hypertension Blue Water Navy

[Berta]

From Ray B. Davis email received yesterday:

I am surprised he said there are no "stays"- maybe he meant on claims filed prior to Haas?

------------------------------------------------------------------------

Subject Blue water Navy presumption of exposure to Agent Orange:

Writer question:

Hi Ray,

Any news on the appeal concerning the Haas Decision?

S.

Answer:

Dear S.,

As of the current time the law concerning service in Vietnam for

presumption of exposure to agent orange is governed by Haas v

Nicholson. I have attached two cases, one BVA case and a Veterans

Court case, both from October 2006.

If you have the qualifying service you should file a VA claim

immediately. As congress could change the Law, or the VA could

rewrite regulations in such a way as to circumvent the courts rulings.

Currently there are no "stays" (stop to adjudication of claims based

on the Haas decision, if appealed by the VA) on cases related to Haas

v Nicholson.

Sincerely,

Ray B Davis Jr

http://www.valaw.org

--- BVA case ---

Citation Nr: 0630482

Decision Date: 09/28/06 Archive Date: 10/04/06

DOCKET NO. 05-33 210 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Fort

Harrison, Montana

THE ISSUE

Entitlement to service connection for lung cancer, to include

as due to exposure to Agent Orange.

REPRESENTATION

Appellant represented by: Military Order of the Purple

Heart of the U.S.A.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Rebecca Feinberg, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1971 to March

1974 and from September 1986 to November 1991. He also

served with the Army National Guard from April 1978 to August

1983.

This matter comes to the Board of Veterans' Appeals (Board)

on appeal from a January 2005 rating decision of the

Department of Veterans Affairs (VA) Regional Office (RO). In

January 2006, the veteran testified before the undersigned

Veterans Law Judge via videoconference. A transcript of the

hearing is of record.

FINDINGS OF FACT

1. The veteran served for a period during the Vietnam War,

and his DD Form 214, shows he received the Vietnam Service

Medal.

2. Exposure to Agent Orange is presumed.

3. Currently diagnosed lung cancer is presumptively the

result of military service.

CONCLUSION OF LAW

Lung cancer was incurred in service. 38 U.S.C.A. §§ 1110,

1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes

VA's duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.

§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).

Upon receipt of a complete or substantially complete

application for benefits, VA is required to notify the

claimant and his or her representative, if any, of any

information, and any medical or lay evidence, that is

necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)

(West 2002 & Supp. 2005); 38 C.F.R. § 3.159( (2004);

Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA

notice must inform the claimant of any information and

evidence not of record (1) that is necessary to substantiate

the claim; (2) that VA will seek to provide; (3) that the

claimant is expected to provide; and (4) must ask the

claimant to provide any evidence in her or his possession

that pertains to the claim in accordance with 38 C.F.R.

§ 3.159( (1). VCAA notice should be provided to a claimant

before the initial unfavorable agency of original

jurisdiction (AOJ) decision on a claim. Pelegrini v.

Principi, 18 Vet. App. 112 (2004); see also Mayfield v.

Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Given the fully favorable determination, detailed below, the

Board finds that any error as to the content or timing of the

veteran's notice, including notice required under

Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), is

harmless error. Such deficiency will be corrected when the

veteran's award is assigned.

II. Analysis

Service connection may be granted for disability resulting

from personal injury suffered or disease contracted in the

line of duty, or for aggravation of a preexisting injury

suffered or disease contracted in the line of duty, in the

active military, naval, or air service. 38 U.S.C.A. §§ 1110,

1131; 38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease

initially diagnosed after discharge, when all the evidence,

including that pertinent to service, establishes that the

disease was incurred in service. 38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative

evidence regarding the merits of an issue material to the

determination of the matter, the benefit of the doubt in

resolving each such issue shall be given to the claimant. 38

U.S.C.A. § 5107( (West 2002).

The veteran has contended that his lung cancer is due to

exposure to Agent Orange during service.

