The Haas Case has been a challenge to the Department of Veterans Affairs' exclusion of the Blue Water Navy of the Vietnam War from presumptive exposure to Agent Orange and the illnesses associated with that. [Referring to these individuals as generic "sailors" is more correct since the group also includes veteran Coast Guard and Fleet Marine personnel.] What is the history behind this and what happens now?
The Agent Orange Act of 1991 provided that veterans who served “in the Republic of Vietnam” from January 9, 1962, to May 7, 1975, were presumed to have been exposed to Agent Orange, and were therefore automatically approved for disability ratings if they showed any of the symptoms from a specific list of conditions published by the VA.
Prior to February, 2002, VA claims adjudication officers were instructed to rule that “service in Vietnam” would be granted, in the absence of contradictory evidence, if the veteran received the Vietnam Service Medal, indicating they had entered the War Zone, and as long as that service did not consist exclusively of “fly-over” duty. At the very least, it was common practice to rule 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 presumption of exposure for their medical claims.
An Historical Review
New evidence in this saga of Blue Water Sailor exclusion is continuously showing up. Some reports worth looking at include The Case Against Mary Lou Keener. Other investigations will be showing up soon.
In February, 2002, in a very irregular manner (e.g., without public notice or regulatory comment or input), the VA changed its guidelines such that, in order for a Vietnam veteran to be presumed to have been exposed to Agent Orange, that Navy, Coast Guard, or Marine veteran who served aboard ships must demonstrate that he or she actually set foot in Vietnam, regardless of their ships duties or how far offshore the ship might have been at any given time. Since proof of short-term visits or transits on land are in many cases unable to be verified, even if the ship was logged in as being within the harbors of Vietnam, the presumption of exposure to Agent Orange and other herbicides was disallowed. This has come to be known as the "boots on the ground" requirement.
By this interpretation, a ship stationed 1/2 mile off shore at the mouth of a river that carried the ground water run-off containing dioxins from heavily sprayed areas is seen as less likely to encounter dioxin contamination than ground troops serving hundreds of kilometers from the sprayed areas - even though the sailors would use the run-off ground water to drink, cook and shower with. The "fresh water" was produced by the ships through a desalination system, but the distillation process itself has been proven to actually increase the levels of dioxin rather than decrease it because of the heating process involved.
As a result of this 2002 change, the VA has been both denying compensation for medical conditions identical to those of "boots on the ground" personnel, and actually reversing their previous rulings made after 1991, which had originally allowed compensation to individuals without "boots on the ground" status under the earlier definition of terms. This change in the way the VA began reversing decisions on old claims and adjudicating new compensation claims has had a number of negative impacts:
This occurred in the face of studies and reports indicating that sailors historically manifested the "approved" symptoms of Agent Orange exposure in greater proportion than service members who served with "boots on the ground". This fact has been investigated and confirmed by several foreign and U.S. studies done by the Institute of Medicine (IOM) and the Center for Disease Control (CDC) as early as 1990. (See Sea-Based Illness Summary ). More recent studies by the governments of Australia and New Zealand have completed their own studies and reports and have take positive steps in assisting their Vietnam Naval veterans. (Additional studies and reports can be seen HERE and HERE .
August 16, 2006
The Haas Ruling of August 16, 2006 has brought this discriminatory inequity out into the light of public awareness. It is a very important case which is being watched carefully. Whether fully recognized at this time or not, the Haas Rulings may not only affect Blue Water Navy Vietnam veterans, it could set a precedent for the VA to identify and exclude specific "classes" of combat or other military veterans from future VA benefits.
Jonathan L. Haas, Commander, USNR (Retired), served in the waters off the coast of Vietnam. CDR Haas was denied a claim for compensation for diabetes type II and associated secondary illnesses in March, 2004. Type II diabetes is an "approved" illness recognized by the VA as possibly having its causes in Agent Orange exposure. Had Jonathan Haas been a member of any other branch of the service, the processing and approval of his claim would likely have resulted in immediate and automatic compensation under the rules of "presumption of exposure" to Agent Orange. Solely because CDR Haas was a member of the Blue Water Navy, and in spite of him having been awarded the Vietnam Service Medal, his claim was not approved. CDR Haas fought that decision all the way to the Court of Appeals for Veterans Claims. In May, 2005, his case was then filed by the National Veterans Legal Service Program (NVLSP). In a brilliantly persuasive argument by the NVLSP lawyers, the U.S. Court of Veterans Appeals agreed with CDR Haas and reversed the VA's 2002 unilateral change to the rules of adjudication, once again granting Blue Water Navy veterans the "presumption of exposure" granted to other Vietnam War veterans.
The Haas Ruling of August 16, 2006 ordered the VA to process the Haas claim as "presumptive exposure" to Agent Orange, not just for CDR Haas, but for all Blue Water Navy veterans (those who served off shore but never actually set foot on Vietnamese soil). The Haas ruling supported the argument that, if one had been awarded the Vietnam Service Medal because of their presence within the designated "Combat Zone," then they were "in" the Republic of Vietnam for purposes of herbicide exposure just as they were "in" the Republic of Vietnam facing the threat of enemy gunfire.
