13 Apr 08 - October 30, 2003 AO Exposure while offshore Vietnam
8 Apr 08 - August 30, 2006 AO Exposure Da Nang Harbor + Boots-on-Ground
8 Apr 08 - April, 2005 AO Exposure Da Nang Harbor
8 Apr 08 - March, 2005 AO Exposure Da Nang Harbor
8 Apr 08 - September, 2006 Ruling AO Exposure Da Nang Harbor
8 Apr 08 - 2003 Ruling for AO Exposure in Da Nang Harbor
27 Feb 08 - 12/2007 Ruling for AO Thyroid cancer from FT. Ft. McCellan, AL
19 Feb 08 - 2007 Ruling for AO Exposure in Da Nang Harbor
14 Feb 08 - October 2006 BVA Ruling for Blue Water Navy Agent Orange Exposure
8 Feb 08 - Sept 12, 2006 BVA s/c ruling that VSM and off-shore service makes veteran eligible for presumptive exposure for CLL
3 Dec 07 - Guam Compensation Filing that mentions the Guam Neurological Study being conducted (or scuttled?) by the VA. This explains when the study (neurodegenerative disease of Guam) was started and what they were looking at. It still hasn't been completed. There are many of these cases and we can find none where the veteran has won.
30 Nov 07 - 1996 award for amyotrophic lateral sclerosis (ALS) from service on Guam 1970-72
10 Sept 07 - Link to Marine Corps Times article dated July 19, 2007 - Agent Orange on Okinawa
21 July 07 - 1998 VA ruling in favor of AO exposure on Okinawa
13 July 07 - Added Page 3 to the Ruling for for service connected AO exposure from service on Guam - See 1 July entry
8 July 07 - Decision in 2005 for service connected AO exposure from service on Guam
8 July 07 - Decision in 1998 for service connected AO exposure from service in Thailand and maintenance work on B-57 aircraft. Veteran had histiocytic type malignant lymphoma.
1 July 07 - Added Award Letter for sailor dated March 27, 2007 granting AO-related cancer from service on Guam. Letter shows Evidence and Reason For Decision Image #1 and Image #2 . This case was won at the local level. [Page 3 of Award Letter added 13 July 07].
16 June 07 - Added the GAO Findings and Recommendations Regarding DOD and VA Disability Systems submitted 25 May 2007
24 Mar 07 Added a Blue Water Navy claim for Diabetes Type II for transit in Vietnam on way to Yankee Station, claim dated November, 2006.
22 Mar 07 Added a Blue Water Navy claim for compensation DOCKET NO. 05-17 351, dated Sept. 7, 2006. This case was actually decided in the brief period after Haas was decided, but before the BVA Chairman issued the September 21, 2006 memorandum staying cases at the Board. A small number of Blue Water Navy veterans’ claims were granted during that period based on their receipt of the Vietnam Service Medal.
5 Sept 06 Added John Wells' Reply to the Court filed this day. Download it here
14 Aug 06 - Added a Blue Water Navy AO Exposure Claim currently before the VA Court of Appeals.
This is a filing before the Veteran's Court of Appeals which directly addresses the issue of Blue Water Navy exposure. This case is still before the Court as of 8/14/06.
This filing contains specific information and references that can be cited in similar filings, including the definitions of Inland Waters and Territorial Waters, as well as several other arguments of interest and importance to the Blue Water Navy claims.
The filing was written by John Wells, a veteran, a retired USN officer (Surface Warfare not JAG) and a Chief Engineer on 3 Navy ship, who is now an attorney.
This document has been converted from a .pdf file to a Word file to remove the names of the individuals involved. In the process of doing that, some of the FORMATTING of the original document has changed, but no other changes have been made.
1 Aug 06 - Added the .pdf file of VA GUIDE TO FILING AGENT ORANGE CLAIMS. This is an important document to be familiar with. Additional information and notes have been added following the VA guide in this same .pdf file. Read it ALL !!! Find it HERE. It includes information on filing AO claims EVEN IF YOU WERE NOT ON VIETNAMESE SOIL... very important to off shore Blue Water Navy activities.
May 18 - October 2005 Agent Orange case won for service on Guam (and 2 other non-"In-Country" locations
April 4 Update - The Dingess/Hartman v Nicholson case
The granting of claims involving a "presumptive exposure" for Blue Water Navy veterans has been confusing and inconsistent over the years. One primary reason for this was a change actually took place in the VA guidelines for assessment. This is very well explained in a write-up by the National Veteran's Legal Services Program. That is a good place to start in understanding some of these examples of rulings in favor of Blue Water Navy presumptive exposure. Additionally, this White Paper provides an analysis of this important change to the M21-1 section of the VA Adjudication Manual.
At this current time (early 2006) the change in the VA manuals is being challenged.
Citation Nr: 0208230
DOCKET NO. 95-30 437 ) DATE
On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for Hodgkin's disease,
claimed as a result of Agent Orange exposure.
