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blahsaysme2u

Question

first question to mods here and @Tbird: can we add a section for burn pit under the specialized cases? i posted in "gulf war" cuz i didn't know where else to put my question. please move this post/question to the appropriate spot if a desginated "burn pit" cant be created. thanks in advance.

ok so i submitted a claim when i first got out back in 2008...below is the denial from the VA. if i reopen this claim based on the new law, will i be awarded SC back to 2008(along with back pay?)??? i have lots of medical records showing sinus issues to support SC but i don't even think i need that with the presumptive conditions related to burn pits added, right?

https://www.publichealth.va.gov/exposures/burnpits/index.asp

thanks guys and gals!

6. Service connection for allergic rhinitis (claimed as sinuses).
Service connection may be granted for a disability which began in military service or was
caused by some event or experience in service.
Your service treatment records were reviewed and considered with your claim for allergic
rhinitis; however, they failed to show evidence of this conditon. Please note that your
service treatment records appear incomplete. We have requested them from the Records
Management Center, St. Louis; however, they replied negatively. We also requested
them form your last unit of assignment; however, they failed to reply. If you have a copy
of them, please submit them to us and we will reevaluate your claim.
Your VA examination revealed the examiner's diagnosis of allergic rhinitis; however,
there was no evidence found relating this condition to your active military service.
Service connection for allergic rhinitis (claimed as sinuses) is denied since this condition
neither occurred in nor was caused by service.

 

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There are a few points I need to make about the new Rule :

https://www.federalregister.gov/documents/2021/08/05/2021-16693/presumptive-service-connection-for-respiratory-conditions-due-to-exposure-to-particulate-matter

I interpret this paragraph to mean that a new and initial claim under this regulation ,filed on or after August 5, 2021
will, if awarded, receive the date of the claim as the EED.

However- as it states"  or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021."

I have been concerned about that, wondering if a past rated , but now  new presumptive, in this regulation, that was  coded as NSC at least at 10%, in a past denial for the disability-  could be 
ripe for a CUE on the past decision - I am thinking of the absolute BS regarding Blue Water Navy AO veterans who VA did not want to give their proper  EEDs to- until VA conceded to the Nehmer Court Order-

But I think this regulation covers any of those claims that are still pending with the VA, and thus Should get the proper EED for their retro- date of the claim.........

But what about a pre- August 5, 2021 claim for asthma,sinitus, rhinitis that was denied and never appealed..... and out of the time frme for appeal?  therefore not pending?


"Applicability Date: The provisions of this interim final rule shall apply to all applications for service connection for asthma, rhinitis, and sinusitis based on service in the Southwest Asia theater of operations, as well as Afghanistan, Syria, Djibouti, or Uzbekistan, during the Persian Gulf War that are received by VA on or after August 5, 2021, or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021."

https://www.federalregister.gov/documents/2021/08/05/2021-16693/presumptive-service-connection-for-respiratory-conditions-due-to-exposure-to-particulate-matter


Also the MOAA web site states:

"Servicemembers whose conditions manifested and diagnosed within 10 years of qualifying service, are eligible to have their claims fast-tracked by the VA if they served:

In the Southwest Asia theater of operations beginning Aug. 2, 1990, to the present (to include Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea and the airspace above these locations), or
In Afghanistan, Uzbekistan, Syria, or Djibouti beginning Sept. 19, 2001 to the present."

https://www.moaa.org/content/publications-and-media/news-articles/2021-news-articles/advocacy/va-announces-new-3-presumptive-conditions-connected-to-burn-pit-exposure/

The VA mentions again the 10 year criteria:

"The new presumptive conditions are asthma, rhinitis, and sinusitis. To be eligible for benefits, you must have gotten one of these conditions within 10 years of your separation from active service."   Ten years from date of discharge.

https://www.publichealth.va.gov/exposures/burnpits/

And refers to the Regulation link that mentions the 'pending claims' provision.

