Tuesday, July 31, 2007

THE FEDERAL GOVERNMENT FAILED TO SUPPORT SCIENTIFIC STUDIES

THE FEDERAL GOVERNMENT FAILED TO SUPPORT SCIENTIFIC STUDIES THAT PROVIDE TIMELY INFORMATION FOR COMPENSATION DECISIONS REGARDING MILITARY PERSONNEL WHO WERE HARMED BY EXPOSURES called “Agent Orange”.
For decades, military personnel who were injured from various exposures have been denied compensation until scientific evidence could support their claims for service-connected disabilities. Although 60,000 military subjects were involved as human subjects in testing programs involving mustard gas and lewisite over 50 years ago, the initiation of a study to review research regarding the long-term health consequences from these military experiments did not occur until 1991, and the results of the study were not published until 1993. Similarly, the use of Agent Orange and other herbicides in Vietnam has stimulated concern and controversy ever since the United States began the military herbicide program in 1961, but a comprehensive review and evaluation of available scientific and medical information regarding the health effects of herbicides and the contaminant dioxin was not conducted until it was authorized by Congress in 1991. The Department of Veterans Affairs has recently announced new rules for awarding compensation for more Agent Orange-related diseases, three decades after military personnel were exposed to the defoliant in Vietnam I wish
I could explain the lack of the VA judicators help but they are not to blame they have what is none as a board that votes on the new laws under title 38 of the military code and I think Nicholson did a great job as he did many things to help veterans, but from some people the hate is
Blocking the right way to tackle the problem, it just belongs in the “Court system in from of the appeals board if any thing is to become of the law title 38 which is really the law of the military way of justice. I know there are many that disagree with me so post a comment and tell me why because I will lesson think you editor of the “Blue Water Agent Orange” blog posted on a daily bases. Dated July 31,2007.

THE FEDERAL GOVERNMENT FAILED TO SUPPORT SCIENTIFIC STUDIES

THE FEDERAL GOVERNMENT FAILED TO SUPPORT SCIENTIFIC STUDIES THAT PROVIDE TIMELY INFORMATION FOR COMPENSATION DECISIONS REGARDING MILITARY PERSONNEL WHO WERE HARMED BY EXPOSURES called “Agent Orange”.
For decades, military personnel who were injured from various exposures have been denied compensation until scientific evidence could support their claims for service-connected disabilities. Although 60,000 military subjects were involved as human subjects in testing programs involving mustard gas and lewisite over 50 years ago, the initiation of a study to review research regarding the long-term health consequences from these military experiments did not occur until 1991, and the results of the study were not published until 1993. Similarly, the use of Agent Orange and other herbicides in Vietnam has stimulated concern and controversy ever since the United States began the military herbicide program in 1961, but a comprehensive review and evaluation of available scientific and medical information regarding the health effects of herbicides and the contaminant dioxin was not conducted until it was authorized by Congress in 1991. The Department of Veterans Affairs has recently announced new rules for awarding compensation for more Agent Orange-related diseases, three decades after military personnel were exposed to the defoliant in Vietnam I wish
I could explain the lack of the VA judicators help but they are not to blame they have what is none as a board that votes on the new laws under title 38 of the military code and I think Nicholson did a great job as he did many things to help veterans, but from some people the hate is
Blocking the right way to tackle the problem, it just belongs in the “Court system in from of the appeals board if any thing is to become of the law title 38 which is really the law of the military way of justice. I know there are many that disagree with me so post a comment and tell me why because I will lesson think you editor of the “Blue Water Agent Orange” blog posted on a daily bases. Dated July 31,2007.

VA AGENT ORANGE CLAIMS UPDATE

VA AGENT ORANGE CLAIMS UPDATE 01: The American Legion and the National Veterans Legal Services Program (NVLSP) have been working closely together over the last 15 years to make sure that the VA pays all of the benefits that Vietnam veterans and their survivors deserve as a result of exposure to Agent Orange. Recently, there have been two important developments. This article provides advice about the steps you should take if you represent yourself, a veteran, or a survivor who may be affected:

1.) CLL Claims: Chronic lymphocytic leukemia (CLL) is the latest disease the VA added to the list of diseases presumptively service connected due to Agent Orange. The VA issued the regulation adding CLL on 16 OCT 03. CLL is a malignancy (cancer) of the white blood that results from an acquired injury to the DNA of a single cell, a lymphocyte, in the bone marrow. This injury is not present at birth.
As a result of the Nehmer lawsuit [Nehmer v. U.S. Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999)] the VA is normally required to pay benefits for an Agent Orange-related disease retroactive to the date the VA received the first claim the veteran or survivor filed based on the disease with the exception of claims that were finally denied before 25 SEP 85. VA took the position that when it was service connected CLL the Nehmer rules did not apply to CLL claims. As a result, the VA assigned an effective date no earlier than 16 OCT 03 whenever the VA granted a disability or DIC claim based on CLL even if the first CLL claim was filed before 16 OCT 03.

The Nehmer lawsuit is a class action brought by National Veterans Legal Services Program (NVLSP) on behalf of Vietnam veterans who were exposed to Agent Orange and their survivors. NVLSP appealed the VA's decision concerning CLL, and on 1 DEC 05, the federal court that oversees the Nehmer lawsuit agreed with NVLSP that the Nehmer rules do apply to CLL claims. The court's December 1st ruling requires the VA to pay disability and DIC benefits retroactive to the date of claim to all veterans or survivors who filed a CLL claim before 16 OCT 05. The VA recently appealed the December 1st decision to the court of appeals. If you know of a Vietnam veteran or survivor who filed a CLL claim before 16 OCT 03, you should contact NVLSP attorney Rick Spataro at (202) 265-8305, ext. # 149 or rick_spataro@nvlsp.org. NVLSP is currently trying to get the court to require the VA to pay the retroactive benefits owed under the December 1st order as soon as possible, even though the VA has appealed the decision. Rick is collecting a list of all CLL claimants who deserve an earlier effective date under the December 1st order to present to the court.

2.) Blue Water Disability/DIC claims: From 1991 to 2002, the VA took the position that Navy veterans who were awarded the Vietnam Service Medal as a result of service in the waters offshore Vietnam (blue water vets) were entitled to the same presumption of exposure to Agent Orange as veterans who set foot on land in Vietnam. As a result, many Navy veterans who served offshore and their survivors were granted disability or DIC benefits based on an Agent Orange-related disease. However, in FEB 02 the VA amended VA Manual M21-1 to limit the presumption of exposure to Agent Orange to only those veterans who actually set foot on the land mass of Vietnam. As a result of the policy change the VA has been denying claims filed by blue water vets for Agent Orange related diseases since FEB 02. In addition, the VA has taken action to sever awards of service connection in some of the cases that were granted prior to February 2002.

NVLSP has appealed to the Court of Appeals for Veterans Claims many of the BVA decisions denying benefits to blue water veterans. NVLSP has argued in these cases that the VA's change of position in 2002 violates the Agent Orange Act of 1991. On 10 JAN 06, a panel of the Court heard argument in one of NVLSP's appeals and a decision on the legality of the VA's set-foot-on-land requirement is expected some time this year. In any case in which you are representing yourself or another blue water Navy veteran/survivor on a claim based on an Agent Orange-related disease, you should keep the claim alive by filing a timely Notice of Disagreement (NOD) after the VA denial, and a timely substantive appeal after the Statement of the Case (SOC). If the BVA denies the claim, contact NVLSP attorney Rick Spataro so that a timely appeal can be filed with the Veterans Court. This is a prudent move because if NVLSP wins its appeal, the VA will be required to follow the Veteran Court's decision on the pending claim. On the other hand, if the VA's denial of the claim becomes final, there is no guarantee that the VA will consider the prior final denial to be a clear and unmistakable error even if NVLSP were to win its appeal.

Monday, July 30, 2007

I was asked to post this poem so I did thank you

Don't Think
(translated by Er. A. Kremer)

Don't think the world is a tavern, createdto blast one's way forward by punching and clawingright up to the bar stools, and gorge there and guzzlewhile those in the rear look with eyes that grow glassy,half-swooning, and gulp their saliva and draw intheir stomachs that twist with the cramps of the hungry.O don't think the world is a tavern.Don't think the world is a Market, createdfor strong folk to trade with the weak and exhausted,to purchase the virtue of girls who are needy,to bargain the milk from the breasts of poor women,from workmen their marrow, from children the pale smile- the guest that appears on their faces so seldom.O don't think the world is a Market.Don't think the world is a jungle, createdfor wolves and for foxes, for theft and for swindle,the heavens- a drape, so that God will not notice,a fog - so that none can behold what your hands are,a wind - so that every wild outcry is smothered,an earth - that will soak up the blood of the slaughtered.O don't think the world is a jungle.The world is no tavern, no Market, no jungle!Here everything's weighed, all is carefully measured!Not one drop of blood, not one tear unrecorded;no spark that's snuffed out in an eye is glossed over. From teardrops come rivers; from rivers come oceans;from oceans - a tempest; from sparks - a great thunder.O don't think there's no Court of Justice! . . .




Meyn Nisht!

I’m just a “Blue Water Agent Orange” veteran

Hello USA I’m not Roger Moore I’m just a “Blue Water Agent Orange” veteran asking the American people to let the moral issues be herd on a level never before told, we the vets that were exposed to the
12 recognized symptoms by the VA that were caused by agent orange are dieing and are families are not being compensated by the VA because they seem to think they can save money by that, its wrong and there has to be a stop to it, please write you congressmen in your state and ask them why there letting this happen? What gave the VA who time after time has lost the eye of the American peoples over view of this subject go unchanged.. To the President please help this issue if you will thank you from the editor of
“Blue Water Agent Orange Group” on google blogs called (starabcd.blogspot.com/) and please E-Mail me on this issue. Signed David Rosenburg Vietnam Vet retired.

