3.313 Claims based on service in Vietnam.
(a) Service in Vietnam. Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.
(b) Service connection based on service in Vietnam. Service in Vietnam during the Vietnam Era together with the development of non-Hodgkin's lymphoma manifested subsequent to such service is sufficient to establish service connection for that disease.
[Editor's Note: Please note that 3.313 does NOT require any manefestation of the disease while in service or for any specified period of time following service; 3.313 does NOT specify a unique Non-Hodgkins Lymphoma, but implies all cancers that are classed as Non-Hodgkins Lymphoma; 3.313 does NOT require "boots on the ground" and is NOT connected in any way to herbidice exposure.]
Other types of cancer -- lung or colon cancers, for example -- can spread to lymph tissue such as the lymph nodes or bone marrow. But cancers that start in these places and then spread to the lymph tissue are not lymphomas.
There are 2 main types of lymphomas. Hodgkin lymphoma (also known as Hodgkin's lymphoma, Hodgkin disease, or Hodgkin's disease) is named after Dr. Thomas Hodgkin, who first described it. Hodgkin disease is discussed in a separate American Cancer Society document. All other types of lymphoma are called non-Hodgkin lymphomas.
These 2 types of lymphoma can usually be distinguished from each other by looking at the cancer cells under a microscope. In some cases, sensitive lab tests may be needed to tell them apart.
220.127.116.11 Special Rules Regarding Non-Hodgkin’s Lymphoma (NHL)
The rules for service connection regarding Non-Hodgkin’s lymphoma (NHL) 797 are slightly different than the rules for other diseases linked to Agent Orange exposure. There are two regulations that provide presumptive service connection for NHL. 798 One of these regulations bases the connection on service in Vietnam instead of Agent Orange exposure. 799 In most ways, that regulation operates the same as the regulations granting service connection based on Agent Orange exposure. However, there are some differences worth noting.
One difference involves the definition of “service in Vietnam.” The definition of service in Vietnam is slightly broader than it is for the other diseases listed in Table 3-1 above. For all diseases other than NHL, veterans are required to have either had duty or visitation in Vietnam . 800 Under one of the two regulations providing for service connection for NHL, service members who served in the waters offshore do not have to show any duty or visitation in Vietnam. 801
Second, the effective date rules for an award of benefits for NHL under 38 C.F.R. § 3.313 are more favorable than the effective date rules for an award for an NHL claim based upon Agent Orange exposure under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). For these reasons, NHL claimants should always cite to 38 C.F.R. § 3.313 instead of 38 C.F.R. §§ 3.307(a)(6)(3) and 3.309(e) when filing a claim. 802
In addition, effective October 23, 1995, the VA changed the rating schedule that is used to determine the level of disability caused by NHL. 803 Prior to that date, NHL was rated according to the same criteria as Hodgkin’s disease, with incremental percentage ratings for varying degrees of disability. 804 Under the amended regulation, NHL must be rated as 100-percent disabling when the disease is “active” or during a “treatment phase.” 805 Thus, a veteran can only be 0-percent disabled or 100-percent disabled by NHL. However, if the disease is not active, the VA must also rate the veteran on the residuals of NHL. 806
Footnotes 797. For the purpose of service connection for this disease, the definition of NHL “includes any diagnosis of a lymphoma (other than Hodgkin’s lymphoma), mycosis fungoides, and old terms such as lymphosarcoma, reticulum cell sarcoma, and Sternberg’s sarcoma.” VBA Circular 21-90-11, change 1, ¶ 2(b) (Jan. 25, 1991).
If you have been diagnosed with NHL, and you have filed claim for compensation or for compensation increases for NHL, AND your claim being held-up or slowed down in processing because of any Haas-related issues, you need to take specific action NOW. Your claim is being held ILLEGALLY and must be immediately released and adjudicated under Title 38 CFR 3.313. NHL is NOT included in the Haas Case.
In a recent ruling, the Department of Veterans Affairs has admitted that any compensation claim for NHL that is being held by the Haas Stay should be immediately released. This ruling came on July 24, 2008 and notification of this ruling is being provided to all Refional Offices under a directive from DVA Headquarters.
If you have any problems in getting your claim immediately removed from the Haas Stay and put back into active status for adjudication, please contact us at firstname.lastname@example.org.
