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Korean Dioxin/herbicide Veterans



  • HadIt.com Elder

Korean Dioxin/Herbicide Veterans

The VA just continues with its' injustice.




To Congressman Filner and Senator Akaka

Attn: Ms. Sharon Schultze and (yes Ms. Schultze I am angry!)

Ms. Schultze, Please pass this on - that this is why Veterans and their families have an a legitimate grip about how our congress has let Veterans Affairs get a way with compared to what Congress has said they intended for Veterans as well as their families, which at least should be some honesty and integrity by VA.


Congressman Filner,

You asked for help in your radio broadcast in resolving some of these issues and getting the backlog of claims down.

This is a prime example of a case and similar case that should have been decided at local VA levels in two months time frame; not years and end up at BVA levels.

It is obvious when it comes to the Korean Veterans with herbicide exposures that your dates in your proposed bill is different than the Department of Defense’s cut off dates as I elaborate more on in this case analysis.

I can understand the later date if you are taking into consideration the very minimum half-life of the dioxins. If this is not the case, then something is terribly wrong with our Korean Veterans being denied that would have been inclusive in your bill. I cannot understand the earlier date unless congress has data that the Department of Defense/VA is not passing on to our Veterans and then not applying that in their so-called legal system.

To at least solve the issues with the Korean Herbicide Victims. The inclusive dates should at least be what congress is proposing as law. EPA in their fact sheet records the following technical information. {Reference EPA Technical Fact sheet on: DIOXIN (2,3,7,8-TCDD)} You will note that this EPA fact sheet concludes: (The persistence half-life of TCDD on soil surfaces may vary from less than 1 yr to 3 yrs, but half-lives in soil interiors may be as long as 12 years. Therefore, there could be a difference in whether a victim made surface contact or was involved in soil interior contact in the performance of his or her duties, Veteran or civilian.

What also must be considered is what toxicity was the soil or subsoil at originally. The consideration must be that even at miniscule levels of toxicity can be detrimental. Even two maximum half-lives on surface containments may not be enough to guarantee no damages because of toxicity. This can only be determined by monitoring the soil and subsoil at those areas that were known to be contaminated. When the toxicity is below 5 parts per trillion then at that time according to some studies that should be the cutoff. That seems to meet the consideration and definition of a “low-level exposure.”

As you will see in the review of the one claim the insurmountable legal mandates that VA is putting on the Korean Veterans mostly because of Department of Defense lies and the VA’s mandate to stall and deny to the death of the Veterans.

If the VA had been responsible enough to create at least a presumption of herbicide exposures since the Veterans were in or near where the widespread use of these herbicides was used; then the backlog of BVA claims would not be at the level they are for at least the Korean Veterans. Those units that served on the DMZ have been identified and certainly, that should be enough to prove exposures at soil or subsoil contaminations, much less the water that was, no doubt, contaminated.

The dates of inclusion should be at least your starting date of September 1, 1967, which might also bring in more units as inclusive.

The ending inclusive date just for surface soil or dust contact should be at least three years after the last date of contamination. Given that, congress can get the Department of Defense and its Secretaries to tell the truth.

I am also concerned that the application in Korea was different than Vietnam. Korea seemed to use some form of pellets in their application. While that might have kept down the drift rates one has to wonder what that did to the subsoil. It is doubtful the EPA in their half life technical fact sheet considered that method of application and the resulting leaching over time of the dioxin pellets as opposed to air drying or exposure to sunlight of the normally used liquid mixtures used in farms and of course in Vietnam.

Obviously a few mandates to the VA regarding this issue would make the cases decided at local VA levels and not stalled for decades adding to the already massive amount of back log and continues to grow. Just as obviously for all the wrong reasons.

If you choose to at least consider what I have recommended then all Korean Veteran cases must be mandated for review should you choose to challenge the VA and its lawyers and judges who do not work for the best interest of the Veteran or his family but only for the Department of Defense/VA/White House to keep down the cost of their own mistakes, not the Veterans.