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Being hostile puts men at increased risk for diabetes, heart disease

Being hostile puts men at increased risk for diabetes, heart disease
From our ANI Correspondent

Washington, Aug 2: It really doesn't pay for men to be hostile, for it could put them at a greater risk for heart disease and diabetes.






The finding is based on a new study conducted by a team of researchers led by Steven Boyle, Ph.D. of Duke University Medical Center.

As a part of their study, the researchers studied 313 male Vietnam veterans who were part of a larger 20-year study on the effects of Agent Orange, a herbicide and defoliant used by the U.S. military in its Herbicidal Warfare program during the Vietnam War.

They found that men who are hostile and prone to frequent intense feelings of anger and depression could be harming their immune systems and putting themselves at risk for coronary heart disease as well as related disorders like type 2 diabetes and high blood pressure

The researchers put the veterans through a standard psychological test used to assess hostility, depression and anger, with series of blood levels being taken on three occasions between 1992 and 2002.

Researchers measured two immune system proteins known as C3 and C4. Both are markers of inflammation, which is the body's response to injury or infection. Changes in C3 and C4 are associated with a number of diseases, including some that negatively can affect the arteries around the heart, such as diabetes.

Men whose psychological screening showed the highest level of hostility, depressive symptoms and anger had a 7.1 percent increase in their C3 levels, while men with low levels of these attributes showed no change over the 10-year study period.

The researchers factored in other risk factors for higher C3 levels such as smoking, age, race, alcohol use and body mass index (a measure of obesity). They also could find no known influence of Agent Orange exposure on the increased C3 levels.

"We showed positives associations between psychological attributes and 10-year changes in C3 among initially healthy middle-aged males," the researchers write.

"Hostile, depressed and angry people see the world around them in a different way, and sometimes they see it as them against the world. That kind of lifestyle often leads to greater stress and possibly changes in the way the body functions that could lead to disease," said study co-author Edward Suarez, Ph.D.

The study appears in the August issue of the journal Brain, Behavior, and Immunity.

"Operation Hades," later known as "Operation Ranch Hand," dumped tons of Agent Orange

Between 1962 and 1970, the U.S. Army, working under the label, "Operation Hades," later known as "Operation Ranch Hand," dumped tons of Agent Orange and other defoliants onto six million acres of Vietnam. The sign above the ready room of the 309th Aerial Commando Squadron, which had seven aircraft and went on spraying missions twice a day, six days a week - encouraged the spray flightmasters to do their jobs well. It read, "Only You Can Prevent Forests."
The Army's goal was to defoliate large areas of forest in Vietnam with Agent Orange, especially forests in those areas believed to be hideouts for North Vietnamese soldiers. Agent Orange and other deadly chemicals were also sprayed on food growing areas - land used to grow rice, melons, bananas, breadfruit, mangoes and other crops. The idea was to destroy the enemy's food supply.
Agent Orange was popular with the Army's defoliation crews because it was so effective. A dose of the chemical would send tropical plants into a cancerous growth spree until they got so big they would explode into limp nothingness. What resulted was two-foot bananas and tree-sized weeds amidst hundreds of acres of mutilated forests - all the result of Agent Orange. After the spraying, the jungles went silent. There were no more insects, birds, or other animals. The soldiers labeled Agent Orange-sprayed forests, "the land of the dead."
The soldiers who sprayed the chemicals and those who patrolled the forests afterward remember well the sickly sweet smell that lingered in the atmosphere. They might have guessed that a chemical that could cause entire forests to die off in a matter of days might have dangerous consequences for their own health. But it was wartime, and the soldiers were occupied with thoughts of bullets, grenades, shrapnel and of getting out of Vietnam alive.
There were reports early in the war that Vietnamese peasants living in the sprayed areas had a disturbingly high incidence of birth defects and unexplained illnesses. But such reports - coming from Hanoi - were quickly discounted by U.S. military personnel as communist propaganda.
Agent Orange's active ingredients were 2,4,5-T and 2,4-D - and with 2,4,5-T came a deadly side kick contaminant, dioxin.
Today, dioxin is known as one of the most deadly synthetic chemicals. Three ounces of dioxin placed in the New York City drinking water supply could wipe out the city's entire population. "Dioxin is the most poisonous small molecule known to man. It is alone one of the most powerful carcinogens known," says Mathew Meselson professor of biochemistry at Harvard. "We have not yet found any dosage at which it is safe, at which it has no observable effect."
Dioxin also appears to have a cumulative effect, Messelson said. "It is quite stable and is soluble in fat but not water, and will build up in body fat."
An estimated 130 pounds of dioxin was dumped on Vietnam before 1970, and some of that was inevitably brought home by the more than two million GI's who sprayed or patrolled the dense jungle forests of South Vietnam. When these dioxin-contaminated individuals lose weight, the dioxin breaks down and is carried into the blood stream, says Professor Barry Commoner, at Queens College.
Many Vietnam veterans have reported the now classic symptoms of dioxin poisoning: irrational emotional outbursts, numbing of the hands and feet, an acne-like rash covering the entire body, and sharp stomach pains.
"It now appears that dioxin may be a kind of toxicological time bomb," Commoner says, "and that people exposed to it may exhibit harmful symptoms [which] appear only years later."
Since Vietnam, other parts of the world have learned firsthand of dioxin's toxic effects. In Niagara Falls, New York, a chemical company dumped tons of toxic chemicals, including dioxin, in landfills throughout the city and deadly chemicals migrated out of the landfills, contaminating neighborhoods and forcing the evacuation of hundreds of families. In Seveso, Italy, a chemical plant exploded and dioxin spewed into the atmosphere. Animals died, hundreds of acres of land were contaminated, people became ill, women suffered spontaneous abortions, and the neighboring towns for miles around were evacuated. In the northwestern corner of the United States, where the U.S. Forest Service sprayed dioxin contaminated 2,4,5-T onto woodlands, residents in the nearby towns complained of high rates of miscarriages. A subsequent study of the area by the U.S. Environmental Protection Agency (EPA) confirmed the fears of residents. One study found that Alsea, Oregon had miscarriage rates almost double those of other, non-2,4,5-T affected cities in the state. Based on these and other findings, the EPA banned most uses of 2,4,5-T in the United States in 1979.
The EPA ban was handed down in 1979, almost 10 years after the U.S. Army stopped using the defoliant in Vietnam under pressure from environmental groups here in the United States. But Dow Chemical, the major manufacturer of 2,4,5-T in the United States, and the major supplier of the chemical to the Army did not have to wait for the EPA studies or for the tragedies in Oregon, New York, Seveso and Vietnam to learn about the dangerous effects of dioxin.
"Long before the advent of 2,4,5-T - in fact since the mid-nineteen thirties," writes Thomas Whiteside in his book The Pendulum and the Toxic Cloud, "the Dow people had known that various polychlorinated derivatives. of chlorophenols (as well as 2,4,5-T) had produced chloracne (a severe form of acne) -like symptoms among workers exposed to them. Dow's 2,4,5 trichlorophenol appears to have been no exception." According to Whiteside, when Dow began expanding its production of 2,4,5-T in 1964 to provide Agent Orange for Vietnam, 70 Dow employees who worked at the Dow 2,4,5-T factory in Midland, Michigan contracted cases of chloracne, 12 of them severe. The 1964 outbreak was only one in a long line of case studies of 2,4,5-T contamination.
According to documents revealed during the course of civil litigation against the chemical manufacturers of Agent Orange, Dow had for years been receiving reports of severe chloracne associated with the manufacturer of chlorophenols. In 1937, some 400 lumber workers using tetrachlorophenol developed chloracne, urinary disturbances, skin lesions lasting years, and marked hyperkeratosis. In 1949, 228 workers at a Monsanto 2,4,5-T plant in Nitro, West Virginia developed chloracne as the result of an industrial accident, and the chloracne continued to afflict workers at the plant for 20 years. The situation moved Monsanto's medical director to comment: "I don't want to be cynical, but are there any employees in the Department who don't have chloracne already?"
In the next two decades, reports increased of neurologic pains, heart disorders, chloracne, porphyria cutanea tarda, hyperpigmentation, and hirsutism and liver damage in workers exposed to 2,4,5-T in West Germany and the Netherlands.
On April 15, 1970, Julius E. Johnson, vice-president of research for Dow testified before a subcommittee of the U.S. Senate Committee on Commerce that the company knew about the dangers of 2,4,5-T well before U.S. fighting troops were exposed to Agent Orange. "Since 1950 we have been keenly aware of the possibility of a highly toxic impurity being formed in 2,4,5-trichlorophenol as a side reaction under conditions of elevated processing temperatures," said Johnson.
But Dow consistently claimed that it knew of no harm to humans from dioxin other than chloracne. In March 1983, Paul Oreffice, president of Dow, appeared on NBC's Today Show and claimed that "there is absolutely no evidence of dioxin doing any damage to humans except for causing something that is called chloracne. It's a rash." But in the spring of 1983, The New York Times reported that Dow documents made public during the court proceedings revealed another story. In 1965, when the government was purchasing millions of pounds of Agent Orange, Dow's toxicology director wrote in an internal report that dioxin could be "exceptionally toxic" to humans and that the company's medical director had warned that "fatalities have been reported in the literature."
Dow documents also revealed that on March 24, 1965, four chemical manufacturers met at Dow headquarters in Midland, Michigan to discuss the health hazards of dioxin. According to a scientist attending the meeting, Dow did not want its findings about dioxin made public because the situation might "explode" and generate a new wave of government regulation of the chemical industry. A second scientist reported that Dow officials had disclosed at the meeting a study which showed that dioxin caused "severe" liver damage in rabbits.
By mid-1983 more than 16,000 Vietnam Veteran families had taken their cases to federal court, suing Dow Chemical and several other chemical companies for billions of dollars in damages resulting from Agent Orange contamination. Veterans' groups estimate that of the 2.8 million U.S. soldiers who served in Vietnam, 40,000 veterans may eventually become ill or die from the effects of the toxic chemicals dumped on Vietnam. And these veterans may produce 2,000 children with deformities incurred because they were conceived by fathers who carried the poisons in their bodies, they say.
Dow Chemical and the other chemical company defendants in the case denied am liability in the Agent Orange cases and unsuccessfully sought to blame the government for the chemically-inflicted health problems. Dow sued the government, charging that if anyone was injured during Vietnam, it was the government's fault, not Dow's, and that since Dow was a war contractor, it was only following the government's orders. Victor Yannacone, attorney for the Vietnam Veterans in the Agent Orange case, called Dow's reasoning "utter nonsense."
"The government contracted to get war materials," Yannacone argued, "but under no circumstances did the government contract to have its own men poisoned or killed."
More than 20,000 studies on the medical effects of 2,4,5-T provide strong evidence of the chemical's potent toxicity. Most recently a Swedish study of paper pulp, forestry and sawmill workers found a highly significant five-fold excess relative risk for soft tissue sarcomas in workers exposed primarily to 2,4,5T and 2,4-D.
Nevertheless, Dow continued to argue in court and in the public forum that th: company could not bear the responsibility that the veterans sought to impose on it. One of the more revealing public defenses put forth by Dow came in the fall of 1979 when the Roman Catholic Archdiocese of Albany, a Dow stockholder, wrote to the company expressing concern over health effects attributed to Agent Orange. The Diocese asked then Dow chairman, Earle B. Barnes, "what steps, if any, is Dow Chemical taking to eliminate or minimize risks related to this product?" In response, Barnes said "There is no product that we manufacture that we have more toxicology and health data on than 2,4,5-T and we consider it extremely safe."
The chemical had stirred controversy because it "became a symbol of the Vietnam War that some people have become obsessed with destroying along with anything else relating to that unfortunate experience," stated Barnes. So, dioxin, made famous by the war, was "picked up by a lot of the extreme activists among the environmentalists." The chairman of the board of one of the world's largest chemical companies concluded: "There are some very strong forces coming to do away with our agricultural chemical business."
In June 1983, Dow expanded greatly its public relations effort by announcing that it would spend $3 million on independent studies to try to show that there is no danger to humans from trace levels of dioxin.
But less than a year later, on May 7, 1984, only hours before the consolidated Agent Orange case was to go to trial, seven chemical companies, including Dow, agreed in an out of court settlement to pay $180 million to 16,000 veterans and their dependents. Many veterans, who sought a public airing of the evidence against the chemical companies, were disappointed with the settlement. "We wanted our day in court," former Marine Corps infantryman David P. Martin told reporters, "I want the truth to be told and the truth to come out."
"We were sold out," charged Rena Kopystenski, a spokesperson for the National Vietnam Veterans Network. "The seven companies...got out of this for under $30 million apiece. That's not much for the thousands of lives and babies that they've destroyed."
The settlement is currently on appeal.

