VA's Updates July 2019 AO Ships list

[Berta]

Yow-they said it would not take too long, just the other day  and they were right- I was googling a BWN veteran's  ship for him, that was apparently not on the older list and it popped right up in the New List!  Good thing I checked it out He has an AO presumptive.

[DOC]

U.S. Navy and Coast Guard ships that operated in Vietnam

 

https://www.benefits.va.gov/compensation/docs/shiplist.docx

 

 

 

 

[Berta]

That is an interesting take on Procopio that I need to find other info on.I believe we discussed here in early 2019 whether this had the same retro affects as a potential success for HR 299, which seemed for years to go no where.(But we won!!!!!!!- I am a member of the BWNVVA)

This is NVLSP's Statement on Procopio dated Feb 2019 and their advice on filing those claims based on Procipio ( which of course was before HR 299 became law-

https://www.nvlsp.org/news-and-events/news-articles/advice-for-blue-water-vietnam-veterans-about-procopio-v-wilkie-decision

Their link for the case does not work but it is here:

"CONCLUSION Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements. They are. Because “the intent of Congress is clear, that is the end of the matter.” Chevron, 467 U.S. at 842. Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus. Accordingly, we reverse. REVERSED AND REMANDED" page 19 0f 50- the full decision:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1821.Opinion.1-29-2019.pdf

If you feel you should file a CUE based on Procopio, that would depend on, in my opinion, the date of and the aspects of the last denial you got for your disability.

I don't think you would need to file CUE, but to send to the VA what NVLSP advises to send-in their article above ( but I will check their site for more recent Procopio info)

Also there are 269 BVA decisions that popped up after the Procopio decision came out- and it seems many are are remand due to the Court case.

I will read them all, and try to find more info on how vets are using this case to prove their AO claims....it will take me time............my thrill over HR 299 and the time it took a handful of advocates ( many who had no dog in the fight at all,to include of BWNVVA president John Rossie), still makes it the prime decision I have focused on. much more than Procopio----

Actually the VA should call CUE on themselves for any BWN AO vet who falls under Procopio and HR299 and Nehmer.

But unlike their attempts re: the AO IHD,Hairy Cell B, Parkinsons ,to fin affected vets or their survivors ,VA has said they will not attempt to do that this time around.

 

 

[Berta]

The first decision is a remand based on Procopio but the second one was a winner!

On August 16, 2018, the United States Court of Appeals for the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.).  The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” Consequently, a stay was placed on all the adjudication of all appeals for compensation based on alleged exposure to Herbicide Agents in the Offshore Waterways of the Republic of Vietnam. 

The U.S. Court of Appeals for the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie (17-1821), which reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008), and the stay on affected appeals was lifted. In reversing the Court’s holding, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.”  

WhOn August 16, 2018, the United States Court of Appeals for the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.).  The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” Consequently, a stay was placed on all the adjudication of all appeals for compensation based on alleged exposure to Herbicide Agents in the Offshore Waterways of the Republic of Vietnam. 

The U.S. Court of Appeals for the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie (17-1821), which reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008), and the stay on affected appeals was lifted. In reversing the Court’s holding, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.”  

While the Board acknowledges that the Veteran submitted an October 2018 Rapid Appeals Modernization Program (RAMP) opt-in election form, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program.  Accordingly, the Board will undertake appellate review of the case.  
ile the Board acknowledges that the Veteran submitted an October 2018 Rapid Appeals 
Modernization Program (RAMWhether it is as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is caused by the service-connected diabetes mellitus type II and/or coronary artery disease.

If the answer to (a) is negative, whether it is as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is aggravated (permanently worsened beyond natural progression) by the service-connected diabetes mellitus type II and/or coronary artery disease.

If the examiner finds that diabetes mellitus, type II, and/or coronary artery disease aggravates the hypertension, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for hypertension prior to aggravation. If the examiner is unable to establish a baseline for the hypertension prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.  

Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is related to his active service, including his presumed exposure to herbicides in Vietnam.  Consider and discuss NAS’s Update 2018, which reflects that NAS has placed hypertension in the category of “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018) https://www.nap.edu/read/25137/chapter/1 (page 465) (last accessed February 11, 2019). P) opt-in election form, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program.  Accordingly, the Board will undertake appellate review of the case.  

