BOARD MEMORANDUM
NO. 01-06-24
SUBJ: PROCESSING OF CLAIMS FOR COMPENSATION BASED ON EXPOSURE TO HERBICIDES AFFECTED BY HAAS v. NICHOLSON—IMPOSITION OF STAY

1. REFERENCES
a. Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006).
b. 38 U.S.C. 1116; 38 C.F.R. §§ 3.307, 3.309, 3.313.
c. VA Adjudication Procedure Manual M21-1, Part III, ¶ 4.08(k)(1)-(2) (Nov. 1991).

2. PURPOSE OF THIS MEMORANDUM

The purpose of this memorandum is to implement a stay, by direction of the Secretary, on the adjudication of cases affected by the recent decision issued by the U.S. Court of Appeals for Veterans Claims (Court) in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006), as well as to set forth procedures for handling affected cases.

3. BACKGROUND

a. In its recent decision in Haas, the Veterans Claims Court reversed a decision of the Board of Veterans’ Appeals (BVA or Board), which denied service connection for diabetes mellitus, with peripheral neuropathy, nephropathy, and retinopathy as a result of exposure to herbicides. The Board determined that, although the appellant had served in the waters off the shore of the Republic of Vietnam, such service did not warrant application of the presumption of herbicide exposure because the appellant never set foot on land in that country.
b. In reversing the Board’s decision, the Court held that a VA manual provision, VA Adjudication Procedure Manual M21-1, Part III, ¶ 4.08(k)(1)-(2) (Nov. 1991), created a presumption of herbicide exposure based on receipt of the Vietnam Service Medal for purposes of service connection for diseases associated with herbicide exposure. In so holding, the Court found the manual provision to be a substantive rule and invalidated a subsequent amendment to that provision. The Court also found that neither the statute nor the regulation governing herbicide exposure claims precludes application of the presumption of herbicide exposure to persons who served aboard ship in close proximity to the Republic of Vietnam.
c. Accordingly, for the purpose of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the Court in Haas held that “service in the Republic of Vietnam” will, in the absence of contradictory evidence, be presumed based upon the veteran’s receipt of a Vietnam Service Medal, without any additional proof required that a veteran who served in waters offshore of the Republic of Vietnam actually set foot on land.
d. The Department of Veterans Affairs (VA) Office of the General Counsel (OGC) is preparing a recommendation that the Department of Justice (DOJ) appeal Haas to the U.S. Court of Appeals for the Federal Circuit.
e. There are a potentially large number of cases on appeal (exact number not known) that may be affected by Haas. In order to avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, the Secretary of Veterans Affairs issued a memorandum on September 21, 2006, directing the Board to stay action on and refrain from remanding all claims for service connection based on exposure to herbicides in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.
f. As directed by the Secretary, this stay will remain in effect until such time as either the Secretary’s September 21, 2006, memorandum is rescinded, or the General Counsel provides advice and instructions to the Board upon resolution of the ongoing litigation. As further noted by the Secretary, “This guidance is not intended to affect the ability of Board members to exercise their independent discretion in the resolution of questions presented in individual appeals.”

4. IDENTIFICATION AND SCOPE

a. The specific claims affected by the stay include all claims for service connection based on exposure to herbicides in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.
b. Any cases not affected by the Court’s decision in Haas, such as (1) claims based on herbicide exposure in which it is clearly established on record that the veteran did set foot in the Republic of Vietnam, or (2) claims based on herbicide exposure in which the veteran did not set foot in Vietnam, did not receive the Vietnam Service Medal, and did not serve off shore of Vietnam, should continue to be processed in the usual manner.