I sure hope any vet reading the VA web site realizes how much info is in the links they post, that is not mentioned in their main articles.
I hope, as well, that our vet reps and VSOs know exactly what the regulation actually says.

(and who it covers- as per the map here etc)

In 1995-or 1996  2  state vet reps I knew asked me what I meant by the Nehmer Court Order!!!!

I was appalled at their lack of knowledge on one of the most important issues Vietnam Vets ever had.

(They were both incountry Vietnam vets as well)

"In 1991, NVLSP’s attorneys negotiated a favorable consent decree with the VA in Nehmer."

AO was the most inportant veteran issues of my life in those days-I dint have a dog in the fight until the AO IHD regs came out. My husband and I were in the Original AO settlement fund,and found out about it , I think from subscribing to Stars and Stripes newsletter.

But I wonder how many vets knew of that and how many vets out there know of the new GWV presumptives.  Without PCs and the internet ,many vets and their survivors are completely  kept in the dark.

 

 

Also this is what I meant about the BWN AO  BS:

"In an effort to secure retroactive benefits for thousands of so-called Blue Water Vietnam veterans, on July 10, 2020, NVLSP filed a motion for enforcement of the 29-year old class action Consent Decree in Nehmer v. United States Veterans Administration in the U.S. District Court for the Northern District of California. The motion was filed with the pro bono assistance of Paul Hastings LLP.

On November 5, 2020 the U.S. District Court for the Northern District of California ruled in favor of thousands of so-called Blue Water Navy Vietnam Veterans and their survivors in response to the motion filed by attorneys from NVLSP to enforce the 29-year old class action Consent Decree in Nehmer v. U.S. Department of Veterans Administration (VA) . The Court ordered the VA to automatically readjudicate thousands of benefits claims that the Court found had been wrongly denied under the Consent Decree.  The Court also ordered the VA to pay retroactive compensation if it finds the veteran served in the territorial seas of Vietnam."

https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit

I was with the original Blue Water Navy Association long ago and was stunned at the way VA tried to somehow discriminate against BWN vets who fell under Nehmer-it still pisses me off.

Here is another map from the VA web site above.

Some vets out there might not even realized that where they served in SW Asia put the into the GWV reg criteria.

 

Map of Southwest Asia with countries highlighted in which burn pits were a common practice

 

 

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@Berta that is the law that went into affect august 2021. i am specifically asking about the PACT Act that hasnt passed yet. i posted links and the wording from the new law in my previous posts. can you speak to that wording? does this fix the issue with the Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter passed in 2021?

the regulations the VA passed were done without any involvement from the public or from congress. the law congress passed was to thwart the lack of input and add to the "Presumtive" regulations that the VA put in place with added protections, like the 10 year rule. but now congress 'it seems' is trying to make better on the previous law you posted with the PACT Act. why i have been posting that everyone should contact their state reps. 

links below:

CALL YOUR CONGRESS AND REPRESENTED AND TELL THEM TO SUPPORT THIS BILL NOW!!!!!

https://iava.org/take-action/

https://www.votervoice.net/AmericanLegion/Campaigns

BURN PIT PACT ACT BILL H.R.3967:

https://www.congress.gov/bill/117th-congress/house-bill/3967/text

§ 1167. Reevaluation of compensation determinations pursuant to changes in presumptions of service connection

“(a) Reevaluation.—Except as provided in subsection (b), whenever a law, including through a regulation or Federal court decision, establishes or modifies a presumption of service connection, the Secretary shall—

“(1) identify all claims for compensation under this chapter that—

“(A) were submitted to the Secretary;

“(B) were evaluated and denied by the Secretary before the date on which such provision of law went into effect; and

“(C) might have been evaluated differently had the establishment or modification been applicable to the claim;

“(2) allow for the reevaluation of such claims at the election of the veteran; and

“(3) with respect to claims approved pursuant to such reevaluation, provide compensation under this chapter effective as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim described in paragraph (1).