38 U.S.C.A. § 1116(a) (West 2002) provides presumptive

service connection on the basis of herbicide exposure for

specified diseases manifested to a degree of 10 percent

within a specified period in a veteran who, during active

military, naval, or air service, served in the Republic of

Vietnam during the period beginning on January 9, 1962, and

ending on May 7, 1975. It also provides presumptive service

connection on the basis of herbicide exposure for each

additional disease that the Secretary determines in

regulations prescribed under this section warrants a

presumption of service-connection by reason of having a

positive association with exposure to an herbicide agent, and

that becomes manifest within the period (if any) prescribed

in such regulations in a veteran who, during active military,

naval, or air service, served in the Republic of Vietnam

during the period beginning on January 9, 1962, and ending on

May 7, 1975.

The following diseases shall be service connected if the

veteran was exposed to an herbicide agent during active

service, even though there is no record of such disease

during service, and provided further that the requirements of

38 C.F.R. § 3.307(d) are satisfied: chloracne or other

acneform disease consistent with chloracne, Hodgkin's

disease, type II diabetes mellitus, multiple myeloma, non-

Hodgkin's lymphoma, acute and subacute peripheral neuropathy,

porphyria cutanea tarda, prostate cancer, certain respiratory

cancers (including lung cancer), and soft tissue sarcoma. 38

C.F.R. § 3.309(e).

The Board notes the evidence of record indicates the veteran

has a current diagnosis of lung cancer. Therefore, it must

be determined whether the veteran was exposed to Agent

Orange. In this case, the veteran's DD Form 214 shows he was

in receipt of the Vietnam Service Medal.

In Haas v. Nicholson, No. 04-491 (U.S. Vet. App. Aug. 16,

2006), the U.S. Court of Appeals for Veterans Claims (Court)

indicated that for purposes of applying the presumption of

exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii),

"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 actually set foot on land in the Republic of

Vietnam. In other words, exposure to herbicides will be

presumed based on the receipt of a Vietnam Service Medal.

Therefore, while the veteran did not contend that he served

on land in Vietnam, his receipt of the Vietnam Service Medal

is acceptable proof of his service in the Republic of

Vietnam. Based on this, the Board will resolve any doubt in

favor of the veteran and find that presumptive service

connection is granted for lung cancer, based on the veteran's

presumed exposure to Agent Orange while on active duty. See

38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a);

Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

Service connection for lung cancer, to include as due to

exposure to Agent Orange, is granted, subject to the

regulatory criteria relating to the payment of monetary

awards.

____________________________________________

JEFF MARTIN

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

--- Veterans Court Case ----

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 05-3317

JACK F. THWAITES, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.

O R D E R

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

The represented appellant, Jack F. Thwaites, appeals an October 31,

2005, decision of the Board of Veterans' Appeals (Board) that, among

other things, denied service connection for diabetes mellitus

resulting from exposure to herbicides in service during the Vietnam

era. The appellant and the Secretary have filed briefs and the

appellant has filed a reply brief. This appeal is timely, and the

Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to

review this decision for which single-judge disposition is

appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

For the reasons that follow, the Court will reverse the Board's

decision to the extent it denied Mr. Thwaites the presumption of

exposure to herbicides pursuant to 38 C.F.R. §. 3.307(a)(6)(iii), and

remand for readjudication consistent with this decision. Furthermore,

the Board's denial of his claims for service connection for

circulatory disorder, glaucoma, hypertension, kidney disease,

interventricular bleeding, residuals of a stroke, and seizure

disorder, all claimed as the result of diabetes mellitus, is vacated

and remanded as these claims are dependent and inextricably

intertwined with Mr. Thwaites' claim for service connection for

diabetes mellitus.

Mr. Thwaites served on active duty in the U.S. Navy from October 1965

to July 1969, including service in the waters off the shores of

Vietnam aboard both the U.S.S. Constellation and the U.S.S. Hornet.

Record (R.) at 27, 129, 284, 619. Mr. Thwaites received the Vietnam

Service Medal (VSM), with one bronze star, the Vietnam Campaign Medal,

and the National Defense Service Medal, as a result of his service.