[Berta]

I am having PC  trouble due to the weather- (satellite dish modem)

This case also covers HBP due to AO and th BVA mentions the same NAS ( NAP ) report I gave you a link to the other day------

https://www.va.gov/vetapp19/files5/19137213.txt

The BVA used page 465, I used page 8 0r page 10 of the same report from the National Academy Report I posted a link to here before.

 

I will try later to post the BVA excerpts in a text format-----I hope we dont lose electric power as we did yesterday- high wind and storms.

Edited October 18, 2019 by Berta
weather at high altitude

[Berta]

Hope this comes through before I lose power:

"ORDER

Entitlement to service connection for lung cancer due to Agent Orange exposure is granted.

Entitlement to service connection for prostate cancer due to Agent Orange exposure is granted.

Entitlement to service connection for erectile dysfunction (ED), secondary to prostate cancer on a causation basis, is granted."

In a recent decision, the Federal Circuit has stated that Veterans are entitled to 38 U.S.C. § 1116 presumptions if they served within the 12 nautical miles of the Republic of Vietnam.  Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (“Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ are entitled to § 1116’s presumption if they meet the section’s other requirements.  They are”).    Based on the above evidence, the Board finds that the Veteran served in Vietnam as that term was defined by the Federal Circuit in Procopio, specifically, within the 12 nautical mile territorial sea of the ‘Republic of Vietnam’

VA’s General Counsel has indicated that some cases before the Board that were affected by the Procopio stay may be capable of immediate decision, for example if the evidence indicates that the Veteran served on board a ship that went within the 12 nautical mile territorial sea of Vietnam.  General Counsel Advisory Opinion, VAOPGADVIS 1-19 (Mar. 29, 2019).  For the above reasons, this is such case.  See also 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”).  As the Veteran has current lung cancer and prostate cancer and he is presumed to have been exposed to Agent Orange in Vietnam, service connection for lung cancer and prostate cancer is warranted on a presumptive basis."

https://www.va.gov/vetapp19/files4/19132156.txt

I will find that Prec Op from OGC, they only have one other Pres Op for 2019 at their site-not related to AO and maybe that would speed up your claim ( and mine) The stay is what many vet orgs sued wilkie over to include BWNVVA. Mybe the BVA could give me a copy.
 

[Richard Reeder]

8 hours ago, Berta said:

That is an interesting take on Procopio that I need to find other info on.I believe we discussed here in early 2019 whether this had the same retro affects as a potential success for HR 299, which seemed for years to go no where.(But we won!!!!!!!- I am a member of the BWNVVA)

This is NVLSP's Statement on Procopio dated Feb 2019 and their advice on filing those claims based on Procipio ( which of course was before HR 299 became law-

https://www.nvlsp.org/news-and-events/news-articles/advice-for-blue-water-vietnam-veterans-about-procopio-v-wilkie-decision

Their link for the case does not work but it is here:

"CONCLUSION Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements. They are. Because “the intent of Congress is clear, that is the end of the matter.” Chevron, 467 U.S. at 842. Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus. Accordingly, we reverse. REVERSED AND REMANDED" page 19 0f 50- the full decision:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1821.Opinion.1-29-2019.pdf

If you feel you should file a CUE based on Procopio, that would depend on, in my opinion, the date of and the aspects of the last denial you got for your disability.

I don't think you would need to file CUE, but to send to the VA what NVLSP advises to send-in their article above ( but I will check their site for more recent Procopio info)

Also there are 269 BVA decisions that popped up after the Procopio decision came out- and it seems many are are remand due to the Court case.

I will read them all, and try to find more info on how vets are using this case to prove their AO claims....it will take me time............my thrill over HR 299 and the time it took a handful of advocates ( many who had no dog in the fight at all,to include of BWNVVA president John Rossie), still makes it the prime decision I have focused on. much more than Procopio----

Actually the VA should call CUE on themselves for any BWN AO vet who falls under Procopio and HR299 and Nehmer.

But unlike their attempts re: the AO IHD,Hairy Cell B, Parkinsons ,to fin affected vets or their survivors ,VA has said they will not attempt to do that this time around.

 

 

What I received from the VA was dated September 9 2019 with Service connection for Prostate Cancer remains denied. It had on Rating Decision 09/03/2019. I read in my medical report that there was a question that had Agent Orange exposure? My urologist answered YES. In my opinion the VA is not during anything for Blue Water Veterans until after the stay is lifted on January 1 2020 even Veterans who already had claims in. I think that is why the VA keeps denying my claim for now.

