diabetes Agent Orange Stay

[evandc]

STAY placed on veterans claims sbmitted as a result of the Haas vs Nicholson

decision

Office of the Chairman

Board of Veterans' Appeals

Washington, D.C. 20420

Date: September 21, 2006

MEMORANDUM

NO. 01-06-24

SUBJ: PROCESSING OF CLAIMS FOR COMPENSATION BASED ON EXPOSURE TO HERBICIDES

AFFECTED BY HAAS v. NICHOLSON-IMPOSITION OF STAY

1. REFERENCES

a. Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006).

b. 38 U.S.C. 1116; 38 C.F.R. §§ 3.307, 3.309, 3.313.

c. VA Adjudication Procedure Manual M21-1, Part III, 4.08(k)(1)-(2) (Nov.

1991).

2. PURPOSE OF THIS MEMORANDUM

The purpose of this memorandum is to implement a stay, by direction of the

Secretary, on the adjudication of cases affected by the recent decision issued

by the U.S. Court of Appeals for Veterans Claims (Court) in Haas v. Nicholson,

No. 04-491 (U.S. Vet. App. August 16, 2006), as well as to set forth

procedures for handling affected cases.

3. BACKGROUND

a. In its recent decision in Haas, the Veterans Claims Court reversed a

decision of the Board of Veterans' Appeals (BVA or Board), which denied

service connection for diabetes mellitus, with peripheral neuropathy,

nephropathy, and retinopathy as a result of exposure to herbicides. The

Board determined that, although the appellant had served in the waters off

the shore of the Republic of Vietnam, such service did not warrant

application of the presumption of herbicide exposure because the appellant

never set foot on land in that country.

b. In reversing the Board's decision, the Court held that a VA manual

provision, VA Adjudication Procedure Manual M21-1, Part III, 4.08(k)(1)-(2)

(Nov. 1991), created a presumption of herbicide exposure based on receipt of

the Vietnam Service Medal for purposes of service connection for diseases

associated with herbicide exposure. In so holding, the Court found the

manual provision to be a substantive rule and invalidated a subsequent

amendment to that provision. The Court also found that neither the statute

nor the regulation governing herbicide exposure claims precludes application

of the presumption of herbicide exposure to persons who served aboard ship in

close proximity to the Republic of Vietnam.

c. Accordingly, for the purpose of applying the presumption of exposure to

herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the Court in Haas held that

"service in the Republic of Vietnam" will, in the absence of contradictory

evidence, be presumed based upon the veteran's receipt of a Vietnam Service

Medal, without any additional proof required that a veteran who served in

waters offshore of the Republic of Vietnam actually set foot on land.

d. The Department of Veterans Affairs (VA) Office of the General Counsel

(OGC) is preparing a recommendation that the Department of Justice (DOJ)

appeal Haas to the U.S. Court of Appeals for the Federal Circuit.

e. There are a potentially large number of cases on appeal (exact number not

known) that may be affected by Haas. In order to avoid burdens on the

adjudication system, delays in the adjudication of other claims, and

unnecessary expenditure of resources through remand or final adjudication of

claims based on court precedent that may ultimately be overturned on appeal,

the Secretary of Veterans Affairs issued a memorandum on September 21, 2006,

directing the Board to stay action on and refrain from remanding all claims

for service connection based on exposure to herbicides in which the only

evidence of exposure is the receipt of the Vietnam Service Medal or service

on a vessel off the shore of Vietnam.

f. As directed by the Secretary, this stay will remain in effect until such

time as either the Secretary's September 21, 2006, memorandum is rescinded,

or the General Counsel provides advice and instructions to the Board upon

resolution of the ongoing litigation. As further noted by the Secretary,

"This guidance is not intended to affect the ability of Board members to

exercise their independent discretion in the resolution of questions

presented in individual appeals."

4. IDENTIFICATION AND SCOPE

a. The specific claims affected by the stay include all claims for service

connection based on exposure to herbicides in which the only evidence of

exposure is the receipt of the Vietnam Service Medal or service on a vessel

off the shore of Vietnam.

b. Any cases not affected by the Court's decision in Haas, such as (1)

claims based on herbicide exposure in which it is clearly established on

record that the veteran did set foot in the Republic of Vietnam, or (2)

claims based on herbicide exposure in which the veteran did not set foot in

Vietnam, did not receive the Vietnam Service Medal, and did not serve off

shore of Vietnam, should continue to be processed in the usual manner.

5. VETERANS LAW JUDGE/COUNSEL HANDLING OF AFFECTED CASES

a. Notation. Upon identifying a claim that is subject to the stay, a

Veterans Law Judge (VLJ) or staff counsel should make a notation in the lower

right-hand corner of the Appeals Cover Sheet that it is a "HAAS HERBICIDE

STAY CLAIM."

b. Single-issue cases. Affected single-issue cases, as well as cases

involving an issue that is inextricably intertwined thereto (such as claims

for a total disability rating based on individual unemployability (TDIU) or

service connection for a disability as secondary to the stayed claim for

service connection based on herbicide exposure), should be forwarded to the

Decision Team Support Unit for processing in accordance with paragraph 6

below.

c. Multiple-issue cases. Some multiple-issue cases may contain issues that

are subject to the stay and others that are not. In such cases, the Board

must adjudicate, as appropriate, all issues that are not subject to the stay.