USS Oriskany (CVA-34) Fire, 26 November 1966

Photo #: NH 97411

USS Oriskany (CVA-34) Fire, 26 November 1966

"Right Hand Salute! -- As the body of Lieutenant Commander Omar R. Ford, USN, one of 44 officers and men who lost their lives in USS Oriskany October 26 fire tragedy, is committed to the deep from Oriskany's flight deck during memorial services at sea in the Western Pacific, November 6, en route to San Diego, California. Fire-scarred Oriskany departed Subic Bay, Philippine Islands, for San Diego November 3." (quoted from the original caption released with this image)
Note Oriskany's insignia on the light-colored flag, at right, and three destroyers steaming alongside. Nearest destroyer is USS Chevalier (DD-805). Next outboard is USS Gurke (DD-783).
Photographed by JOC Dick Wood.

Official U.S. Navy Photograph, from the collections of the Naval Historical Center.

USN Ships--USS Oriskany (CV/CVA-34)

USN Ships--USS Oriskany (CV/CVA-34)

Agent Orange and other defoliants at a New Brunswick military base

FREDERICTON (CP) - Despite the threat of a possible lawsuit, Green party Leader Elizabeth May declined Thursday to retract comments she made about a report on the use of Agent Orange and other defoliants at a New Brunswick military base.

May said if she made any factual errors, she'll correct them - but she's confident that what she said was right. Elliot Sigal, executive vice-president of Intrinsik, the company that compiled the report, said the firm takes issue with comments May made during a speech in Halifax in June, the same week the company's health risk assessment was released.

Sigal suggested May's comments questioned the reputation of Intrinsik - formerly known as Cantox - and the quality of its work at Canadian Forces Base Gagetown.

The report concluded that the controversial defoliant spraying programs at the base posed almost no risk to the health of those who lived on or near the base.

However, the report also said potential, long-term health risks were identified for individuals directly involved with applying some of the defoliants or clearing treated brush soon after applications.

May said the company's criticism of her comments was very broad.

Continue Article

"Their letter doesn't point out factual errors, it just repeats just about everything I've said and said it's all factually wrong," May said Thursday. "I'm checking and so far haven't found any."

May stressed that the study was actually a "health risk assessment," which means it was based on "hypothetical, mathematical modelling."

Sigal said the study speaks for itself.

"I think we were very up front about what we did and what we could do in that assessment," he said.

"It was hypothetical in that it was looking back at what happened up to 50 years ago. There are a number of other studies going on around base Gagetown to collect some of the information that she feels should have been collected. They are not being done by us, but they are being done as part of the overall assessment at CFB Gagetown."

Over several days in 1966 and 1967, the U.S. military carried out tests at the base on a number of defoliating agents, including Agent Orange.

The chemicals were widely applied during the Vietnam War to clear jungles and have since been linked to a number of human health problems, including chronic lymphocytic leukemia, soft-tissue sarcoma, non-Hodgkin's lymphoma, Hodgkin's disease and chloracne.

In addition to the military tests, other herbicides have been used at the heavily forested base since it opened in the 1950s.

Veterans and contracted employees who worked on and around the base during the tests are seeking compensation from the federal government.

"It's not a good day for me when I'm not only threatened with a lawsuit, but somehow the media found out about it even before I had seen the letter from their lawyers," said May.

May said she hopes the matter won't end up in court.

"We requested that she retract her statements," Sigal said. "If she chooses not to, then we are looking at what our options are."

The Morning News: News : Waiting To Die: 'Blue Water' Veterans Seek Help

The Morning News: News : Waiting To Die: 'Blue Water' Veterans Seek Help: "Waiting To Die: 'Blue Water' Veterans Seek HelpVietnam War Fighters Suspect Illnesses May Be Linked to Agent OrangeThis article was published on Saturday, July 21, 2007 10:32 PM CDT in NewsBy Scarlet SimsTHE MORNING NEWSEmail this story Print this story Comment on this story Related Photos Lloyd Patrick Elnicki never asked what the Circle of Life Hospice nurse wrote in her evaluations every day. Secretly, he knew.'I'm dying, aren't I?' he asked his wife, Sharon.'Well, Pat, you're not getting any better,' she said.Three years before, the Vietnam veteran was a robust man with pale skin, dark red hair and a goatee. He had a clover tattooed on his back -- for luck.Pat loved to go. He wore a St. Christopher's medallion, the patron saint of traveling, on a silver chain around his neck. He traveled to Colorado, South Dakota, Idaho, Wyoming, Minnesota, Texas and New Mexico. He stuffed picture albums with photos of mountains and rocks, always urging his wife to take another snapshot from a new angle.'But it looks just like the last rock,' she would protest, taking the picture. The Elnickis filled their Bella Vista home with country decorations, the plush, blue-gray carpet smelling of smoke from the couple's cigarettes. Outside, beyond the sliding glass door, was a flagpole Pat installed, flying the U.S. flag.In 2004, doctors diagnosed Pat with lymph cancer of the neck. He went through surgery and radiation treatment and thought his cancer was in remission. But, at the end of last year, Pat got stomach cramps. Exploratory surgery revealed stomach cancer too widespread for surgery, and in March, he opt"

Sunday, July 29, 2007

medical benefits related to Agent Orange exposure.Claim has never been processed because among a group of the Navy known as "Blue Water" veterans, who were on Navy ships in Vietnam coastal waters none as war zones. The U.S. Department of Veterans Affairs won't compensate Blue Water Navy veterans, they said who weren't exposed to the agent orange herbicide. Meanwhile, Vietnam veterans waiting for an answer are dying.
"The bottom line is they are hoping some of these guys will die," said David Rosenburg County of Tehama in California. "The facts just sort of speak for themselves.Keep a big stalling game because at the gates of dieing I will say I don't hate you sinners I just hate your sins.

You've just got to love how "expendable" these vets are - and have been - to a number of administrations. Signed Blue Water Agent Orange

WhatReallyHappened.com: SCIENCE/HEALTHArchives

WhatReallyHappened.com: SCIENCE/HEALTHArchives: "Pat Elnicki applied for medical benefits related to Agent Orange exposure. His claim has never been processed because he's among a group of soldiers known as 'Blue Water' veterans, who were stationed on Navy ships off the Vietnam coast. The U.S. Department of Veterans Affairs won't compensate Blue Water veterans, saying they weren't exposed to the herbicide. A 2001 federal court case protesting the policy continues.Meanwhile, Vietnam veterans waiting for an answer are dying.'The bottom line is they are hoping some of these guys will die,' said Don Olson, Benton County veterans service officer. 'The facts just sort of speak for themselves. It's just a big stalling game.'You've just got to love how 'expendable' these vets are - and have been - to a number of administrations. - M. R."

