Editorial:         May be the good Senator can give Senator Akaka a refresher course on "Checks and Balances" and "How to say no to the President" and of course, "Overstepping the Constitution."     And, as for the V.A., as an agency of the Executive Branch, a lesson in the "Separation of Powers" versus the "Arrogance of Powers."     When the V.A. can not win in court, on appeal, it diverts to covert operations, ie, underhanded, overstepping the Constitution, "by request" legislation in the Legislation Branch, in comes the introduction of a senator that needs a refresher course in civics.       American Bar Association:   The Legislative Branch has the power to make the law; The Executive Branch has the power to enforce the law; The Judicial Branch has the power to interpret the law.

September 17, 2007   Senator Reid's Office reply to my S.2026 Letter

"Thank you for contacting me again to share your thoughts on S.2026.     There has been no movement with regard to Senator Daniel Akaka's (D-HI) bill, but I will be certain to inform you of any major actions should they take place in the coming weeks.     I appreciate hearing from you, and please do not hesitate to contact me again."

Tell your Congressman "Enough is enough!"
    for White House encroaching on Justice System

    If your senator is like Senator Akaka, and ignores the "separation of powers," then ..

    Write your House Representative     Or, Call your Senator today!~

    Let them know you are aware of such underhanded dealings between the administration and congress
and are not going to put up with it!     Ask them to explain themselves.     Why they think it is proper to legislate/overturn court rulings?     The People have limited rights and recourse than the courts, why is the Executive/Legislation Branches of government abusing their authority?

Send a message:   Congress is not for sale! "We the People" - U.S. Constitution Let them know:   Congress is "For the People"   (Constituents) "By the People"   (Elected by the Constituents) And, not   "For the V.A."   (Agency)   "By the White House" Our Founding Fathers and the Constitution created the "Separation of Powers" -- not the "Arrogance of Powers" (The disgraceful abuse of authority and office position.) "[to] form a more perfect Union," - Preamble

	vnvets.blogspot.com
	Open Letter to Senator Akaka
	Australian Navy Findings       Mortality & Cancer Studies
	Water Volatility   (Disstilling)       Sailor Report and/or Groundwater Table   (Toxin Contamination) Related topic:   Navy Personnel vaccinations lead to diabetes.

Conclusion -     The answer to the legal question on this appeal is quite apparent.     The Department of Veterans Affairs is obligated by law to pay disability benefits to the veterans who are suffering .. [as] a result of their exposure to Agent Orange, a noxious chemical widely used by our government in the course of the Vietnam war.     Three different Congresses in three different decades have enacted legislation signed by three different presidents, designed to ensure the payment of such benefits to veterans afflicted with Agent Orange-related ailments.     What is difficult for us to comprehend is why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam war veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct.     Whether the Vietnam war was just or not, whether one favored or opposed it, one thing is clear.     Those young Americans who risked their lives in their country’s service and are even today suffering greatly as a result are deserving of better treatment from the Department of Veterans Affairs than they are currently receiving.

"This case involves our government’s treatment of its veterans who contracted serious ailments as a result of their exposure to Agent Orange in the course of the military’s use of that toxic chemical as a defoliant during the Vietnam war.     It is a disturbing story, and the performance of the United States Department of Veterans Affairs (VA) has contributed substantially to our sense of national shame."

The issue before us on this occasion is a technical one.     But it is symbolic of the problems that have plagued a significant group of veterans who deserve to receive our foremost care and attention. The present question is whether the District Court, in a clarification and enforcement order issued in 2005, reasonably interpreted the earlier court-approved Stipulation and Order (sometimes referred to as “Consent Decree”) that settled a class action lawsuit brought by veterans of the Vietnam war (sometimes referred to as “plaintiff class” or “class plaintiffs”).
- Judge Stephen Reinhardt wrote in the court's opinion     (9th Circuit Court/San Franciso)

Hey - Nicholson!
Have you screwed any vet
out of disability today?!!!
Come on - after Haas encore ..
.. deprived him of his dignity .. standard of living
9th District Ruling on Leukemia vets
"[if] researchers link other disabilities to Agent Orange
the decision will prevent the VA from denying retroactive benefits
for those veterans, too."     - Richard Spataro, NVLSP   7/19/07
"[the] VA did not re-examine previous claims from veterans suffering from the ailment,
nor did it pay them retroactive benefits,"
"We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the consent decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled,"
- Judge Stephen Reinhardt wrote in the court's opinion   (9th Circuit Court/San Franciso)
"It's all about the money!"
Favorite vet quote -   "We were murdered in Southeast Asia,
and no one had the decency to tell us."     details
"A day without screwing a vet is not a good day."

