Past experiences, you may want to ask your potential VSO whether he has filed any claims on behalf of a Thailand veteran and if so, was he successful?     Many VSOs are "rubber-stampers."     They will file the claim for you, get credit for same and when it is denied, well, wipe their hands clean of it and you.

The Good News       See Thailand Vets' Afidavits

Note:   we do not receive book referral commissions for these suggestions. Amazon.com offers special discounts for group purchases. (Click on bookcover to go to Amazon.com for more information.) The Veteran's Survival Guide:   How to File and Collect on VA Claims Second Edition (Paperback) by John D. Roche (Author) Veterans's PTSD Handbook:   How to File and Collect on Claims for Post-Traumatic Stress Disorder (Paperback) by John D. Roche (Author) Claim Denied!:  How to Appeal a VA Denial of Benefits (Paperback) by John D. Roche (Author)     Coming this November, 2008

Update October, 2007:   USAF CHECO Report "Base Defense in Thailand"

Direct Cause vs. Presumptive (READ ME FIRST)

Thailand Vets Extract in Support of Claim

Excerpt Content Only       Excerpt with emphasis:   Special Edition

You are not under any obligation to continue your claim with said VSO.     In fact, after an initial filing and administrative review, it is time for a change in counsel, legal counsel.

The VSO can file your initial claim and NOD (Notice of Disagreement) or you can take your claim denial notice and seek legal counsel right away, before an administrative review.

Claims based upon Exposure to Agent Orange

Toxins such as Agent Orange were used in Thailand, but your best bet is to indicate that your transport stopped in Vietnam enroute, PCS (Permanent Change of Station.)     The reason being, the government has covered up (extensively) the use of toxins in Thailand and the agency provision, over-ruled 16 Aug 06 in Haas v. Nicholson, required a veteran to have "stepped foot in Vietnam."     Useful Flight Data for regularly scheduled Mac flights.

WHAT THIS PAGE DOES NOT DISCUSS

(a)   Do you have a valid disability claim with the V.A. for service-connected benefits?

(b)   Your own medical condition which is solely the jurisdiction of your medical physician.

In any case, the V.A. maintains a list of worksheets that both V.A. and private physicians can use to complete an investigation:   Index to Disability Examination Worksheets.

Presumptive Diseases Info     Source:   Silver Rose Info

The above two issues are often addressed to me as if I could make an informative decision on their disability.     I can not.     At this time, I do not even represent any veteran claimant because of my lack of experience.     Veterans and their spouses or survivors will call me wanting me to "wish" their claim into approval.     I can not even comment on your case beyond some simple (directed) questions on what you have already done and always (always) conclude with directing the individual to (a) their medical physician or (b) to a qualified VSO.
 

Thailand and Other Locations OUTSIDE of Vietnam Presumptive Diseases [considered for] exposure to herbicides ... Under 38 USC 1110 (not 1116,) you service connection must be direct cause versus Vietnam service provisions for "presumptive exposure to herbicides." Thailand vets need to submit, at minimum, the Excerpt from the Extract Release that quotes the passages stating the "use of herbicides in Thailand." Guam; Okinawa claimants should cite prior cases as their legal precedence.

Photo Evidence

Do you have any photos of yourself, like this one of me, on the ground, in Vietnam?

Pay Vouchers with "CZ" designate

DFAS will provide you with your pay vouchers that reflect tax exempt for combat zone "CZ."     See also Pay Stub Precedence 7/20/07.

Do not expect combat pay for an intransit stopover unless you get a "green" finance clerk that doesn't know the regs.

Photo Evidence

If you are fortunate enough to have take a snap shot photo of yourself while in the holding company area, the more, the better.

Affidavits

Testimonials appropriate for legal proceedings, ie, witnesses that either were with you (intransit) or remember seeing you there (Vietnam) are worth obtaining.

Legal Basis or Foundation

What you are building, or substantiating is a case supporting your claim with evidence you will submit along with your initial claim.     You could present it upon appeal to the Board of Veterans Appeal, BVA, but why delay the approval of your claim?


Well-grounded Claims versus Benefit of the Doubt

Keep in mind, although, it would be nice to have verifiable affidavits from others in your unit.   It is no longer a necessity.

Researching BVA Rulings     Search

You will want to spend some time researching prior claims filed by other Thailand veterans to determine what they did right and just as important, wrong.     Those claims where the appellant (you as claimant on appeal) find that match your circumstances and was ruled in their favor become "legal precedence" in your favor.     Haas v. Nicholson is such a case where the panel of judges ruled that "receipt of the Vietnam Service Medal" (VSM) was sufficient evidence to apply the "exposure to toxins" presumptive premise.

Other situations may have similar circumstances, ie, Thailand vet stationed in Korat, but were remanded.     Remand is a nasty word for set aside for further review and/or investigation.     In other words, loss of time; dead until resolved.     It actually reflects the claimant was not prepared as much as anything else lacking in the claim file.     That is why it is a good idea to have the services of a lawyer that as part of their training and discipline is attention to details.
 
Either way, legal precedence or some form of denial, having done the research on BVA rulings system-wide is a very worthwhile exercise .. unless you plan to leave that all up to a lawyer familiar with V.A. regulations.

The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West Supp. 2001); 66 Fed. Reg. 45620, 45630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(b)).     See Subsections (b) & (c) of § 3.159 in the above red box.

"When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. §5107(b) (as amended); 38 C.F.R. § 3.102."

Legal Precedence for Thailand Vets intransit     See also MAC Flight Data.

Citation Nr: 0515988   Decision Date: 06/14/05; the issue:   Entitlement to service connection for diabetes mellitus.

Quote/The veteran's contention is that his diabetes is the result of being exposed to Agent Orange. In this regard, the veteran must have service in the Republic of Vietnam between January 9, 1962 and May 7, 1975 to be afforded the presumption of herbicide exposure. The veteran contends his exposure occurred while on route to Thailand in February 1967. The veteran stated that he changed planes in Vietnam and spent a period of several hours in Vietnam at that time. It should be pointed out that the veteran seems credible in his reported statements. The Board notes that there is no requirement as to how long the veteran was in Vietnam; even a few hours of service in country is sufficient to establish the presumption of exposure. See Veterans Benefits Administration Manual M21-1, Part III, Chapter 5, Par. 5.10(c) (July 1, 2004). In this regard the Board notes that it was common practice at the time the veteran was being transferred to Thailand to allow for stopovers in Vietnam so military personnel could avail themselves of facilities and supplies that were not available to them in more remote postings such as Thailand. In addition, the Board finds the veteran's statements with regard to his travel at that time credible, particularly when viewed in conjunction with the statement from the retired Air Force Colonel who noted that his route to Thailand, in January 1967, took him through Vietnam. Accordingly, the Board finds that there is a tenable basis to find that the veteran did have a brief period of service in Vietnam in February 1967. Therefore, resolving all doubt in favor of the veteran, service connection for diabetes mellitus is granted on a presumptive basis due to Agent Orange exposure.

A word on the arrogance and incompetence of the V.A. agency

You can provide all the proper documents and still be denied.     You see, I came to this conclusion long ago.     It is not about your welfare as a veteran, but the government in not having to pay you disability compensation, on top of healthcare for service connection.

The agency will lose paperwork, incompetent, and ignore other aspects of your documents, eg, combat zone "CZ"; blatant arrogance.

The VSO, hereafter, referred to as the "joker"

My joker played a little game with me early on.     Evidently, he did not learn his lesson from my response and continued to play more games later on.

We were discussing the Casual Pay that I received intransit and "jumped" on me for not recalling whether I was paid in "funny money" script or U.S. dollars.     The Casual Pay was $20 and I was supposed to have "instant recall" as to whether I received script money or the real thing (and then later, of course, upon departure convert back to U.S. dollars.)

Something that happened 40 years ago ..

Assuming that you had received a lot of $20 in your long life, let's take an analytical approach to considering the facts, especially for substantiating same in your claim.     My army pay voucher was for $25, excuse me, I had to read it from the voucher to remind myself; the net due me for the entire month was $141.85 as an E-4.     I was lucky.     A lot of soldiers that PCS'd were only E-2s or E-3s and wouldn't even clear $100, after deductions.     And, the United States Army, in all their wisdom, carried forward the 85 cents .. guess they felt I didn't need it right away.

Logical Deduction

Now, respond to your joker/VSO if you were supposed to remember that $20-25, then how much (other) money did you have in your wallet intransit?     Okay, "smart ass," do you get my point?     When a (low ranking) enlisted men is intransit, and asked whether they want a Casual Pay or not, what is the most common answer???     Of course, better in your wallet than Uncle Sam's.

Next, would you have blown it all in the Saigon PX or held on to it?     Evidently, you can not use U.S. dollars in Vietnam, and in my case, I know I wasn't about to spend one dime of it (the Casual Pay) and just eat where I was told to and browse around for a newspaper or magazine on the floor of the hootch to spend the time, or have your own, read something from my duffle bag.     In my case, I was reading the "Valley of the Dolls" novel beginning with 5 days in Oakland.