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I am not well versed in the PACT Act, when I get done shovelling this week I hope, more snow today, I will try to  look into it.

I dont see how it applies however to your issue here:

"ok so i submitted a claim when i first got out back in 2008...below is the denial from the VA. if i reopen this claim based on the new law, will i be awarded SC back to 2008(along with back pay?)??? i have lots of medical records showing sinus issues to support SC but i don't even think i need that with the presumptive conditions related to burn pits added, right?"

https://www.publichealth.va.gov/exposures/burnpits/index.asp

Your denial:

"6. Service connection for allergic rhinitis (claimed as sinuses).
Service connection may be granted for a disability which began in military service or was
caused by some event or experience in service.
Your service treatment records were reviewed and considered with your claim for allergic
rhinitis; however, they failed to show evidence of this conditon. Please note that your
service treatment records appear incomplete. We have requested them from the Records
Management Center, St. Louis; however, they replied negatively. We also requested
them form your last unit of assignment; however, they failed to reply. If you have a copy
of them, please submit them to us and we will reevaluate your claim."

(did you find any of those records? did you send them any buddy statements to support the claim?)
"Your VA examination revealed the examiner's diagnosis of allergic rhinitis; however,
there was no evidence found relating this condition to your active military service.
Service connection for allergic rhinitis (claimed as sinuses) is denied since this condition
neither occurred in nor was caused by service."

Did you appeal this?

"Service connection may be granted for a disability which began in military service or was
caused by some event or experience in service."  your VA decision.

"ok so i submitted a claim when i first got out back in 2008...below is the denial from the VA. if i reopen this claim based on the new law, will i be awarded SC back to 2008(along with back pay?)???"

Not as I see it. But others might disagree.

"i have lots of medical records showing sinus issues to support SC but i don't even think i need that with the presumptive conditions related to burn pits added, right?"

I dont agree with that either. We all need to etablish an inservice  Nexus.

If you told them you had been exposed to burn pits, I think the new prrsumptive rule would possibly apply.

This vet was denied and then awarded under appeal:

https://www.va.gov/vetapp21/Files5/21030475.txt

The Board observes that there are two positive nexus opinions linking the Veteran's asthma to his service.  In  January 2017, a private examiner, Dr. D.M. noted the Veteran' diagnosis of asthma and wrote, Patient's diagnosis and exacerbation of asthma is as least as likely as not caused by his military service in Afghanistan and Iraq and specifically, [his] exposure to burn pits in those countries."  The examiner also noted that the Veteran did not have any respiratory problems prior to deployment.

 

"The Board observes that there are two positive nexus opinions linking the Veteran's asthma to his service.  In  January 2017, a private examiner, Dr. D.M. noted the Veteran' diagnosis of asthma and wrote, Patient's diagnosis and exacerbation of asthma is as least as likely as not caused by his military service in Afghanistan and Iraq and specifically, [his] exposure to burn pits in those countries."  The examiner also noted that the Veteran did not have any respiratory problems prior to deployment."

You would still need what this vet needed, a positive nexus and no 'respiratory problems' prior to service.

But others will chime in. 

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ill give you a chance to review the new PACT Act.

but my understanding with limited knowledge in regs and laws is:

the parts i highlighted in RED say "Reevaluation" for claims and list conditions.. and then it specifically calls out "were evaluated and denied by the Secretary before the date on which such provision of law went into effect"

to me this means if i had a previous denial, before the PACT Act goes into effect, it would get reevaluated and then in paragraph (3) says provide an EED date of the submission of the original claim described in paragraph (1)

i am not a lawyer and i am not as familiar as you in these bills and regulations, but this seems to me to give vets with previously denied claims an EED to the original denial after being reevaluated. but i could be wrong?

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https://www.congress.gov/bill/117th-congress/house-bill/3967/text?r=61&s=1

It contains this:    YIPPEE!!!!!!! and I hope it intends that provision to fall under Nehmer.