Agent Orange - Navy Shipboard Vietnam Cancers Linked to Water

Agent Orange - Navy Shipboard Vietnam Cancers Linked to Water: "SAILORS who served on naval ships during the Vietnam War have been told their ships' drinking water, which was contaminated with Agent Orange, could be causing their cancers.The Department of Veterans Affairs is investigating a link between the number of cancers among sailors and the desalinated water on board some ships, which contained dioxins from the deadly defoliant.The alarm relates to ships that took on water in Vung Tau harbor in Vietnam between 1965 and 1972, specifically HMAS. Sydney, which made 23 trips to Vietnam during the war, and her escort shipsBetween 1980 and 1994 as many as 170 navy personnel died from cancers potentially related to the water on the ships, according to the Mortality of Vietnam Veterans cohort study.An updated mortality study on Vietnam veterans is due to be released later this year.The problem was identified nearly three years ago when the National Research Center for Toxicology found that desalinated drinking water taken from the estuary was contaminated with Agent Orange, which was sprayed widely across the country during the war. Our own less than forthcoming collaborative US Government/Chemical companies duo; knew this fact decades ago. One of the more bizarre aspects of the report from the CDC was the claim that those veterans who suffered most from non-Hodgkin's lymphoma had served on Navy ships off the coast of Vietnam. It said that those who had served in III Corps, which had some of the heaviest Agent Orange spraying of the war, seemed to be at lower risk. This is classic US government BS logic. In context: This was before the admission of non-hodgkin's lymphoma in those that were geographically in Vietnam and the government was still in t"

Data Suggest a Possible Association Between Agent Orange Exposure and Hypertension, But the Evidence Is Limited

Data Suggest a Possible Association Between Agent Orange Exposure and Hypertension, But the Evidence Is Limited: "U.S. forces sprayed Agent Orange and other defoliants over parts of southern Vietnam and surrounding areas from 1962 to 1970. Most large-scale sprayings were conducted from airplanes and helicopters, but herbicides also were dispersed from boats and ground vehicles or by soldiers wearing back-mounted equipment. The report series is sponsored by the U.S. Department of Veterans Affairs. Established in 1970 under the charter of the National Academy of Sciences, the Institute of Medicine provides independent, objective, evidence-based advice to policymakers, health professionals, the private sector, and the public. The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies. A committee roster follows. "

Honoring Our Veterans

Honoring Our Veterans: "President Bush Discusses Care for America's Returning Wounded Warriors, War on Terror at American Legion Support of our veterans has been a high priority in my administration. This year I've asked Congress for more than $86 billion for veterans' services. And if Congress approves my request, this would amount to a 77 percent increase of the budget since I took office; it would be the highest level of support for our veterans in American history. (Applause.) We share with your concern about making sure our vets have good health care. I've talked to your commanders past, and suspect I'll be talking to your commanders future, about making sure that our veterans have got good, decent, quality health care. Since 2001, we've helped over 1 million more veterans -- we've added a million veterans -- take advantage of the VA health care system. The 2008 budget proposal will increase the VA health care budget by 83 percent since I took office. The Department of Defense's health care budget has grown from $19 billion to $38 billion. And that's an important commitment, and I look forward to working with Congress to say to our veterans, we care about you. Money is one thing; delivery of services is another. (Applause.) I know I share -- listen, I am as concerned as you are about the conditions at Walter Reed Army Medical Center. My decisions have put our kids in harm's way. And I'm concerned about the fact that when they come back they don't get the full treatment they deserve. Many people working at Walter Reed are fine people. If you've been out there, you know what I'm talking about. They're dedicated, honorable healers who care deeply about our soldiers. Fine doctors, nurses and therapists work day and night to help the wounded. Yet some of our troops at Walter Reed have experienced bureaucratic delays an"

Google prime stop for US presidential hopefuls - INQUIRER.net, Philippine News for Filipinos

Google prime stop for US presidential hopefuls - INQUIRER.net, Philippine News for Filipinos: "Google prime stop for US presidential hopefuls Agence France-PresseLast updated 10:03am (Mla time) 07/29/2007SAN FRANCISCO--Internet giant Google is becoming a prime stop on the 2008 presidential campaign as candidates seek to burnish themselves with net-wise credentials while fielding questions from some of the tech industry's most influential workers.Five White House hopefuls from both Republican and Democratic parties have stopped by Google's Silicon Valley campus in recent months to face questions and endear themselves with voters in the country's most populous state.The town hall-style forums, held in the Googleplex auditorium, most recently put Texas Republican Ron Paul in the hot seat where he was asked about tech policy, immigration, and even the federal student loan program. Paul called the Internet, where Google dominates the search and advertising business, 'rather miraculous.'As a company Google has become more active politically and has invited all presidential candidates to swing through Mountain View south of San Francisco for what chief executive Eric Schmidt has called 'a job interview with the American people.'The visits are webcast on Google-owned YouTube, complete and unedited, viewable to millions of potential voters.'We have invited prominent speakers to the campus for years,' Adam Kovacevich, Google's Washington spokesperson told Agence France-Presse. 'This was just a natural extension.'But the stop in Silicon Valley is new on the campaign path, whose familiar landmarks in the past have been Iowa pancake breakfasts and southern barbeques.Stumping candidates are eager to cash in on Google's hip factor and show voters"

Vice President of the United States - Richard B. Cheney

Vice President of the United States - Richard B. Cheney

Friday, July 27, 2007

provide information about the herbicide Agent Orange

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... provide information about the herbicide Agent Orange used in the Vietnam War, and the results of exposure to this herbicide.
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... gallons of Agent Orange were sprayed throughout Vietnam. The U.S. military command in Vietnam insisted publicly the defoliation ...
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Haas v. Nicholson Case:


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Status as of July 27, 2007


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List of activities that have taken place since June on the Haas v. Nicholson Case:
6/11 court received Amicus Brief - on 7/6 that Amicus brief was rejected
7/16 court received Amicus Brief ammended (accepted)
7/20 court received VA Brief
7/23 court received a correction to the 7/20 VA Brief
7/26 court received an Appendix filed by the VA, (which I believe is just an additional correction to the 7/23 filing and is a summary of the arguments)


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U.S. veterans exposed to the defoliant Agent Orange

By Ishani Ganguli

WASHINGTON (Reuters) - U.S. veterans exposed to the defoliant Agent Orange during the Vietnam War may face an increased risk of high blood pressure, an expert panel said on Friday, citing what it called limited but important evidence.

The report by a panel of the U.S. Institute of Medicine was the latest in a series issued every two years assessing the health effects of exposure to Agent Orange and other chemicals used as herbicides by the U.S. military in Vietnam.

The panel, which reviewed about 350 epidemiological and animal studies, also pointed to evidence linking those chemicals to AL amyloidosis, a rare disease in which protein builds up around organs.

Those findings add both conditions to a list of Agent Orange-linked health problems that already includes several rare cancers, type II diabetes and birth defects in the children of the veterans exposed.

The findings may bring veterans one step closer to getting government-paid medical services for these conditions.

The panel said recent studies of Vietnam veterans who handled Agent Orange and the other defoliants offered evidence that they had elevated rates of high blood pressure.

The University of Kentucky's Hollie Swanson and other members of the panel said the evidence for both of the links is limited or suggestive, but still persuasive.

"It's important to know what things might be associated with Agent Orange exposure, given the number of people exposed. Many of them are in their 60s now, late 50s," panel member Richard Fenske of the University of Washington said in a telephone interview. Continued..."They're getting to a stage in their lives where certain kinds of diseases may become evident that may not have been evident in youth," Fenske added.

Researchers are still trying to understand exactly how toxic contaminants in these herbicides, particularly the chemical TCDD, cause damage, Swanson said.

The Department of Veterans Affairs must now decide if it will formally recognize the link between Agent Orange exposure and these conditions, according to Jerry Manar, an official with the group Veterans of Foreign Wars of the United States.

If it does, the report will help hundreds of thousands of veterans get treatment in VA medical centers for hypertension and associated heart disease and strokes, Manar said.

"This relieves a huge burden from veterans," he added.

JONATHAN L. HAAS APPEALS FOR THE FEDERAL CIRCUIT

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
_______________________________________________________
NO. 2007-7037
_______________________________________________________
_______________________________________________________
JONATHAN L. HAAS
Claimant, Appellee
V.
R. JAMES NICHOLSON, Secretary of Veterans Affairs
Defendant - Appellant
_______________________________________________________
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 04-4091, JUDGE WILLIAM A. MOORMAN
_______________________________________________________
AMICUS CURIAE BRIEF ON BEHALF OF ........... IN SUPPORT OF APPELLEE JONATHAN L. HAAS IN SUPPORT OF AFFIRMANCE OF THE COURT BELOW
_______________________________________________________
ATTORNEY FOR AMICUS
JOHN B. WELLS
ATTORNEY FOR THE APPELLEE
LA BAR #23970
317 PORTSMOUTH DRIVE
POST OFFICE BOX 5235
SLIDELL, LA 70469-5235 985-641-1855
985-649-1536 (FAX)