If you get a joker/VSO that wants to play games with you, let them know that you do not appreciate it.     In fact, it makes you start to think "whose side is the joker on, yours or the V.A.?" and therefore, a conflict of interest.

More (laughable) comments by my joker/VSO in documented emails that indicate a serious conflict of interest, but for now, I will speak in generalities for the benefit of most readers.

Recent emails

To illustrate a few more points, I have picked a couple of Thailand veterans emails that are current and looking for help in addressing their claims.     The first is relatively short and lacking a lot of information to base suggestions on.     If you are going to write an email like that, expect only partial answers .. no magic ball here.

From: Alan Combs 
Sent: Thursday, May 24, 2007 10:52 AM
Subject: 201st Thailand


I am looking for information about the 201st Signal Detachment that was in 
Knon Kaen Thailand.  We operated a 50,000 watt am radio station for the Thai 
Government. I was there in 1963-1964.  I now have cancer. The VA doctors say 
it was more probably from Agent Orange. I need to talk to others in the unit. 
Any help you can provide would be appreciated.
 
Alan Combs
US Army Signal Corps
Jonesville, NC

STEPHEN LOCKHART reverendlockhart@yahoo.com wrote:

Hello,

I left U-Tapao in November 1972, thought that I was healthy at age 22. 
I found out a few years later that this old body was breaking down begining 
with the bladder, then vision problems, then impotence, then high BP, 
the diabetes. 


greg rowe sgtrowe@yahoo.com wrote:

I'm glad to see someone responded, thanks.... When in 72 did you leave ? 
I've been dealing with various gov agencies for 16-18 months. While I was 
there they asked for people to ride along on a c-130 (parked on alpha) to 
load and uload fuel at various stops. No military id and civilian dress only 
and we took the plane into many stops all over sea. Also into Nam many times. 
Without ever getting written orders I'm having problems proving it. A 'Buddie' 
leter looks like the last resort for me says the VA. I've also have many health 
issues including congestive heart failue and type II Diabetes. Not only bad 
health but huge debt from medical bills. So I'm hoping on finding someone here 
that can help. I remember in the day the enlisted guys pretty much stood together 
and parted with each other. I'm hoping to maybe run into one of those people that 
I knew and respected so much that can help an old unhealthy enlisted guy who you 
may have parted with and remmeber good memories off. 


STEPHEN LOCKHART reverendlockhart@yahoo.com wrote:

Hello,

I have been looking for the same thing on this site for months. I was at U-Tapao 
1971-72 also working in fuels. Thirty years later I have come down with type II 
diabetes, vascular problems, bladder problems and so on. I filed my claim in 2006 
in New Orleans, and because of hurricane Katrina, my file has been all over the 
place. My original claim was denied because of the time line and not serving 
directly in Viet Nam. I presented other evidence on agent orange in Thailand, and 
the review was denied. I am now awaiting my apeal on my case. It is a shame that 
we served well, and have been forgotten. I will continue to fight this all the way 
and suggest that you do the same. It is no coinsident! 


reverendlockhart@yahoo.com or reverendlockhart@hotmail.com 


greg rowe sgtrowe@yahoo.com wrote:

I am trying to locate anyone who was at U-Tapao from nov 1972 thru nov 
1973 and worked on or around the 2 airforce c-130's parked on yhe alpha 
one ramp. I flew on those to various places in S.E. Asia and am trying 
to locate anyone in fuels or part of the c-130s ground or air crew for 
an agent orange claim that has been pending for over a year.

Thanks

Hi Joe,
 
See you on the 22nd.
 
Frank
----- Original Message ----- 
From: joseph.odya@vba.va.gov 
To: shop-las-vegas@cox.net 
Sent: Friday, February 10, 2006 8:13 AM
Subject: RE: DRAFT RESPONSE TO VARO DECISION


Good Morning Frank, 
 
I put you down for Weds Feb 22nd at 09:00 AM.
 
Thanks,
 
Joe..  
-----Original Message-----
From: Frank Picchione, GM/Shop Las Vegas [mailto:shop-las-vegas@cox.net]
Sent: Thursday, February 09, 2006 3:21 PM
To: Joe Odya
Subject: DRAFT RESPONSE TO VARO DECISION


Joe,
 
I dropped off the packet of research based upon legel precedences
and payroll records illustrating why VARO/Reno is in error.  There are
several other points that I have outlined in the attached draft response
for your review.
 
Let me know when we can meet to discuss the response (NOD.)
 
Thanks.
 
Frank Picchione
702-363-3290

Frank, 
 
I just got back in the office. in response to your most recent inquiry to 
May 24th, which they denied your claim, Your service medical records do not 
show treatment for Diabetes nor for Kidney disability during service. When 
I discussed your claim I stayed, that you need to show that you were to in 
Vietnam for Diabetes Type II. You did file for Type II Diabetes. How if you 
are having Kidney problem that's other story. You going to need documentation 
to show that your kidney problem is relayed to the Service. The medial 
evidence of record also does not establish that your current Kidney condition 
is related to Diabetes Type II. My phone number is 258 3691. 
 
Sincerely, 
 
Joe..  
 
 
-----Original Message-----
From: Frank Picchione, GM/Shop Las Vegas [mailto:shop-las-vegas@cox.net]
Sent: Friday, July 28, 2006 3:08 PM
To: Joe Odya
Subject: REVIEW DENIAL


Joe:
 
I received today the decision from the Review you participated
in on my behalf, May 24th, and it was denied.
 
There are several issues that I need to resolve before moving
forward with my next step:
 
(1)  Appeal is required to the VBA
 
(2)  Congressional to either Harry Reid or Shelley Berkley
 
Yesterday, I met with Cherie White-Fowler at the Northwest
Clinic.  In our discussion, she indicated that she knew you
and that other veterans spoke well of you.
 
I reitterated my position for "stepping foot in Vietnam"
and that was the only legal issue related to Diabetes
disability claims.
 
The purpose of our meeting was to review my financial status
for "fee basis" consults with the kidney dialysis clinic that I have
been going to since January.  It seems that when my status 
under the V.A. Healthcare System is non-service connection
that there are required reviews every quarter or six months.
 
At this point, my dialysis treatments are in limbo after 7-31-06
and a decision will be made to continue my care or not.  This
is a very serious matter.  If my condition was determined to
be service-connected, well, that would be an entirely different
matter and not subject to these types of periodic review.
 
When we discussed my claim last February and you submitted
the Request for a DRO Review, I assumed the documents in my
claim were all on record such as the medical opinion.  It was
never referenced in the initial denial nor the review denial.  You
indicated that you had faxed all those documents when I gave
them to you in December.
 
The next stubbling block is the matter of the pay voucher 
which (again) the Reviewer chose to ignore the content
-- not the document of evidence, but the content which
expressly pointed out two key items:  CZ and casual pay.
 
It is ludicrous the manner in which the RO adjudicates such
claims, especially after the statue changes by President
Clinton regarding benefit of the doubt.
 
I want to quote a couple of statements found in the review
denial for your information:
 
(1)  Pg-3
 
"It is the defined and consistently applied policy of the Dept.
of V.A. to administer the law under a broad interpretation,
consistent, however, with the facts shown in every case."
 
(2)  Pg-22
 
"No evidence of record"
 
"..cited Court decisions are not considered precedential
for the purpose of adjudicating V.A. claims,"
 
Conclusion
 
Now, in any other court in the United States, precedence makes
policy and therefore, policy evolves/changes.  In other words,
the Review/RO is saying:  "We don't listen to VBA decisions in
making policy.  You must appeal rather than resolve and yes,
waste precious time."
 
Now, I don't want to put words in the director's mouth here
in Nevada, but this indicates a serious need for change; change
in personnel, change in policy.
 
The VBA decisions noted all apply and therefore, in all state
districts should be consistently applied in all future claims
equally.  
 
Questions
 
(1)  Please insure that my documents submitted the end of
November or beginning of December for the secondary condition
are in my claim file -- especially, the medical opinion of my
primary care physician at the V.A.
 
(2)  Is the VBA appeal the only last alternative to pursue at
this time?  And, estimate of years to resolve, please.
 
(3)  When can I meet with you, or get the appeal going?
 
(4)  Please provide the name of the Reviewing Officer that you
met with so as to insure proper credit for such action against
me and this denial decision substantiated.
 
If I have to wait years for justice in this matter, they will now
have to face a congressional inquiry.  It is very unfortunate
and I will be drafting the brief for my congressman or woman
to point out the issues as follows:
 
(1)  Service in Vietnam includes in transit thru Vietnam
 
Evidenced by the pay voucher submitted, the RO non-response
to the submittal in the beginning of the claim (as required by law.)
The VBA decisions reflect same without presence of a pay stub
and it is well known that intransit to Thailand had stop overs in
Vietnam, no matter how short.  Time in-country is not an issue.
 
