Agent Orange, Proposed Rule Change

Discussion in 'Agent Orange' started by TinCanMan, Apr 24, 2008.

  1. TinCanMan

    TinCanMan Active Member

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    On 16 April 2008 the VA published in the Federal Register a proposal to change 38 CFR §3.307 as follows:

    By this rulemaking, VA intends to make clear that in § 3.307(a)(6)(iii), ‘‘service in the Republic of Vietnam,’’ for purposes of establishing presumptive service connection due to exposure to herbicide agents, applies to a veteran who served in the Republic of Vietnam only if that veteran was physically present on land in Vietnam, or on its inland waterways. The presumption does not apply to a veteran who served only on the waters offshore of Vietnam. We propose to amend § 3.307(a)(6)(iii) to state: ‘‘For the purposes of this section, ‘service in the Republic of Vietnam’ includes only service on land, or on an inland waterway,

    See this link: http://edocket.access.gpo.gov/2008/pdf/E8-8091.pdf

    This proposal comes one day after the changes to the VSM changes took effect and in essence, pretty much pretty much makes the Haas decision by the CAFC a moot issue and will do the same for any potential decision by the CAFC other than some possible grandfathering which would be dependent on how that court decides the two issues.

    What I never understood was why the VA chose to permit this to drag out this long. The could have made these changes 10 years ago. The NVLSP made lots of money representing Haas and the losers are American veterans who should have been taking this issue to their elected officials instead of placing false hope in attorneys.

    It's all over but the shoutin'
  2. CEDAR FALLS

    CEDAR FALLS Member

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    Not up on this but here is my question the Haas decision gave blue water vets presumptive service connection due to exposure to herbicide agents?? if so and blue water vets are getting disability will this action take it away??
  3. TinCanMan

    TinCanMan Active Member

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    Actually, the Haas decision by the Court of Appeals for Veterans Claims (CAVC) only gave opportunity for a handful of BW veterans to successfully make AO presumptive claims but the stay issued by DVA stopped that and the DVA appealed to the Court of Appeals for the Federal Circuit (CAFC) in July of 07. Oral arguments were heard 07 Nov 07 and it is still under consideration. No decision as of yet.

    On 15 April 08 the 60 day waiting period ended for the required notice of rulemaking change wrt the VSM and the M21 manual ended and this new notice is about the other issue which is the definition of "in the Republic".

    With these changes, VA has slammed the door on new BW claims; but, depending how the CAFC rules, some folks with existing claims might still prevail. If the CAFC rules against Haas on both issues, it's all over.

    Anyone with a current award will be grandfathered and the award is unlikely to be removed
  4. Ken Hummel

    Ken Hummel New Member

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    The proposed change

    Just joined your group from Blue Water Navy, and I would like to share with you my post to the Federal Registry for the proposed rule change. I ask any of you who wish to join us with your comments to the registry about your support for or against the proposed change, to please take advantage of it.

    Use this Link:

    http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=090000648050a8f3

    My submission:

    I would like to submit a response to the proposed change for exposure to Dioxins to all US Navy Vietnam Veterans that may have been exposed during their service. It is my belief, that when the AO Act was set by Congress, that the issue we are dealing with was to avoid what is happening at this time to the denial of claims to any Veteran that very well could have been exposed to Dioxins.

    I would like to give you scenarios that can be used as a simple "Presumptive" explanation and allow the ruling of the Congress and the Courts of the Veterans Appeals that have been established, stand as was intended, and show why I oppose any rule change by the VA that is directed to denying US Navy personnel compensation for their disabilities connected to Dioxins and contaminants during their service.

    The issue of Blue Water Navy sailors that have served off the coastal waters of Vietnam being exposed is the purpose of this attempted change, but I ask that you consider and think about this statement. "If this attempted change was affecting any of your loved ones or even yourself, how would you consider this attempt to deny any Veteran that has served for our Nation and has been put in Harms Way unknowingly and after the fact?"

    The US Navy was a very instrumental part of the conflict of Vietnam, with many ships supporting the in country operation with travels up river, ports and coastal waters. At one time their was a 12 mile rule emplemented, and for most of the smaller vessels that served the coastal waters, it was neccessary to be within this range or less because of the distance their guns would reach. Now, I submit scenarios that are real, possible, and probable to the issue we are discussing about Presumptive Exposure, and please take the time and truly consider the possibilities and probabilities of these statements.