Congressman Filner,

I have another Korean Veteran that developed skin issues in 1979 and now has stage three-lung cancer as well as Chronic Lymphocytic Leukemia – three of which are associated to dioxin exposures. He also is being denied for the same issues as this documented case and that is outside the time line of what this so called court allows. Yet, clearly he would be within your time line in your bill of presumptive exposures in your proposed law. Including he served with one of the outfits that is recognized to have been located in or around the DMZ. The issue is he also was a little outside of what you will see the Court lawyer deems as wide spread usage of herbicides.

I think you will agree that the only reason these men are being denied on the facts is the VA court allows this type of criminal legal behavior to continue, not only in Board lawyers but also Board judges.

Have one of you GAO statisticians do the statistical analysis of the odds of a person developing three associated issues to a single herbicide. The person was known to be in the area of that herbicide. Then calculate the odds of that herbicide not being associated.

In his case, he was on the DMZ on 10/69 to 11/70. Clearly, this is only six to seven months outside the date of what we “think” was the end of spraying. Just as clear this Veteran is inside your proposed bill by at least two years. Yet, the despicable VA denies him.


I would ask all on my e-mail lists to pass this on to their respective congressman and senators also as soon as you can!


This is a comparison of how our Vets are treated by VA in comparison of how the proposed new Civilian AO bill is worded.

Citation Nr: 0428959

Decision Date: 10/21/04 Archive Date: 10/28/04

DOCKET NO. 03-07 622) DATE

On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO) in

Huntington, West Virginia


Entitlement to service connection for diabetes mellitus,

claimed as secondary to herbicide exposure.


Appellant represented by: West Virginia Department of

Veterans Affairs




M.Cooper, Counsel

Mr. Cooper, in my opinion, should be charged with incompetence.


The veteran served on active duty from May 1969 to August


This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a January 2003 RO decision which

denied service connection diabetes mellitus.

A video conference hearing was held in June 2004, before the

Veterans Law Judge signing this document. The Veterans Law

Judge had been designated by the Chairman to conduct the

hearing pursuant to 38 U.S.C.A. § 7102 (West 2002). A

transcript of the hearing testimony has been associated with

the claims file.


1. All relevant available evidence necessary for an

equitable disposition of the appropriate claims addressed by

this decision has been obtained by the RO.

2. The veteran served a part of his active duty in Korea

from 1970 to 1971; he did not serve in the Republic of

Vietnam, and exposure to Agent Orange has not been shown.

…, and exposure to Agent Orange has not been shown.

Does the Veteran have to demonstrate remarkable exposure to toxic chemicals when he was in a known area of usage? An area that is not clearly defined and a Veteran had neither idea of the herbicide usage nor the ramifications of such exposures until decades later. The logical answer should be OF COURSE NOT.

The new proposed Congressional Bill for civilians documents a common sense approach to the issue with the following:

“(II) in or near the Korean demilitarized zone during the period beginning September 1, 1967, and ending on August 31, 1971;”

3. Diabetes mellitus was not evident during service or until

many years thereafter and is not shown to be the result of

any in-service event.

This dumb statement is clearly made by someone who has no idea what in the heck they are talking about in context. Yes, there was no evidence diabetes mellitus until many years after because that is the etiology of the dioxin or herbicide caused diabetes mellitus. Vietnam Veterans coming out of Nam did not develop diabetes until many years or decades later in life. Now this fact is seemingly used against the Veteran in this Kangaroo Court as a negative for him.


Diabetes mellitus was neither incurred in nor aggravated by

service nor may it be presumed to have been incurred therein.

38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R.

§§ 3.303, 3.307, 3.309 (2003).


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), now

codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5106, 5107, 5126 (West 2002 & Supp. 2004) redefines

the obligations of VA with respect to the duty to assist,

including to obtain medical opinions where necessary, and

includes an enhanced duty to notify a claimant as to the

information and evidence necessary to substantiate a claim

for VA benefits.