(2)  Diabetes with issue #1 resolved is presumptive when coupled
with the period of time in-country; in-transit.
 
(3)  Secondary condition(s) are included when documented by
professional medical opinon.  In my case, the V.A. staff physician.
 
The USC and corresponding CFRs will be synopsisized to include
the complete VBA decisions setting precedence (and should be
policy to save any further court procedures AND policy for the
purposes of adjudication.)
 
The only thing the staff at Nevada RO and/or Benefits Office
wish to do is deny and postpone proper compensation to veterans
in Nevada which they have jurisdiction.  And, in my opinion, are
not following the law or regulations as to rules of evidence,
benefit of and reasonable doubt in FAVOR of the claimants.
 
I don't know what is the matter with these people; who is running
the show at RO or here at the Benefits Office, but it isn't so much
that I have a strong case, beyond a benefit of a doubt, but hard
evidence that in both denials was ignored for content.  That,
coupled with the VBA prior decisions, will make any attorney 
wonder what is going on in Nevada.
 
Frank Picchione
702-363-3290
 
p.s.  I tried to call you, and the number started a fax machine.
 
702-258-3691
 
This is a confidential communication and I am sending it only
to affirm my future actions and not for discussion with any
member of the V.A. staffing here in Las Vegas or RO in Reno.

Review .. "Why me?!"

[in] response to your most recent inquiry to May 24th, which they denied your claim, Your service medical records do not show treatment for Diabetes nor for Kidney disability during service.     When I discussed your claim I stayed, that you need to show that you were to in Vietnam for Diabetes Type II.     You did file for Type II Diabetes.     How if you are having Kidney problem that's other story.     You going to need documentation to show that your kidney problem is relayed to the Service.     The medial evidence of record also does not establish that your current Kidney condition is related to Diabetes Type II.     My phone number is 258 3691.

Summary

(a)   The primary issue not reviewed properly was for the stipulation of "stepping foot in Vietnam."

(b)   SMR does not have to reflect any active duty medical treatment(s) because it is "onset" (Type II) based upon the presumption of exposure to toxins/agent orange, ie, VAMC/Long Beach diagnosis in 1992 indicated onset diabetes with oral med treatment.

(c)   In November, 2005 (first week of) I provided the secondary condition(s) statements plus medical physician medical opinion from my V.A. Primary Care Physician (Northwest Clinic.)

Secondary Condtion Support Statement

Physician Medical Opinion Progress Note Claimant     Zoom in Body

Conclusions

This VSO sent a claimant (that should not have done near the research that I have) a bogus communication stating that my "SMR does not reflect," and no correlation to my secondary kidney failure.     The law (and CFR) specifically p6out the iheheenterrelation of the "presumptive illness" to secondary illnesses which may be substantiated by a medical opinion from your medical physician.     Furthermore, his allegations as to my status quo is so far removed from the facts, that it leads me to wonder where he is coming from.

Legal Basis for Presumptive Exposure

Here we have a VSO that not only retired from the navy, ie, "Caveman can do it theme .." with 20 years; may be, only an E-6, but that's his problem -- not mine.

What he has made my problem, though, is his incompetence in handling the administrative review phase prior to going to the BVA appeal stage; not having the slightest notion of what is in my V.A. medical files because if he did, he wouldn't say what he did.

[To] wit:   Please check my C-File for the following secondary conditions as noted below:

Chronic Kidney Failure (Renal Disease), Hypertension, Diabetic 
Retinopathy and Lower Extremities Nueropathy 
- see Supporting Statement in Claim for Secondary Conditions.
 
re:  CFR 38 3.309 
 
Research as published on my website include links to these 
secondary conditions below:


CFR 38 Sec. 3.309 Disease subject to presumptive service connection.
 
Cardiovascular-renal disease, including hypertension.   (This term 
applies to combination involvement of the type of arteriosclerosis, 
nephritis, and organic heart disease, and since hypertension is an 
early symptom long preceding the development of those diseases in 
their more obvious forms, a disabling hypertension within the 1-year 
period will be given the same benefit of service connection as any 
of the chronic diseases listed.)

Sec. 3.310 Proximate results, secondary conditions.

(a) General. Except as provided in Sec. § 3.300(c), disability which 
is proximately due to or the result of a service-connected disease or 
injury shall be service connected. When service connection is thus 
established for a secondary condition, the secondary condition shall 
be considered a part of 

Diabetes mellitus.    Also known as Diabetes Type II.  
 
VA CLAIMS 
SECONDARY to  doctor request regular 24 hour urine 
protein tests. They give you a plastic jug and you take it home, follow 
the directions and fill it up over 24 hours and then return it to the 
lab. They should also do a creatine test. The lab report will tell you 
the amount of microalbumin present. Creatin tests will also give an 
indication of the amount of renal damage and the efficiency of your kidneys. 
In order to be valid or acceptable to the VA there needs to be several 
24 hour tests over a period.
 
DIABETIC RETINOPATHY  impairment or loss of vision due to damage to the 
blood vessels of the retina.
 
GLAUCOMA  Increased fluid pressure in the eye. Causes loss of visual fields 
due to optic nerve damage.
 
In eye examinations at Southwest Clinic, bi-annually, emphasis is on progress 
of diabetic retinopathy and development of glaucoma, all secondary medical 
conditions to diabetes, type 2.
 
These secondary conditions, beside kidney failure and hypertension should 
have been listed as secondary conditions (disability) claimed.


FROM THE CFR REFERENCE GUIDE

§ 3.306  Aggravation of preservice disability.    V.A. Reviewer

§ 3.307  Presumptive service connection for chronic, tropical 
         or prisoner-of-war related disease, 
         or disease associated with exposure 
            to certain herbicide agents; 
           wartime and service on or after January 1, 1947.

V.A. Reviewers Guidelines - Presumptive Diseases and Herbicide Agents

§ 3.308  Presumptive service connection; peacetime service 
    before January 1, 1947.

§ 3.309  Disease subject to presumptive service connection.

      Cardiovascular-renal disease, including hypertension. 
(This term applies to combination involvement of the type of arterio-
sclerosis, nephritis, and organic heart disease, and since hypertension 
is an early symptom long preceding the development of those diseases in 
their more obvious forms, a disabling hypertension within the 1-year 
period will be given the same benefit of service connection as any of 
the chronic diseases listed.) .. in the list (Diabetes mellitus.)  
For complete details.
  
§ 3.310  Proximate results, secondary conditions. 

         See Secondary Conditions to Diabetes Claims

         See "Kidney Disorder Case", ie, CRF (Chronic Renal Failure) 

         Also Secondary Conditons Case w/Award  VBA Case No. 9412692

         Another Fine Case   VBA Case No. 9832924  Moody v. Principi

(a)   Lab test showing progressive kidney failure based upon 24-hour urine protein tests, creatine tests, amongst others.     Note:   the VSO has steered clear of my V.A. medical records and is emphasizing my SMR * (service medical records) which as a healthy specimen, should be free and clear of any onset type diseases as Type II Diabetes (plus secondary conditions complications) or cancer from exposure to toxins.     Notice the careful wording .. why?     He should know better and that my SMR should show a healthy soldier, ten years active duty.

* The only exception to this rule would be a medical condition which was aggravated by your military service and any initial physical examination notes that the medical examiner would have made in your SMR.

(b)   Medical Opinion as the expert testimony for legal basis.

{c)   VSO that (first) is a lawyer and second, a medical physician .. wrong.

Determination:   VSO has not read my (a) V.A. medical files,   (b) doesn't know the regulations for "secondary condition" and/or "presumptive conditions."

(a)   Documents submitted with Claim are complete including medical records and doctor's opinion as to secondary conditions that are directly associated with your primary illness that is listed as presumptive.

(b)   If there is an initial denial, attend the administrative review so that you can rebutt facts that the VSO should have known, but screwed up like mine.     If administrative issues can not be resolved at this point, you are now part of the "built-in" delay system where the V.A. has a million excuses as to why your appeal is not heard and then once heard, found substantial, the agency simply goes away for months, re:   Wayne T. Boyd, 1SG, Retired/Army; submitted official LESs with combat pay and "CZ" reference .. nada.

At this point, I will either petition for extraordinary relief, change VSO, or both -- get a lawyer.

The response to the administrative review was over 20 pages of regulations and law citings.   I am sure it is an attempt to intimidate the claimant against any further action.     I have revealed the obvious in mediorce representation by someone considered a "top notch" VSO.   To me, that spells "conflict of interest."     If you need more proof, read carefully the short emails in response to my long, detailed emails.     You can come to only one conclusion:   the VSO has his position (and relations) with the agency foremost in his mind.

Follow up conference for NOD, etc.

10 Aug 06

Joe,
 
Please check my C-File for the following secondary conditions 
as noted below:
 
Chronic Kidney Failure (Renal Disease), Hypertension, Diabetic 
Retinopathy and Lower Extremities Nueropathy
 
re:  CFR 38 3.309 
 
Research as published on my website include links to these 
secondary conditions below:
 
 
CFR 38 Sec. 3.309 Disease subject to presumptive service connection.
 
