See Haas v. Nicholson BVA Court Decision

After six months of unlawful delays by the VA and its Secretary,
in Washington, D.C., the Federal Court of Appeals for Veterans Claims on January 9, 2007 overturned a unilateral decision by the VA Secretary that had imposed a stay on so-called “Haas-type claims; ruled this past August 16, 2006.         The court determined that the VA had erred in issuing a unilateral stay on Haas-type claims, ruling that "the head of an executive agency does not have the authority to nullify the legal effect of a judicial decision."     The Secretary did just that by imposing "a stay of indefinite duration without first seeking judicial imprimatur."

    Here is the text of that Memorandum issued by the Secretary of the V.A., in disgrace, on or about 21 September 2006.     The V.A., with its army of lawyers, holds veterans "naked to the wind" in a posture of defenseless adjudication of disability claims.     See Legal Counsel for vets.

    While veterans die of "service-connected" disabilities, the Agency entrusted with their healthcare and compensation for such matters pleads:

    And, even while the decision to overturn this disgraceful conduct is ordered by the Court, there is a dissenting opinion issued:

"KASOLD, Judge, dissenting in part:     I fully concur in the analysis and conclusion of the Court that 38 U.S.C. § 7107(a) prohibits, except in limited circumstances, the staying of cases on appeal to the Board, by either the Secretary or the Board Chairman, absent properly promulgated regulations – regulations that are not extant at this time.#     I also note that the section 7107(a) requirement to process cases on appeal to the Board in regular order, without advancing or postponing cases except in limited circumstances, is only one reflection of congressional intent that cases at the Board be timely processed.     Indeed, there are numerous statutory provisions echoing this intent."

    Judge Kasold, you should be ashamed of yourself in writing your dissent.     No less, a time of war, where Soldiers and Marines are sacrificing their blood and soul for you and me.     Have you no honor, sir?     Do you (not) understand the adversary nature of this Agency and their plout to disallow fair treatment to veterans of the past and their legitimate claims?     Are you an educated attorney?     Do you understand a system where the veteran can not have reasonable expectations of legal counsel and representation?     You are a disgrace to your profession.

The "Of course .."

    The Court, of course, has given the Secretary plenty of "wiggle room" is this matter.     In fact, this "slap on the hand" was a six month stay, no matter how you look at it, and now, the Secretary (with their army of lawyers,) can mount a lawful legal injunction, delaying even longer justice to those vets dying from service-connected illnesses; at which time, all claims are off.     Of course, the Congress has insured that such disability claims die with the claimant; widows, family -- kiss off.

    FYI - "As explained above, it is clear to us that the law fails to provide the Secretary and Board Chairman with the authority to unilaterally stay cases before the Board as they see fit because of a disagreement with a decision of this Court or pending an appeal to the Federal Circuit.     Moreover, from the Secretary's October 25, 2006, pleading, it appears that stays similar to the one at issue in this case have been implemented by or at the direction of the Secretary on an ad hoc and arbitrary basis and in a manner that is inconsistent with the very principles that the Secretary cites as supporting his authority to order stays such as Board Chairman's Memorandum 01-06-24.     Although the Secretary mentions "conserv[ing] scarce government resources" and "ensur[ing] the consistent treatment of similarly situated claimants" as reasons underlying his authority to stay cases before the Board while an adverse Court decision is appealed or otherwise challenged, his demonstrated actions in staying the processing of appeals before the Board have not always furthered those ends. Answer at 8."

    -- Judge Hagel in his overturning decision.

    It is really refreshing to realize that we still have judges with such integrity and boldness of action against a major federal agency in making their decisions.

"HAGEL, Judge:   On September 28, 2006, Nicholas Ribaudo filed a petition for extraordinary relief in the nature of a writ of mandamus wherein he asserts that the Secretary of Veterans Affairs (Secretary), through the Chairman of the Board of Veterans' Appeals (Board Chairman), "has disobeyed this Court's decision in Haas v. Nicholson, 20 Vet.App. 257 (2006)," by issuing Board Chairman's Memorandum 01-06-24 (Sept. 21, 2006), which unilaterally imposes a stay upon all cases affected by the Court's decision in Haas.   Petition (Pet.) at 1.     Although the petitioner argues that Board Chairman's Memorandum 01-06-24 violates Haas by unilaterally staying cases affected by Haas, as is reflected later in the petition, the petitioner is essentially contending that the unilateral stay violates this Court's decision in Ramsey v. Nicholson, 20 Vet.App. 16 (2006).     The Secretary filed an answer to the petition.     On November 1, 2006, the petitioner filed a response to the Secretary's answer.     Because the head of an executive agency does not have the authority to nullify the legal effect of a judicial decision, and because the Secretary did just that by ordering the issuance of Board Chairman's Memorandum 01-06-24 imposing a stay of indefinite duration without first seeking judicial imprimatur, the petition will be granted."

Summary

    That gives you all a taste of the Judge Hagel decision which later I will publish in its entirety for those that enjoy a good, legalese paper.     I envy those that have a legal education and career in law as an attorney; helping others get their due.