R. at 27. On February 1, 2002, Mr. Thwaites filed a claim for service

connection for, among other things, diabetes mellitus, which first

manifested in 1989, and asserted that all of his illnesses, including

diabetes mellitus, were the result of exposure to Agent Orange during

his service, or at the very least that his diabetes mellitus was the

result of exposure to Agent Orange and that the remaining illnesses

were the result of his diabetes mellitus. R. at 144-58. In September

2002, the regional office (RO) denied service connection for diabetes

mellitus after finding that there was no evidence that Mr. Thwaites

was ever in Vietnam, and also denied service connection for his other

illnesses. R. at 276-78. Mr. Thwaites appealed, and in October 2005,

the Board issued the decision on appeal.

In the decision on appeal, the Board found that although Mr. Thwaites

"unquestionably has diabetes mellitus," because there was no "official

documentation" indicating that Mr. Thwaites was ever in Vietnam, nor

any indication that any of the ships Mr. Thwaites served on ever "made

landfall" in Vietnam, Mr. Thwaites was not entitled to the presumption

of exposure to herbicides pursuant to 38 C.F.R. § 3.307(a)(6)(iii)

(2005). Regarding Mr. Thwaites' testimony and the lay statements

submitted by his family, the Board did not find this evidence credible

because it was not documented in any way. Rather, without any

evidence supporting such a conclusion, the Board stated that "it would

be highly improbable for the veteran to have set foot in Vietnam when

he served aboard an aircraft carrier, since he could have been flown

to another ship or back to his home port, without changing planes in

Vietnam." R. at 17. The Board subsequently denied service connection

for diabetes mellitus on both a presumptive and direct basis, and

denied service connection on a direct, presumptive, and secondary

basis for his other illnesses.

The appellant makes four assertions of error on appeal. First, he

argues that the Board misinterpreted and misapplied the presumption of

exposure to herbicides during service pursuant to 38 U.S.C. § 1116(f),

and thus, the Board's decision should be reversed. In the

alternative, the appellant next maintains that the Board's statement

of reasons and bases is inadequate because it failed to apply

correctly the presumption under 38 U.S.C. § 1116(f) and remand is

required. The appellant then asserts that the Board's determination

that he did not set foot on land in Vietnam is clearly erroneous and

should be set aside. Finally, the appellant argues that the Board

misinterpreted and misapplied the substantive rules regarding

presumption of exposure to herbicides as set forth in VA's

Adjudication Procedure Manual (M21-1). In response, the Secretary

maintains that a remand is required pursuant to the Court's decision

in Haas v. Nicholson, 20 Vet.App. 257 (2006).

In this case, the Board's finding that the appellant was not entitled

to application of the presumption of exposure to herbicides during

service must be reversed because it is based on an erroneous

interpretation of 38 U.S.C. § 1116(f) and 38 U.S.C. §

3.307(a)(6)(iii). See 38 U.S.C. § 7261(a)(3)(A); Haas, 20 Vet.App. at

279. The appellant's situation in this case mirrors that of the

appellant in Haas, supra. In Haas, the appellant served during the

Vietnam era on a ship patrolling the coastline. As a result of his

service, he also received the VSM. The Board denied the appellant

service connection on the basis that he never set foot on land in

Vietnam. See Haas, 20 Vet.App. at 260-61. In reviewing VA's

interpretation of the statute and its implementing regulation, the

Court determined that VA's interpretation of its own regulation, 38

C.F.R. § 3.307(a)(6)(iii), in which it restricted "service in the

Republic of Vietnam" to actually setting foot on land in the Republic

of Vietnam, was "inconsistent with prior, consistently held agency

views, plainly erroneous in light of its interpretation of legislative

history, and unreasonable." Haas, 20 Vet.App. at 270. The Court

concluded that § 3.307(a)(6)(iii) "must be read to include at least

service of the nature described by the appellant, that is service in

the waters near the shore of Vietnam, without regard to actual

visitation or duty on land in the Republic of Vietnam," and that part

III, paragraph 4.24(g) of the M21-1 that was in effect prior to VA's

February 2002 ultra vires rescission of that provision, was

controlling. Haas, 20 Vet.App. at 273, 279. That provision required

application of the presumption in cases in which the veteran received

the VSM and also required VA to conduct additional development in

cases in which a veteran served on a ship in the waters offshore of

Vietnam but did not receive the VSM. Haas, 20 Vet.App. at 272, 276-79.