See BVA Directive 8430, para. 13 (May 17, 1999). Cases where other claims

are being adjudicated and/or remanded should contain language in the

"Introduction" that is substantially similar to the following:

The United States Court of Appeals for Veterans Claims (Court) issued a

decision in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006),

that reversed a decision of the Board of Veterans' Appeals (Board) which

denied service connection for disabilities claimed as a result of exposure to

herbicides. The United States Department of Veterans Affairs (VA) disagrees

with the Court's decision in Haas and is seeking to have this decision

appealed to the United States Court of Appeals for the Federal Circuit. To

avoid burdens on the adjudication system, delays in the adjudication of other

claims, and unnecessary expenditure of resources through remand or final

adjudication of claims based on court precedent that may ultimately be

overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs

imposed a stay at the Board on the adjudication of claims affected by Haas.

The specific claims affected by the stay include those involving claims based

on herbicide exposure in which the only evidence of exposure is the receipt of

the Vietnam Service Medal or service on a vessel off the shore of Vietnam.

Once a final decision is reached on appeal in the Haas case, the adjudication

of any cases that have been stayed will be resumed.

d. After the decision and/or remand, if any, has been signed, the VLJ should

forward the case to the Decision Team Support Unit for processing in

accordance with paragraph 6 below. For any issue being stayed, the "Stay"

disposition should be chosen when a counsel or VLJ checks out a case using

the Attorney Check In or Automated DAS programs. The name of the stay to be

chosen in the drop-down box is "Herbicide - Haas v. Nicholson."

6. MANAGEMENT AND ADMINISTRATION HANDLING OF AFFECTED CASES

a. Central Case Storage. The Central Case Storage Unit, within the Intake

Unit, will continue to distribute all cases to the Decision Teams and

Appellate Group, following normal procedures as set forth in the Board's

Central Case Storage Procedure Manual (August 18, 2006). VLJs and Board

counsel will ultimately decide if a particular appeal is subject to the stay.

No action to stay a case may be initiated by an administrative staff member,

except upon direction of a VLJ or Board Counsel.

b. Decision Team Support: Identification of a Stayed Case. Upon receipt of

a file which indicates in the lower right-hand corner of the Appeals Cover

Sheet that it includes one or more issues subject to the stay, as identified

by the notation "HAAS HERBICIDE STAY CLAIM," the Decision Team Support Unit

reviewer should make the appropriate entry in VACOLS to reflect the existence

of the stay. The name of the stay is "Herbicide - Haas v. Nicholson."

c. Procedure.

(1) Single-issue cases. For single-issue cases in which the only issue on

appeal is a claim affected by the stay, as well as cases involving an issue

that is inextricably intertwined thereto, and for which a Board decision is

not presently being issued, the Decision Team Support Unit will retain and

store the claims folder during the period of the stay. Upon receipt of the

claims folder and a determination that the case is subject to the stay, the

Decision Team Support Unit will send a letter to the appellant and/or the

appellant's designated representative, as appropriate. The letter will

notify the appellant of the stay imposed on the processing of certain

compensation claims, and that an adjudication of the claim(s) will be

deferred pending the appeal by VA of the CAVC's decision in Haas. Once a

final decision is reached on appeal in the Haas case, the adjudication of

any cases that have been stayed will be resumed.

(2) Multiple-issue cases. In multiple-issue cases where the Board is

finally disposing of and/or remanding some of the issues that are not

subject to the stay, action should be taken to dispatch the decision and/or

remand in accordance with normal procedures, making sure that appropriate

controls have been put in place with respect to the issue or issues being

stayed. Upon dispatch, the claims folder should be returned to the

appropriate agency of original jurisdiction/regional office in the usual

manner, and the Board's Appeals Cover Sheet folder should be forwarded to

the Decision Team Support Unit for retention during the period of the stay.

7. COURT REMAND CASES

A case containing a claim affected by the Haas stay that has been returned to

the Board by the Court of Appeals for Veterans Claims will generally be

handled in the same manner as non-Court remand cases. However, the

Litigation Support Division (01C2) will attempt to identify affected

single-issue cases, as well as cases involving an issue that is inextricably

intertwined thereto, and prepare and dispatch notification letters before

they are forwarded to the Decision Teams. Any questions concerning an

affected Court remand case should be raised with the Chief Counsel for

Operations or, in her absence, the Chief Counsel for Policy or the Senior

Deputy Vice Chairman.

8. RESCISSION

This memorandum is effective until expressly rescinded, modified, or superseded.

James P. Terry

Chairman

DISTRIBUTION: COE (FOR BVA USE ONLY)

Director, Compensation and Pension Service (21)

Acting VA General Counsel (02)

[john999]

I know that you can have high blood glucose levels on VAMC tests and they will not diagnose diabetes. They will say something like hyperglycemia and not make a diagosis of DMII until you file a claim and go for the C&P. Or the famous Pre-diabetes until you get to the C&P exam. So if it is pre-diabetes your secondary conditions just are not SC'ed because you don't even have the AO DMII diagosis. This did happen to me but I eventually got the DMII and the PN service connected but I had to fight for it. If I had not filed a claim I never would have gotten a DMII diagnosis. I really believe that the VA is not diagnosing DMII in RVN vets unless they file claims. It is about saving money and damn the vet. I just cannot understand that when a vet has the symptoms of DMII first recognized by the VA that this should not be an inferred claim and that something should happen. When I took the AO Registry exam the doctor told me to file a claim, but my primary doctor never said anything like that.

[Pete53]

John:

I was diagnosed in late 1995 by my Mom who actually bought a glucometer to test me for it. When I took first test my reading was 470. Looking back since 1991 the VA had high readings on many occassions and never said anything to me about it. I also had had sugar in urine.