Sept 21, 2006
The Haas ruling instructed the VA to grant compensation to service members who served on ships in the waters offshore Vietnam. The Department of Veterans Affairs intended to appeal that decision. But prior to their actually filing any appeal, and contrary to legal action, the DVA refused to comply with the Court Order to process Blue Water Navy claims and circulated an internal memo #02-06-24 instructing all claim adjudicators from the 57 Regional Offices and the Board of Veterans Appeals to "hold off" (to "stay") adjudication of any claims of this nature until the VA informed them to do otherwise. This VA directive was in flagrant violation of the Court-ordered reversal won on August 16th to stop such prejudicial treatment because once the ruling was Court -ordered, the VA did not have the legal right to order a "stay" on Blue Water Navy claims without specific actions to obtain the permission of the Court. The VA continued the denial of benefits to all Blue Water Navy veterans even when there was additional documentation that the claimant actually had set foot on the soil of Vietnam in addition to serving under a Blue Water Navy command. In fact, in many cases where the shipboard veteran actually but temporarily did work on the soil of Vietnam, their claims were simply added to the growing pile of Blue Water Navy claims because they were still under the command of the Naval 7th Fleet and because adding their claim to the growing pile was an efficient way for adjudication officers to quickly deal with those type claims.
Following the illegal actions of the Department of Veteran Affairs to "stay" all Blue Water Navy claims with any association to Agent Orange diseases, NVLSP filed a suit in the Court of Appeals for Veterans Claims on behalf of Nicholas Ribaudo and the American Legion. Mr Ribaudo's claim was already on the docket of the Board of Veteran Appeals. The pleading was a request to advance the Ribaudo claim to the front of the long queue of backlogs in the docket of the BVA based on undue hardship Mr. Ribaudo was facing. This filing also requested the Court to order the VA to resume processing of Blue Water Navy claims per the Haas Ruling of August 16, 2006 and to strike down the instructions of the internal VA memo imposing the illegal "stay."
Jan. 9, 2007
In the ruling of January 9, 2007, the Court of Appeals for Veteran Claims ordered the Board of Veteran Appeals to begin, once again, the processing of Blue Water Navy claims in the queue order (first in, first out) and to apply the rulings of the Haas case to their decisions. Additionally, the Court suggested to the Department of Veterans Affairs a path to follow in properly filing a request to approve the VA moratorium which the court would "consider" upon submission by the DVA. Within the week, the VA filed a request exactly to the specifications of the Court requesting permission to "stay" all Blue Water Navy claims until a ruling was given on Haas, which had been moved to the Court of Appeals for the Federal Circuit. (There's nothing like a bit of inside assistance to help friends correct their errors and lead them to the right path.)
January 26, 2007
The CAVC ruled to enforce the "stay" issued by the DVA, authorizing the Regional Offices and the Board of Veterans Appeals to stop processing Blue Water Navy compensation claims. On February 2, NVLSP filed their opposition to that Order.
March 7, 2007 The VA filed their response to the Haas case not in the Court of Appeals for Veterans Claims, but in the Court of Appeals for the Federal Circuit.
April 13, 2007
The Court of Appeals for Veterans Claims on this date ruled that the VA moratorium to "stay" Blue Water Navy claims was legal and acceptable back to it's first doing so with Memo #01-06-24, and such "stay" would be permanent until ruled on by the Court of Appeals for the Federal Circuit. It also ruled to dismiss all motions to label as "illegal" the initial actions of the VA in staying Blue Water Navy claims prior to court approval. That DVA action was now deemed to be perfectly legal.
Additionally, it ruled that claims could be advanced in the BVA docket queue for reasons of serious illness, financial hardship or other compelling causes.... but only if the VA chose to do that. This small token of apparent generosity was provided by this ruling of the Court once again showing that the VA is a "law unto itself" and the Court of Appeals for Veterans Claims is literally a component of the Department of Veterans Affairs, hardly likely to decide harshly against its own boss. And thus, once again, this dispelled the myth that the Department of Veteran Affairs is an advocate of the military veteran. This has been the historical provenance of the Department of Veteran's Affairs.
Current Assessment, Mid-May, 2007
The Ribaudo Case is no longer of direct importance to the Blue Water Navy argument, although it may be of interest to note that the VA has challenged the final ruling of Ribaudo in the Court of Appeals for the Federal Circuit.
The Haas Case is currently in the Federal Circuit Court and may have a long row to hoe as it works its way through the system, attempting to bring fairness and justice to the Blue Water Navy Vietnam veteran. The NVLSP has until May 19 to file their reply with the Court as to why it should not allow the VA to continue it refusal to adjudicate compensation claims filed by sea-based military personnel.
On May 17, the VA voluntarily withdrew its appeal in the Ribaudo Case. Although this no longer has impact of the the blue water navy issue, it is a positive outcome for Mr. Ribaudo.