The same M21-1 provision that controlled in Haas, supra, controls in

the instant case. In the instant case, the appellant was awarded the

VSM as a result of his service aboard the U.S.S. Constellation and

U.S.S. Hornet during the Vietnam era. Therefore, if the Board finds

that the appellant's diabetes mellitus has manifested to a degree of

10% or more disabling, service connection should be granted on a

presumptive basis. See 38 U.S.C. § 3.307(a)(6)(ii) (2005); M21-1,

part III, para. 4.24(g). Because the Board's decision was based on an

erroneous interpretation of the statute and implementing regulation,

the Court will reverse the Board's determination that the appellant

was not entitled to application of the presumption of exposure to

herbicides during service. Haas, 20 Vet.App. at 279. Because the

Board determined only that the appellant "unquestionably" has diabetes

mellitus and did not conclude that his disability had manifested to a

degree of 10% or more disabling, a remand is required for the Board to

make this determination in the first instance. See Haas, 20 Vet.App.

at 279 (noting that although Board did not challenge diagnosis of

diabetes mellitus, remand was still required for the Board to

determine whether diabetes mellitus had manifested to a degree of 10%

or more pursuant to 38 C.F.R. § 3.307(a)(6)(ii) in order to grant

service connection); cf. R. at 573 (noting that the appellant

currently takes insulin injections every morning and evening); 38

C.F.R. § 4.120, Diagnostic Code 7913 (2005) (noting that a 20%

disability rating is warranted where veteran requires insulin

injections to control diabetes mellitus). Furthermore, because the

appellant's claims for secondary service connection are dependent on

the Board's determination regarding service connection for diabetes

mellitus, the Court will vacate and remand the Board's decision as to

those claims as well. See Haas, 20 Vet.App. at 279; see also Bagwell

v. Derwinski, 9 Vet.App. 337, 339-40 (1996); Harris v. Derwinski, 1

Vet.App. 180, 183 (1991).

The Court notes that regardless of the Board's misinterpretation of 38

U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii), remand would

otherwise be warranted in this case because of the Board's failure to

provide an adequate statement of reasons and bases for its decision.

The Board must include in its decision a written statement of the

reasons or bases for its findings and conclusions, adequate to enable

an appellant to understand the precise basis for the Board's decision

as well as to facilitate review in this Court. See 38 U.S.C. §

7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.

Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this

requirement, the Board must analyze the credibility and probative

value of the evidence, account for the evidence that it finds to be

persuasive or unpersuasive, and provide the reasons for its rejection

of any material evidence favorable to the claimant. See Caluza v.

Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d. 604

(Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57. In this case, the

Board disregarded the only evidence of record - the appellant's

testimony and various lay statements submitted by friends and family

members, and service personnel records reporting that the appellant

was given temporary leave to fly home for a family medical emergency -

and chose instead to rely on its own assumption, unsupported by the

record, that the appellant's service on an aircraft carrier ipso

facto would have made it unnecessary for him to transition in Vietnam

from short range aircraft to longer range transport aircraft for his

journey home for his infant son's surgery. There is no evidence of

record supporting this assumption, and as such, the Court cannot

conclude that the Board complied with 38 U.S.C. § 7104(d).

Upon remand, the appellant is free to argue these issues and present

any additional evidence and arguments to the Board, and the Board is

required to consider them. See Kay v. Principi, 16 Vet.App. 529, 534

(2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam

order). The Court notes that recently, pursuant to Rule 30( of the

Court's Rules of Practice and Procedure, the appellant filed a copy of

the Board Chairman's Memorandum No. 01-06-24, dated September 21,

2006, which was issued in response to the Court's decision in Haas,

supra, and requires that the Board stay all cases that might be

affected by the Court's decision in Haas while the Secretary appeals

that decision to the U.S. Court of Appeals for the Federal Circuit.

The Court cautions the Secretary that it is "not proper to stay the

processing of claims in which the lawful judgment of the Court

reversing the Board's decision has been entered, no appeal has been

taken, and the mandate of the Court has been entered." Caudill v.