    The Judge referenced a "Ramsey" decision which I hope I can dig up on the Internet for everyone as well as the quoted statute of law.     See Counsel.

      Judge William A. Moorman, Chief Judge William P. Greene, Jr.; Judge Mary J. Schoelen (J.D. '93)

    And, now for your information, the unlawful memorandum by the Chairman of the Board on behalf of the Secretary of the V.A. without any judicial authority to do same.

Office of the Chairman
Board of Veterans’ Appeals
Washington, D.C.  20420

Date:  September 21, 2006

MEMORANDUM
NO.  01-06-24

SUBJ:  PROCESSING OF CLAIMS FOR COMPENSATION BASED ON EXPOSURE TO HERBICIDES 
       AFFECTED BY HAAS v. NICHOLSON—IMPOSITION OF STAY


1.  REFERENCES

a.  Haas v. Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006).

b.  38 U.S.C. 1116; 38 C.F.R. §§ 3.307, 3.309, 3.313.

c.  VA Adjudication Procedure Manual M21-1, Part III,  4.08(k)(1)-(2) (Nov. 1991).  

2.  PURPOSE OF THIS MEMORANDUM

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

3.  BACKGROUND

 a.  In its recent decision in Haas, the Veterans Claims Court reversed a decision of 
     the Board of Veterans’ Appeals (BVA or Board), which denied service connection for 
     diabetes mellitus, with peripheral neuropathy, nephropathy, and retinopathy as a 
     result of exposure to herbicides.  The Board determined that, although the appellant 
     had served in the waters off the shore of the Republic of Vietnam, such service did 
     not warrant application of the presumption of herbicide exposure because the 
     appellant never set foot on land in that country.  

 b.  In reversing the Board’s decision, the Court held that a VA manual provision, VA 
     Adjudication Procedure Manual M21-1, Part III,  4.08(k)(1)-(2) (Nov. 1991), created a 
     presumption of herbicide exposure based on receipt of the Vietnam Service Medal for 
     purposes of service connection for diseases associated with herbicide exposure.  
     In so holding, the Court found the manual provision to be a substantive rule and 
     invalidated a subsequent amendment to that provision.  The Court also found that neither 
     the statute nor the regulation governing herbicide exposure claims precludes application 
     of the presumption of herbicide exposure to persons who served aboard ship in close 
     proximity to the Republic of Vietnam.  

 c.  Accordingly, for the purpose of applying the presumption of exposure to herbicides under 
     38 C.F.R. § 3.307(a)(6)(iii), the Court in Haas held that “service in the Republic of 
     Vietnam” will, in the absence of contradictory evidence, be presumed based upon 
     the veteran’s receipt of a Vietnam Service Medal, without any additional proof 
     required that a veteran who served in waters offshore of the Republic of Vietnam actually 
     set foot on land.

 d.  The Department of Veterans Affairs (VA) Office of the General Counsel (OGC) is preparing a 
     recommendation that the Department of Justice (DOJ) appeal Haas to the U.S. Court of 
     Appeals for the Federal Circuit.  

 e.  There are a potentially large number of cases on appeal (exact number not known) that may 
     be affected by Haas.  In order to avoid burdens on the adjudication system, delays in the 
     adjudication of other claims, and unnecessary expenditure of resources through remand or 
     final adjudication of claims based on court precedent that may ultimately be overturned 
     on appeal, the Secretary of Veterans Affairs issued a memorandum on September 21, 2006, 
     directing the Board to stay action on and refrain from remanding all claims for service 
     connection based on exposure to herbicides in which the only evidence of exposure is 
     the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.  

 f.  As directed by the Secretary, this stay will remain in effect until such time as 
     either the Secretary’s September 21, 2006, memorandum is rescinded, or the General 
     Counsel provides advice and instructions to the Board upon resolution of the ongoing 
     litigation.  As further noted by the Secretary, “This guidance is not intended to affect 
     the ability of Board members to exercise their independent discretion in the resolution 
     of questions presented in individual appeals.”

4.  IDENTIFICATION AND SCOPE

 a.  The specific claims affected by the stay include all claims for service connection based on 
     exposure to herbicides in which the only evidence of exposure is the receipt of the Vietnam 
     Service Medal or service on a vessel off the shore of Vietnam.

 b.  Any cases not affected by the Court’s decision in Haas, such as (1) claims based on 
     herbicide exposure in which it is clearly established on record that the veteran did set 
     foot in the Republic of Vietnam, or (2) claims based on herbicide exposure in which the 
     veteran did not set foot in Vietnam, did not receive the Vietnam Service Medal, and 
     did not serve off shore of Vietnam, should continue to be processed in the usual manner.  

