7/11/06 - An opinion by Charles Kelley regarding a few VA problems, as reported in the RAO Bulletin Update, 1 May 2006 HERE
In regards to a client that the Board of Veterans Appeals refused to concede Vietnam service. In your husband's case, you indicated that he received the Vietnam Service Medal. If your husband filed his claim before February 2002, there was a VA manual provision (binding on Regional Offices) that requires that he be PRESUMED to have been in Vietnam and exposed to Agent Orange if he was awarded the Vietnam Service Medal. Therefore, there is no need to specifically prove that he was in Vietnam (the Vietnam Service Medal is enough).
Unfortunately, the manual provision was deleted in February 2002, but if your husband filed his claim before then, the provision is applicable. There are other ways to demonstrate Vietnam service......
To clarifiy the old law in question and new law now in effect, please note the full text of both laws.
18.104.22.168 The Vietnam Service Requirement Vietnam veterans do not need to prove actual exposure to Agent Orange or any other herbicide during service in Vietnam to qualify for presumptive service connection. The rules require the VA to assume that if a veteran served in Vietnam, the veteran was exposed. (587) Therefore, the requirement of an in-service precipitating event reduces to showing that the veteran served at least one day in Vietnam during the Vietnam era.
Service in Vietnam is defined as "active military, naval, or air service in the Republic of Vietnam at some point between January 9, 1962, and May 7, 1975." (588) This includes service "in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam."589 Flying over Vietnam in an aircraft, without landing in Vietnam, does not qualify as service in Vietnam.590
The biggest area of dispute that has arisen with regard to the Vietnam service requirement involves veterans who served on board a ship in the waters offshore, without any visitation on land in Vietnam. The Board of Veterans' Appeals has held in at least one case that service on board a ship in the waters offshore, without any visitation on land in Vietnam, does not satisfy the Vietnam service requirement. (591) As of the date of publication of the 2003 edition of this Manual, the U.S. Court of Appeals for Veterans Claims was considering an appeal of this BVA decision denying service-connected death benefits (DIC). (592) In this appeal, the surviving spouse relies on the fact that her deceased husband had earned the Vietnam Service Medal, and she argues that the BVA was required to find that the veteran satisfied the Vietnam service requirement by a provision of Manual M21-1593 that was in effect when the BVA issued its decision. That Manual M21-1 provision, which was in effect from June 1, 1999 to February 2002, provides that "[i]n the absence of contradictory evidence, service in Vietnam' will be conceded if the records show that the veteran received the Vietnam Service Medal except if the veteran participated in high altitude flights only." (594)
Vietnam veterans who served on board a ship in the waters offshore Vietnam can potentially convince the VA that they satisfy the Vietnam service requirement by relying on this Manual M21-1 provision (assuming that the veteran earned the Vietnam Service Medal and the claim was pending during some part of the period from June 1, 1999 to February 2002, when the Manual M21-1 provision was in effect. Alternatively, the veteran could argue that for at least part of the time while the veteran was aboard ship, the ship was located in Vietnam's territorial waters, and being in these waters should therefore qualify as being "in the Republic of Vietnam" within the meaning of the governing statute 38 U.S.C.S. 1116(a)(1)(A).
587. See 38 U.S.C.S. 1116(a).
588. 38 C.F.R. 3.307(a)(6)(iii) (2003). See also, 38 U.S.C.S. 1116(a)(3).
589. 38 C.F.R. 3.307(a)(6)(iii) (2003).
590. VA Gen. Coun. Prec. 7-23 (Aug. 12, 1993).
591. BVA Docket No. 99-13 640A (Nov. 1, 2000).
592. Johnson v. Principi, U.S. Vet. App. No. 01-0135.
593. MANUAL M21-1, Part III, para. 4.24g (Change 76, June 1, 1999). This paragraph was amended in February 2002.
Presumptions of service connection for diseases associated with exposure to certain herbicide agents; presumption of exposure for veterans who served in the Republic of Vietnam Text
(a) For the purposes of section 1110 of this title, and subject to section 1113 of this title--
(2) The diseases referred to in paragraph (1)(A) of this subsection are the following:
(3) For purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.
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. (a) General. A chronic, tropical, prisoner of war related disease, or a disease associated with exposure to certain herbicide agents listed in 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 3.309(a) will be considered chronic.
(6) Diseases associated with exposure to certain herbicide agents.
(i) For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.
(iii) 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. M21-1, Part 3, 4.24e
SPECIAL ACTION REQUIRED TO OBTAIN SPECIFIC SERVICE INFORMATION
e. Verifying Vietnam Service for Claims Involving Exposure to Herbicide Agents.
(2) If a veteran claims service connection for exposure to herbicide agents, and alleges service on a ship in the waters offshore of Vietnam, review the record for evidence that the ship was in the waters off Vietnam and that the veteran's service involved duty or visitation on land. If the veteran cannot produce evidence of this, request verification from the US Armed Services Center for Unit Records Research (USASCURR). See M21-1, Part III, 5.14(c) (3) (a) for the mailing address. Furnish the name and number of the ship (e.g., USS Galveston (CLG 3)), and the specific dates (month, day, and year) that the veteran alleges to have been in the waters offshore of Vietnam.
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