    (1) Many Navy vessels transported troops and equipment to and from the theatre of Vietnam, and knowing what we know today about the chemicals, the presumption can be very possible if any of the troops or equipment were also exposed to spay or contaminants at any time during this conflict, and with common sense understanding, this contaninant could very well have been brought onboard a vessel unknowingly to anyone at anytime.

    (2) Many troops brought onboard a vessel for any amount of time has had to have their clothing laundered by the ships laundry. This contaminant remained onboard, and was even discharged to the open waters.

    (3) Well documented proof that can not be denied or dismissed that AO was stored, used and exposed to many Naval and military personnel throughout our entire world, such a, Guam, Phillipines, Panama, Japan, Singaphore, and even our own United States Ports where any US Naval vessel have been after serving in the theatre of Vietnam and other ports throughout the world. Most every ship enroute to and from Vietnam stopped in Guam and most took on water from that Island. The contamination of that country is a very hot topic today as you all should be informed and updated about. The Phillipines, Subic Bay, Clark AFB was a major distribution center for all military and Naval operations of Vietnam.

    (4) Supplies, foods and mail were brought to ships in the gulf by helicopters in large bags and cargo nets. Most of these deliveries came in from DeNang where many of our ships also docked and anchored. Unless anyone can prove that any of the bags of mail, cargo nets, and any case of food had not touched ground during the entire war of Vietnam, then presumption would not be an issue.

    (5) Naval vessels have a tendancy to attach massive quantities of salt on the hull of a ship and all external bulkheads during operations. With this salt concentration, it is very likely and probable that anything that floats in the waters can become embedded in these salts, such as chemicals and so on. All ships conduct when available the opportunity to do fresh water wash downs, and many times these wash downs has water running in all directions of the ship carrying all contaminants with it. Also, the Navy takes pride of the cleanliness of the vessels and the continuing efforts by individuals having to repaint and clean by hand all parts of the ships under many situations and conditions.

    (6) All vessels must dump from their bilges the waste water wich is stored within the confines of the ship. Many times, these dumps have been in ports and many times the proof of this disharge is floating around the ship in the surrounding waters. And I will allow the reader to imagine what these floatation items may or may not be. The point here is that these dumps contaminate the waters, and the numerous amount of vessels that do this is a frightening thought to think what has come out of these bilges over so many years, and the amount of personnel that have been directly exposed to these contaminants.

    (7) The distalation process of making potable water from the waters of the Tonkin Gulf and inland waters has been a topic of discussion that is very real and very simple to understand how and why US Naval personnel could have been exposed. Military troops in country had indirect and direct exposure to the spray of dioxins, and for many of these individuals they may of had the opportunity to wash themselves after. For the US Navy personnel that may have been exposed due to the potable water distallation process, these individuals may have been exposed by the consumption of the foods and waters they ate and drank unknowlingly aware at that time that the possibilty of contaminants were present. This is called "Hind Sight", however the fact is known now that this was a very distinct possibility that it can not be ignored just to deny an individual due compensation by changeing the rules afterwards.

    (8) For the sailor that just reported to a ship that had recently returned from Vietnam, or even a vessel that had been there, and for whatever this individual has come down with any of the noted desease that is recognized by the VA for AO exposure. There is a very real possibilty that the proof that has been updated with water contamination and/or the transport of troops and equipment, or the many ports that have been proven to be contaminated, the real possibility that this individual was exposed and never saw the theatre of Vietnam is very real. He very well could have been exposed just due to the fact that any traces of this Dioxin was transported back to the United States. The containment of these contaminants have not been documented and insured by any means, such as the containment of the spray remained in the boundaries of the country of Vietnam.

    (9) For all Naval vessels that served in the waters of Vietnam, we all experienced the Typhoons and weather conditions, and as we all learned in school, mother nature plays a big part of our environment. Evaporation of the waters on ground delivers to the clouds above us, and are dispensed again during rains back to the ground. How can we ignore the facts of nature?