VA has a duty to notify the claimant of the evidence needed

to substantiate his claim, of what evidence he is responsible

for obtaining and of what evidence VA will undertake to

obtain. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v.

Principi, 16 Vet. App. 183 (2002).

The United States Court of Appeals for Veteran Claim's

(Court's) decision in Pelegrini v. Principi, 18 Vet. App.

112, 120-1 (2004) held, in part, that a VCAA notice

consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R.

§ 3.159(b) (2003) (implementing the VCAA) must: (1) inform

the claimant about the information and evidence not of record

that is necessary to substantiate the claim; (2) inform the

claimant about the information and evidence that VA will seek

to provide; (3) inform the claimant about the information and

evidence the claimant is expected to provide; and (4) request

or tell the claimant to provide any evidence in the

claimant's possession that pertains to the claim. This new

"fourth element" of the notice requirement comes from the

language of 38 C.F.R. § 3.159(b)(1).

In correspondence dated in October 2002, the RO provided

notice as to what evidence the veteran was responsible for,

and what evidence VA would undertake to obtain. In the

statement of the case and supplemental statements of the

case, the RO informed the veteran of what the evidence needed

to show, in order to substantiate the claims on appeal.

The October 2002 letter told the veteran to furnish

information with regard to any person having relevant

evidence, and advised him that he could furnish private

records. This information should have put him on notice to

submit relevant evidence in his possession.

In addition, it is noted in Pelegrini, the majority expressed

the view that a claimant was entitled to VCAA notice prior to

initial adjudication of the claim. Pelegrini v. Principi, at

119-20. In this case, the veteran received VCAA notice prior

to the initial adjudication of his claim for service


Under the VCAA, VA is obliged to provide an examination when

the record contains competent evidence that the claimant has

a current disability or signs and symptoms of a current

disability, the record indicates that the disability or signs

and symptoms of disability may be associated with active

service; and the record does not contain sufficient

information to make a decision on the claim. 38 U.S.C.A.

§ 5103A(d) (West 2002). The evidence of a link between

current disability and service must be competent. Wells v.

Principi, 326 F.3d 1381 (Fed. Cir. 2003).

The veteran has not been provided a VA examination. However,

as will be discussed in greater detail below, there is no

competent evidence that his current diabetes mellitus is

related to service, including as due to herbicide exposure.

In some cases, the veteran's report of a continuity of

symptomatology can serve as competent evidence linking a

current disability to service. Charles v. Principi, 16 Vet.

App. 370 (2002). However, the veteran has not claimed, nor

does the evidence reflect that diabetes mellitus began during

a period of active duty. He instead maintains that his

current diabetes mellitus began many years after his

discharge from active duty and that service connection is for

such is warranted on a presumptive basis due to herbicide

exposure during his service in Korea.

Just as he should be maintaining.

VA has also obtained all relevant treatment records. These

actions have complied with VA's duty to assist the veteran

with the development of his claim. 38 U.S.C.A. § 5103A (West


I can testify anytime that Congressman Filner or any other oversight committee wants that the above topic of “Duty to Notify and Assist” is garbage. I did all of the above, brought my evidence to my BVA with a prepared 20-minute presentation, and was denied by the Veterans Affair judge that did not want to hear my data and evidence regarding my case. I would assume she was late for her flight back to DC. My wife had a shopping cart full of data, statistics, Ranch Hand transcripts, and congressional transcripts, study data of both civilian and Vietnam Veterans. After waiting for five years, this judge denied me that right. Therefore, this topic should include a disclaimer by the Secretary of the VA that any data collected for your case “shall not be allowed to be presented under oath,” as the VA really does not want nor care about justice - only management bonuses!

Factual Background

A review of his service medical records is entirely negative

for treatment, complaints, or clinical findings of diabetes

mellitus or symptoms of any endocrine disorder.

