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>Agent Orange Update: > >I do not know how many vspa members this Agent Orange >update applies to however I will post it for INFO >purpose. >Received via email agent orange update from VA today: >Will mostly concern vspa members who served in >Thailand and Navy Ships Crew members. > >AGENT ORANGE LAWSUITS UPDATE 12: On 8 MAY the U.S. >Court of Appeals for the Federal Circuit unfortunately >reversed the decision of the U.S. Court of Appeals for >Veterans Claims in Haas v. Peake. The U.S. Court of >Appeals for Veterans Claims had previously found that >Vietnam War blue water veterans who had served on >ships off the coast of Vietnam but had never set foot >within the land borders of Vietnam were entitled to a >presumption of service connection disability if they >suffer from one of the listed diseases associated with >Agent Orange exposure. Also, they had ruled that the >VA's regulatory interpretation that the veteran needed >to have set foot within the land borders of Vietnam >was unduly restrictive. The higher Court of Appeals >for the Federal Circuit reversed and ruled: We hold >that the agency’s requirement that a claimant have >been present within the land borders of Vietnam at >some point in the course of his duty constitutes a >permissible interpretation of the statute and its >implementing regulation, and we therefore reverse the >judgment of the Veterans Court.? This was a 2-1 >decision with a thoughtful dissent by Judge Fogel so >the Claimant may attempt to appeal to the U.S. Supreme >Court which Commandeer Haas has said he will do. > >You can find the full 57 page decision in the list of >decisions at >http://www.cafc.uscourts.gov/dailylog.html Most likely >VA will now move quickly to resolve (decide) claims >that have been placed on hold awaiting this decision. >These claims will almost certainly be denied unless >they can show that their ship operated within the >inland waterways of Vietnam or entered port in >Vietnam. While ships logs do not routinely show >crewmembers leaving their ship, they will show whether >the ship entered an inland waterway (e.g. the Saigon >River) or put into port. VA will generally concede the >issue if service records show a veteran was attached >to a ship during the period that the ship put into >port in Vietnam. The negative decision in the Haas >case does not relieve VA from the responsibility of >making a legally correct decision that discusses all >pertinent evidence and the reasons and bases for the >decision. The VA in their written decision should >specifically address the evidence of service in or >visitation to Vietnam. They must discuss ships ' >movements either shown by ships' history or logs. If >the veteran has admitted never setting foot in >Vietnam, VA must also discuss whether evidence shows >that the ship operated in the inland waterways of >Vietnam. The Haas decision does not apply if a >claimant has alleged exposure to herbicides on a >direct basis, such as loading drums of defoliant on >board helicopters or decontaminating aircraft or >helicopters, VA must discuss such allegations and >resolve them. > >Claimants who are denied have several legal moves >available to them. They can ask the Court of Appeals >to review the case using all the judges on the Court. >While the Court may decide to conduct an en banc >review it does not have to. Failing that, they could >appeal to the Supreme Court. During any given year the >Supreme Court takes up only about 1 in 20 cases to >decide. Success at the Supreme Court is a long shot. > >[Source: TREA Washington Update & NVS Update 9 May 08] > >Bruce Thompson >Nha Trang 68 69
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