    I have given you many possible scenarios of how any of our Naval Personnel could have, and probably have been exposed to dioxins one way or another. And if one would truly consider the possibilities here mentioned, I ask one why these presumptive deseases acknowledged by the VA are so common in nature, and by so many of the same branch of service? Is there or is there not a possible connection by a common contaminant that has made many Americans that have served this Nation and have been promised to be taken care of for their service, so ill and disabled that the quality of life has been taken from them due to their commitment for their service?

    I truly submit this in objection to the change of the M21-1 manual as an opportunity for the VA to deny any Veteran for compensation and benefits that have been established by the VA and our Congress. The mentioned possible scenarios are real, and should not be ignored due to the fact that any and all of these imagineable situations could have and would have made anybody subjected to a contamination of this magnitude. This I believe was the intent of Congress when "Presumption of Exposure" was enacted in the AO Act. It appears that they may have very well understood at that time that the possibilty of exposure could have come from anywhere at anytime that made our Veterans vulnerable to these contaminants. The "Boots on Ground" ruling should be set aside as the courts have already ruled, and the commitment of the VA should be directed to ensuring that the Veterans of this Nation who have served should be duly taken care of, and the VA should honor their commitment rather than find a way to deny them for their service.

    I also submit this objection to the change of the M21-1 manuel and ask the VA to prove that any US Navy Veteran who served in the theatre of Vietnam was not exposed to contaminants, and to produce beyond any reasonable doubt evidence that shows that he or she could not have been exposed. The possible scenarios I have submitted should support any reasonable doubt that the exsposure of any United States Naval Personnel could have, and probably were exposed to these contaminats as a "Presumtion of Exposure" as directed by the United States Congress and the Agent Orange Act.
  5. michael0004

    michael0004 New Member

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    I too just joined your group from bluewaternavy.org. Ken Hummel sets forth the issue of Agent Orange and the blue water Navy very thoroughly. When you consider this, keep in mind that from the enactment of the Agent Orange Act in 1991 until 2001, the VA recognized, as required by law, the presumption of exposure to Agent Orange to all Vietnam veterans who served in Vietnam and were awarded the Vietnam Service Medal and who have been diagnosed with specific diseases including prostate cancer, lung cancer, larynx cancer, trachea cancer, bronchus cancer, multiple myeloma, Hodgkin’s disease, Non-Hodgkin’s lymphoma, soft tissue sarcoma, chronic lymphocytic leukemia, and type 2 diabetes. The purpose of the law was to relieve the veteran of having to prove exposure to Agent Orange, which is an extremely difficicult and sometimes impossible task. But in 2001, after 10 years of granting the same presumption to blue water Navy Vietnam veterans that it did to land-based Vietnam veterans, the VA made a "ruling" that not only did one have to have the Vietnam Service medal and serve in Vietnam, but that the veteran's service had include having set foot on land. It does not matter that our ships often came within a few hundred yards of the shoreline (which we often did during Naval gunfire support missions or small boat interdication missions) or that they anchored in a port in Vietnam. If one did not step foot on land, one is out of luck. The VA's position, which ignores downwind drift of the spray, runoff, and other factors, is that blue water Navy Vietnam veterans were less likely to have been exposed to Agent Orange. They take this stand despite that fact the Navy Vietnam veterans have a higher rate of coming down with certain of the specified diseases associated with exposure to Agent Orange such as Hodgkin's. Nor does it matter that the Australian Navy conducted studies that proved that its blue water Navy Vietnam veterans contracted the diseases at a higher rate than its ground force and that Australia recognizes their service connected disability. The VA says it does not recognize the Australian study. But it cites no studies that contradict those findings, nor will it commission study to study it.

    The VA which has already lost one appeal on this issue and a further appeal by the VA to the U.S. Court of Appeals is still pending, apparently anticipates another unfavaorable ruling, so it is trying to go through the process in an attempt to make their previous and ongoing illegal actions, legal. Or at least, put a fig leaf over their illegality so that when they are taken to court again, they can drag out any final ruling on individual blue water Navy Vietnam veterans claims for another seven or eight years, thereby with the help of the Grim Reaper can successfully outwait many who will succomb to their afflictions which will allow the VA to save a few dollars.