CERTIFICATE OF INTEREST
NOW COMES BEFORE this Honorable Court, pursuant to Rule 47.6, attorney for amicus curiae, ..........., John B. Wells Esquire, to file the required certificate of interest providing herein:
The represented party in this case is ............
The real party in interest is Jonathan Haas.
The corporate disclosure statement require by Rule 26.1 does not apply.
The amicus curiae will be represented by the Law Office of John B. Wells,
317 Portsmouth Drive, Slidell, LA 70460.
ii
STATEMENT REGARDING ORAL ARGUMENT
Amicus believes that Oral Argument would be beneficial in that there are many unusual questions before this Court. Many of those issues involve technical provisions of international law, the law of the sea and military equipment and capabilities. The Court may find clarification of these matters helpful in reaching their decision. Accordingly, Amicus requests leave of court to participate in oral argument.
iii
TABLE OF CONTENTS
Certificate of Interest..................................................................................................i
Statement Regarding Oral Argument.......................................................................ii
Table of Authorities..................................................................................................iv
Statement of Issues.....................................................................................................v
Identity of the Amicus and Interest in the Case.........................................................v
Statement of Facts......................................................................................................1
Summary of the Argument.........................................................................................1
Argument....................................................................................................................2
I.THE VETERAN MUST BE PRESUMED TO HAVE CONTRACTED HIS FATAL DISEASE
A.
...............THE VETERAN SERVED IN THE REPUBLIC OF VIETNAM 2
B.
................................................................................................................................. AGEN
Conclusion.................................................................................................................8
Certificate of Compliance..........................................................................................9
Certificate of Service...............................................................................................10
iv
TABLE OF AUTHORITIES
Cases:
C. A. B. v. Island Airlines, Inc. 235 F.Supp. 990 (D.C.Hawaii 1964).......................2
United States v. Louisiana 394 U.S. 11 (1969).....................................................2, 3
Statutory Provisions:
33 U.S.C. § 1251........................................................................................................4
38 U.S.C. § 1116........................................................................................................3
42 U.S.C § 9601........................................................................................................4
Other:
1958 Territorial Sea Convention ...............................................................................3
Law of the Seas Convention......................................................................................2
http://www.bluewaternavy.org/distillation/Water%20treatment.pdf........................5
http://www.cia.gov/cia/publications/factbook/fields/2106.html ..............................2
National Research Centre for Environmental Toxicology and the Queensland Health Services, EXAMINATION OF THE POTENTIAL EXPOSURE OF ROYAL AUSTRALIAN NAVY (RAN) PERSONNEL TO POLYCHLORINATED DIBENZODIOXINS AND POLYCHLORINATED DIBENZOFURANS VIA DRINKING WATER, Brisbane Queensland, Australia (2002) http://www.drawquick.com.au/common/waterdist.pdf ............................4, 5, 6, 7, 8
Statement of Principles concerning Malignant Neoplasm of the Lung, NO. 17 OF 2006 FOR THE PURPOSES OF THE VETERANS’ ENTITLEMENT ACT OF 1986 AND THE MILITARY REHABILITATION AND COMPENSATION ACT OF 2004 http://www.dva.gov.au/pensions/SOPs/b004rh_malignant_neoplasm_lung.htm.....7
Statement of Principles concerning Malignant Neoplasm of the Larynx, NO. 1 OF 2006 FOR THE PURPOSES OF THE VETERANS’ ENTITLEMENT ACT OF 1986 AND THE
MILITARY REHABILITATION AND COMPENSATION ACT OF 2004
http://www.dva.gov.au/pensions/SOPs/b013rh_malignant_neoplasm_larynx.htm..7
http://www.cia.gov/cia/publications/factbook/fields/2106.html ..............................2
http://www.hnsa.org/doc/destroyer/steamsec10.htm ...............................................5
v
STATEMENT OF THE ISSUES
I Whether the Veteran must Be Presumed to Have Contracted His Fatal
Disease as a Result of Agent Orange
IDENTITY OF THE AMICUS AND INTEREST IN THE CASE
Appellant ........... is the surviving widow of ........... who served on active duty from May 1965 through May 1969. On 21 December 1968 ........... was assigned to the U.S.S. Orleck, (DD 886), a Destroyer assigned to the Pacific Fleet. He was released from active duty and transferred to the Naval Reserve on 20 May 1969. He was awarded the National Defense Service Medal and the Vietnam Service Medal. The Orleck was involved in naval gunfire support in the territorial waters of Vietnam including several harbor areas.
The veteran was diagnosed with tongue cancer in 1986. He had a noted history of tongue and jaw cancer. He later died inter alia of lung cancer.
The circumstances surrounding the ........... case are eerily similar. Like Mr. Haas, ........... served close to the Vietnam shore and was awarded the Vietnam Service Medal. Like Haas, he was on board a ship that manufactured potable drinking water from sea water. The distillation process used on both ships was similar. In both cases the ships were in Agent Orange contaminated waters. In
vi
vii
...........’s case he was within the contaminated waters of Vung Tu. Haas’ ship was enveloped by a cloud of the dioxin which fell to the sea.
The ........... case is currently pending before the Board of Veterans Appeals after having been remanded by the Court of Appeals for Veterans Claims.
This court’s findings will directly affect the ........... case.
Consequently, Amicus asks leave of court to file this brief pursuant to Rule 29 of the Rules of the Court of Appeals for the Federal Circuit.
STATEMENT OF THE FACTS
Appellee Jonathan Haas is a U. S. Navy veteran who was assigned to the USS Mount Katmai, a naval warship operating within the territorial waters of the Republic of Vietnam. Haas was awarded the Vietnam Service Medal for service “in Vietnam and contiguous waters.” Haas testified that when operating within 100 feet of shore, his ship was enveloped by a cloud of Agent Orange.
All Navy ships operating at sea for an extended period of time must replenish their potable water supplies by distilling from sea water.
SUMMARY OF THE ARGUMENT
The Secretary has taken a rigid and inflexible approach to the application of Agent Orange benefits in the case of Navy veterans who have been assigned offshore. In the instant case, Mr. Haas’ ship was engulfed by clouds of the toxin. More importantly, the toxin fell to the sea near the intake for the ship’s distillers, which were used to manufacture potable drinking water from sea water.
The enabling statute recognized benefit for those who served in the Republic of Vietnam. By international and domestic law, this includes the territorial waters of the county. Mr. Haas operated within the territorial waters of Vietnam.
Additionally, the Australians have discovered that the seawater distillation
0
1
process actually enhanced the effect of the Agent Orang dioxin and deposited the toxin into the potable drinking water of ships operating in contaminated waters. The dioxin would have contaminated the entire distillation process and resulted in the oral ingestion of the Agent Orange toxin.
ARGUMENT
I. THE VETERAN MUST BE PRESUMED TO HAVE CONTRACTED HIS FATAL DISEASE AS A RESULT OF AGENT ORANGE
A. THE Veteran SERVED IN THE REPUBLIC OF VIETNAM
T
he USS Mount Katmai was periodically within the territorial waters of Vietnam. Territorial waters were historically defined as
1, the water area comprising both inland waters (rivers, lakes and true bays, etc.) and 2, the waters extending seaward three nautical miles from the coast line, i.e., the line of ordinary low water, (ofttime called the 'territorial sea'). Seaward of that three-mile territorial sea lie the high seas.
C. A. B. v. Island Airlines, Inc. 235 F.Supp. 990, 1007 (D.C.Hawaii 1964). A wider area, the contiguous zone, reaches out to twelve miles from the coast. United States v. Louisiana 394 U.S. 11, 23 n. 26. (1969). Vietnam claims a 12 mile territorial sea. http://www.cia.gov/cia/publications/factbook/fields/2106.html (Last visited 3 April 2006). That is consistent with the limitations of the United
Nations Convention on the law of the Sea Article 3. Since the USS Mount Katmai operated as close as 100 feet from shore, it was well within the territorial waters of Vietnam.
The enabling statute, 38 U.S.C. § 1116(a)(1)(A) recognizes a presumption of service connection when the veteran manifests a disease, including lung cancer, when the person was “a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.” The threshold factors are the existence of a prescribed disease and service in Vietnam.
Territorial or internal waters are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory. United States v. Louisiana, supra. The territorial waters to include the contiguous zone are also under the control of the sovereign nation, although innocent passage may not be denied. Id. Subject to the right of innocent passage, the coastal state, in this case Vietnam, has the same sovereignty over its territorial sea as it has with respect to its land territory. See, 1958 Territorial Sea Convention Article 1-2; Law of the Seas Convention, Article 2.
Appellee has alleged that the ship the USS Katmai had traveled within 100
2
feet of the coast of Vietnam. Thus the ship was well within the territorial waters of Vietnam. At all relevant times, the ship was within the sovereignty of Vietnam and therefore its crew “served in the Republic of Vietnam.” Consequently, under both national and international law, Haas served in the Republic of Vietnam.
A. AGENT ORANGE DIOXIN ENTERED THE SHIP’S POTABLE WATER SYSTEM AND WAS ENHANCED BY THE SHIP’S DISTILLING PLANT
In
adopting the Comprehensive Environmental Response Compensation and Liability Act, the United States Congress acted to prevent or redress the pollution of the environment. In its definition, the Congress noted that the environment included the waters of the contiguous zone. 42 U.S.C § 9601. In the Clean Water Act Congress recognized that pollutants discharged from shore will contaminate the navigable waters, waters of the contiguous zone, and the oceans. 33 U.S.C. § 1251(a)(6). This happened repeatedly in the offshore waters of Vietnam.
In December 2002, a report by the National Research Centre for Environmental Toxicology in conjunction with the Queensland Health Scientific Services determined that sailors assigned to ships of the Royal Australian Navy were exposed to Agent Orange. National Research Centre for Environmental Toxicology and the Queensland Health Services, EXAMINATION OF THE POTENTIAL
3
EXPOSURE OF ROYAL AUSTRALIAN NAVY (RAN) PERSONNEL TO POLYCHLORINATED DIBENZODIOXINS AND POLYCHLORINATED DIBENZOFURANS VIA DRINKING WATER, Brisbane Queensland, Australia (2002) (hereinafter RAN Report). The study noted that ships in the near shore marine waters collected waters that were contaminated with the runoff from areas sprayed with Agent Orange. RAN Report at 10. The distilling plants aboard the ship, which converted the salt water into potable drinking water, according to the study, actually enhanced the effect of the Agent Orange. RAN Report at 42. The study found that there was an elevation in cancer in veterans of the Royal Australian Navy which was higher than that of the Australian Army and Royal Australian Air Force. RAN Report at 13. The report further found that oral ingestion can cause multi-site cancer in the human body. RAN Report at 58.
As delineated in the RAN report, the Agent Orange dioxide entered the harbors and territorial waters of Vietnam. More importantly, Haas saw the cloud move offshore and envelop his ship. Thus it can safely said that pollutants used ashore found their way into the waters where the USS Mount Katmai was conducting operations.
All Navy ships, manufacture potable drinking water from sea water.
4
5
http://www.bluewaternavy.org/distillation/Water%20treatment.pdf at 2-3. (last visited June 7, 2007). These ships did not have the capacity to carry potable water throughout the voyage without replenishment via their distillers. The distillers all work on similar principles to produce water for both the boilers and the ship’s crew. See, e.g. Main Propulsion Plant DD-445 and 692 Classes and Converted Types, Operation Manual http://www.hnsa.org/doc/destroyer/steamsec10.htm (last visited April 4, 2006). Water is injected from the sea and is passed through the distilling condenser and air ejector condenser where it acts as a coolant for the condensers. It is then sent through the vapor feed heater into the first effect chamber and into the second effect chamber where it is changed to water vapor. Vapor then is passed through a drain regulator into a flash chamber and passes through baffles and separators into the distilling condenser where it is condensed into water and pumped to the ship’s water distribution system. Sea water not vaporized is pumped over the side by the brine pump. Id. This is the same type of process discussed in the RAN report. In fact many Royal Australian Navy ships were retired United States Navy ships or ships of the same class as the American Navy.
The Australian study confirmed the enhancing effects of the shipboard
distilling plants. RAN Report at 42. In other words, the effect was even more pronounced than if the veteran had merely ingested Agent Orange by breathing it or by drinking water from a contaminated stream. Consequently, it cannot be argued that Mr. Haas was not exposed to Agent Orange. Indeed he was exposed to an enhanced version.
The Australian government has taken the lead in recognizing that Navy veterans were exposed to Agent Orange. They have recently revised their statement of principles1 for Agent Orange benefit to include compensation for lung cancer when the claimant has been:
(i) on land in Vietnam, or
(ii) at sea in Vietnamese waters, or
(iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters.
Statement of Principles concerning Malignant Neoplasm of the Lung, NO. 17 OF 2006 FOR THE PURPOSES OF THE VETERANS’ ENTITLEMENT ACT OF 1986 AND THE MILITARY REHABILITATION AND COMPENSATION ACT OF 2004. See also, Statement
1 The Australian Statement of Principles is a rough equivalent of the American Code of Federal Regulations. 6
of Principles concerning Malignant Neoplasm of the Larynx, NO. 1 OF 2006 FOR THE PURPOSES OF THE VETERANS’ ENTITLEMENT ACT OF 1986 AND THE MILITARY REHABILITATION AND COMPENSATION ACT OF 2004. While not binding on this court or on the Secretary, in light of the RAN report, the Australian approach is the correct choice. The Australians have embraced the RAN report while the Secretary tries to hide from it. The better view is that the American Department of Veterans Affairs is simply wrong and that hundreds and perhaps thousand of veterans are improperly being denied compensation and treatment.
Notably RAN ships made short 14 day deployment to Vietnamese waters. RAN report at 34. Haas was in Vietnamese or nearby waters for a significanly longer period of time. Consequently his exposure would have been higher than the RAN sailors. Nevertheless, the University of Queensland found that despite the more limited exposure, RAN sailors may have received exposure significantly above the acceptable intake values. RAN report at 36. It is becoming more and more obvious that many Navy veterans of several nations, along with appellant’s spouse, were exposed to dangerous levels of Agent Orange. Continued inaction by the Secretary deprives the American veterans of compensation and medical treatment, at a time when our ally Australia is moving to extend service connection
7
to its Navy veterans.
CONCLUSION
For the reasons discussed herein, Ms. ........... prays that his honorable court affirm the judgment of the court below and direct that judgment be entered in favor of Haas.
Respectfully Submitted,
____________________
John B. Wells
Attorney for the Appellee
LA Bar #23970
317 Portsmouth Drive
Slidell, LA 70460-8429
985-641-1855
985-649-1536 (fax)
8
CERTIFICATE OF COMPLIANCE
The brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 2687 words by computer word count, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Federal rule of Appellate Procedure 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a monospaced typeface using Wordperfect 8.0.
______________________
John B. Wells 9
10
CERTIFICATE OF SERVICE
I, John B, Wells, do hereby certify that I have this date mailed by DHL Courier, prepaid, a true and exact copy of this brief to the court and to the Peter D. Keisler, Commercial Litigation Branch, Civil Division, Department of Justice
8th Floor, 1100 L Street NW, Washington DC 20530 and Louis J. George, National Veterans Legal Services Program, 1600 K Street, NW, Suite 500, Washington, D.C. 20006 this 8th day of June 2007.
______________________
John B. Wells
********************8
www.bluewaternavy.org

