Landmark Court Victory for Vietnam Veterans

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Law Changes for Vietnam Veterans

The Court cited that the law defines ‘service in the Republic of Vietnam’ as including ‘service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.'”
 
During the Vietnam War Jonathan L. Haas, was a U.S. Navy sailor who served on an ammunition ship off the coast of Vietnam, but he never set foot on land in Vietnam. He subsequently contracted diabetes, nerve damage and loss of eyesight. He filed a claim with the Department of Veterans Affairs (“VA”) for compensation claiming that these maladies were the result of Agent Orange – clouds of which drifted out to sea and “engulfed his ship.” Haas’ claim was denied by the VA. Haas appealed the denial.

The VA’s reason for the denial was that Haas’ ship had never docked in Vietnam and he never came ashore. According to VA officials, these factors would have been necessary conditions for Haas’ claim to be considered by the VA.
 
For those of you who may have not seen this story in newspaper or who do not have access to the Internet – on Aug. 18, 2006, the U.S. Court of Appeals for Veterans’ Claims, in a 31 page decision entitled Haas v. Nicholson, handed down a ruling that may have a significant positive impact on many veterans, especially those who served in the Navy or Coast Guard off the coast of Vietnam during the Vietnam War, and who have been denied health coverage, and other benefits based on a claim of service connected disabilities, and/or who have never filed a claim with the VA…

     

According to Military.com, “The Court’s ruling states that Veterans Affairs requirement for ‘boots on the ground’ as the definition of ‘service in the Republic of Vietnam’ is unreasonable, and does not align with Congress’ intent. In addition the law does not limit application of the presumption of service connection for herbicide exposure to those who set foot on the soil of the Republic of Vietnam. The Court cited that the law defines ‘service in the Republic of Vietnam’ as including ‘service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.'”
 
The Court ruling decimated the Veterans Administration decision denying Haas’ claim. The Appeals Court based its argument on the inconsistencies of the VA’s rationale for the denial of the claim. Court documents revealed the inconsistencies in the reasons for the original denial, for example, as Military.com points out, “the unclear nature of the policy was further demonstrated when Secretary Nicholson [the Veterans Administration Administrator] was asked to apply the regulatory interpretation in the case of a veteran who served in the waters off of Vietnam, in water where his feet did not touch the seabed, versus a veteran who was in the waters where he was able to touch the seabed, he [Nicholson] responded that neither veteran would be entitled to the presumption because the regulatory definition is limited to those veterans ‘who set foot on land, if you will boots on ground, not touching the ocean floor.’ When later asked if there was a difference between the case of a veteran who served on a vessel floating up a river – which, according to the Secretary’s argument, could be miles wide – who never touched land within the Republic of Vietnam, and a veteran who served on a ship within 100 feet of the shoreline who never touched the land, the Secretary simply responded, without rationale, that the latter form of service would not warrant application of the presumption of service.”

According to the Court decision, this kind of reasoning is “inconsistent with longstanding agency views, plainly erroneous in light of legislative and regulatory history, and unreasonable, and must be SET ASIDE.” The presumption noted above is the so called “application of presumptive coverage” that has been part of the VA’s policy in deciding these matters. As a result while many veterans who served on the ground in Vietnam later became qualified for compensation because of Agent Orange, numerous sailors were denied claims because they failed to meet the “presumptive coverage” threshold.

According to an article in the Associated Press dated Aug. 18, 2006, “Veterans who patrolled the waters off Vietnam can [as a result of this ruling] claim disability benefits for exposure to Agent Orange [the toxic herbicide sprayed over the jungle] [t]he appeals court ruling, opens the door to thousands of servicemen to seek medical coverage. Veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly,” Judge William A. Moorman wrote.
 
The Vietnam Veterans of America urges “All veterans who served in the waters offshore to speak with a service representative or service officer as soon as possible to see if they have a viable claim for compensation. These veterans should also participate in the Agent Orange registry exam,” which is offered at VA hospitals to Vietnam Veterans.


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