5. VETERANS LAW JUDGE/COUNSEL HANDLING OF AFFECTED CASES

a. Notation. Upon identifying a claim that is subject to the stay, a Veterans Law Judge (VLJ) or staff counsel should make a notation in the lower right-hand corner of the Appeals cover sheet that it is a “HAAS HERBICIDE STAY CLAIM.”
b. Single-issue cases. Affected single-issue cases, as well as cases involving an issue that is inextricably intertwined thereto (such as claims for a total disability rating based on individual unemployability (TDIU) or service connection for a disability as secondary to the stayed claim for service connection based on herbicide exposure), should be forwarded to the Decision Team Support Unit for processing in accordance with paragraph 6 below.
c. Multiple-issue cases. Some multiple-issue cases may contain issues that are subject to the stay and others that are not. In such cases, the Board must adjudicate, as appropriate, all issues that are not subject to the stay. See BVA Directive 8430, para. 13 (May 17, 1999). Cases where other claims are being adjudicated and/or remanded should contain language in the “Introduction” that is substantially similar to the following:

The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006), that reversed a decision of the Board of Veterans’ Appeals (Board) which denied service connection for disabilities claimed as a result of exposure to herbicides. The United States Department of Veterans Affairs (VA) disagrees with the Court’s decision in Haas and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed.
d. After the decision and/or remand, if any, has been signed, the VLJ should forward the case to the Decision Team Support Unit for processing in accordance with paragraph 6 below. For any issue being stayed, the “Stay” disposition should be chosen when a counsel or VLJ checks out a case using the Attorney Check In or Automated DAS programs. The name of the stay to be chosen in the drop-down box is “Herbicide - Haas v. Nicholson.”

6. MANAGEMENT AND ADMINISTRATION HANDLING OF AFFECTED CASES

a. Central Case Storage. The Central Case Storage Unit, within the Intake Unit, will continue to distribute all cases to the Decision Teams and Appellate Group, following normal procedures as set forth in the Board’s Central Case Storage Procedure Manual (August 18, 2006). VLJs and Board counsel will ultimately decide if a particular appeal is subject to the stay. No action to stay a case may be initiated by an administrative staff member, except upon direction of a VLJ or Board Counsel.
b. Decision Team Support: Identification of a Stayed Case. Upon receipt of a file which indicates in the lower right-hand corner of the Appeals Cover Sheet that it includes one or more issues subject to the stay, as identified by the notation “HAAS HERBICIDE STAY CLAIM,” the Decision Team Support Unit reviewer should make the appropriate entry in VACOLS to reflect the existence of the stay. The name of the stay is “Herbicide - Haas v. Nicholson.”
c. Procedure.
(1) Single-issue cases. For single-issue cases in which the only issue on appeal is a claim affected by the stay, as well as cases involving an issue that is inextricably intertwined thereto, and for which a Board decision is not presently being issued, the Decision Team Support Unit will retain and store the claims folder during the period of the stay. Upon receipt of the claims folder and a determination that the case is subject to the stay, the Decision Team Support Unit will send a letter to the appellant and/or the appellant’s designated representative, as appropriate. The letter will notify the appellant of the stay imposed on the processing of certain compensation claims, and that an adjudication of the claim(s) will be deferred pending the appeal by VA of the CAVC’s decision in Haas. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed.
(2) Multiple-issue cases. In multiple-issue cases where the Board is finally disposing of and/or remanding some of the issues that are not subject to the stay, action should be taken to dispatch the decision and/or remand in accordance with normal procedures, making sure that appropriate controls have been put in place with respect to the issue or issues being stayed. Upon dispatch, the claims folder should be returned to the appropriate agency of original jurisdiction/regional office in the usual manner, and the Board’s Appeals cover sheet folder should be forwarded to the Decision Team Support Unit for retention during the period of the stay.

7. COURT REMAND CASES

A case containing a claim affected by the Haas stay that has been returned to the Board by the Court of Appeals for Veterans Claims will generally be handled in the same manner as non-court remand cases. However, the Litigation Support Division (01C2) will attempt to identify affected single-issue cases, as well as cases involving an issue that is inextricably intertwined thereto, and prepare and dispatch notification letters before they are forwarded to the Decision Teams. Any questions concerning an affected Court remand case should be raised with the Chief Counsel for Operations or, in her absence, the Chief Counsel for Policy or the Senior Deputy Vice Chairman.

8. RESCISSION

This memorandum is effective until expressly rescinded, modified, or superseded.


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