2. Entitlement to service connection for bladder cancer,
claimed as a result of Agent Orange exposure.
REPRESENTATION
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
INTRODUCTION
The veteran served on active duty from December 1972 to July
1974.
This appeal arose before the Board of Veterans' Appeals
(Board) on appeal from June 1995 and November 1998 rating
decisions of the Department of Veterans Affairs (VA),
Nashville, Tennessee, regional office (RO).
A rating decision dated in November 2001 denied various other
claims for service connection. No notice of disagreement has
been received to date with respect to those claims.
Additionally, in the June 2002 informal hearing presentation,
the veteran's representative made argument that could be
construed as raising the issue of entitlement to service
connection for cancer of the prostate. That issue has not
been developed for appellate review and is hereby referred to
the RO for action deemed appropriate.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. The veteran served aboard the U.S.S. Oriskany in the
coastal waters off Vietnam for approximately 5 days in 1973.
3. The veteran currently has Hodgkin's disease.
4. The veteran's bladder cancer was not manifested in
service or within the first post service year, and no medical
evidence has been presented of a nexus between the veteran's
presumed exposure to Agent Orange in service and his bladder
cancer, diagnosed in 1987.
CONCLUSIONS OF LAW
1. Hodgkin's disease is presumed to have been incurred in
service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 and
Supp. 2001) 1116 (as added by § 201(b) of the "Veterans
Education and Benefits Expansion Act of 2001," Public Law
107-103, 115 Stat. 976 (2001) (Dec. 27, 2001)); 38 C.F.R. §§
3.303, 3.307, 3.309(e) (2001).
2. Papillary transitional cell carcinoma of the bladder was
not incurred in or aggravated by service, and may not be
presumed to have been incurred therein. 38 U.S.C.A. §§ 1110,
1112, 1113, 1116 (West 1991 and Supp. 2001); 38 C.F.R. §§
3.303, 3.307, 3.309(e) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. § 5100 et seq.; see 66 Fed. Reg. 45,620-
45,632 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a)). This law eliminated the concept
of a well-grounded claim, redefined the obligations of VA
with respect to the duty to assist, and imposed on VA certain
notification requirements.
VA has a duty to notify the appellant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001); 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). The appellant was notified in the August 1995
and August 1999 statements of the case (SOC), and in numerous
supplemental statements of the case (SSOCs), of the evidence
necessary to establish service connection. The Board
concludes that the discussions in the SOCs, the SSOCs, and
the regional office hearing adequately informed the appellant
of the evidence needed to substantiate his claim and complied
with VA's notification requirements.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A (West Supp. 2001); 66 Fed. Reg. 45,630-45,631 (Aug. 29,
2001) (to be codified at 38 C.F.R. § 3.159(c)). In this
regard, the November 2001 SSOC notified the veteran of the
type of evidence necessary to substantiate the claim. It
informed him that it would assist in obtaining identified
records, but that it was the veteran's duty to give enough
information to obtain the additional records and to make sure
the records were received by VA. See Quartuccio v. Principi,
No. 01-997 (U.S. Vet. App. June 19, 2002) (holding that both
the statute, 38 U.S.C. § 5103(a), and the regulation, 38
C.F.R. § 3.159, clearly require the Secretary to notify a
claimant which evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by the
Secretary). Extensive VA medical records have been obtained,
as well as information pertaining to the veteran's service
during the Vietnam era.
Accordingly, the Board finds that VA has satisfied its duty
to notify and assist and under the circumstances of this
case, a remand would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty. 38 U.S.C.A. § 1110. Regulations provide
that service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected, if the requirements of 38 C.F.R. §
3.307(a) are met, even if there is no record of such disease
during service: chloracne or other acneform diseases
consistent with chloracne, Hodgkin's disease, multiple
myeloma, non-Hodgkin's lymphoma, acute and subacute
peripheral neuropathy, porphyria cutanea tarda, prostate
cancer, respiratory cancers, diabetes mellitus and soft-
tissue sarcomas. 38 C.F.R. § 3.309(e).
The Secretary of the Department of Veterans Affairs has
determined that a presumption of service connection based on
exposure to herbicides used in the Republic of Vietnam during
the Vietnam era is not warranted for any condition for which
the Secretary has not specifically determined a presumption
of service connection is warranted. Specifically, the
Secretary has determined that a presumption for service
connection is not warranted for urinary bladder cancer. See
Notice, 67 Fed. Reg. 42600 (2002).
Prior to December 27, 2001, the law required that the veteran
have a presumptive disease before exposure to herbicides was
presumed. See 38 U.S.C.A. § 1116(a)(3) (West 1991 & Supp.
2001).
