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Haas Blue Water Navy


Berta

Question

This is from Ray B. Davis to all of his readers-

I think I get this now-

The Stay is on the potential remands from the BVA to the ROs.

Why tie up the system with Remands when the final rules might prevent the need for that.

Although the stay could affect Navy vets who recently filed AO claim or haven't yet-

they certainly should file their claims ASAP anyhow.Also this allows the BVA to use their decretion in this type of claim and apparently they have done that-as the recent BVA Blue Water AO award shows.

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

Dear Readers,

We posted yesterday, information about the Haas decision wherein the

Veterans Court ruled that a veteran who received the Vietnam Service

medal, and served off shore South Vietnam during that war, was

entitled to receive a "presumption" of exposure to agent orange.

I reader sent a document which outlines the "stay order" issued by the

BVA chairman. Find the complete document below my signature.

If you have not filed a claim yet? do not wait until the stay is

lifted; it may be to late by then.

Also if you have information about veterans claims and the VA which is

not widely known? Send it to me at manager@valaw.org

Your Editor,

Ray B Davis Jr

http://www.valaw.org

--start Haas stay --

STAY placed on veterans claims submitted 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)

---end---

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

Also this is a great site too

http://bluewaternavy.org/

Lots of AO info from Taura King and others there.

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