Nicholson, 20 Vet.App. 294, 296 (2006) (Kasold, J., concurring). The

Court expects the Secretary to provide expeditious treatment of these

matters pursuant to 38 U.S.C. § 5109B, 7112.

Upon consideration of the foregoing, it is

ORDERED that the Board's October 31, 2005, decision is REVERSED to the

extent that the Board denied the appellant the application of the

presumption of exposure to herbicides. It is further

ORDERED that the Board's decision denying service connection for

diabetes mellitus on a presumptive basis is VACATED and REMANDED for

readjudication consistent with this decision. It is further

ORDERED that the Board's decision denying secondary service connection

for a circulatory disorder, glaucoma, hypertension, kidney disease,

interventricular bleeding, residuals of a stroke, and a seizure

disorder, all claimed as the result of diabetes mellitus, is VACATED

and REMANDED for readjudication consistent with this decision.

DATED: October 16, 2006 BY THE COURT:

WILLIAM A. MOORMAN

Judge

Copies to:

Robert V. Chisholm

VA General Counsel (027)

--end

[Guest jstacy]

If we knew VA employee' that can post this ont he bulletin board at the the VAMC's with all the verterans walking right by it would be outstanding.

I believe the window is open for Blue Water Vets who served off the coast to file immediatly for the window will possibly be closing quickly.

I would also like to see Knight Riddder publish this in all of its newspapers to get the word out.

Edited December 4, 2006 by jstacy

[rthomass]

Sorry I messed up.

Edited December 5, 2006 by rthomass

[rthomass]

A Veterans Administration employee at VAMC Louisville, Kentucky has downloaded post by Berta on Navy presumption of exposure to agent orange. Will distribute to all AO Veterans at VA Hospital Louisville.

Edited December 5, 2006 by rthomass

[Stretch]

Here is what the AO hold letter looks like. Next, to it is an - uh oh - , we messed up. My claims for COPD have been requested as AO for four years. Had in a request for AO registery in early 2005.

[Berta]

When Haas came out I did all I could to contact my vet orgs and others who might need this info-

I double checked with NVLSP to make sure it applied to widows too and posted the response here-it does.

The CAVC even had a ticker up on their home page about this extremely important decision.

I passed on these 2 decisions to my vet rep yesterday-need to send them to all my vet orgs- he was not aware of them and has some Blue Water claims.

Ray B. Davis sent me email on the Stay -it appears that this affects claims after Haas but not before- I am not sure and will post it when I read it better and figure it out.

Like many veteran's issues- this type of info just doesn't reach all affected veterans.

NVO stopped publishing their newsletter and I dont know if the DAV or Legion still sends their magazine to members.

The internet is the best way for vets to get info but still how many vets have PCs.

My vet rep does not have access to the internet or the VA web site,CAVC, or M21-1 etc-at work -only if he has time at home can he catch up on these decisions.

When Allen V Principi was decided someone posted this info all over the local VA up here. Probably my vet rep did-

I bet there are potentially thousands of veterans and some widows that this decision affected that might not even know it yet.

[Stretch]

I sent recent AO VBA (Veterans Benefits Administration) directive to VARO, Haas vs. Nicholson update, that said that other claims may not be held up, and that claims involving other issues, other than AO, may not be held up as a result of AO exposure claims.

Service center manager has called me twice in one weeks trying to split-up my claims. Seems the choice is that I can have my remands decided now, or link Haas to the claims and be stalled for another year until Haas is decided at the circuit court in finality.

My COPD/Asthma is related to various chemical exposures including, JP-5, asbestos, AO, and other chemicals that were toxic. This claim can be separated, and stalled for one year, from the rest of the remands if the VBA directive is read wrongly by the VARO spinners.

ie. That other than AO was involved in my COPD/Asthma, and that not just AO was an exposure in this particular claim.

Here is another legal nightmare that the VBA and VARO, are spinning to the Veterans detriment. It is too confusing to me. I need a lawyer.

Being at the BVA (Board of Veterans Appeals) remand, past the AMC, and back at the DRO means that no VSO will get involved and that I can not get a Lawyer until after Vets lawyer bill is signed by the president and passes a 180 day period. Claims have not yet been denied by the BVA.

Any suggestions?