Just as it should be!

Service personnel records reflect that the veteran served on

active duty in Korea from March 1970 to April 1971. He also

served in Germany from May 1971 to April 1972. No other

periods of overseas active duty service have been shown.

Private medical records dated from March 1999 to June 2001

reflect that the veteran's blood glucose readings were

consistently within normal limits.

Once again, the above statement because of the continuous Department of Defense study lies means nothing to this case for this veteran when discussing Diabetes Mellitus for the toxic chemical exposed Veteran. Why?

Here is why?

In several Ranch Hand transcripts, there were discussions of why 37% of those cohorts that were diagnosed with diabetes mellitus yet testing for A1C were normal. In fact, if the Veteran were not tested properly, at the proper insulin cycle timing the testing would be normal. However, when looked at in a different form of testing such as an oral testing the pattern of non-insulin control is clear. Of course one of the ramifications of this is damage is being done long before, in many cases by accident, the testing is done at the right time and the right conditions and only then detecting the insulin issues and more than likely the insulin resistance creating damages in nerve, vascular, and/or kidney disease.

VA medical records dated from January 2002 to August 2002

reflect treatment for a variety of disorders including

diabetes mellitus, hypertension, obesity, atypical chest

pain, and degenerative joint disease. On VA Agent Orange

examination in July 2002, the veteran related that the served

in Korea from 1969 to 1970 as a combat engineer. He

indicated that he recalled spraying Agent Orange but did not

handle it. The diagnostic assessment included non-insulin

dependent diabetes mellitus, diet controlled with no family

history of diabetes. The examiner indicated that such could

be related to Agent Orange.

We know by VA’s own Dr. Kang’s recent studies that hypertension was found significant, the joint issues are also common with Vietnam Veterans and has been known since 1985 (with or without diabetes), we also know that lipid metabolism issues are a result of the exposures. We also know by other studies done on their Vietnam Veterans that cardiovascular issues are significant. If not for the Department of Defense lies and the flawed Ranch Hand study, we would know from our own government entities.

The veteran submitted copies of Internet articles related to

the use of Agent Orange during the Vietnam War. The articles

noted that use of herbicides has been shown to result in a

wide range of organ and metabolic dysfunctions.

The Veteran used Internet articles because of once again of the continuous Department of Defense study lies.

In his February 2003 notice of disagreement, the veteran

indicated that he served in Korea from April 1970 to March

1971; one year after use of Agent Orange was discontinued in

the demilitarized zone (DMZ) in Korea. He stated that he

participated in the construction of a chain link fence which

involved digging holes several feet deep into soil that, he

alleged, had been contaminated the previous year by Agent

Orange. The veteran maintained that he was exposed to Agent

Orange at that time.

Even this is not needed for exposure verification. If the Veteran was in or close to an area that was sprayed he was exposed. If he drank the water, he was exposed. If he rode on a dirt road with any dust particles, he was exposed reference Times Beach, Missouri. If he rode in a convoy he was exposed to possible, dioxins mixed with fuel (reference Emergency MACV Directive to all commands in 1969 issued by Fort Detrick, Maryland on proper decontamination before used in PLO storage).

In his substantive appeal, the veteran contended that he

served in the DMZ in Korea only a year after widespread use

of Agent Orange had been discontinued.

He asserted that

since the chemical half-life of Agent Orange was three years,

it was as deadly as the day it was sprayed.

The Veteran is correct! {Reference EPA Technical Fact sheet on: DIOXIN (2,3,7,8-TCDD)} You will note that this EPA fact sheet concludes: (The persistence half-life of TCDD on soil surfaces may vary from less than 1 yr to 3 yrs, but half-lives in soil interiors may be as long as 12 years. Screening studies have shown that TCDD is generally resistant to biodegradation.) Even this fact is probably minimized. Nevertheless, lets look at it logically and conclude that yes, it was even one year or six months even. No dose rate has been established for diabetes regardless of what the toxicity was when the soldier was there; only that it was there. What difference does it make in a legal case unless the denying VA can prove the half life at the time of exposures was not sufficient enough to create any associated dioxin or herbicide disorders? The logical real legal system would presume that the givens point to known exposures. Exposures known to cause the disorders at any level of exposure, everyone is different biologically.