It also contains other GREAT  stuff to help vets, but I dont have time to read it-yet-

  • Expand Agent Orange exposure & add hypertension and MGUS to the list of presumptions

As to the burn pit issue:

"§ 1120. Presumption of service connection for certain diseases associated with exposure to burn pits and other toxins

“(a) Presumption Of Service Connection.—For the purposes of section 1110 of this title, and subject to section 1113 of this title, a disease specified in subsection (b) becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated during active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service."

And under Reealuation:

“(a) Reevaluation.—Except as provided in subsection (b), whenever a law, including through a regulation or Federal court decision, establishes or modifies a presumption of service connection, the Secretary shall—

“(1) identify all claims for compensation under this chapter that—

“(A) were submitted to the Secretary;

“(B) were evaluated and denied by the Secretary before the date on which such provision of law went into effect; and

“(C) might have been evaluated differently had the establishment or modification been applicable to the claim;

“(2) allow for the reevaluation of such claims at the election of the veteran; and

“(3) with respect to claims approved pursuant to such reevaluation, provide compensation under this chapter effective as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim described in paragraph (1)."

Great!

However if you didnt state Burn pits as the cause of your disability in an older denied claim, and the VA found no nexus when they denied your older claim, I don't foresee them re evaluating the older claim. They might however, but I dont see how they could establish retro to the older claim, since it had no nexus statement for your disabiity to burn pits  and the older claim did not state 'due to burn pits', as I understand your posts.And I have no idea how they even rated it -if they did.

Retro on reviews of prior VA decisions -involve a potential retro amount ,based on a rating.

 

What rating did the VA give you?

 

They said in the denial above that they would reevaluate your past claim, if you sent them info they needed. Some buddy letters might have helped as well as to the "incurred in " part below,

If you had private treament records soon after service for the disability that too would have helped a lot.

Maybe they even missed some entries into your SMRs that revealed a service nexus.

Maybe even a doctor's entry for  script for Benadryl.

VA stated:

"Your VA examination revealed the examiner's diagnosis of allergic rhinitis; however,
there was no evidence found relating this condition to your active military service.
Service connection for allergic rhinitis (claimed as sinuses) is denied since this condition
neither occurred in nor was caused by service."

I cant add anything more but others might see this far differnently than I do.

 

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  • Content Curator/HadIt.com Elder
1 hour ago, Mr.B said:

Burn pits ? They burn everything on Korean base like Suwon and Kunsan AB!  I remember it use to burn our eyes! 

They did it too in Seoul at Yongsan, military and civilian alike

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Same in Bucca, Iraq, everything, trash, med waste, HMMV carcases, everything and anything add a little JP8 and JP4 some diesel and well cancers and respiratory issues galore.   Then the VA has the gall to deny claims based on exposure.  Holy Bat crap, Batman,   ZOINK!!!!

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Don't get me wrong, this will be fantastic for the Veterans that haven't passed away or are coming close but seriously.  I do have some, feelings of guilt though.  When it is all said and done, too many of us will have paid with our health and lives and that fills me with sadness.  At least it appears that we may have swifter justice than that of Veterans from previous eras, however, this issue will have ramifications for years, decades to come.   This is taking into consideration the oaths service men and women take to defend our nation but man it is a stiff exchange in some respects.

My hope and desire is the WE do things better for future Armed Forces generations.   It needs to be better.   It is necessary for it to be better.   

In any case I will stop.  This is still FANTASTIC news and developments.   HOOORAHH!

 

These opinions are my own. No disrespect intended or meant.

Edited by ArNG11
disclaimer (see edit history)
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This is the main problem-

these bills take SO LONG to get anywhere-

Due to a WH call I made well over 2 year ago and a referal by the White House to the Accountability Office that President Trump set up, a bill was prepared by the Senate.