Court chides VA in Agent Orange ruling

ACROSS THE NATION

Court chides VA in Agent Orange ruling
July 20, 2007
Article Tools
E-mail Print Single page view Reprints text size: SAN FRANCISCO, CALIFORNIA - An appeals court chastised the Department of Veterans Affairs on Thursday and ordered the agency to pay retroactive benefits to Vietnam War veterans who were exposed to Agent Orange and contracted a form of leukemia.

"The performance of the United States Department of Veterans Affairs has contributed substantially to our sense of national shame," the 9th U.S. Circuit Court of Appeals wrote.

It was not immediately known how much the department would have to pay under the order regarding the use of the herbicide or how many veterans would be affected.



VA spokesman Phil Budahn said late Thursday that officials were reviewing the ruling.

----------

Items compiled from Tribune news services.

Filing Agent Orange claims

Welcome! My Account |
Filing Agent Orange Claims
Sgt. Shaft | July 23, 2007
Filing Date Affects Agent Orange Disability Benefits

Dear Sgt. Shaft:

I have a very good friend who served in the Marine Corps in Vietnam. He is suffering from neuropathy, vertigo and a number of other maladies. I feel very strongly that at least part of this is due to Agent Orange. He has talked to the Veterans Affairs Department and I have done some research that indicates that if he did not make a claim within (my best recollection) about 18 to 24 months after his time there, that the government claims it is not related to Agent Orange.

Is there some other or more recent research or position on the VA's part that has updated this position? If so, what is the best way for him to go about accessing the information and, hopefully, applying for disability benefits?

Thank you very much, and God bless you.

Rick J.
Dallas

Dear Rick:

You brought up several issues.

First, there is a general presumptive period following active duty of one year in which most disabilities must become manifest. Then, there is an issue of effective date of entitlement if application for benefits is delayed. While there is no time limit for a veteran to file a claim for VA benefits, the effective date is related to the date of application. Thus, applications for benefits many years after service cannot normally be awarded for before the date of application.

As for your other questions, those in the know at the Disabled American Veterans (DAV) tell me that there are "several conditions considered by VA as presumptive to Agent Orange exposure." The law also requires that some of these diseases be at least 10 percent disabling under VA's rating regulations within a deadline that began to run the day a veteran left Vietnam. If there is a deadline, it is listed in parentheses after the name of the disease. If you would like any additional information regarding the specific medical conditions listed below, please see the Agent Orange Briefing Fact Sheets Web page at www.va.gov. The diseases include:

* Chloracne or other acneiform disease consistent with chloracne (must occur within one year of exposure to Agent Orange).

* Hodgkin's disease.

* Multiple myeloma.

* Non-Hodgkin's lymphoma.

* Acute and subacute peripheral neuropathy. (For purposes of this section, the term acute and subacute peripheral neuropathy means temporary peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.)

* Porphyria cutanea tarda (must occur within one year of exposure to Agent Orange).

* Prostate cancer.

* Respiratory cancers (cancer of the lung, bronchus, larynx or trachea).

* Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma).

I hope this is helpful to your Marine buddy.

Shaft notes

The VA has announced funding for two District-area programs.

* Homeless veterans in Washington, D.C., will get more assistance, thanks to the Department of Veterans Affairs (VA) selection of National Coalition for Homeless Veterans to receive $800,000 to provide technical assistance for homeless veterans this year.

"Only through a dedicated partnership with community- and faith-based organizations can we hope to reduce homelessness among veterans," said Veterans Affairs Secretary Jim Nicholson, who has since resigned his post. "These partnerships provide safe, comfortable housing in caring communities for veterans who need a helping hand."

The grant was part of a broader announcement by Mr. Nicholson on $24 million in grants for homeless programs in 37 states. Ninety-two community-based groups will receive the VA funding.

The grants are part of VA"s continuing efforts to reduce homelessness among veterans. VA has the largest integrated network of homeless-assistance programs in the country. In many cities and rural areas, VA social workers and other clinicians working with community partners conduct extensive outreach programs, clinical assessments, medical treatments, alcohol and drug abuse counseling and employment assistance.

More information about VA"s homeless programs is available on the Internet at www.va.gov/homeless.

* In addition to the homeless initiative, VA is continuing its mission of providing a final resting place for Maryland veterans. The Department of Veterans Affairs (VA) has announced the award of a $1.9 million grant to expand the Crownsville Veterans Cemetery in Anne Arundel County.

"With the expansion of this state veterans cemetery, VA ensures that memorial benefits for Maryland veterans will be available for many more years," Mr. Nicholson said.

The grant will pay for construction of 2,434 full-casket burial sites, 1,087 in-ground cremation burial sites, 1,056 columbarium niches, utilities, landscaping and irrigation. Information on VA burial benefits can be obtained from national cemetery offices, from the VA Web site at www.cem.va.gov or by calling VA regional offices toll-free at 800/827-1000. Information about Maryland"s veterans cemeteries can be obtained from the Maryland Department of Veterans Affairs at www.mdva.state.md.us or by calling 410/923-6981.

Send letters to Sgt. Shaft, c/o John Fales, P.O. Box 65900, Washington, D.C. 20035-5900; fax 301/622-3330; call 202/257-5446; or e-mail sgtshaft@bavf.org.

Sound Off...What do you think? Join the discussion.


Copyright 2007 Sgt. Shaft. All opinions expressed in this article are the author's and do not necessarily reflect those of Military.com.