Cardiovascular-renal disease, including hypertension.   (This term 
applies to combination involvement of the type of arteriosclerosis, 
nephritis, and organic heart disease, and since hypertension is an 
early symptom long preceding the development of those diseases in 
their more obvious forms, a disabling hypertension within the 1-year 
period will be given the same benefit of service connection as any of 
the chronic diseases listed.)
 
Diabetes mellitus.    Also known as Diabetes Type II.  

VA CLAIMS 
SECONDARY TO DIABETES 
 
RENAL DISEASE You need to have your doctor request regular 24 hour urine 
protein tests. They give you a plastic jug and you take it home, follow 
the directions and fill it up over 24 hours and then return it to the lab. 
They should also do a creatine test. The lab report will tell you the amount 
of microalbumin present. Creatin tests will also give an indication of the 
amount of renal damage and the efficiency of your kidneys. In order to be valid 
or acceptable to the VA there needs to be several 24 hour tests over a period.
 
DIABETIC RETINOPATHY  impairment or loss of vision due to damage to the blood 
vessels of the retina.
 
GLAUCOMA  Increased fluid pressure in the eye. Causes loss of visual fields 
due to optic nerve damage.
 
In eye examinations at Southwest Clinic, bi-annually, emphasis is on progress 
of diabetic retinopathy and development of glaucoma, all secondary medical 
conditions to diabetes, type 2.
 
These secondary conditions, beside kidney failure and hypertension should 
have been listed as secondary conditions (disability) claimed.
 
Frank


Joe,
 
Today, you mentioned that the law had changed regarding
CZ tax exempt in 1972-73.  If that's the case, it seems more
clear why I could not re-enlist in Vietnam to have my bonus
tax free.
 
My memory isn't too good and thought it was because I was
not in the local command.
 
My barber said she had a friend in the Marines that was in
DaNang in '74 and it is hard to believe that they were not
given tax exemption.
 
Frank
 
p.s.  I know after I re-enlisted, my wife and I went Space-A
back to Thailand and stopped in Vietnam.  When I got home,
I asked them why I didn't get tax exempt for the pay period
after making a statement of visiting Vietnam and I don't 
remember the b.s. response, but if what you say is the case,
then it makes sense.
 
----- Original Message ----- 
From: "Odya, Joseph, VSORENO" 
To: "Frank Picchione, GM/Shop Las Vegas" 
Sent: Friday, August 11, 2006 9:15 AM



Frank, 

I am Sorry that I said that you didn't have a )9:00 am 
appointment. come back to my office. 

and I will explain.. 

Joe, 




No problem, Joe.  See you on Friday, the 11th at 9:00 am.
 
Frank

----- Original Message ----- 
From: Odya, Joseph, VSORENO 
To: Frank Picchione, GM/Shop Las Vegas 
Sent: Wednesday, August 02, 2006 12:06 PM
Subject: RE: REVIEW DENIAL


Frank, 
 
I would like to take this opportunity to inform you that there well 
be change on our appointment. I would appreciate it if we reschedule 
the appointment for Friday the 11th at 09:00 am. If you are amenable 
to this, please let me know. 
 
Joe,  

I'll see you then, Joe.  Frank

----- Original Message ----- 
From: Odya, Joseph, VSORENO 
To: Frank Picchione, GM/Shop Las Vegas 
Sent: Tuesday, August 01, 2006 7:55 AM
Subject: RE: REVIEW DENIAL


Good Morning Frank, 
 
Can you come in my office on the 9th of Aug at 09:00 AM. 
 
Joe,

-----Original Message-----
From: Frank Picchione, GM/Shop Las Vegas [mailto:shop-las-vegas@cox.net]
Sent: Monday, July 31, 2006 3:57 PM
To: Odya, Joseph, VSORENO
Subject: Re: REVIEW DENIAL


Joe:
 
I believe you have me confused with someone else.
 
My disability claim has nothing to do with my SMR.
 
It is based on evidence that I was in CZ in January, 1968
and two other occassions that can not be documented
where Type II Diabetes is presumptive to AO.
 
Chronic Kidney Failure is a result of (secondary) to
Diabetes as I documented (and gave you) the medical
opinion of my primary care physician at the Northwest
V.A. clinic, Dr. Gabato.
 
My position now is to (no choice, but to) play the game
with the appeal process, but hardly sit back and let them
abuse this veteran.  I listened to your arguement to go
ahead with a DRO review, thinking that the original
denial was an administrative error.
 
They are maintaining a position of not "stepping foot
in Vietnam."  They can harp until they die about in-
country service, ie, 12-month tour, if they like, but
that is not the rule of law.
 
They can ignore the evidence presented in a time when
"benefit of the doubt" in favor of a veteran, plausible
circumstances of intransit behavior was noted as legal
precedence for Thailand veterans.
 
By denying my claim in the review, they have left out
any obligation to give them err administratively.
 
Your remarks in this email are so foreign to the situation
and rhetoric that abuses veterans' rights.  I don't know
why you are talking about SMR when the facts are clear.
AO.  Vietnam.  Presumptive.  Secondary Condition.
Medical Opinion.
 
Let me know when you are in the office and I will call
you, or you can reach me just about any time at my
home phone 363-3290.  I want to get started on the
VBA appeal process.
 
It will make a very good excuse for the necessity for
reform in Nevada personnel.
 
As I said, on Pg-22, this DRO doesn't believe that
policy is set by legal precedence.  He, evidently,
is not familiar with rules of law and public policy
regarding same.
 
Thank you for your assistance.  I have several
questions before I start my congressional action
which is required at this time because of their
abuse.
 
Frank Picchione

----- Original Message ----- 
From: Odya, Joseph, VSORENO 
To: Frank Picchione, GM/Shop Las Vegas 
Sent: Monday, July 31, 2006 2:30 PM
Subject: RE: REVIEW DENIAL


Frank, 
 
I just got back in the office. in response to your most recent inquiry to 
May 24th, which they denied your claim, Your service medical records do not 
show treatment for Diabetes nor for Kidney disability during service. When 
I discussed your claim I stayed, that you need to show that you were to in 
Vietnam for Diabetes Type II. You did file for Type II Diabetes. How if you 
are having Kidney problem that's other story. You going to need documentation 
to show that your kidney problem is relayed to the Service. The medial 
evidence of record also does not establish that your current Kidney condition 
is related to Diabetes Type II. My phone number is 258 3691. 
  
Sincerely, 
 
Joe..  

Joe,
 
Here are excerpts of legal precedence for my case where
an intransit soldier, on word alone, was granted disability:
 
First Citation
 
http://shop-las-vegas.com/VBA/Enroute-Claims/0515988.txt
 
http://shop-las-vegas.com/VA-Sec-5.htm#Legal%20Precedence
 
The veteran contends his exposure occurred while on route to Thailand in 
February 1967. The veteran stated that he changed planes in Vietnam and spent 
a period of several hours in Vietnam at that time. It should be pointed out 
that the veteran seems credible in his reported statements. The Board notes 
that there is no requirement as to how long the veteran was in Vietnam; even 
a few hours of service in country is sufficient to establish the presumption 
of exposure. See Veterans Benefits Administration Manual M21-1, Part III, 
Chapter 5, Par. 5.10(c) (July 1, 2004). In this regard the Board notes that 
it was common practice at the time the veteran was being transferred to 
Thailand to allow for stopovers in Vietnam so military personnel could avail 
themselves of facilities and supplies that were not available to them in more 
remote postings such as Thailand. In addition, the Board finds the veteran's 
statements with regard to his travel at that time credible, .. 

Note:  "seems" credible is an out-dated concept/doctrine in the administering 
of law and equal treatment under the doctrine of reasonable doubt and benefit 
of the doubt, ie, 5107 (38 USC)
 
 
Second Case (Word Alone)
 
http://shop-las-vegas.com/VBA/Enroute-Claims/0432676.txt
 
Third Case (Word Alone)
 
http://shop-las-vegas.com/VBA/Granted/0414623.txt

----- Original Message ----- 
From: Frank Picchione, GM/Shop Las Vegas 
To: Odya, Joseph, VSORENO 
Sent: Tuesday, August 22, 2006 10:14 PM
Subject: Fw: URGENT Thailand Veterans--additional info/From Taura

Joe,
 
Tonight, I responded to an old friend that lives in Thailand
and is a member of a group I used to also be a member,
the Thailand-Laos-Cambodia Brotherhood (TLCB.)
 
There seems to be a lot of TLCB board chatter on this
latest decision to expand presumptive coverage to 
offshore (of Vietnam) military personnel.
 
They (the TLCB members) have also got a copy of the
31-page decision and read it over with no references
to more than "offshore" personnel.
 