This bill came about after over 2 decades of investigative work I did on this issue and I supported my WH complaint  and the VA Office of Accountability contact person with considerable evidence.

This is the status today of that bill:

01/14/2020 House Referred to the Subcommittee on Health.
Action By: Committee on Veterans' Affairs

https://www.congress.gov/bill/116th-congress/senate-bill/221/all-actions?overview=closed#tabs

It has been sitting there in committee for over 2 years.

The entire purpose of this bill and my years of accumulating probative evidence for it was

to SAVE LIVES!

Part of my evidence was the fact that the VA has continued ,for decades, to disregard the Mandate of the NPDB and their reporting obligations as to any VA medical profesional who has harmed or caused the death of veterans by proven malpractice.

I have already posted a lot  more info here over the years ,on the NPDB mandate and it's importance to ANYONE-, vets or CHAMPVA recipients, even civilians who get medical care from VA. 

I know a civilian who worked for the local VAMC whose lawyer got her a FTCA settlement due to medical ER negligence at that VA.

The Public, to Include Congress itself will never know how much negligence and malpractice has occured at VAMCs , due to proven cases iof 1151 awards and/or FTCA settlements, etc. until the VA starts to honor the mandate properly.

 

I had to pepare and send to every sponsor on this bill (in early 2019 I think-) corrections to the original bill they prepared. None of them on the committee that prepared the Bill ever served our country so they had No idea of how  the VA medical care system works.

As ArNG said"My hope and desire is the WE do things better for future Armed Forces generations.   It needs to be better.   It is necessary for it to be better. "

He is Right!

But how long is the PACT Act going to take- it covers multiple significant didability issues from a myraid of toxin exposures - yet- how many veterans will die in the meantime ,with valid disability issues  the Bill will cover.

Have anyone here checked to see if the Bill's sponsors are veterans?

 

 

 

 

 

 

Edited by Berta
CTS (see edit history)
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is that how it worked for nehmer and blue water? their previous claims had to state "caused by AO"? if so i was unaware of that and that seems ridic since we didnt know these relations as soon as these vets got back. same for burn pits. and sad for vets that had cancer claims that were denied that can now be SC to burn pits, that they wouldnt get awarded unless they mentioned burn pits in their claims previously.

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I sure dont intend to diminish civilians- I am a civilian, and Secretary Mc Donough =so far m and former Sec Dr Shulkin are examples of excellence ( in my opinion) in their willingness to help veterans

as civilians.- but I  asked because veterans in Congress and Senate have a better handle of the VA

claims process and VA health care system if they have ever experienced it.

To add ---to compare  the Nehmer Court Order and these other types of toxin claims in the bill-is like comparing canned shrinp to fresh Alaskan king Crab.

ALL vets who served in Vietnam during the Vietnam War have been conceded to have been exposed to AO.

Blue Water Navy veterans could only have their exposure conceded if they served within the 10 mile limit, 

and their ship logs put them into  the proper time frame and 10 mile limit.

I am very proud of how nany of these veterans got their ships put onto the VA ships list by accessing all of the evidence they needed to do that, and thus other veterans could tell VA they were on the same AO exposed ship, and if they fit into the criteria for dates, and ship log info, they succeeded in their AO claims.

Conus AO vets,C 123 AO vets, Korean AO vets , Thailand AO vets, Okinawa AO vets, etc etc etc all had to prove their exposure to AO had caused them to have a presumptive (one and sometimes more then one) disabilitydue to AO.

There are cases in the 2021 BVA decisions that show the BVA is properly referencing  the proper parts of the PACT Act as to claims still in the appeals process:

"The evidence of record demonstrates that the Veteran has current disabilities of chronic sinusitis and asthma, and that served in the Southwest Asia theater of operations during the Persian Gulf War, where he was exposed to inhaled particulate matter from burn pits. The weight of the evidence is found to have at least reached the point of equipoise on the question of whether the Veteran's chronic sinusitis and asthma are etiologically related to his in-service exposures. The Board will therefore resolve all reasonable doubt in favor of the Veteran in finding that entitlement to service connection for chronic sinusitis and asthma is warranted on a direct basis."