During the June 2004 videoconference hearing, the veteran

testified that he was diagnosed with diabetes mellitus during

an Agent Orange examination. He said that he worked as a

truck driver during active service and was involved in

transporting workers as they sprayed chemicals on the

perimeter of the demilitarized zone. He did not know what

the chemicals were, but believed they were herbicides. He

again reported that he had been involved in digging fence

posts along the demilitarized zone in Korea. He stated that

there was no history of diabetes mellitus in his family, with

the exception of his brother who served in Vietnam.

Legal Criteria

Service connection may be granted for disability resulting

from personal injury suffered or disease contracted during

active military service, or for aggravation of a pre-existing

injury or disease during such service. 38 U.S.C.A. § 1110;

38 C.F.R. §§ 3.303.

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).

A disease associated with exposure to certain herbicide

agents, listed in 38 C.F.R. § 3.309 will be considered to

have been incurred in service under the circumstances

outlined in this section even though there is no evidence of

such disease during the period of service. No condition

other than one listed in 38 C.F.R. § 3.309(a) will be

considered chronic. 38 U.S.C.A. §§ 1112, 1113, 1116 (West

2002); 38 C.F.R. §§ 3.307, 3.309 (2003).

A veteran who, during active military, naval, or air service,

served in the Republic of Vietnam during the Vietnam era

shall be presumed to have been exposed during such service to

a herbicide agent, unless there is affirmative evidence to

establish that the veteran was not exposed to any such agent

during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R.

§§ 3.307, 3.309.

Another issue regarding our Korean Veterans that were exposed. For Vietnam Veterans the rule is as follows:

Vietnam-era Veterans are presently defined as persons who served on active duty for more than 180 days, any part of which occurred between February 28, 1961 and May 7, 1975, ….

Clearly using the board counselor’s own words, this is inclusive four years after wide spread usage of herbicides was supposedly according to the Department of Defense, terminated. Yet, the VA’s legal beagle can state that the Korean Veterans exposures were one year after supposedly the widespread spraying of herbicides was suspended. The key word here being in legal terms “the widespread usage.” Therefore, he has to prove some form of half-life correlation and such. Why do the Vietnam Veterans get a four year pass and yet the Korean Veterans cannot even get a six month pass serving after the date of supposedly stopping the wide spread defoliant usage. Obviously, because of half-life and the fact no one without divine intervention can say, what toxicity level is required for any one disorder. That lack of divine intervention must apply to this Counselor and this JUDGE; as well as the President of United States who directs and appoints the Secretary of this run away outfit.

The last date on which a veteran shall be presumed to have

been exposed to an herbicide agent shall be the last date on

which he or she served in the Republic of Vietnam during the

Vietnam era. "Service in the Republic of Vietnam" includes

service in the waters offshore and service in other locations

if the conditions of service involved duty or visitation in

the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii).

If a veteran was exposed to an herbicide agent during active

military, naval, or air service, diabetes mellitus shall be

service-connected if the requirements of § 3.307(a)(6) are

met even though there is no record of such disease during

service, provided further that the rebuttable presumption

provisions of § 3.307(d) are also satisfied. 38 C.F.R.

§ 3.309(e).

Diabetes mellitus is subject to the presumption in 38 C.F.R.

§ 3.309(e) if it become manifest to a degree of 10 percent or

more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii).


The veteran has made varying contentions as to his exposure

to Agent Orange in Korea. On the one hand, he has argued that

he was exposed directly to the defoliant through being around

those who were using it. On the other hand, he seems to

concede that the use of Agent Orange had ceased by the time

he arrived in Korea, but asserts that he was exposed to

residual defoliant in the soil and in plant material.