About Sgt. Shaft

Sgt. Shaft was hatched in April of 1982 at the home of the veterans' newspaper, Stars & Stripes, in Washington, D.C. This moniker combines the name of its creator, John Fales, Marine MOS in Vietnam and "Scout Sgt.," with the military expression when wronged, "Shafted."

Sgt. Shaft's wry sense of humor, empathy for the underdog, and strong love of country and fellow veterans closely mirror the nature of its creator.

In addition to writing the column, John Fales is President of the Blinded American Veterans Foundation. His decorations include Purple Heart, Vietnam Service Medal, Vietnam Campaign Medal, National Defense Service Medal, Armed Forces Expeditionary Service Medal, New York State Conspicuous Service Medal, Presidential Unit Citation, Combat Action Ribbon, and South Vietnamese Cross of Gallantry. Sgt. Shaft has no twin.
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Agent Orange Vietnam information

NEW ZEALAND - AUSTRALIAN
VIETNAM VETERAN INFORMATION
7/27/2007

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


The New Zealand and Australian Veteran Services, both government and private, are leaps and bound ahead of their US counterparts. This section is very important for ALL Navy veterans because we believe it will set the precedent and help define the basis of any US DVA changes made to the status of Blue Water Navy veteran acknowledgment and compensation. These reports investigate a wide range of potential contaminants and shipboard processes that have already been accepted as causing ill effects to members of the Royal Australian Navy and sailors of the New Zealand Navy.

Thursday, July 26, 2007

DEPARTMENT OF VETERANS AFFAIRS 11/7/02

[Federal Register: November 7, 2002 (Volume 67, Number 216)]
[Rules and Regulations]
[Page 67792-67793]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no02-7]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL20


Service Connection by Presumption of Aggravation of a Chronic
Preexisting Disease

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning presumptive service connection to
reflect a statutory presumption that a chronic disease that preexisted
the veteran's entry into military service but was first manifest to a
10-percent degree of disability within a specified period after service
was aggravated by the veteran's military service. This amendment is
necessary to make the regulations conform with the statute and the
Court's decision.

DATES: Effective Date: November 7, 2002.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7213.

SUPPLEMENTARY INFORMATION: Section 1112(a), 38 U.S.C., states that, ``a
chronic disease becoming manifest to a degree of 10 percent or more
within one year from the date of separation from such service * * *
shall be considered to have been incurred in or aggravated by such
service, notwithstanding there is no record of evidence of such disease
during the period of service.''
In the VA General Counsel Precedent Opinion 14-98 (VAOPGCPREC 14-98
(October 2, 1998)), the General Counsel held that Section 1112(a) of
title 38, United States Code, does not establish a presumption of
aggravation for a chronic disease that existed prior to service but
first became manifest to a compensable degree within the presumptive
period following service.
In Splane v. West, 216 F. 3d 1058 (2000), the United States Court
of Appeals for the Federal Circuit concluded, among other things, that
the General Counsel's interpretation of 38 U.S.C. 1112(a) was not in
accordance with law and was therefore in excess of statutory authority.
The Court held that 38 U.S.C. 1112(a) establishes not only a
presumption of service incurrence for chronic diseases first manifest
after service, but also a presumption of aggravation for chronic
diseases that existed prior to service but first became manifest to a
degree of disability of 10 percent or more within the presumption
period after service. The Court vacated that portion of the General
Counsel Precedent Opinion which interpreted 38 U.S.C. 1112(a).
VA regulations currently prohibit establishing service connection
for aggravation of a preexisting chronic disease that first becomes
manifest to a degree of 10 percent or more following discharge from
military service. This prohibition is inconsistent with the statute as
interpreted by the United States Court of Appeals for the Federal
Circuit. Therefore, we are amending 38 CFR 3.307(a), (c), (d), and
3.309(a), to conform to the plain language of the statute and the
conclusions of the Court.
Presently, 38 CFR 3.307(a), (c), and (d) provide only for a
presumption of service incurrence. Accordingly, it is necessary to
revise those paragraphs to include a presumption of aggravation.
38 CFR 3.307(d) currently states the factors to be considered in
determining whether the presumption of service incurrence has been
rebutted. The current regulation is based on the invalid conclusion
that the presumption is one of service incurrence only. This provision
is inconsistent with Splane because Splane establishes that 38 U.S.C.
1112(a) includes a presumption of aggravation of pre-existing diseases
that were not incurred in service. Accordingly, it is necessary to
revise 38 CFR 3.307(d) to state separately the criteria for rebutting
the presumption of service incurrence (in cases where the chronic
disease did not exist prior to service) and the criteria for rebutting
the presumption of aggravation (in cases where the chronic disease did
exist prior to service).
A current VA regulation, 38 CFR 3.306(a), provides that a
presumption of aggravation based on an increase in the severity of a
preexisting condition during service may be rebutted by evidence that
the increase was due to

[[Page 67793]]

the natural progress of the disease. Additionally, section 1113(a) of
title 38, United States Code, indicates that a presumption of service
connection based on manifestations of disability subsequent to service
may be rebutted by affirmative evidence to the contrary or evidence to
establish that such disability is due to an intercurrent disease or
injury suffered after separation from service. We are revising Sec.
3.307(d) to reflect these principles. Although Splane did not discuss
the criteria for rebutting the presumption of aggravation, we believe
that inclusion of these rebuttal standards is necessary to the
implementation of that decision.

Administrative Procedure Act

Changes made by this final rule merely reflect the statutory
requirements or the decision of the United States Court of Appeals for
the Federal Circuit. Accordingly, there is a basis for dispensing with
prior notice and comment and delayed effective date provisions of 5
U.S.C. 552 and 553.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This rule would have no
consequential effect on State, local, or tribal governments.

Paperwork Reduction Act

This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

This document has been reviewed by the Office of Management and
Budget under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This amendment would not directly affect any small entities. Only
individuals could be directly affected. Therefore, pursuant to 5 U.S.C.
605(b), this final rule is exempt from the initial and final regulatory
flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers are
64.109 and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,
Individuals with disabilities, Pensions, Veterans.

Approved: September 9, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

For the reasons set forth in the preamble, the Department of
Veterans Affairs amends 38 CFR part 3 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation

1. The authority citation for part 3, subpart A continues to read
as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. Section 3.307 is amended by:
A. In paragraph (a) introductory text, removing ``incurred in'' and
adding, in its place, ``incurred in or aggravated by''.
B. In paragraph (c), removing the last sentence ``The consideration
of service incurrence provided for chronic diseases will not be
interpreted to permit any presumption as to aggravation of a preservice
disease or injury after discharge.''.
C. Revising paragraph (d) and the authority citation at the end of
the section.
The revision reads as follows:


Sec. 3.307 Presumptive service connection for chronic, tropical or
prisoner-of-war related disease, or disease associated with exposure to
certain herbicide agents; wartime and service on or after January 1,
1947.

* * * * *
(d) Rebuttal of service incurrence or aggravation. (1) Evidence
which may be considered in rebuttal of service incurrence of a disease
listed in Sec. 3.309 will be any evidence of a nature usually accepted
as competent to indicate the time of existence or inception of disease,
and medical judgment will be exercised in making determinations
relative to the effect of intercurrent injury or disease. The
expression ``affirmative evidence to the contrary'' will not be taken
to require a conclusive showing, but such showing as would, in sound
medical reasoning and in the consideration of all evidence of record,
support a conclusion that the disease was not incurred in service. As
to tropical diseases the fact that the veteran had no service in a
locality having a high incidence of the disease may be considered as
evidence to rebut the presumption, as may residence during the period
in question in a region where the particular disease is endemic. The
known incubation periods of tropical diseases should be used as a
factor in rebuttal of presumptive service connection as showing
inception before or after service.
(2) The presumption of aggravation provided in this section may be
rebutted by affirmative evidence that the preexisting condition was not
aggravated by service, which may include affirmative evidence that any
increase in disability was due to an intercurrent disease or injury
suffered after separation from service or evidence sufficient, under
Sec. 3.306 of this part, to show that the increase in disability was
due to the natural progress of the preexisting condition.

(Authority: 38 U.S.C 1113 and 1153)

Sec. 3.309 [Amended]

3. Section 3.309(a) is amended by removing ``incurred in'' and
adding, in its place, ``incurred in or aggravated by''.

[FR Doc. 02-28267 Filed 11-6-02; 8:45 am]

BILLING CODE 8320-01-P

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BLUEWATERAO LINKS

LINKS
Blue Water Navy
Denver VA Hospital Blunder
VA Watchdog dot org
The Order of the Silver Rose
Vietnam Veterans Home Page
The Veterans Information Website
Michelle Malkin - Friend of the Vets
38 CFR 3.307(a)(6)(iii)
USC38 Sec 1116 [2004 Revision]
VA Online Application
The Last Battle: An Agent Orange Website
National Veterans Legal Service Program
Request Records from National Archives
Where to get Navy Ship's Deck Logs
SSA: Special Extra Earnings for Military Service
U.S. Court of Appeals for Veterans Claims
American Legion
Veterans of Foreign Wars
Vietnam Veterans of America
VietNow
Disabled American Veterans
Veterans With Diabetes International
Paralyzed Veterans of America
The Agent Orange Page
Blue Water Navy: Yahoo Groups
Ribaudo v. Nicholson
Haas v. Nicholson
Tin Can Sailors Association [NADV]
Fleet Reserve Association
The United States Navy Memorial
Navy Club of the U.S.A.
United States Naval Institute
United States Navy League
USN-Together We Served

BLUEWATERAO LINKS

LINKS
Blue Water Navy
Denver VA Hospital Blunder
VA Watchdog dot org
The Order of the Silver Rose
Vietnam Veterans Home Page
The Veterans Information Website
Michelle Malkin - Friend of the Vets
38 CFR 3.307(a)(6)(iii)
USC38 Sec 1116 [2004 Revision]
VA Online Application
The Last Battle: An Agent Orange Website
National Veterans Legal Service Program
Request Records from National Archives
Where to get Navy Ship's Deck Logs
SSA: Special Extra Earnings for Military Service
U.S. Court of Appeals for Veterans Claims
American Legion
Veterans of Foreign Wars
Vietnam Veterans of America
VietNow
Disabled American Veterans
Veterans With Diabetes International
Paralyzed Veterans of America
The Agent Orange Page
Blue Water Navy: Yahoo Groups
Ribaudo v. Nicholson
Haas v. Nicholson
Tin Can Sailors Association [NADV]
Fleet Reserve Association
The United States Navy Memorial
Navy Club of the U.S.A.
United States Naval Institute
United States Navy League
USN-Together We Served

Blue Water Navy

This grupe of people have a very sick idea of the real Navy read this(You have been banned from this group by the group moderator (Yahoo! ID banned: starabcd). You may not join the group BlueWaterNavy.)Well Well This is what I mean when I say there is no freedom of speach and this web site would not let me give copied news on the president or defend my name agiant some of what I think is the worst editorials on the web or net, these people are a discredit to there country as fare as I am concerned. Signed David Rosenburg Vietnam retired
Once I asked asked were you ever in Vietnam the answer was no, this was from the group leader. I had a good laugh on that one.