The claim is on remand for other issues.

A key part of the above statement is the word "chronic" so I assume the veteran had treatment records of these disabilities since sometime after service.

It appears the award was based on a denial the veteran appealed that was from a  claim he filed that garnered a negative C & P exam in 2017 regarding the awarded conditions.He could have even been denied prior to that but never appealed.

I think his EED for the particulate disabilities will be prior to 2017.

This is how I understand the PACT bill would work.

 

 

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Forgot- this is the BVA link to the above decision:

https://www.va.gov/vetapp21/Files10/21063888.txt

In this case  the AFghanistan veteran had SMRs to bolster her claim:

https://www.va.gov/vetapp21/Files11/21066538.txt

(weather affecting my sat dish-cant post as plain text-)

"Therefore, as sinusitis and rhinitis are each one of the chronic diseases presumed to be associated with exposure to fine, particulate matter, service connection is warranted on a presumptive basis as sinusitis and rhinitis were diagnosed within 10 years of the Veteran's separation from service as well as her service in Afghanistan. The claims are granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, supra."

She got  crappy C & P exam and BVA gave it little weight.

Please note the Ten Year criteria for these claims.

"service connection is warranted on a presumptive basis as sinusitis and rhinitis were diagnosed within 10 years of the Veteran's separation from service as well as her service in Afghanistan."

BVA above ibid.

My search link here popped up 996 "particulate  matter" claims.

https://search.usa.gov/search?affiliate=bvadecisions&commit=Search&page=5&query=Particulate+matter+&sort_by=

BVA  denials are as important as their awards.

 

 

As of August 5, 2021, uAs of August 5, 2021, under 38 C.F.R. § 3.320, if a veteran was exposed to particulate matter during active military service, certain chronic diseases, including asthma, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service as defined in 38 C.F.R.                   § 3.320(a)(4), except as provided in 38 C.F.R. § 3.320(b) or if there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. 38 C.F.R. § 3.320.
nder 38 C.F.R. § 3.320, ifAs of August 5, 2021, under 38 C.F.R. § 3.320, if a veteran was exposed to particulate matter during active military service, certain chronic diseases, including asthma, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service as defined in 38 C.F.R.                   § 3.320(a)(4), except as provided in 38 C.F.R. § 3.320(b) or if there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. 38 C.F.R. § 3.320.
 a https://www.va.gov/vetapp21/Files11/21066538.txtveteran was exposed to particulate matter during active military service, certain chronic diseases, including asthma, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service as defined in 38 C.F.R.                   § 3.320(a)(4), except as provided in 38 C.F.R. § 3.320(b) or if there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. 38 C.F.R. § 3.320.
Edited by Berta
weather access problem (see edit history)
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I won't get hopeful on my claims until the Board makes a decision with my last set of appeals, but I am hopeful.  It is not for the extra cash, but rather the acknowledgement that the Burn Pits did cause health issues and therefore Veterans are entitled to care and compensation. Still it is great to see some positive turn around on the Burn Pit fiascos.

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During my service in Vietnam I was exposed to fumes from burning shit every day for a year.  I wonder how that has affected me over the years?  First thing and last thing you smell when you get to Vietnam was burning shit.  Now we get money for AO if we have AO disease, but nothing for horrible fumes from diesel and crap burning in your face.

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On 1/31/2022 at 5:58 AM, Berta said:

But the problem was put ratherly bluntly by a former member Pete Sawyer -on the older hadit board-

Getting vets to unite to do something ,he said, to affect the VA, is like "herding cats."

 

I agree with you "Getting vets to unite to do something ,he said, to affect the VA, is like "herding cats."

The problem is we have a cat farm and every time I come in the gate I have to herd them up to the house. (Got em trained now.)

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