I hate to give them a "reality check," but they have
no chance in hell without having stepped foot in Vietnam
(as Thailand-Laos-Cambodia veterans.)
 
Please take a moment to read over my notes to them
and let me know if I am out of line anywhere.
 
I trust your opinion and your level of expertise in
dealing with claimants and the VA.  If anyone will
know if there is a significant policy change, it would
be you.
 
Thanks.
 
Frank
 
----- Original Message ----- 
From: Frank Picchione, GM/Shop Las Vegas 
To: MacAlan Thompson ; Jack 
Cc: Strain, John ; McGurk, Floyd 
Sent: Tuesday, August 22, 2006 8:28 PM
Subject: Re: URGENT Thailand Veterans--additional info/From Taura


Mac,
 
Thank you for the update on the TLCB posting of the decision.
 
The morning email was exactly what every veteran of Thailand,
Laos or Cambodia wants to hear.  Assertions without facts,
though, aren't worth a cent.
 
In my research over the past year, roughly, case after case
after case was denied disability benefits BASED solely on
the award of the medals.  In fact, the VBA judges stated
in so many words "that the veteran was awarded the
RVN Svc Medal, da-da da-da."  Nada.
 
I couldn't find anything on the 31-page decision, and to 
my knowledge, the law (U.S.C.) and VA regs (CFR) provide
for only one INCLUSION for Thailand vets:  intransit stop
in Vietnam.  That is the law, as it is written and not based
upon decisions that create policy.
 
Every Thailand case that went to VBA, and I have posted
their references to follow (links,) that were granted benefits
were either (plausible) testimony without evidence, or some
other testimony of another soldier, ie, third party or some
form of evidence such as "CZ" (combat zone) tax exemption
for a pay period.
 
I recall one air force retiree that claimed that "his payroll
clerk told him not to report it" .. it being a (qualifying) stop
in Vietnam, on his way to assignment (transit) in the
Phillipines.  Upon the doctrine of reasonal doubt, or plausible,
stopping in Vietnam then RETURNING (BACK) to the Phillipines
got me.
 
But, then there was an air force dude that claimed NKP RTAFB
was kilometers (close) from the Ho Chi Minh Trail.  Must have
been a VBA Board that didn't know S.E.A. geography, but he
was granted his appeal.
 
http://shop-las-vegas.com/VBA/Granted/9916522.txt
 
Unfortunately, the verbage in the cc'd VSO regarding strategy
is about right, without committing to "saying anything."  File;
denied, appeal.  I would estimate one case in a hundred that
would be granted without appeal.
 
My case was denied after nine months; took another eight
months for a so-called review by the RO and now going to
the third stage, appeal to the VBA.  The initial filing and the
review ignored presented evidence, army pay voucher w/CZ
and the reviewing officer said  "We don't use (legal) precedence
to resolve issues; that that was for the VBA."  Okay, so they
want to draq things out.  If you've got cancer, or some life
threatening condition, good luck.
 
Thanks for your update, ie, TLCB.
 
Franco
"One notch above a latrine lawyer"
 
http://shop-las-vegas.com/VA-Sec-TVVET.htm
 
http://shop-las-vegas.com/VBA/Serving-In-Thailand-Cases.htm
 
http://shop-las-vegas.com/VA-Sec-5.htm
 
Case Studies
 
http://shop-las-vegas.com/VBA/Case-Studies.htm
 
Cited case, granted on word alone:
 
http://shop-las-vegas.com/VBA/Enroute-Claims/0515988.txt
 
Driver's License "stamped" in DaNang .. really, no shit:
 
http://shop-las-vegas.com/VBA/Granted/0500416.txt
 
Granted based upon a doctrine of favorable benefit of
the doubt given to the veteran where a case is plausible:
 
http://shop-las-vegas.com/VBA/Granted/0207543.txt
 
And, yes -- "what NOT to present/do":
 
http://shop-las-vegas.com/VBA/Denied/0513514.txt
 
USARSUPTHAI Memo Awarding Service Medals (17 Jul 68)
 
http://shop-las-vegas.com/military/vsmvcm.jpg
 
Legal Precedence by citing VBA decisions favorable to your case:
 
http://shop-las-vegas.com/VA-Sec-5.htm#Legal Precedence
 
Definition of:
 
http://shop-las-vegas.com/VA-Sec-5.htm#Definition of Legal Precedence
 
Table of Contents
 
http://shop-las-vegas.com/VBA/TOC.htm
 
USC and VCAA/2000 @ President Clinton
 
http://shop-las-vegas.com/VBA/USC.htm
 
The Era of the "well-grounded"claim has supposed to
cease with President Clinton signing VCAA/2000 into
law:
 
http://shop-las-vegas.com/VBA/Case-Studies.htm#Well-Grounded Claims
 
VA CFR regs
 
http://shop-las-vegas.com/VBA/CFR-Reference.htm
 
And, a search on "Haas" against the VBA file -
 
http://www.index.va.gov/search/va/va_search.jsp?SQ=vt_vetapp06_ext&QT=Haas
 
http://www.index.va.gov/search/va/bva.html
 
"Reality Check"  VA (likes to) deny:
 
http://www.va.gov/vetapp06/files2/0602237.txt
 
http://www.va.gov/vetapp06/files3/0612077.txt
 
Out of the scope of this communication:  secondary conditions
either aggravated or a result of the listed (presumptive) diseases,
eg, diabetes = eye sight, kidneys, heart disease, hypertension, etc.
 
http://shop-las-vegas.com/VBA/CFR-Reference.htm#Secondary Conditions 
under CFR 3.310
 
Conclusion:
 
Unless the VA has decided to take a "180," and assume a ton of liability,
only off shore personnel has been affected by the recent decision.
 
I didn't think the journalist at NBC was in err by ommitting such key
issues as THAILAND, LAOS and CAMBODIA.
 
The only thing a veteran can do is file a claim, get on the record and
hope they live long enough to get the back pay and future compensation.
The VA has been very fair to me in providing for my healthcare, so that
part (division) of the VA, I have absolutely no beef.  It's the "front 
office" that sucks.
 
USC Summary
 
http://shop-las-vegas.com/VBA/38-USC-Sec-501.htm
 
The Secretary of the VA is authorized by law (USC) to create regs (CFRs)
-- NOT vice versa
 
Here are some authorities to begin a lovely night of reading:
 
http://shop-las-vegas.com/VBA/38-USC-Sec-1116.htm
 
http://shop-las-vegas.com/VBA/Terminology.htm#United States Code
 
Duty to Assist, and drum roll, notify:
 
http://shop-las-vegas.com/VBA/38-USC-Sec-5103A.htm
 
http://shop-las-vegas.com/VBA/38-USC-Sec-5103.htm
 
http://shop-las-vegas.com/VBA/Benefit-of-the-Doubt-under-38-USC-Pt-5107.htm
 
VA CFR Summary
 
Benefit of the Doubt (and often referred to as "doctrine" in the broader sense.)
 
http://shop-las-vegas.com/VBA/CFR-38-Part-3-Sec-102.htm
 
Assistance - http://shop-las-vegas.com/VBA/CFR-38-Part-3-Sec-159.htm
 
At the bottom of the CFR reference page are some new 20.xxx CFRs that
apply to cases in the appeal process/stage.
 
http://shop-las-vegas.com/VBA/CFR-Reference.htm
 
Q/A FROM TLCB (BELOW)
 
>Upon who's authority has this change been made.
 
VBA judge decisions become policy in future decisions.
 
For example, in Family Court where marital divorces are
lots of fun, public policy is to award (no matter what)
spousal support to the less of the two parties.  This
policy, btw, has changed when my five-year asset
battle with my 2nd from 1997 to 2001 was disolved
and the parties can sign away such rights in prenuptual
and post-nuptual agreements.  Yes-- there are post
nups, I had created one. 
 
But, as far as I know, law does not have to change.
Board (VBA) decisions are incorporated in future appeal
hearings.  
 
Guess what?  It shouldn't work that way.
 
Back to Family Court, a good defense attorney will
make reference (citings) to legal precedence, a informal
form of a whole group of law and policy and get you off
(not literally.)
 
>>(1) 38 U.S.C. 116(F) IS NOT CLEAR ON ITS FACE CONCERNING THE MEANING OF 
THE PHRASE "SERVICE IN THE REPUBLIC OF VIETNAM."
 
Let me make this quite clear:  if you stopped in Vietnam, in transit
to Thailand, you qualify.  It's the "step foot in Vietnam" doctrine
which this sailor has over-comed, ie, offshore cases (only) now.
 
Unless the decision explicitly makes reference to service in 
neighboring countries, kiss it good-bye.
 
Note, also, flying OVER Vietnam does not count.  You have to
be on the ground.  One case, the guy didn't even get off the
plane!  The tires of the plane were on the ground, ca-ching.
 
 
>>In other words this gives license to the Secretary to change the 
regulations to resolve the ambiguity.
 