Service department records show some use of Agent Orange in

parts of Korea during 1968 and 1969. They do not show the

use of Agent Orange or similar herbicides thereafter. Thus,

the evidence is against a finding that he was exposed to

direct spraying of Agent Orange.

The exact dates of the Department of Defense admissions was Agent Orange was used along Korea's DMZ from April 1968 through July 1969 to defoliate the fields of fire between the front line defensive positions and the south barrier fence.

As with any herbicide admissions for the Department of Defense it took decades for them to admit this after the evidence became so overwhelming - denial was no longer plausible. No Veteran or their family believes the Department of Defense in these herbicide issues any longer. They lied about Laos (Corona Harvest), Cambodia (Corona Harvest), Guam, and Korea for decades while Veterans died. Congress should no longer believe them either.

As a layperson, the veteran is not competent to say that

diabetes mellitus was caused by residual Agent Orange in the

environment after its use had been stopped.

I would suggest if not for this “kangaroo court” this lawyer and this judge are not competent to rule in this case of herbicides.

An opinion on

this question would require scientific knowledge as to the

residual Agent Orange in the veteran's environment in Korea,

and medical knowledge of the likelihood that such residual

exposure could cause diabetes mellitus.

This is totally absurd! No scientists or even research institute in the entire world in 60 years have been able to do what this yahoo board lawyer is even suggesting this Veteran needs to prove.

The veteran has submitted articles regarding the half-life of

Dioxin, and its residual presence in the environment. These

articles do not contain any specific information as to the

veteran's exposure in Korea, or the likelihood that such

exposure caused diabetes mellitus.

Why would that possibly be? Could it be the Department of Defense lied for decades about even using any herbicides in Korea? We have 2.7 million Veterans that the United States Government has deemed that exposures to the exact same herbicide does indeed cause a number of medical issues (and there should be more) including diabetes mellitus. Should it make any difference if it was in Vietnam or Korea? Of course not. Only in this so-called court does it make a difference.

The medical evidence of record shows no complaints or

manifestations of diabetes mellitus while on active duty. On

examination for separation from service, in February 1972,

urinalysis was negative for sugar and blood testing showed

sugar levels to be normal. Post-service medical evidence

includes private treatment records, which show no diagnosis of

diabetes mellitus and blood glucose values which were

consistently within normal limits. VA medical records show a

diagnosis of non-insulin dependent diabetes mellitus,

beginning in 2002.

Again, as would be typical for dioxin associated diabetes mellitus.

As the veteran did not serve in the Republic of Vietnam, or

in Korea during the period when Agent Orange was used, he

does not qualify for presumptive service connection for

diabetes mellitus. As no other connection between current

diabetes and service is shown, service connection is denied.

Again, this is a totally absurd legal defense in denial. He was not there during what the Department of Defense has admitted to from April 1968 through July 1969. Yet, he did serve in Korea from 1970 to 1971 as a combat engineer according to the board lawyer. It would be nice if the board lawyer would have put in the month and date as the time frame may have only been 6 months after the wide spread (cough cough) usage of defoliants was terminated.

What is interesting in Congressman Filner’s sponsored bill for Civilian AO exposures is the inclusive dates of being “on or near the DMZ.” These dates are:

(II) in or near the Korean demilitarized zone during the period beginning September 1, 1967, and ending on August 31, 1971;

The question must be asked. Is the congress now aware of spraying issues that the Department of Defense has not made aware (or lied) to Veterans or their families? The dates congress has inclusive would have proven this Veterans claim given the same levels of evidentiary findings and law provided by the congress.

The difference between April 1968 start date and the congresses start date of September 1, 1967 and the ending date of July 1969 versus congresses law of August 31 1971 can make a big difference to those that served this nation’s military and their Department of Defense created widows.


Entitlement to service connection for diabetes mellitus, as

secondary to herbicide exposure is denied.