In December 2001, 38 U.S.C. § 1116 was amended and currently
a veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era
shall be presumed to have been exposed during such service to
an herbicide agent containing dioxin or 2,4-
dichlorophenoxyacetic acid, and may be presumed to have been
exposed during such service to any other chemical compound in
an herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. 38 U.S.C. § 1116(f), as added by §
201(c) of the "Veterans Education and Benefits Expansion Act
of 2001," Public Law 107-103, 115 Stat. 976 (2001) (Dec. 27,
2001).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, §
5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a
veteran from establishing service connection with proof of
actual direct causation. Combee v. Brown, 34 F.3d 1039
(Fed.Cir. 1994).
VA regulations define that "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." 38 C.F.R. § 3.307
(a)(6)(iii) (2001). Additionally, under § 3.313, "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. 38 C.F.R. § 3.313(a).
The veteran's separation papers, DD 214, reveal that the
veteran had approximately one year and seven months of
foreign and/or sea service. A statement dated in July 2001
from the Supervisor of the Records Support Branch of the
Department of the Navy indicated that the veteran served
aboard the USS Oriskany (CVA 34) from September 4, 1973, to
July 4, 1974, and that this ship's deck log showed that it
was present from November 15 to 19, 1973 in the coastal
waters off Vietnam, an area designated as "Yankee Station."
Since the record establishes that the veteran was on board
the Oriskany in the waters offshore Vietnam during the
relevant period, the Board concludes that the veteran must be
presumed to have been exposed to an herbicide agent during
his Vietnam era service. 38 C.F.R. § 3.307 (2001).
Hodgkin's Disease
The veteran was exposed to a herbicide agent during active
service, and he currently has a diagnosis of Hodgkin's
disease. There is no competent evidence attributing the
onset of Hodgkin's Disease to any factor, which could rebut
the chronic presumption. Under these circumstances,
Hodgkin's disease is presumed to have been incurred during
service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 and
Supp. 2001) 1116 (as added by § 201(b) of the "Veterans
Education and Benefits Expansion Act of 2001," Public Law
107-103, 115 Stat. 976 (2001) (Dec. 27, 2001)); 38 C.F.R. §§
3.303, 3.307, 3.309(e) (2001).
Bladder Cancer
The medical evidence of record does not demonstrate a nexus
between the veteran's presumed exposure to Agent Orange in
service and his bladder cancer, diagnosed in 1987. The Board
is aware that the veteran contends that his bladder cancer is
a form of soft tissue sarcoma, which is one of the
presumptive diseases under § 3.309(e), subject to the
presumption of service connection based on exposure to
herbicides. The veteran does not claim and the record does
not show that he has expertise in the diagnosis or pathology
of diseases. A statement dated in June 1997 from a VA Rating
Board medical adviser indicated that the veteran's cancer was
not one of those contemplated by that regulation. Moreover,
studies by the National Academy of Sciences have determined
that there is insufficient or inadequate evidence to
associate bladder cancer with herbicide exposure, and the
Secretary has specifically included urinary bladder cancer on
the list of diseases for which a presumption of service
connection based on Agent Orange exposure is not warranted.
The veteran's lay testimony alone is not competent evidence
to support a finding on a medical question requiring special
experience or special knowledge. Espiritu v. Derwinski, 2
Vet. App. 492 (1992).
In summary, no medical evidence has been presented of a nexus
between the veteran's presumed exposure to Agent Orange in
service and his bladder cancer, diagnosed in 1987.
Accordingly, the Board concludes that entitlement to service
connection for bladder cancer, claimed as due to Agent Orange
exposure, is not warranted. There is no equipoise between
the positive and negative evidence, therefore no reasonable
doubt issue is raised. 38 C.F.R. § 3.102 (2001).
ORDER
Service connection for bladder cancer, claimed as a result of
Agent Orange exposure, is denied.
THOMAS J. DANNAHER
RETURN TO the Main Page
- The Dingess/Hartman v Nicholson case was ruled on very recently - 3 MAR 2006. It is a 33-page .pdf document available for download. A good explaination/review can be found at 2ndbattalion94thartillery.com
SAMPLE CASE #1
Decision Date: 07/23/02 Archive Date: 07/29/02
Appellant represented by: Disabled American Veterans
Appellant
M.G. Mazzucchelli, Counsel
There were no findings of Hodgkin's Disease in service or for
many years thereafter. In early 1997, the veteran noticed
enlarged cervical lymph nodes. A VA examination in September
1997 included a diagnosis of Hodgkin's disease.
The veteran's service medical records do not show any
genitourinary abnormalities or any complaints of findings
related to bladder cancer. Private medical records indicate
that the veteran experienced hematuria beginning in January
1987. In February 1987, he underwent a transurethral
resection of a large bladder tumor. This was determined to
be a well-differentiated papillary transitional cell
carcinoma. The veteran has experienced several recurrences
of his bladder cancer, and has subsequently undergone
chemotherapy and a transurethral resection of the prostate.
Service connection for Hodgkin's disease is granted.
Member, Board of Veterans' Appeals
SOURCE: http://www.va.gov/vetapp02/files02/0208230.txt
Sample Case #2
Opinions and Interpretations