Blue Water Vets

To all "Blue Water Vets" I would like to here any constructive ways to make the Blue Water Navy a better blog site, please send E-Mail to (BLUEWATERAO@gmail.com)

NVLSP Attorneys Win Haas v. Nicholson-"BLUE WATER" Navy

articles - agent orange
NVLSP Attorneys Win Haas v. Nicholson –“Blue Water” Navy Veterans Entitled to the Presumption of Exposure to Agent Orange
Additional Article: Information for Vietnam Veterans Who Received the Armed Forces Expeditionary Medal (Viet Nam)
In an August 16, 2006 decision, the United States Court of Appeals for Veterans Claims (CAVC) held that Vietnam veterans who served in the waters off Vietnam (these class of veterans are known as “Blue Water” Navy veterans) are entitled to disability benefits for diseases related to exposure to Agent Orange. Prior to this decision, the VA had taken the position that veterans had to step foot on Vietnamese soil in order to be entitled to the presumption of exposure to Agent Orange. The veteran in this case, Jonathan L. Haas, Commander, USNR (Retired), served in the waters offshore Vietnam and received the Vietnam Service Medal. The veteran claimed that his diabetes mellitus and complications were related to his exposure to Agent Orange that drifted from the shore. Attorneys Louis J. George and Barton F. Stichman of National Veterans Legal Services Program (NVLSP) represented Commander Haas. Background: The Agent Orange Act of 1991 provides that veterans who served “in the Republic of Vietnam” from January 9, 1962, to May 7, 1975, are presumed to have been exposed to Agent Orange, meaning that these veterans are entitled to disability benefits (medical benefits as well as service-connected disability compensation) for diseases related to Agent Orange (such as type II diabetes mellitus, prostate cancer, and lung cancer, among other illnesses). A long-standing provision of the VA Adjudication Procedure Manual M21-1 (called the M21-1 manual), which is the “Bible” for those VA workers who adjudicate claims at the 57 VA Regional Offices, provided that “service in Vietnam” will be conceded, in the absence of contradictory evidence, if the veteran received Vietnam Service Medal, and as long as that service did not consist exclusively of “fly-over” duty. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, para. 4.24g. (Change 76, June 1, 1999). The M21-1 Manual went on to state that even if the veteran did not receive the Vietnam Service Medal, the VA Regional Office was required to research the ship’s activities to determine whether “the ship was in the waters offshore Vietnam” in order to apply the favorable presumption. Similar M2-1 manual provisions existed as early as November 1991. The 2002 Revisions to the M21-1: Without public notice and comment, in February 2002 the VA withdrew the M21-1 Manual provision. The VA replaced it with a provision stating that service in Vietnam would not be conceded unless the evidence showed that the veteran actually stepped foot on land in Vietnam. Because veteran Haas filed his claim for service connection for diabetes mellitus in 2001, the favorable Manual M21-1 provision applied to his claim for service connectionSince the February 2002 revision (and in some cases even earlier) the VA has taken the position that in order for a Vietnam veteran to be presumed to have been exposed to Agent Orange, the veteran must demonstrate that he or she actually set foot in Vietnam. This is often very difficult for Navy and Air Force veterans, as they may have actually had duty or visitation in Vietnam, but they cannot prove it. Records verifying their claims, such as in-country medical records, may have been destroyed. The VA, to adjudicate this type of claim, has been doing two things adverse to veterans. First, the VA regional offices have been denying service connection for initial claims. Second, the VA regional offices have been reviewing claims that were previously granted and, if the VA determined that the veteran did not step foot in the Republic of Vietnam, service connection for the disability based on exposure to Agent Orange would be severed (taken away).The Haas Decision: The Board of Veterans’ Appeals (BVA or Board) denied Mr. Haas’ claim for service-connected disability compensation based on exposure to Agent Orange. The Board held that although the veteran served in Vietnamese waters, since he did not step foot on shore in Vietnam, service connection for his diabetes and residuals was not warranted. In 2003, NVLSP, in a case similar to that of Mr. Haas, represented a Navy widow before the CAVC and won her benefits when the VA settled her case. Commander Haas retained NVLSP in 2005 to represent him before the CAVC. In its decision, the Court reversed the Board's determination that the veteran was not entitled to the presumption of exposure to Agent Orange and remanded the matter to the BVA for readjudication of the veteran’s claim. The Court held:(1) 38 U.S.C. § 1116(f) is not clear on its face concerning the meaning of the phrase "service in the Republic of Vietnam." Accordingly, the statute is ambiguous, and the Secretary may promulgate regulations to resolve that ambiguity so long as the regulations reasonably interpret both the language of the statute and the intent of Congress in enacting the legislation. (2) 38 U.S.C. § 1116(f) does not by its terms limit application of the presumption of service connection for Agent Orange exposure to those who set foot on the soil of the Republic of Vietnam. (3) The Secretary's regulations, while a permissible exercise of his rulemaking authority, do not clearly preclude application of the presumption to a member of the Armed Forces who served aboard a ship in close proximity to the land mass of the Republic of Vietnam. (4) The provisions of the VA Adjudication Procedure Manual in effect at the time the veteran filed his claim in 2001 entitled him to a presumption of service connection based upon his receipt of the Vietnam Service Medal. (5) The VA’s attempt to rescind that version of the M21-1 provision more favorable to the veteran was ineffective because the VA did not comply with the notice and comment requirements of the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). (6) If service connection for diabetes mellitus is granted upon remand to the Board, secondary service connection must be considered for the veteran's claims of peripheral neuropathy, nephropathy, and retinopathy. Advocacy Advice: It is unclear whether the VA will appeal the Court’s decision in Haas, and the VA may amend their regulations in the future in a way that is adverse to veterans who otherwise would have benefited from the Court’s decision in Haas. It is clear that the negative change to the M21-1 has no force and effect because it was promulgated unlawfully. As of this writing, Haas is the “law of the land” and therefore it must be followed by the VA. Quick action by advocates is essential. Because the VA may issue a negative regulation, claims based on presumptive exposure to Agent Orange need to be filed before the VA can finalize a negative regulation. Veterans and advocates seeking service connection for diseases as a result of Agent Orange exposure (as well as those seeking to have their benefits restored) are encouraged to take the following steps:For new claims: If the veteran received the Vietnam Service Medal (or its predecessor award, the Armed Forces Expeditionary Medal (AFEM) (Vietnam)), for service offshore the Republic of Vietnam between January 9, 1962, and May 7, 1975, that was not just overflight duty, the advocate should argue that service connection should be granted under the M21-1 provision and Haas. Even if the veteran received the Vietnam Service Medal for service in a location other than Vietnam (such as Thailand), those who represent veterans (and their survivors) should still apply for service connection, since the M21-1 provision does not outright prohibit application of the Agent Orange presumption in such cases. This type of claim may be difficult to win but should be filed.Finally, even if the veteran did not receive the Vietnam Service Medal or the AFEM, advocates should submit applications for service connection if the veteran had offshore Naval service during the above period. This is because the M21-1 provision does not preclude service connection as long as it is verified that the veteran had service offshore Vietnam.For denied claims still pending before the VA or before the Court of Appeals for Veterans Claims: If the veteran received the Vietnam Service Medal (or the Armed Forces Expeditionary Medal (Vietnam)), for service offshore the Republic of Vietnam (that was not just overflight duty), the advocate should appeal any denials of service connection and severances of service connection and argue before the VA or the Court that service connection should be granted under the M21-1 provision and Haas. Even if the veteran received the Vietnam Service Medal for service in a location other than Vietnam (such as Thailand), he or she should still appeal.If the veteran did not receive the Vietnam Service Medal or predecessor award, the veteran should appeal the denial of service connection or severance action if he or she had offshore Naval service between January 9, 1962, and May 7, 1975. For claims previously denied and that are now final. For claims that were previously denied and that are now final, the veteran should file a reopened claim in order to get benefits started (or restored) as soon as possible. The advocate should cite the M21-1 provision and Haas in the claim. We suggest that the advocate not raise the issue of an earlier effective date, or claim clear and unmistakable error (CUE) in the decision that denied or severed benefits, until benefits are actually granted or restored. Once benefits have been granted or restored, the advocate should consider challenging the effective date by filing a Notice of Disagreement with the effective date and/or a motion to revise the prior VA (or Board) decision that denied the claim, or that severed service connection, on the basis of CUE. Unrepresented veterans are urged to seek the assistance of an advocate prior to taking such action.
Additional Article: Information for Vietnam Veterans Who Received the Armed Forces Expeditionary Medal (Viet Nam)