UPDATE: AGENT ORANGE LAWSUITS

Source: Associated Press article 18 Aug 2006 and Arizona Department of Veterans' Services message of 23 Aug 2006
Forwarded by YNCS Don Harribine, USN (Ret)

Veterans who patrolled the waters off Vietnam can now claim disability benefits for exposure to Agent Orange under an appeals court ruling that opens the door for thousands of servicemen to seek medical coverage. The ruling was handed down by the U.S. Court of Appeals for Veterans Claims in the case of Haas v. VADC-Nicholson by a former sailor who served on an ammunition ship during the Vietnam War but never stepped foot on land.

The court’s order, issued 16 AUG, reverses the Veterans Affairs Department’s denial of benefits for Jonathan L. Haas, who blamed his diabetes, nerve damage and loss of eyesight on exposure to Agent Orange. Haas, represented by the National Veterans Legal Services (NVLS) argued that clouds of the toxic defoliate, which the U.S. sprayed on Vietnamese jungles, drifted out to sea, engulfing his ship and landing on his skin. Veterans officials said that to qualify for coverage, Haas was required to have docked in Vietnam and come ashore.

The three-judge panel said regulations governing the benefits were unclear. The court said it made no sense for veterans who patrolled Vietnam’s inland waterways and those simply passing through the country to receive medical coverage while those serving at sea do not. “Veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly,” Judge William A. Moorman wrote.

The Court did not actually award a disability to Haas, but sent his case back to the Board for that determination. If the Board rules in his favor, the Court directed that his other Agent Orange-related medical conditions also must be compensated. The Veterans Affairs Department said recently that it was reviewing the opinion and was not sure how many veterans would be affected or how much the added coverage would cost.

This VCAA decision could eventually expand to cover more veterans than the decision appears to now cover. During Vietnam was a short time frame where military service within the Theater of Operations within the Vietnam War justified the Vietnam Service Medal.

This included waters off the coast {so called brown water}, deep waters for air operations {so called blue water operations}, Thailand based Operations for USAF and other types of operations which included loading the Agent Orange aircraft. Most Vietnam combat veterans receive some medical benefits, but if their illnesses are related to their service, they could receive full coverage and their families might be eligible for benefits.

David Houppert, director of veteran’s benefits for the Vietnam Veterans of America, said the ruling could allow thousands of veterans to seek coverage for service-related illnesses. Most are Navy veterans, he said, but some Marines and Army veterans could be affected. Houppert said his group was encouraging these veterans to seek coverage quickly because the ruling left it up to government officials whether to change federal regulations in a way that could deny coverage.

Vets can refer to THIS SITE to review what benefits for which they could be eligible.

As of 20 AUG the VADC-legal office had not filed a request for a stay order pending an appeal to the Supreme Court. The Board of Veterans' Appeals is sitting at the Phoenix VARO. The senior judge has agreed to contact his office in Washington DC to get current guidance on implementation of this decision. The VCAA ruling over turned a BVA decision on Haas.

If the VADC-Sec Nicholson's office does not appeal, they have no choice but to grant service connected for Agent Orange Presumptive Disabilities with military service within the theater of Vietnam war for those with the Vietnam Service Medal. This decision will mean a potential liability of millions of dollars to the VA Medical budget and VA Administrative budget. Potential claims from the wives of already deceased Vietnam veterans could also mean considerable liability.

This helps explain why the VADC has been slow to provide positive guidance about this VCAA decision. Haas is now the law of the land and therefore VA must abide by it. However, it is possible that VA may amend their regulations in such a way that it is adverse to veterans who otherwise would have benefited from the court’s decision. Service organizations are recommending that other veterans like Mr. Haas, who served offshore but did not set foot in Vietnam, and who suffer from diseases or conditions that they believe to be caused by exposure to Agent Orange should consider filing a claim for disability.

Members who have had such claims denied may wish to re-file based on the Court's decision. Veterans are encouraged to seek the advice and assistance of an experienced veterans' service organization before proceeding.