5.  VETERANS LAW JUDGE/COUNSEL HANDLING OF AFFECTED CASES

 a.  Notation.  Upon identifying a claim that is subject to the stay, a Veterans Law Judge (VLJ) 
     or staff counsel should make a notation in the lower right-hand corner of the Appeals Cover 
     Sheet that it is a “HAAS HERBICIDE STAY CLAIM.”  

b.  Single-issue cases.  Affected single-issue cases, as well as cases involving an issue that is 
    inextricably intertwined thereto (such as claims for a total disability rating based on individual 
    unemployability (TDIU) or service connection for a disability as secondary to the stayed claim for 
    service connection based on herbicide exposure), should be forwarded to the Decision Team Support 
    Unit for processing in accordance with paragraph 6 below.  

c.  Multiple-issue cases.  Some multiple-issue cases may contain issues that are subject to the stay 
     and others that are not.  In such cases, the Board must adjudicate, as appropriate, all issues 
     that are not subject to the stay.  See BVA Directive 8430, para. 13 (May 17, 1999).  Cases where 
     other claims are being  adjudicated and/or remanded should contain language in the “Introduction” 
     that is substantially similar to the following:

     The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. 
     Nicholson, No. 04-491 (U.S. Vet. App. August 16, 2006), that reversed a decision of the Board of 
     Veterans’ Appeals (Board) which denied service connection for disabilities claimed as a result of 
     exposure to herbicides.  The United States Department of Veterans Affairs (VA) disagrees with the 
     Court’s decision in Haas and is seeking to have this decision appealed to the United States Court 
     of Appeals for the Federal Circuit.  To avoid burdens on the adjudication system, delays in the 
     adjudication of other claims, and unnecessary expenditure of resources through remand or final 
     adjudication of claims based on court precedent that may ultimately be overturned on appeal, on 
     September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the 
     adjudication of claims affected by Haas.  The specific claims affected by the stay include those 
     involving claims based on herbicide exposure in which the only evidence of exposure is the receipt 
     of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.  Once a final 
     decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed 
     will be resumed. 

 d.  After the decision and/or remand, if any, has been signed, the VLJ should forward the case to the 
     Decision Team Support Unit for processing in accordance with paragraph 6 below.  For any issue 
     being stayed, the “Stay” disposition should be chosen when a counsel or VLJ checks out a case using 
     the Attorney Check In or Automated DAS programs.  The name of the stay to be chosen in the drop-down 
     box is “Herbicide - Haas v. Nicholson.”  

6.  MANAGEMENT AND ADMINISTRATION HANDLING OF AFFECTED CASES

 a.  Central Case Storage.  The Central Case Storage Unit, within the Intake Unit, will continue to 
     distribute all cases to the Decision Teams and Appellate Group, following normal procedures as set 
     forth in the Board’s Central Case Storage Procedure Manual (August 18, 2006).  VLJs and Board 
     counsel will ultimately decide if a particular appeal is subject to the stay.  No action to stay 
     a case may be initiated by an administrative staff member, except upon direction of a VLJ or 
     Board Counsel.  

 b.  Decision Team Support:  Identification of a Stayed Case.  Upon receipt of a file which indicates 
     in the lower right-hand corner of the Appeals Cover Sheet that it includes one or more issues 
     subject to the stay, as identified by the notation “HAAS HERBICIDE STAY CLAIM,” the Decision 
     Team Support Unit reviewer should make the appropriate entry in VACOLS to reflect the existence 
     of the stay.  The name of the stay is “Herbicide - Haas v. Nicholson.”  

c.  Procedure.

  (1)  Single-issue cases.  For single-issue cases in which the only issue on appeal is a claim 
       affected by the stay, as well as cases involving an issue that is inextricably intertwined 
       thereto, and for which a Board decision is not presently being issued, the Decision Team Support 
       Unit will retain and store the claims folder during the period of the stay.  Upon receipt of the 
       claims folder and a determination that the case is subject to the stay, the Decision Team Support 
       Unit will send a letter to the appellant and/or the appellant’s designated representative, as 
       appropriate.  The letter will notify the appellant of the stay imposed on the processing of 
       certain compensation claims, and that an adjudication of the claim(s) will be deferred pending 
       the appeal by VA of the CAVC’s decision in Haas.  Once a final decision is reached on appeal in 
       the Haas case, the adjudication of any cases that have been stayed will be resumed.  

  (2)  Multiple-issue cases.  In multiple-issue cases where the Board is finally disposing of and/or 
       remanding some of the issues that are not subject to the stay, action should be taken to dispatch 
       the decision and/or remand in accordance with normal procedures, making sure that appropriate 
       controls have been put in place with respect to the issue or issues being stayed.  Upon dispatch, 
       the claims folder should be returned to the appropriate agency of original jurisdiction/regional 
       office in the usual manner, and the Board’s Appeals Cover Sheet folder should be forwarded to the 
       Decision Team Support Unit for retention during the period of the stay.  
  
7.  COURT REMAND CASES

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

8.  RESCISSION

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


James P. Terry
Chairman

    Well, golly-gee, I'm getting all teary-eyed to think about it.

    You just can't beat it, ie, "having legal representation."     No, it would be nice if Congress amended their amendment to the "Rights of Veterans" to such legal counsel in filing their claims, up front; above board, et al.     Raise your hands please, how many of you think that that will ever happen?

Re:   VA Watchdog;   National Veterans Legal Services Program,

Tel:   (202) 265-8305,  Ext. 149     Richard V. Spataro,   Staff Attorney