Information on the relationship between NHL and CLL can be found at http://assets.cambridge.org/97805218/65449/excerpt/9780521865449_excerpt.pdf
A Study stating
"The Revised European American Lymphoma classification scheme (Harris etal. 1994), which is widely accepted and was adopted by the World Health Organization, considers B-cell CLL and small lymphocytic lymphoma [SLL, a subtype of non-Hodgkin’s lymphoma (NHL)] to be a single disease entity, in recognition of the biologicand clinical similarities between these B-lymphocyte malig- nancies (Harris etal. 1999).
The Leukemia & Lymphoma Society (LLS) states:
"Lymphoma is a general term for a group of cancers that originate in the lymphatic system. The lymphomas are divided into two major categories: Hodgkin lymphoma and all other lymphomas, called non-Hodgkin lymphoma (NHL). The prefix "lymph-" indicates their origin in the malignant change of a lymphocyte and the suffix "-oma" is derived from the Greek suffix denoting "tumor." About 53 percent of the blood cancers that occur each year are lymphoma."
CLL *can be* a non-Hodgkins lymphoma.
It might also be of interest to note that, when the VA filed its Notice of Proposed Rulemaking to change the definition of "Service in Vietnam," they included this statement:
"For the same reason, we propose to amend 38 CFR 3.313 to specify that the definition of ''service in Vietnam'' therein applies to that section only. In addition, we propose to amend the title of §3.313 to read, ''Presumption of service connection for non-Hodgkin's lymphoma based on service in Vietnam.'' The definition of ''Service in Vietnam'' in §3.313(a) will remain unchanged. We are not making any substantive change to the regulation by these revisions. The intent of the term ''Service in Vietnam'' in §3.313 is completely different from that which was intended in §3.307(a)(6)(iii). "
So the situation revolving around NHL is indeed quite different than other issues of Agent Orange and presumptive exposure.
The VA has produced this report, dated May 14, 2003 regarding the inclusion of CLL in the PRESUMPTIVE category. But you should be considering filing CLL as NHL claims if the diagnosis of NHL exists in your medical records. NHL claims are processed immediately for sailors and are NOT SUBJECT to the Haas Stay.
Below is a letter to the VA General Council's office which you can mail or fax (202-273-6671). It addresses the fact that Non-Hodgkins Lymphoma (synonymous with Chronic Lymphocytic Leukemia) claims have been illegally held in the Haas stay. We want to "shake these loose" both because the law requires that and to eliminate them from the large pile of claims that has been amassing since that stay was put in place in September, 2006. You can sign the letter and include your personal information at the bottom, or use the letter as is.
As of December 23, 2008, I have received no response to this letter and return calls have resulted from three messages.
Mr. Paul Hutter / Mr. Jack Thompson
Department of Veterans Affairs
810 Vermont Ave N W
Washington, DC 20420
Dear Mr. Hutter and Mr. Thompson:
I am writing you today under some grave circumstances. There is wide spread disregard for the law as well as disregard for instruction from your office as to how the Regional Offices are to treat NHL/CLL claims for compensation.
On July 24, 2008, your office, under your signature, filed a document with the Court of Appeals for Veterans Claims (08-1760) clearly stating that your Department would notify all Veteran Service Center Managers "that any claim for NHL from a Vietnam veteran should be developed and evaluated under 38 CFR 3.313 and should not fall under the Haas case stay."
It is quite clear that either this was not done, or that your office has no control over the 57 Regional Offices within your Department. There are several such cases currently in our Association where the Regional Office has communicated with the veteran that they are under no such instruction, or if they were, such instruction and law does not apply to them.
It appears that the recent events that show extreme lack of capability for DVA to function as a unified department extends into your division. This is a highly regrettable circumstance.
We are requesting that you issue a written statement requiring the Regional Offices to immediately release any NHL/CLL claims from the Haas stay and that they be immediately moved into the system for adjudication. We further request that, given the dire circumstances of the health of these individuals, they be given a priority consideration as "extreme hardship."
Please provide us with a copy of your Letter of Instruction so that weI can provide copies to all the veterans so affected. They could then have with them the instructions from your office, in writing, under your signature, which instructs the Regional Office to comply with the law and release these veterans' claims, when they next contact these VA Service Centers regarding the status of their claims.
We thank you for your attention to this matter. We would expect to receive your letter no later than December 1, 2008 so that these veterans can proceed with the lawful compliance of their claims adjudication.
Members of the Blue Water Navy Vietnam Veterans Association
Jan 30 2009
BWNVVA Takes a Stand on NHL