    Sorry if I rambled on, but if you would like further information you may go to bluewaternavy.org or nvlsp.org. I would only ask that you study the issue and submit your comments to the VA. We need as much support as we can get.
  6. TinCanMan

    TinCanMan Active Member

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    It's all over but the shoutin' boys. Ya shoudda been talking to your legislators instead of screwin' around with the NVLSP. They made a big pile of money from the Equal Access to Justice Act by filing suit in CAVC and will make even more if they even get a remand by CAFC for one minor issue. Now go do what ya should have done in the first place instead of playing jailhouse lawyer.
  7. Ken Hummel

    Ken Hummel New Member

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    Unfortunately Tin Can, many of us have contacted our legislatures numerous times, and what it interesting is that most of them have no idea what we are talking about, or respond with a form letter that have the same information we have sent to them.

    Personaly, my diagnosis didn't officially come until April of 06, and my claim has been on hold since awaiting the Haas outcome. Now if you have information of what any of us can do to get around the pending hold, (which by the way is in an official form from the VA), many of us have our hands tied due to the time frame.

    I have had a VSO since 03, so I really don't know what I could have done any different than what I have so far.
  8. TinCanMan

    TinCanMan Active Member

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    Oh, they understand you all right, they just don't agree with your take on things. Congress has had since 1997 to weigh in on OGC 27-97 and has failed to do so. They've also had since 2001 to weigh in on the change in the VA's M21 manual wrt the VSM. Absolute silence again. Zip, Nada. Why do you suppose that is? Fact of the matter is, I believe the VA is correct when they say that there is no evidence Congress ever intended to extend presumption offshore. I've seen the BWN site and my take is there's nothing of value there for me. Lots of puffery and posturing with little substance. You are, of course, entitled to your opinion. Have at it. How's that working out for you? Anything that comes out of the CAFC by way of a decision will be nothing more than legal nit picking over a couple of issues the VA screwed up on when they wrote 3.307 and the M21. None of it has anything to do with the merit or lack of merit relative to BW AO presumption. In the end, Congress is filled with educated men and women, all of whom have been successful in their chosen professions. I don't believe for one moment they are unable to understand the issue.
  9. michael0004

    michael0004 New Member

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    Sorry to hear TinCanMan that you agree with the VA as to the definition of "service in Vietnam". Judging by your log-in name if you were stationed a Destroyer in the Gulf of Tonkin during the Vietnam war, you had "service in Vietnam" whether or not you were aware of it since you probably participated in naval gunfire support and other operations that would have brought you well within the 12-mile territorial limit of Vietnam. Congressmen and the lawyers on their staffs who helped draft the legislation know abought 12-mile territorial limits and if they had meant to limit "service in Vietnam" to only those who set foot on Vietnam soil, they would have specifically said so. But they did not. I also find it hard to believe they they would have excluded those of us who anchored in Vietnam ports such as DaNang harbor. Moreover, there is no legislative history to indicate a "foot on the ground" requirement. And it took the VA ten years before they decided that there was this non-existent requirement. One last thing, by the time the VA started imposing this non-statutory requirement, most of the Congressman who pushed the Agent Orange Act of 1991 are no longer in Congress. The newer Congressman don't have any idea what was meant when the law was written, so they go along with the VA concocted definition.
  10. TinCanMan

    TinCanMan Active Member

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    I'm not going to bother debating the merits or lack of them with you. I've been studying this issue for the past 8 years and I've made my decisions based on my understanding of the pertinent Public Law, Statutes, Regulations, OGC Opinions and the biennial IOM reports in "Veterans and Agent Orange". I've also read The Ranch Hand studies and a fair number of peer reviewed studies on the topic. I do try to avoid studies that haven't been subject to peer review or have not been shown repeatable. I also avoid blogs and other bully pulpits. If you want to know what Congress was thinking before they wrote the Agent Orange Act of 1991 (Public Law 102-4) then I'd recommend you get a copy of the Congressional Record for the period and see if you can find in any of the debates, any intent to include anyone offshore.

    Oh, by the way. I didn't just come in on the mid watch here. I have five deployments to Vietnam on smallboys and was either a senior PO or a CPO at the time so I was very aware of my circumstances.