Mark D. Hindin

Veterans Law Judge, Board of Veterans' Appeals

Mr. Hindin, in my opinion, could not judge a pie-eating contest fairly.

Department of Veterans Affairs


The attached decision by the Board of Veterans' Appeals (BVA or Board) is

the final decision for all issues addressed in the "Order" section of the

decision. The Board may also choose to remand an issue or issues to the

local VA office for additional development. If the Board did this in your

case, then a "Remand" section follows the "Order." However, you cannot

appeal an issue remanded to the local VA office because a remand is not a

final decision. The advice below on how to appeal a claim applies only to

issues that were allowed, denied, or dismissed in the "Order."

If you are satisfied with the outcome of your appeal, you do not need to do

anything. We will return your file to your local VA office to implement

the BVA's decision. However, if you are not satisfied with the Board's

decision on any or all of the issues allowed, denied, or dismissed, you

have the following options, which are listed in no particular order of


? Appeal to the United States Court of Appeals for Veterans Claims


? File with the Board a motion for reconsideration of this decision

? File with the Board a motion to vacate this decision

? File with the Board a motion for revision of this decision based on

clear and unmistakable error.

Although it would not affect this BVA decision, you may choose to also:

? Reopen your claim at the local VA office by submitting new and

material evidence.

There is no time limit for filing a motion for reconsideration, a motion to

vacate, or a motion for revision based on clear and unmistakable error with

the Board, or a claim to reopen at the local VA office. None of these

things is mutually exclusive - you can do all five things at the same time

if you wish. However, if you file a Notice of Appeal with the Court and a

motion with the Board at the same time, this may delay your case because of

jurisdictional conflicts. If you file a Notice of Appeal with the Court

before you file a motion with the BVA, the BVA will not be able to consider

your motion without the Court's permission.

How long do I have to start my appeal to the Court? You have 120 days from

the date this decision was mailed to you (as shown on the first page of

this decision) to file a Notice of Appeal with the United States Court of

Appeals for Veterans Claims. If you also want to file a motion for

reconsideration or a motion to vacate, you will still have time to appeal

to the Court. As long as you file your motion(s) with the Board within 120

days of the date this decision was mailed to you, you will then have

another 120 days from the date the BVA decides the motion for

reconsideration or the motion to vacate to appeal to the Court. You should

know that even if you have a representative, as discussed below, it is your

responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?

Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for

filing a Notice of Appeal, the filing fee (or a motion to waive the filing

fee if payment would cause financial hardship), and other matters covered

by the Court's rules directly from the Court. You can also get this

information from the Court's web site on the Internet at

www.vetapp.uscourts.gov, and you can download forms directly from that

website. The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must

file your Notice of Appeal with the Court, not with the Board, or any other

VA office.

How do I file a motion for reconsideration? You can file a motion asking

the BVA to reconsider any part of this decision by writing a letter to the

BVA stating why you believe that the BVA committed an obvious error of fact

or law in this decision, or stating that new and material military service

records have been discovered that apply to your appeal. If the BVA has

decided more than one issue, be sure to tell us which issue(s) you want

reconsidered. Send your letter to:

Director, Management and Administration (014)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420