16 August 2007 Update .. 1 Year

    Since the most powerful court ruling to come out of the Era of the Vietnam War that affects a large class action of such veterans' rights to concession of exposure to toxins, and herbicides in Southeast Asia, the Secretary of the V.A. has stone-walled.

    16 August 2006, Haas v. Nicholson ruled in favor of a class of veterans presumed to have been exposed to such defolient toxins as Agent Orange.
   
    "Atta boy!"

    President Bush has appaulded Secretary Nicholson for his performance in administering veterans benefits and rightfully so.     He has been noted in other legal documents to be saving the administration billions of dollars in disability compensation benefits to deserving Vietnam Era veterans.     See Hall of Shame.     7/17/07, Nicholson steps down.

    See Ribaudo v. Nicholson Petition for Extraordinary Relief Court Order.

.. a replacement any (political) presdent
can appreciate.

    "He will say what he's told to say...truth or not.

    I often wonder where they get these people.

    Is there a factory somewhere that turns out these clones with no conscience? Are they screened to make sure they don't know how to tell the truth?

The only difference between Peake and Nicholson:   Peake is smoother, more smug and a better liar."

- Larry Scott, VA Watchdog

How good a job is he doing?

    Although he receives monthly disability payments, Atkins has been in a paperwork dispute with the VA for almost three years over whether he should receive thousands more to pay for home nursing care.

    But the money hasn't come yet, and Atkins now faces eviction as his landlord, a nurse in the Navy Reserve, has been deployed to a hospital in Germany.     He's signed his life insurance over to his best friend, to whom he owes $40,000.     And he's maxed out all seven of his credit cards.

    Over the years, the physical and financial strain took the best out of four marriages.     Three ended in divorce and the other ended when his third wife died of leukemia.

    The agency, he said, has stonewalled his request. On the back porch of the Lake Oswego home where he rents a bedroom, Atkins leafs through a file folder of paperwork, letters and forms that detail the back and forth over his claim.

    Bureaucratic notices from the VBA ask him to clarify his needs.     The paperwork is not in layman's terms and rarely includes a phone number or name of a caseworker.

    In a March 7 letter to the agency, Atkins' frustration with the paperwork shuffle shows.     He put his needs bluntly:   "I am unable to fend for myself -- cook, clean, shower or wipe my own butt."

    The VA agreed in January 2005 that Atkins' illnesses were connected to his military service.     Among other things, he became eligible for "special monthly compensation," which pays for things such as home nursing care.     He already receives $2,560 a month in disability benefits but argues he deserves another $6,000 or more to pay for home nursing care.

    Hershinow said Atkins canceled, then rescheduled, a medical appointment the VA set for him to double-check whether he is entitled to nursing care.     Last week she promised to review the file to make sure the visit was necessary.     On Tuesday, Atkins said he was told he is, in fact, required to see four doctors on Sept 21.

    As of last week, there were 400,786 veterans waiting for the Veterans Benefits Administration to process their claims for monetary compensation, VA spokesman Terry Jemison said.     Those claims, represent the agency's "most complicated types of financial cases," he said, ranging from veterans seeking decisions on service-connected disability or pension payments to survivors seeking death benefits.

Source:   The Oregonian, Mark Larabee: 503-294-7664; marklarabee@news.oregonian.com

So, what does the VA do to reward such performance?   Of course, retention bonuses ...

    "The Defense and Veterans Affairs departments were the largest users of all three types of incentives in 2006. Defense paid 8,785 bonuses totaling $54.7 million, and VA paid 6,393 bonuses totaling $27.2 million."

Source:   Washington Post   September 12, 2007
 
In defense of the V.A., in this case, ie, "fair'n balance."

    After publishing the original excerpts from this article of deprivation, I started to think about many of the little things that the article pointed out, but in my rage to point a nasty finger at the V.A., I chose to ignore them.     I will follow up tommorrow with the Oregonian reporter that was privy to an onsight interview and may be something pertinent to the veteran's claim.

Claimant Issues

    The veteran has a service-connected medical condition, granted, and has been receiving a monthly disability check of $2,560 per month.     Veteran also receives complete medical care through the V.A. in Portland, a major medical center in the U.S.     Veteran obviously mismanaged his money as his only major monthly expense is rent for a room in a home owned by a Navy reserve nurse (in the Portland area, ie, low cost of living.)