No No No No .. the Secretary can not do shit.  If you can tell
 
I love the Secretary, nothing personal, but his authority is
in USC 501 and no more; no less.  
 
Judges hearing appeals create decisions which in any court
of the land become a form of law/policy.
 
M21-1   M21-1  M21-1
 
If I hear a VSO spin this, I want to puke.
 
USC .. then CFR .. manuals .. procedures
 
What is at the BEGINNING OF THAT LIST?
 
 
>>Unless you know something else to the contrary, I fear, without other 
supporting information such as a revised M21-1 from the VA, that we may 
be jumping the gun here and misleading folks.

 
If you are placing your faith in a (VA) manual versus
the law (and VBA Judge decisions,) YOU ARE JUMPING
THE GUN.  .. like that email this morning.  (That's 
exactly how rumors start up.)
 
 
>>Perhaps it would be a better to pressure the VA for a proper definition 
of "service in Vietnam",
 
THEY HAVE A (DAMN) DEFINITION OF SERVICE IN VIETNAM!
 
It's called (doctrine-wise) "stepped foot in Vietnam."  Not flew over.  Landed.
 
By the time I go to my video conference for my VBA hearing (video conference
from Las Vegas to DC,) I will have my shit together, legal precedence of 
intransit cases and of course, every VBA Judge decision that applies the 
doctrine of "benefit of doubt."  You've got to read my excerpts, hi-lighted 
and boldin to get the jest of the laws and regs.
 
Now, I will read the 31-page decision and attempt to make an
"educated guess" as to whether there is hope for those that as
plain English as possible, served ONLY in Thailand and never stepped
foot in Vietnam.  Us military types have a difficult time in this concept
because we relate it to misinformation as to "tour of duty," "in-country,"
and other myths generated thru .. misinformation.
 
>>I have read the full text of the Court of Appeals Decision several times, 
but no where in this document does it specifically add the TLC Countries. 
 
Thank you, whoever you are, for taking the time to read over the
decision for me and found NO REFERENCE to TLC countries.
 
"Educated assumption":  kiss it good-bye.  Only applies to
offshore personnel, as briefly stated in the news articles on
the decision.
 
My second impression, the Judge or the VA has gone to hell if they
were going to literally open the door for such massive liability $$$$.
 
>>It only says the VA's definition is ambiguous. 
 
Yes, VBA Judges have time after time made such statements without conclusion 
other than a stop of one hour qualifies (based on decisions in case granted 
benefits.)
 
 
>>Nowhere does the decision say that if you have a VSM you are presumed to 
have been exposed. 
 
VSM, in every case that I have read and possibly was used as a defense, ie, 
DD214, nope.  Nada.  That's why, when you go to my TOC page, you will see a 
little sarcasism.  A little for "balanced and fair" presentation of the VA 
front office, of course.



SECOND MESSAGE
 
>>IMO it is still a long road to go before presumption for TLC Vets
 
nOT really .. you will die first.
 
And, the VFW, or any other VSO that is saying otherwise, should
be shot (and I will say that to their face; fuck'em.)  Excuse my
parlez-vous.
 
IMHO, a claimant's only hope is a fair VBA judge because unless
he SERVED (A TOUR) IN VIETNAM and has the appropriate evidence,
he will be denied UP the system to the VBA, like moi.  Lotsa and 
lotsa work for VSOs = $$$$.  Nice arrangement, if you can get it.
 
>>>The meaning of the phrase "served in the Republic of Vietnam" is the 
question in a nut shell.

Nothin different there, from what I've heard, or it would have been
spelled out, eg, TLC countries.
 
FROM TAURA (NEVER HEARD OF HER)
 
> URGENT:
> COl. Dan and all others--I just confirmed the
> Thailand, Laos and 
> Cambodia Veterans are also being added into the law as
> a result of
> the new decision.
 
I sure hope she is right.
 
And, references to 1964-65 test in Thailand,
is the ONLY (legal) admission the VA (and Congress)
have made via DOD.
 
Well, my Thai TV soap is starting.  Back in an hour.
 
Sorry to piss on the party...
 
Assertions are not facts .. in writing .. BURNED IN
STONE aka Moses!
 
 
 
 
 
----- Original Message ----- 
From: MacAlan Thompson 
To: Jack 
Cc: Strain, John ; Picchione, Frank ; McGurk, Floyd 
Sent: Tuesday, August 22, 2006 5:47 PM
Subject: Re: URGENT Thailand Veterans--additional info/From Taura


All\

Don't get to enthused about this, the operative word in the court decision 
is "may," which is permissive.  Following just in on the TLCB net.

Mac

From: Hoppy < viking28@jdickhopkinsassoc.com> Mailed-By: nexus.net

Reply-To: tlc-brotherhood@nexus.net
To: tlc-brotherhood@nexus.net
Date: Aug 23, 2006 7:15 AM
Subject: Re: [tlc-brotherhood] IMPORTANT INFORMATION

Dale,

Below are my responses to the group that has broadcast this information. 
I posted the full text of the Court Decision on the TLC Brotherhood 
Official Server yesterday.  Everybody needs to take some time and read 
exactly what the Court said before they go jumping to conclusions. 

HOPPY

FIRST MESSAGE:

What is the specific document from the VA that says this. What is the 
source of your information? Upon who's authority has this change been 
made. Has the VA changed their regulations and if so who has an official 
copy? 

I have read the full text of the Court of Appeals Decision several 
times, but no where in this document does it specifically add the TLC 
Countries. It only says the VA's definition is ambiguous. Nowhere does 
the decision say that if you have a VSM you are presumed to have been 
exposed. 

Here is exactly what the Court of Appeals Held:

(1) 38 U.S.C. 116(F) IS NOT CLEAR ON ITS FACE CONCERNING THE MEANING OF 
THE PHRASE "SERVICE IN THE REPUBLIC OF VIETNAM." THEREFORE, THE STATUTE
IS AMBIGUOUS AND THE SECRETARY MAY (EMPHASIS ADDED) PROMULGATE REGULATIONS 
TO RESOLVE THAT AMBIGUITY SO LONG AS THE REGULATIONS REASONABLY INTERPRET 
BOTH THE LANGUAGE OF THE STATUTE AND THE INTENT OF CONGRESS IN ENACTING 
THE LEGISLATION.

In other words this gives license to the Secretary to change the regulations 
to resolve the ambiguity. He could change the definition of "service in the 
Republic of Vietnam" to include the TLC Countries or he could change the 
definition to "service on the ground in the Republic of Vietnam". 

(2) 38 U.S.C 116(f) DOES NOT BY ITS TERMS LIMIT APPLICATION OF THE 
PRESUMPTION OF SERVICE CONNECTION FOR HERBICIDE EXPOSURE TO THOSE WHO 
SET FOOT ON THE SOIL OF THE REPUBLIC OF VIETNAM.

This is the way the 2001 version of the M21-1 stood at the time of the of 
Haas's 2001 claim and can be changed by the Secretary. 
(3) THAT THE SECRETARY'S REGULATIONS, WHILE A PERMISSIBLE EXERCISE OF HIS 
RULEMAKING AUTHORITY (EMPHASIS ADDED), DO NOT CLEARLY PRECLUDE APPLICATION 
OF THE PRESUMPTION TO A MEMBER OF THE ARMED FORCES WHO SERVED ABOARD A 
SHIP IN CLOSE PROXIMITY TO THE LAND MASS OF THE REPUBLIC OF VIETNAM.
This says to us that it is permissible and the Secretary has the authority 
to make rules.

(4) THAT THE PROVISIONS OF THE VA ADJUDICATION PROCEDURE MANUAL 
[HEREINAFTER M21-1] IN EFFECT AT THE TIME (EMPHASIS ADDED) THE APPELLANT 
FILED HIS CLAIM IN 2001 ENTITLED HIM TO A PRESUMPTION OF SERVICE CONNECTION 
BASED UPON HIS RECEIPT OF THE VIETNAM SERVICE MEDAL (VSM).
What this tell us is the Decision by the Court of Appeals based their 
decision upon the M21-1 that was in effect in 2001. If you read the full 
decision you will find that the M21-1 has been revised since 2001. 

(5) THAT VA'S ATTEMPT TO RESCIND THAT VERSION OF THE M21-1 PROVISION MORE 
FAVORABLE TO THE APPELLANT WAS INEFFECTIVE BECAUSE VA DID NOT COMPLY WITH 
THE NOTICE AND COMMENT REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURES ACT 
(APA), 5 U.S.C. 706(2)(2).

What this tells us is the VA did not serve proper notice to rescind the 
2001 version of the M21-1. It does not prohibit the VA from rescinding the 
2001 version of the M21-1 with proper notice and comment. 


Unless you know something else to the contrary, I fear, without other 
supporting information such as a revised M21-1 from the VA, that we may be 
jumping the gun here and misleading folks.