Remember, the Board places no time limit on filing a motion for

reconsideration, and you can do this at any time. However, if you also plan

to appeal this decision to the Court, you must file your motion within 120

days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to

vacate any part of this decision by writing a letter to the BVA stating why

you believe you were denied due process of law during your appeal. For

example, you were denied your right to representation through action or

inaction by VA personnel, you were not provided a Statement of the Case or

Supplemental Statement of the Case, or you did not get a personal hearing

that you requested. You can also file a motion to vacate any part of this

decision on the basis that the Board allowed benefits based on false or

fraudulent evidence. Send this motion to the address above for the

Director, Management and Administration, at the Board. Remember, the Board

places no time limit on filing a motion to vacate, and you can do this at

any time. However, if you also plan to appeal this decision to the Court,

you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear

and unmistakable error? You can file a motion asking that the Board revise

this decision if you believe that the decision is based on "clear and

unmistakable error" (CUE). Send this motion to the address above for the

Director, Management and Administration, at the Board. You should be

careful when preparing such a motion because it must meet specific

requirements, and the Board will not review a final decision on this basis

more than once. You should carefully review the Board's Rules of Practice

on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified

representative before filing such a motion. See discussion on

representation below. Remember, the Board places no time limit on filing a

CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your

claim by simply sending them a statement indicating that you want to reopen

your claim. However, to be successful in reopening your claim, you must

submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal? Yes. You can always represent

yourself in any claim before VA, including the BVA, but you can also

appoint someone to represent you. An accredited representative of a

recognized service organization may represent you free of charge. VA

approves these organizations to help veterans, service members, and

dependents prepare their claims and present them to VA. An accredited

representative works for the service organization and knows how to prepare

and present claims. You can find a listing of these organizations on the

Internet at: www.va.gov/vso. You can also choose to be represented by a

private attorney or by an "agent." (An agent is a person who is not a

lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before

VA, then you can get information on how to do so by writing directly to the

Court. Upon request, the Court will provide you with a state-by-state

listing of persons admitted to practice before the Court who have indicated

their availability to represent appellants. This information is also

provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me? Except for a claim

involving a home or small business VA loan under Chapter 37 of title 38,

United States Code, attorneys or agents cannot charge you a fee or accept

payment for services they provide before the date BVA makes a final

decision on your appeal. If you hire an attorney or accredited agent within

1 year of a final BVA decision, then the attorney or agent is allowed to

charge you a fee for representing you before VA in most situations. An

attorney can also charge you for representing you before the Court. VA

cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases: An attorney or agent may

charge you a reasonable fee for services involving a VA home loan or small

business loan. For more information, read section 5904, title 38, United

States Code.

In all cases, a copy of any fee agreement between you and an attorney or

accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for

reasonableness, or you or your attorney or agent can file a motion asking

the Board to do so. Send such a motion to the address above for the Office

of the Senior Deputy Vice Chairman at the Board.









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I am glad you posted this. My brother was on the DMZ 1968 and 1969. He handled this stuff. He has diabetes, and he has never appllied for a claim. He should be around soon.

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I published the brigade list and all of the other units-from Aoril to August 1968 and then from May to July of 1969 who were confirmed as having vets potentially exposed to AO.

The AO wasnt on the DMZ-it was confirmed as sprayed in a swath of land 151 miles long and about 200-350 yards wide along the south edge of the DMZ and north of the civilian control line.

The veteran's MOS and duty (guard duty etc) have to been proven to show the vet was within that limited area during this limited period of time.

I agree that these regs are very restrictive.

However-every vet should keep in mind that the VA has award AO comp for vets outside of Nam and this area in Korea.

With AO presumptive illness and bonafide proof that the vet was exposed to AO and with no other etiology for the disability but for the AO exposure , the vet CAN succeed in an AO claim.

I posted one here recently from Thailand vet.


This vet was awarded AO comp in 1995 !

Thailand- but then the VA attemoted to take his comp away-

he fought back and as you can see his evidence was excellent-

"It is not disputed that the veteran served in Ubon, Thailand,

and worked on the Hayes Dispenser weapons system on B57

aircraft. It is not disputed that the Hayes Dispenser

weapons system and B57 aircraft were used in the Operation

Ranch Hand defoliation program. It is not disputed that the

defoliation program continued during the time period the

veteran worked on the Hayes Dispenser weapons system. It is

not disputed that the veteran developed a lympho histiocytic

type of malignant lymphoma shortly after his discharge from

active service."

It takes presumptive disability and bonafide proof of exposure-regardless of where in order to succeed on these types of claim if the vet does not fall within the Korean or Nam criteria.

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