The U.S. Court of Appeals for the Federal Circuit granted a 14-day extension to the filing date for NVLSP lawyers.
On June 4, 2007, the NVLSP legal brief was filed with the Federal Circuit Court . (.PDF download). The VA now has until June 21, 2007 to file a reply brief.
The Federal Circuit granted the DVA a 15-day extension for filing their reply brief. It is now due on July 6, 2007.
On July 6, the VA requested an extension of 14 days to file their Response Brief and that request was granted. This in a large part was due to an Amicus Brief filed by John Wells, CMDR (ret) and the raising of new and important evidence now available from recent studies of shipboard water treatment.
The DVA filed it Brief on July 20th.
Download the July 20 VA Brief .
September 6, 2007
In a bizarre and macabre twist of reason and logic, the George W. Bush White house requested, through Senator Akaka, the introduction of a bill Senate Bill S-2026 to specifically eliminate all Blue Water Navy veterans from qualifying for presumptive exposure to Agent Orange. The Bill is absurd prima facie because of the contradicting medical and scientific evidence.
November 7, 2007
Oral arguments were heard on November 7, 2007 in Washington, D.C. An audio tape of these proceedings can be heard at the US Federal Circuit Court --- Case # 2007-7037
November 15, 2007
The Blue Water Navy Vietnam Veterans Association introduced The Agent Orange Fair Compensation Act by submission to the entire Senate Committed on Veterans Affairs. It has also been presented to scores of other Senators and Representatives, but has not yet been presented on the floor of the House or Senate.
November 27, 2007 The Department of Veterans Affairs published a notice in the Federal Register stating they would change the M-21 Manual depending on the outcome of the Haas Ruling. Their intent is to continue to adjust internal policy that would ultimately preclude Blue Water Navy (and certain other personnel exposed to Agent Orange but not on Vietnamese soil) from any service-connected medical treatment or compensation for disabilities related to exposure to dioxin from Agent Orange or other toxic substances in use during the Vietnam War.
April 15, 2008
The Department of Veterans Affairs proceeded to implement the changes announced Nov. 27, despite no supportive public comment.
April 16, 2008
The Department of Veterans Affairs published a Notice in the Federal Register to redefine "Service in Vietnam" to exclude anyone, including close-in Naval gunfire support and other critical sea-based operations, as having not been "in the Republic of Vietnam" in order to exclude them from any Healthcare or compensation benefits for disabilities related to dioxin and other toxins in use during the Vietnam War. Anyone who can prove their foot touched the soil of the Vietnam mainland is otherwise given a "presumption of exposure" to these chemicals and is given service connection for disabilities related to dioxin and toxins in use.
May 8, 2008
The US Court of Appeals for the Federal Circuit overturned the ruling of August 16, 2006, ruling that the interpretation of a requirement for "boots-on-the-ground" was permissable and the case was remanded back to the Court of Appeals for Veterans Claims, who need to finalize the terms of he ruling. The case was won on a granting of "Chevron deference" (the Department of Veterans Affairs has the right to change their own rules) and not on any substantive issue of the case. The case will be appealed by NVLSP.
The period for public response to the Notice regarding exclusion of all non-boots-on-the-ground personnel from presumption of exposure to herbicides for "service in the Republic of Vietnam" ends, and presumably takes affect May 15. Numerous irregularities have been evident in the VA's procedure for collecting Public Comments using the Regulations.org electronic submission service.
NVLSP files Petition for Rehearing with the Federal Circuit
September 12, 2008
VA file Opposition to NVLSP's petition for re-hearing .
On October 9, the U.S. Court of Appeals for the Federal Circuit denied a rehearing of the Haas Ruling
NVLSP petitioned the Supreme Court through a Writ of Certiorari to review this lower court decision.
The American Legion, Military Order of the Purple Heart, and United Spinal Association filed a "Friend of the Court" brief in support the NVLSP petition
The VA filed their Opposition Brief to the petition for review
NVLSP file a Response to the VA Brief opposing the petition for review
January 21, 2009
The Supreme Court denied the Petition for a Writ of Certiorari, which essentially let the ruling of May 8 by The US Court of Appeals for the Federal Circuit stand as the final legal ruling. This established the DVA's right to change their internal regulations at will, which affirmed the DVA decision to require boots-on-ground and presence on inland waterways in Vietnam for all presumptive exposure to Agent Orange.
May 7, 2009
Congressman Filner Introduces HR-2254 - The Agent Orange Act of 2009
October 27, 2009
Senator Gillibrand Introduces S-1939 - The Agent Orange Act of 2009 - in the Senate
Dec 31, 2010 \
Both Bills die in Committee at the close of the 111th Congress without ever being brought to either floor. The House Bill had 261 co-sponsors and the Senate had 19. ***************************************************************************
Additional Information of these two historical cases can be found on the web site of the National Veterans Legal Service Program (NVLSP), who championed these monumental legal battles.