to help with a denied claim for a friend of mine. I copied it and sent it in along with appeal. My friend had left tonsil cancer that was denied and he appealed it. There are cancers right in the same area that are Agent Orange service connected, but tonsil cancer isn't one of them. This BVA submitted was granted to vet for this condition, as he had an IMO, showing how close the areas in throat are. The BVA denied my friend for this condition, even tho another vet got approved. It was also the same cell type (squamous) I think alot of Vietnam Vets would probably have this condition, but when they were growing up it was very common to remove tonsils. Good luck

[Computer Tech]

Hello Rick, Did you file your claims under direct exposure or presumptive?

Also any environmental agency report such as Corps of Engineers or BRAC or any other agency reports could help connect those dots for them. Ihd is also what I have I went after the direct approach and have lots of evidence and I have PN without Diab II. This really messes up the VA bad. And I have Sc for lung and now have PH. So they are must rate accordingly. Anyway let me hear alittle more on your claim as it sounds like a very wellrounded one that should succeed.

The VA always denies any chemicals used but it is also funny that when it gets brought forward to the right group they end up having to try and digest it and rated. But its always on their time and they take plenty of it. They know AO was in Thailand and our own Kurt Priessman was there and won his claim. Thanks again. NEVER GIVE UP. God Bless, C.C.

Bronco

I've have had a 0%SC on my knees since 1972. In 2008 after I retired I started going to the VA and it was suggested that I file claims for whatever was wrong with me, heart, diabetes, feet , knees, everything was denied but the knees, they increased my left knee to 19% and left my right knee at 0%. The reasons for denial was that I hadn't served in Vietnam and couldn't where what I was claiming had occured in the service. In Oct 2009 I reopened my diabetes claim using evidence given to me by Kurt Pressman and a few things like maps and pictures that I found on the Internet, claiming that I had been exposed to herbicides in Thailand. In Nov 2009 I reopened my heart claim aas IHD and asked them to use the evidence submitted with my diabetes claim. In Oct 2010 San Diego denied my diabetes claim saying that I had never served in Vietnam, in Dec 2010 San Diego notified me that since I had not served in Vietnam Nehymer didn't apply to me and in either Jan or April of 2011 they closed the IHD claim. Aug of 2011 I filed my NOD for diabetes citing their failure to consider the evidence that I had submitted and I opened a claim for PN of all four extremities secondary to diabetes. In March of this year I reopened my IHD claim again citing their failure to consider the evidence that I had submitted. IN both my diabetes NOD and my reopened IHD claim I cited the May 2010 C&P bulletin and stated that I had worked withing a 100 to a 150 feet from the perimeter fence. So here I now wait.

Rick