    Mr. Atkins also makes admission that this $2,560 stipend was not adequate for his choice standard of living and chose to max out not one, but seven (7) credit cards.     And, if that was not enough, he borrowed $40,000 from a friend (note: insurance policy beneficiary.)     In so much as Mr. Atkins indicated that he was married four times, three of which ended in divorce, I am sure that that isn't the only reason they ended that way.     Mr. Atkins, in his present (terminal) medical condition should have seen that any women that marries a man literally on his "death bed" was in it for the short ride, to take advantage of his disability income (and credit cards.)

    Beyond Mr. Atkins own mismanagement of his finances, marriage relations and general outlook, it seems to this writer that the V.A. is doing everything you could expect of them except the home nursing care.     The reporter quotes a $6,000 (or more) per month allowance for such nursing care which seems way, way out of line for (a) nursing assistance and (b) the Portland area, ie, cost of living.

Summary    In October, 1999, I was laid up for two weeks in a 4-men room in the V.A. Long Beach Medical Center.     Of course, I wanted to go home, but the doctors and social workers had different ideas.     They thought it best to monitor my progress in the nursing home section of the facility.     Nursing home!     No way, Jose!     I mean, I was only 53, a young (hard head) whipper snapper and wasn't about to stay in some nursing home (..unless the nurses were cute, I didn't check .. darn.)

    I talked my way out of that one.     Even though my wound wasn't completely healed, I acted like I could tap dance and overheard the nurses talking about a special IV line called a "pick line."     It is a line they put in a vein through your arm to your heart for a temporary IV connection.     Sounded good to me.

    For the next three days, I watched the nurses care of me like a hawk.     Watched how they changed the dressings on my wound and how to give myself an IV.     I must have been pretty convincing because the staff agreed that I could go home, but (drum roll) a V.A. nurse that her duties were to visit such veterans at their home would come by every Friday until further notice, meaning indefinitely.

    Lucky me, I get an old bitty, and one with her own attitude.     I was always ready for her, ushered her in; ushered her out asap.     My body language must have given me away because later she came right out and asked me if there was something wrong.     I admitted that I was not happy with the arrangement and it got a little "heated" and then I signed off that she was no longer needed.

    Today, I am using another outside service for my kidney dialysis treatment, only in Las Vegas.     These treatments ain't cheap either.     I've seen a clinic bill for $3,000 a month.     Now, take that on top of other medical care for diabetes and supplies plus blood pressure medications.     I figure I weigh in, easy, at $4,000 a month in medical care, including from time to time doctor appointments and other special procedures.     The V.A. has been terrific to me for all my medical needs.

Back at yeah!

    Mr. Atkins receives complete medical care, ignores appointments designed to insure that the patient truly needs special home care.     Yes.     Mr. Atkins didn't really want to be reviewed by not one, but four doctors and if there was nothing to hide, that should not have become an issue.     After all, who is going to give you (upwards) of $6,000 nursing allowance a month without a review?

    The article and Mr. Atkins do not speak on any other nursing care options:     could he be placed in a nursing facility at the Portland Medical Center?     Or, could he get a part-time nurse to visit him and perform any medical tasks, eg, drugs and shots that he may need?     Or, if he feels that he needs a maid, pay someone from an allowance I am sure the V.A. will not dispute for a day, or half a day for $25 or $50 a week.     After all, he is only renting a room, not a 6,000 square foot mansion.     And, as for meals and cooking, again, there are already existing senior citizen services for "shut ends" that are either free or low cost.

    Mr. Atkins seems to feel that what the V.A. is doing for him is not enough.     Usually, when patients become so ill that they can not get out of their own way, it is time to face reality and be placed in a nursing home or hospices for death.     In the meantime, he is given 100% medical care plus $30,000 a year in cash to do with as he pleases, ie, waste on dead-beat wives; credit cards are optional (and his responsibility!_

What is the VA guilty of then?

    In Mr. Atkins' case, may be not speaking frank about his condition and prognosis.     Yes, the V.A. has a lot of problems in processing claims, but unless there is something here I don't see, I can not point a nasty finger at the V.A.     Then, why mention this artilce at all?     Because it is typical mediocre, incompetent handling of such claims.     Yes.     Terminally ill patients aren't fun to reason with, but everyone should be treated as adults and not spoken down to, but spoken to factual as to their prognosis which isn't good.