By no means am I trying to throw cold water on this, but as you know I work 
in the legal world and the Appeals Court decision does not tell me what you 
have just posted. Could it happen? Yes it could. But I do not think they 
would have had time since the Court made it's decision on August 16, 2006. 
I think not as that occurred only six days ago. 


SECOND MESSAGE:

IMO it is still a long road to go before presumption for TLC Vets. The VFW 
cannot make the rules although they should and can be influential, as well 
as any other viable group.

IMO unloading a bunch of new claims will only serve to make the VA dig their 
heels in and seriously overload their system. Results will be longer delays 
processing claims and perhaps the wrong definition of "service in Vietnam". 

If you will read the Court Decision, you will see that the Statute enacted 
by congress is also not clear, and different legislation contained different 
definitions, effectively leaving it up to the VA to promulgate the definition 
consistent with the intent of Congress. It really is not an issue of spraying 
in Thailand or anywhere else for that matter, it is an issue of the definition 
of "service in Vietnam". 

The heat needs to be put on the VA to establish a clear definition of "service 
in Vietnam" as "service in the Republic of Vietnam, the waters off shore, 
Thailand, Laos and Cambodia and receipt of the VSM" in the M21-1. That would 
end the battle. The Statutory Provision Section 1116(f), title 38 of the U.S. 
Code does not do that, although it establishes the period of January 9, 1962 
and ending on May 7, 1975. (See "B. Statutory Provision" on page 7 of the 
Decision)

On page 6 & 7 of the Decision the Court, without cites, states as follows: 

-- If the text of the statute speaks unambiguously directly to the question 
at issue, then "that is the end of the matter, for the Court as well as the 
agency, must give effect

to the unambiguously expressed intent of Congress." 

-- addressing principles of statutory construction and noting that, where a 
statute has a plain meaning, the Court shall give effect to that meaning, 

-- Each part of section [of a statute] should be construed in connection with 
every other part or section so as to produce a harmonious whole. 

-- If however, the statute is silent as to the matter at issue, VA's attempt 
a filling that gap "will generally be sustained as long as it reflects a 
permissible construction of the statute.

-- The precise question at issue in this case is the meaning of the phrase 
"served in the Republic of Vietnam." 

The meaning of the phrase "served in the Republic of Vietnam" is the question 
in a nut shell.

Yes, herbicides were present on occasion in Thailand from approximately 1953 
through 1969.  However, this presence was test program's conducted in one or 
two small areas far away from any of the bases such as Korat, Takhli, Udorn,
 NKP, Ubon. The only other definitive evidence I have seen is the Ranch Hand 
Mission's flown out of Udorn 29 December 68 to 2 January 69 into Northern Laos. 
That is proof positive that at least some quantity of herbicides were in 
Thailand to support those Mission's. Other than that all we have are numerous 
stories of seeing drums, observing hand spraying something (which I did), and 
photographs of dead vegetation. I have a photograph of the wire at Mukdahan 
with green grass on each side of the wire. The latest Google Earth Photographs 
of NKP clearly show the base perimeter and the bomb dump. We just do not at 
this time have any other proof positive that I am aware of. 

Perhaps it would be a better to pressure the VA for a proper definition of 
"service in Vietnam", rather that try to prove herbicides were used in 
Thailand. There is no question they were used in Laos and likely Cambodia, 
because of the Claim the Cambodian Government filed against the US for 
destroying a rubber plantation. In addition, in my mind there is little 
doubt herbicides were in Thailand, or drifted into Thailand from Laos, or 
were used on bases to control vegetation, it is just there is not any 
reasonably certain documented proof. 

We are a step closer and the Decision does put a crack in the VA's armor, 
but we need to widen that crack.

That's my 02 for the evening.


 



On 8/23/06, Jack  wrote: 

----- Original Message -----
From: "Marilyn Oliver" 
Sent: Tuesday, August 22, 2006 4:11 PM
Subject: URGENT Thailand Veterans--additional info/From Taura 


> ----- Original Message -----
> From: Taura King
>
> Sent: Tuesday, August 22, 2006 7:51 AM
>
> URGENT:
> COl. Dan and all others--I just confirmed the
> Thailand, Laos and 
> Cambodia Veterans are also being added into the law as
> a result of
> the new decision.
>
> We spoke with the VFW HQ--MR. SMITHSON this
> morning--and I am
> awaiting a call from NVlSP also--what does this 
> decision mean for
> this group of veterans--not sure on who is being addED
> but what we
> do know is VA has longer agreed AND STATED TO ME THAT
> veterans
> having served in these areas did suffered exposures 
> during 64-65--
> BUT know I am prepared to address this as the cd Sue
> and I have
> compiled shows herbicides were present in Thailand
> thru at least 67
> and in Laos and Cambodia. WE ARE READY FOR THE FIGHT. 
>
> I understand VFW will be putting out a memo today
> updating their
> VSO's--here is part of the e-mail we received and I
> will send the
> info on the Thailand Veterans as ssoon as he gets it 
> to me. MY UPDATED CD IS COMPLETED--IT WILL STILL BE
> GOING TO THEM AS A MEANS OF CONFIRMING THE DATES WE
> HAVE ESTABLISHED AND IT WILL ALSO AGAIN BE
> GOING TO THE VA COMMITTEE--IT WILL ALSO BE PROVIDED TO 
> OUR VETERANS FREE OF CHARGE ALL I NEED IS A MAILING
> ADDRESS FROM THE VETERAN.
>
> From Mr. Smithson of VFW--
> "I know you have been involved with this issue for a
> long time and this is a really important Court case. 
>
> Some more of our guidance is provided below. Note the
> reference to
> the Armed Forces Expeditionary Medal (AFEM (Vietnam).
> I've have also
> included our guidance on those who had offshore Naval 
> service but
> did not receive the VSM or AFEM (Vietnam).
>
> "As I'm sure you know, VA has information from DoD
> verifying AO
> spraying in Thailand in 1964 & 65. Veterans who were 
> in these areas
> at that time have been successful with claims.
> However, as far as
> the Haas case is concerned, we are advising our
> representatives to
> file claims for those who served in Thailand and 
> received the VSM.
> Not sure yet how it will play out but it can be
> reasonably argued
> that the ruling in Haas also applies to those veterans
> as well.
> Also, VA may end up appealing this decision to the 
> Federal Circuit
> Court. There are still a lot of unknowns. I have
> included the
> guidance (below) we are providing to our
> representatives on veterans who served in Thailand.
>
> Even if the veteran received the Vietnam Service Medal
> for service
> in a location other than Vietnam (such as Thailand),
> their
> representatives should still apply for service
> connection, since the 
> M21-1 provision does
> not outright prohibit application of the Agent Orange
> presumption in
> such case. This type of claim may be difficult to win
> but should be
> filed.
> 
> For denied claims still pending before the VA or
> before the CAVC: If
> the veteran received the Vietnam Service Medal (or the
> Armed Forces
> Expeditionary Medal (Vietnam)), for service offshore 
> of the Republic
> of
> Vietnam (that was not just over flight duty), the
> advocate should
> appeal any denials of service connection (and
> severances of service
> connection) and argue before the VA (or the Court) 
> that service
> connection should be granted under the M21-1 provision
> and Haas.
> Even if the veteran received the Vietnam Service Medal
> for service
> in a location other than Vietnam (such as Thailand), 
> he/she should
> still appeal."
>
> If the veteran received the Vietnam Service Medal (or
> its
> predecessor award, the Armed Forces Expeditionary
> Medal (AFEM)
> (Vietnam)), for service offshore the Republic of 
> Vietnam between
> January 9, 1962, and May 7, 1975, that was not just
> overflight duty,
> the advocate should argue that service connection
> should be granted
> under the M21-1 provision and Haas. 
>
> Finally, even if the veteran did not receive the
> Vietnam Service
> Medal or the AFEM, the advocate should apply for
> service connection
> if the veteran had offshore Naval service during the 
> above periods.
> This is because the M21-1 provision does not preclude
> service
> connection as long as it is verified that the veteran
> had service
> offshore of Vietnam.
>
> If the veteran did not receive the Vietnam Service
> Medal or
> predecessor award, the veteran should appeal the
> denial of service
> connection or severance action if he or she had
> offshore Naval 
> service during the above periods. "
> Taura

----- Original Message ----- 
From: Odya, Joseph, VSORENO 
To: Franco Picchione 
Sent: Wednesday, March 14, 2007 2:31 PM
Subject: RE: REBUTTAL TO DOCKET RE: HAAS V. NICHOLSON


Yes!
 
Your BVA claim will be held up forever base on HASS V. NICHOLSON 
because the VA appeal this Issue three months' ago. I am  contacting 
Congresswoman Shelley Berkley on this issue: I will keep you inform. 
 
Joseph G. Odya
AMVETS DSO  

----- Original Message ----- 
From: Franco Picchione 
To: Odya, Joseph, VSORENO 
Sent: Wednesday, March 14, 2007 1:49 PM
Subject: REBUTTAL TO DOCKET RE: HAAS V. NICHOLSON

Joe,
 
As you know, my claim boils down to proving that I stepped foot in Vietnam.
The VA medical records provide the background on my diabetes as well as
all secondary medical conditions treated at VA medical facilities here in
Las Vegas since 2002.
 