[Berta]

I think you are absolutely correct---it appeared to me that my RO (Buffalo) held back my AO IHD claim, from the Phila RO who handles widows accrued issues now, but  I have filed it on the new accrued forms.

The Stay could be lifted- but then again the regulations have not been published.

I wonder if you are the USS Mount Katmai vet who was on the American Legion comment section.

I posted our web site there many times since September, but haven't seen any BWN vet or their survivors here yet, except for you, and the lawyer at NVLSP agred with me that VA has to do a lot more to get the word out on these significant decisions ( Procopio and HR 299) 

You could file a CUE !

With proof of your exposure ( your deck logs) and proof that you have Prostate cancer,which VA already knows, citing HR 299 ( the link is here) as well as Procopio. Maybe the CUE would get you a faster result than appealing their denial. Still it all depends on the Stay.

I was in the Gardner Moratorium ( Stay) and that caused my 1151 claim to get drawn out for many additional months, although I had already proved I fit into the Gardner decision. This is funny now but it pissed me off when it happened.... I had sent to my VARO the full settlement I had made with the USA ( under auspicesof OGC)

and it was for the same charges I had made under 1151 ( wrongful death). The RO at that point had ignored all of my probate evidence for the claim, but I felt they would award based on the settlement facts, but they denied AGAIN! I was so poed I called General Counsel and got the lawyer there who settled with me- ( I always kept notes)

I said" Tim this is Berta Simmons." ( He said "OH NO- You were so tough to deal with! What is wrong?"-I said 'the VA owes me more money----- because I guess your settlement papers with me have no interest toVA, and they ignored them and denied my 1151 AGAIN!" He as stunned to hear that, and either Bradshaw or Hipolet -OGC-( forget who) ordered my VARO to grant the claim! A mere few weeks went by and I got my 1151 award. 

As I mentioned here years ago the Philadelphia Nehmer VARO  RO denied my AO IHD death claim right away, I filed CUE the very next day, and in a few weeks I got the IHD award, a SMC CUE award ( that claim had been filed in 2003 with no BVA transfer yet, and something else forget what- the decision is 46 pages long.

My point is we deal with idiots at ROs sometimes. Or they are just poorly trained, or illiterate----

I recently gave the IG a full rundown on what happened to me as a AO widow( I have two DIC AO awards)and I fear this could happen to any widow of a BWN AO vet as well as  AO vets who fell under Nehmer 2010 and were denied for ridiculous reasons, and might never have been advised to appeal the denial.

I need to thank you Richard , for being so Well educated in the BWN AO situation!

I hope the AL comment section vets and widows do join here eventually-

because as our Motto here says "Knowledge is Power" so very true-   and particularly since the VA ( I have had claims experiences personally now for 24 years), the VA -in many cases-does not Want us to really know Anything that can get us to a successful resolve.If VA really did do all claims correctly, we would not have been here on hadit, in existence now for almost 23 years.

Thanks for telling us how recent your decision was.  And for being here-I bet many BWN vets are in the same 'boat ' as you are, denied already ,with recent decisions based on the pending regulations, and don't know what to do----unfortunately we have to wait .....

I told JR ,the president  of BWNVVA, as soon as HR 299 was signed, that I have been waiting for years to help with those claims---and he mentioned when I wrote the first tentative Amendment- and he said that was what- ten, 12 years ago? ( But Maybe just 8-9years ago but it seems like a lifetime.)

This whole thread with your posts is Very important.

NVLSP ( who won Nehmer long ago) and many vet orgs and lawyers are still telling BWN AO vets to file their claims.

This is part of email from my NVLSP contact person : (Rick was my past NVLSP contact lawyer for the AO claims of 2010 regulations.)

 

"Dear Mrs. Simmons,

  Thank you for your email. Rick Spataro is still at our firm, but currently works in another division. The Procopio decision and Blue Water Navy Vietnam Veterans Act of 2019 does grant retroactive disability benefits to Blue Water Veterans who served on ships within 12 nautical miles off the coast of Vietnam. However, the VA will not automatically review these veterans’ files, therefore we are encouraging all veterans and their surviving family members to submit renewed claims. The VA will review these cases after January 1, 2020."

 

I need to add that they also need to submit any past denial of any presumptive disability, that VA denied and coded as NSC with a rating , or 'should have coded' ( Footnote  One Nehmer ) for the best EED they can get.

 

Did they give you a prostate cancer rating on the denial or maybe they never gave you a C & P exam yet.......?

 

 

 

 

Edited October 19, 2019 by Berta