    The bottom line here is this issue is over for everyone that has yet to file a claim and depending on the decision of the CAFC, it may be over for some or all of those with claims pending. If you want change, it will have to come from Congress, like it or not.

    Debating this with me is a waste of my time and yours. I don't know about you but I prefer to use my disposable time helping veterans understand the claim process.
  11. michael0004

    michael0004 New Member

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    With all of your knowledge and experience o great one, tell me one thing: On what specific and relevant basis do you interpret the Agent Orange law to mean that service in Vietnam under the Agent Orange Act is limited to those who set foot on land in Vietnam and excludes service within the internationally and US recognized boundaries that include coastal waters up to 12 miles off shore? How about those who were within the geographical boundaries of Vietnam when they were anchored or pierside in DaNang harbor which is surrounded by land on 3 sides?

    Michael0004
    OSCS (Retired)
  12. TinCanMan

    TinCanMan Active Member

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    I said I wasn't going to debate this with you as it is pointless and a waste of my time.
  13. michael0004

    michael0004 New Member

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    I take it then that you do not have any facts to support your conclusion that the law requires boots on the ground to meet the "service in Vietnam" requirement of the law. The fact that you do not support your fellow shipmates, including Destroyer sailors, position that service in Vietnam under the law - not the VA's regulations - did not end at the water's edge is your perogrative. But please don't try to undermine our efforts unless you truly have relevant and specific facts to back up your position.
  14. TinCanMan

    TinCanMan Active Member

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    It's over bunky. Talk to your legislators.
  15. michael0004

    michael0004 New Member

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    Why do I sense that for whatever reason you seem to take joy in the current difficulties that your fellow Vietnam Blue Water Navy veterans are having with the VA? Could it be because you do, in fact, take joy in our predicament? Very sad.
  16. mike brown

    mike brown New Member

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    What you dont understand michael is that TCM is drawing compensation from presumed exposure to ao while on a navy vessel offshore, but his attitude is like well i got mine before the va changed the rules so you people are stupid because its over bunkie. Strangest set of talking points ive ever heard, Everyone knows that because someone set foot on land in danang for 15 minutes he has not been exposed to more than a lot of people on ships. And to continue to draw thousands of dollars in compensation while taking the bully pulpit on veterans websites making fun of those BUNKIES that are filing for the same benefits he is drawing......Priceless
  17. michael0004

    michael0004 New Member

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    It is tough enough dealing with a government Agency like the VA that apparently has an agenda that trumps its obligation to the veteran and with apathetic Congressmen, but when a fellow "shipmate" undermines our efforts by his outspoken support of the adversarial Agency on the basis that he agrees with the VA's proposed rule change after he benefitted from the former, more favorable long-standing rule is, in my opinion, disgraceful to say the least.
  18. Sgt D

    Sgt D New Member

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    Michael
    Welcome to the world of TinCanMan, glad you are here, hope you do not get offended and run off like others have that do not agree with TinCanMan, I to have had my disagreements with him.
    Sometimes he does post real good items on here and that's why I keep coming back to see if anything is new. Like most of these boards there are a few who can and do try to help veterans. This board has some of those and then some that seems to just want to start crap with the new folks. Sgt D
  19. michael0004

    michael0004 New Member

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    No problem. I did not assume that his views represented anyone at this forum except himself. I was just happy to correct what I saw as misinformation that was being put out. Although he may be quite informed about other veteran's issues, on this specific Agent Orange "service in Vietnam" issue his information is only as good as it's untrustworthy source - The Department of Veterans Affairs.
  20. smith@home

    [email protected] New Member

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    hello everyon my father was aboard a naval ship in the early 60's that transported agent orange he claimed to see barrles of the substance in the hole of the ship. he was contacted about the claims back in 97 but was told that he was not entitled to the claim because he never set foot on land. my father died in 06 due to respritory arrest, just couldent breath. in his 40's he was diagnosed with arterial sclarosis-hardening of the veins and arturies, later he lost his right leg from just below the knee due to complications, he later ended up with diabeties and an enlarged heart basicly he fell apart and felt it was due to his exposure he lost his wife because she could not stand bye and watch him suffer. I am trying to retrieve his records medical and service to put together a case this has tor my family apart and someone need to explain his misfortune and his life that was destroyed trying to serve his country.

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