I received the Haas notification letter from the Reno RO 2/28/07
which indicated a hold due to the class ruling for VSM.
 
What the SMR has to do with anything is absolutely erroneous
as to diabetes claims.
 
Through my veteran's network, I have been following the unlawful
stay by the V.A. on the Haas and the Ribaudo ruling to rescind that
memo issued by the Board.
 
That was not the grounds that I filed under in April, 2005.  I filed
according to the guidelines for providing a supporting statement
per other legal precedences of Thailand soldiers intransit to with
stop(s) in Vietnam, nothing more.
 
The review you performed last year also provided the substantiating
evidence of the army pay voucher and the legal precedences which
the V.A. reviewing officer declined except comment that that was
for the VBA.
 
If that was the case, in such ruling(s), then Haas (as law) would
only apply at VBA (hearing) too.
 
Under the law, such rulings become an integrated part of interpreting
the law and must be upheld unless reversed in a court of law.
 
The Secretary, as appellee, in all hearings is acting unlawfully to
hold that the adjudication process does not incorporate such prior
rulings (and citings) by a claimant.
 
Now, as to MRs or morning reports.  The only entries that will be
found is "PCS from Ft Hood, TX to whatever unit in Thailand."  They
will not show an itinerary.  I was company clerk and EXPERT in this
area.
 
All the VA is doing is creating an unnecessary appeal hearing 
where I provided foundation for my claim as to intransient via
Vietnam.
 
If you don't see that, I will continue to fight this and ask that
you make a rebuttal for me.
 
Yes -- I am included in the Haas ruling and should automatically
be conceded as of 16 Aug 06.
 
No -- that was not the grounds of my claim (only.)  Two letters
from Reno RO asking for more information regarding my evidence
as to "stepping foot in Vietnam" were made in 2005.  The first,
you handled and after a second request, I provided a statement
and the army pay voucher.
 
IAW 5103a, if that evidence was not sufficient to substantiate
my claim, as to my responsibility as claimant, then they were
supposed to reply at that time -- NOT upon denial in January, 2006.
The person that adjudicated by claim listed the army pay voucher,
but no reference as to content, ie, "CZ" for tax exempt.  It would
be very hard to disclaim my position -- not on a vaccination record,
or driver's license "stamped" in Vietnam, but a payroll record.
 
That is why I provided you with the payroll record(s) legal precedences
cases of same and two others for intransits to Thailand and the Phillipines.
 
March 1, 2007, 1SG Wayne Boyd had a VBA hearing in Washington, DC.
for exactly that reason, ie, LESs indicating combat pay as well as "CZ"
for five (5) of his twelve (12) pay periods in Thailand.  This is yet another
incident of administrative incompetence.
 
I await your phone call.  I hope this refreshes your mind on my case.
 
Mr. Foger says the docket can not be held up forever based on Haas,
but as you and I know, the VA does what it wants to irregardless of
the law and rulings applicable by the court.
 
Frank Picchione

----- Original Message ----- 
From: Franco Picchione 
To: Franco Picchione 
Sent: Wednesday, March 14, 2007 3:49 PM
Subject: Re: REBUTTAL TO DOCKET RE: HAAS V. NICHOLSON

Less I forget, Joe, and not so much as to correct you
because you know better; deal with the VA on a daily
basis, but .. 
 
the VA is not changing its policy from a "well-grounded"
claim to the "benefit of the doubt" doctrine which favors
the claimant.
 
"Due Process" is only a legal issue in law that this executive
ageny of Bush's administration totally disregards.
 
President Clinton signed into law the VCAA/2000 which
is quoted time after time in judge rulings in the VBA as
to "benefit of the doubt."  I was lucky to find applicable
rulings that have to do with Thailand transient and that
along with my military career experience (expertise,) I
will work to bury these people locally and nationally.
 
Good luck, buddy -- I'd rather be in my place versus the
bureaucracy that your organization seems to be in.
 
Regards,
 
Franco
 
p.s.  I am trying to be judicious about this matter and not
step on anyone along the way, but I wonder if a letter to
President Clinton's office regarding his (signed into law)
doctrine would help.

----- Original Message ----- 
From: Franco Picchione 
To: Odya, Joseph, VSORENO 
Sent: Wednesday, March 14, 2007 3:22 PM


----- Original Message ----- 
From: Franco Picchione 
To: Odya, Joseph, VSORENO 
Sent: Wednesday, March 14, 2007 3:34 PM
Subject: Re: REBUTTAL TO DOCKET RE: HAAS V. NICHOLSON


Joe,
 
It is a very sad situation that (1) the DOD in handling 
disability claims of active duty personnel and (2) the VA in 
disallowing hearing, ie, "due process of the law" for other 
veterans.
 
I am glad we are on the same track.
 
I will be using your statement, though, regarding the VA told you 
they needed my SMR, morning reports and "other records" (not identified.)  
The notification process (required by law) states perameters of "futile 
attempt(s)" and I was so notified.
 
As a class, Thailand veterans have been screwed and intimidated and 
denied where they should have ALL been granted.
 
I will prepare a letter next week for Mr. Foger for Senator Reid's 
information as well as cc Shelley Berkley's office too.
 
I am leaving on a business trip to Phoenix tommorrow and will not be 
back until Sunday or Monday at which time I will complete this step.
 
I intend to bring this to the attention of the Task Force on the impact 
of the VA in handling veterans' disability claims too, starting with 
Senator Dole.  I will investigate whether CNN or local news media or 
ACLU or whoever will listen is the next step as well.
 
I was hoping a congressional through Senator Reid's office would "light 
a fire" under the RO here, but I can see they stonewall things very 
affectively and Mr. Foger is wrong -- the VA does not regard "due 
process" or any other law.
 
Thanks for your assistance!  As an activist/advocate, I will fight for 
the rights of other veterans that are being denied based on this VA 
Secretary unlawful promulgation of CFRs according to the law, Haas and 
Ribaudo.  The public needs to know and veterans are either dieing off, 
or living without integrity because of their service-connected health 
and employment status.
 
I am lucky that I am self-employed and do what I want.
 
I hope someday that it will be Picchione v. Nicholson ruling that 
will be a class action for all other Thailand/S.E.A. veterans!
 
Franco
 
----- Original Message ----- 
From: Odya, Joseph, VSORENO 
To: Franco Picchione 
Sent: Wednesday, March 14, 2007 2:31 PM
Subject: RE: REBUTTAL TO DOCKET RE: HAAS V. NICHOLSON


Yes!
 
Your BVA claim will be held up forever base on HASS V. NICHOLSON 
because the VA appeal this Issue three months' ago. I am  contacting 
Congresswoman Shelley Berkley on this issue: I will keep you inform. 
 
Joseph G. Odya
AMVETS DSO  

Issue three months' ago ..

What am I?   .. cold chicken?     Immediately after the 16 Aug 06 ruling, I contacted Joe o/a 8/23 for a status.     No response.     Now, in March, he is telling me about something I already knew (the injunction/stay) and it just rolls off his back ...

Three months hence ..

No responses for "efforts with Rep. Shelley Berkley" nor rebuttal of non-Haas issues; plus bogus reference to SMR, morning reports and "other records."     Pathetic.     It is time to get answers; file rebuttal myself - click here. 4th July

Now, if you want to use a VSO that will cause you undue hardship waiting, etc., my VSO is the man for you.

At this point, it is my duty, responsibility, to notify my VSO organization of the problems that he has caused me in lost time and overall competence from the DRO a year ago to now, "keeping me abreast of things."

If you can't take the heat ..

.. get out of the kitchen!

If you can not manage a claim case load, you serve nobody well.     In fact, you define incompetence by such lack of professional conduct.     If you can not return emails, phone calls, correspondence, or be a little professional and show your clients a little respect, you need to seriously consider whether this line of work is right for you.

This website is not for VSO training, or mentoring.     It is for other veterans in need of assistance and faced with a mediocre VSO, and the ability to identify same.     If they make excuses like mistaking you for another claimant, or jibber about records that does not apply to you, it is time to start looking for a replacement.

This is very serious business and because I do not have the "inside track" on VSO software and VA access and training, I refuse to take on a veteran's claim, worried that I may screw it up and cause him hardship.

DRO Correspondence ..


Personally, in my 26 years of running my own consulting business, I don't think that I could possibly find as much foundation for the unprofessionalism of this VSO.     Click on the above illustration for the complete letter.

Do not contact [me]     do not contact the VA     If I am to "properly represent" you.

Is that what he is doing?     Properly representing me?     Oh yeah!     Don't take any (formal) action without discussing it with him .. I think that is what I have been trying to do since March.

Amen   [sign of the Cross]     May he find something more productive for his skills -- not filing claims!   <bs>