Blue Water Navy

I hope this finds you all well,

I happened to go back to the Military.com site where I often look in on Dave Barker's posts on AO. I noticed a post that made me think about something many may not have thought of, and quiet possibly needs to go to both the House and Senate VA Committees. But it is specific to comments being made about the demise of the Haas case and the probability the VA will begin routinely, and unthinkingly, denying BWN cases.

The statement starts with the overall and growing perception that Congress is the only hope. It is not, since what has transpired is that presumption has been denied, which may effect some, but the claim of exposure has not. It means that logs have to be requested, or if in someone's possession, passed out and around. Why, what for you may ask? Well, here it is:

Playing the VA Game (Haas re-realized),

I say this only because many are sorely disappointed in the VA and the Supreme Court; however, hope reigns eternal. While I, with many have hope that Congress may do what is right, that will take everyone's maximum grassroots effort to push those in Congress to support his new bill.

In the meantime, let us revisit BWN claims. You've now been denied presumptive exposure, that is a given; however, 'Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, P. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation.' Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also 38 C.F.R. § 3.303(d).

As evidence, make sure the following is submitted remembering that Agent Orange use was terminated November 26, 1971, therefore use 'herbicides' as defined in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10n. This can be found at:

http://www.warms.vba.va.gov/admin21/m21 ... 5Fsecc.doc

and at 38 CFR 3.307(a)(6)(i),

Also, AKCSJAKE seems to imply that there is much evidence (from Navy deck logs, etc.) that may document actual evidence of direct spraying.

So routine dismissal of a BWN case is not so easy, especially if there is some evidence of spraying while on board.

And lawyers and advocates everywhere need to start thinking, and using the regulations for as many as can benefit from it.

Kurt, for those who were there for the spray period may have some possible chance of going that way, but for many of us who may have become exposed with water contamination through our ships distallation process or taking water on board from Guam and having fresh water wash downs in Subic, Singapore and Japan, gives many other possible sources of contamination this way as just a few scenarios.

Without Congress getting this passed as Filner has mentioned previously that would expand the exposure in many different places, many of us only have hope if the AO Act of 09 can specify these conditions, other than that it is pretty well expected many will be denied because of no "Boots on Ground".

Later Gang, Ken

The complexity of all this forces me to try once again. From what I am reading HAAS may never be viewed favorably. There is a need to"systematicaly" target existing symptoms and get a related approach that will qualify those on existing symptoms. I had to do this, and I qualified for service connection on a totally different program and nowhere in my files does it even indirectly speak to AO. I did qualify on linked symptoms that got me "SERVICE CONNECTED". This "Direct Connection" is the seam you are trying to hit. Try to not speak so much about AO until you find a way around your current dilemma!

David,
Can you guve a specific example. If a persons illness is directly related to AO exposure (one of the many quaiified diseases) what other grounds could they use to SC it?
Frank

Frank, I almost went crazy doing this.I was fighting the good fight like you and all the gang. What ended upworking for me was the fact that agent orange and another situation hits on the same two things for me. Cold Injury... frostbite in particular affects the body creating Severe poly-Neuropathy exactly like Agent Orange does. I was home-based in Plattsburgh New York and I flew in and out of Minot North Dakota working in extremes of 30-40 below zero in the winter. My list of injuries is too long to list but osteo-arthritis is another problem that extreme cold weather can affect your body. As a result i have left rotator cup tears that will have to be repaired eventually.

I don't know if your Navy tour put you in a cold weather station or not so I hope this may help you to understand how you can circumvent the idiotic policies. When I entered the Air Force in 1966 I was healthy & didn't have a care in the world but now 43 years later I take 3600 mg of gabbapentin daily and still live with constant pain, for me my Dr. says there is nothing more they can do.

Just my own personal opinion, but I expect near a 50% ration of incorrectly rated "Haas cases" once the VA starts trying to clear them off the table. They will be anxious to hurry through them. Plan on appealing all of them. Watch closely what they do or don't do as regards the VCAA in helping you find ways to perfect the claim. Look for the faulty logic... it will be there. Share the conclusions to we can get a group mind onto this.

-Rossie

Good Sunday Morning:

Extremely good well thought out posts everyone. David, I had not thought of your path to success, it borders on near genius. And JR's post is what I was getting to, put much more succinctly. Please remember I am nowhere close to a Vetrep, I'm an advocate. So when I point to direct exposure there are several assumptions and caveats. Here they are:

Assumptions
1. You have a disease on the presumptive list;
2. You have evidence of direct exposure, undeniable proof means you do not need to prove nexus;

Caveats
1. Nexus for a presumptive or non-presumptive disease is hard to prove because most doctors cannot say with a great deal of certainty that dioxin caused the disease.
2. The VA is and has been mostly unwilling to give the benefit of the doubt when it comes to drift, sediment, and getting it from distillation (to me this is a no brainer);

So back to JR's point. If the VA denies your claim there are several logical questions, specifically related to the paragraphs I cited. They are:

1. Does the VA only have a requirement to adjudicate your claim based only on presumption; or, knowing that there is a requirement to adjudicate a claim based on direct exposure, should they have considered it as a possibility and if they don't what legal recourse do the regulations and laws provide?
2. Did the VA Regional Office follow the VCAA and assist, and did they deny the claim without sending it to the VA "AgentOrange" mailbox stop (per the reg) in HQ VBA for a review? Or did they send it straight to JSRRC?
3. What evidence was submitted, particularly with the thought that official Navy ship logs are better than buddy statements?

It would be helpful if someone could query a lawyer(s) adept at VA claims to answer the first question, and be prepared to take it all the way if necessary.

What bothers me most about Haas, is Nicholson's illegal stay. His illegal stay was in September 06, and the legal stay was in Jan 07.
I would assume (you know what happens when you assume), August 06-Jan 07, the CAVC and Hass was the law of the land? Did the VA have the obligation to process claims at that time. My claim was heard in Sep 06 and it was held under Haas until Aug 07, when finally released. Just food for thought, these are questions for legal beagles.

I filed mine in November 06 and it is still under the stay. I suspect there is no meaning to that "law of the land" time period.
Frank