 
AGENCY CONTEMPT OF COURT CITING .. 1 year

re:   Unlawful Stay of Claims in Appeal per Ribaudo Ruling ordering the Stay Rescinded     12 Aug 07     On the 4th of July, I requested that my appeal unlawfully stayed be heard in accordance with the ruling of April 14th and Ribaudo.     The VARO/Reno has not notified me * one way or another within a reasonable amount of time and therefore, this notice.     * Including acknowledgement of my rebuttal.     Only the federal government under this Bush administration has held itself to be above the law and requirements of due process.     In my attempts to bring this to the attention of the news media, it has fallen on deaf ears.     Evidently, the news media only find appealing stories on Paris Hilton and Anna Nichol Smith, and not the blight of an entire generation of Vietnam veterans. re:   Steps in Denial     RO Rebuttal   4 Jul 07 Ribaudo Ruling   Decided 1/9/07; heard 12/6/06       "Abuse of discretion .."     Accordingly, the petition is granted.     Board Chairman's Memorandum 01-06-24 is unlawful and we order that memorandum rescinded .   See 38 U.S.C. § 7261(a)(3) (providing that the Court may set aside "decisions, findings, conclusions, rules, and regulations" of the Board or the Secretary "found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").     The Secretary will proceed to process the appeals that were stayed in accordance with that unlawful memorandum "in regular order according to [their] place on the docket" and will apply this Court's decision in Haas to those appeals. 38 U.S.C. § 7107(a)(1).     Of course, the Secretary is not precluded from filing a motion to stay the effect of this Court's decision in Haas -- an option that has been available to him since August 16, 2006, the date on which the Court issued that decision. Note:   per this ruling, all claims in the appeal channel should not be held.     2/28/07, a week after notifying my senator, the Reno/RO sends me the unlawful stay.     It should be noted that the agency did file a formal stay motion on 1/26/07 which was ruled again to process all those claims in appeal on 4/13/07.     The agency once more illustrates its arrogance and attitude of being above the laws of our land. Ribaudo Order   4/13/07     NVLSP Info III. THE PETITIONER'S CONTEMPT MOTIONS     The petitioner has filed a motion for an order that the Secretary show cause why he should not be held in contempt. See 38 U.S.C. 7265 (explicitly granting the Court power to enforce its lawful orders through enumerated contempt powers). The Court has recognized that "'[b]ecause of their very potency, [contempt] powers must be exercised with restraint and discretion.'" Jones v. Derwinski, 1 Vet.App. 596, 607 (1991) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). Hence, "a court considering sanctions . . . must take care to determine that the conduct at issue actually abused the judicial process." Jones, 1 Vet.App. at 607.     As a result of its holdings in Ribaudo, the Court issued two orders:   (1) the Secretary was ordered to rescind Board Chairman's Memorandum 01-06-24, and (2) the Secretary "will decide Mr. Ribaudo's appeal in regular order according to its place upon the docket and will apply this Court's decision in Haas." Ribaudo, 20 Vet.App. at 561 (internal citations omitted). Concerning our first order, at the present time, there is no evidence to suggest that Board Chairman's Memorandum 01-06-24 has not been rescinded.     [Moreover,] as noted above, we subsequently granted the Secretary a preliminary stay with respect to the second holding in Ribaudo, and, with respect to the first holding in Ribaudo, we have nothing before us to suggest that Board Chairman's Memorandum 01-06-24 has not been rescinded. Although we would be concerned if our orders were not complied with, in the end, the petitioner has done a disservice to the Court by filing a contempt motion so quickly, particularly when, as is the case here, it is clear that the Secretary is engaged in an ongoing effort to comply with our decision in Ribaudo. Accordingly, even assuming the authenticity of the alleged internal VA electronic mail messages, there is no merit in the petitioner's request for a show cause order. Haas Notice given on 2/28/07 I, Francis J. Picchione, duly swear that I received a so-called Haas Notice regarding the stay memo after contacting the Office of Senator Harry Reid on 2/21/07 indicating that the VA was still acting according to the memo to regional offices.   /Per VA RO/Reno, Nevada .. per memo instructions (erroneous to my appeal,) my claim has non-Haas issues. Contempt Notice:   most definitely, the agency is in contempt of the January 9, 2007 ruling and when confronted by the petitioner Ribaudo with sanctions and a motion for contempt based upon this unlawful memo stay, the court disregarded other possible evidence such as found in my personal appeal/claim. Why are they in contempt? In a word, "disingenuous."     Here you have an arrogant government agency that mounts an army of lawyers campaign to deny due process, hearings and benefits to veterans deserving benefits. You have mediocre staffing throughout the regional office system which does not read claims, but thinks "denial."     For instance, in my supporting documents claiming "visitation" to Vietnam (intransit,) an army pay voucher with "CZ."     Voucher noted, but "CZ" never mentioned. Now, of course, all this happened prior to the Haas ruling in 2005.     In fact, an administrative sit-down with my (seasoned veteran) VSO and the Las Vegas V.A. office "DRO" took place in May, 2006, months before Haas ruling. "Mix well.." In the unlawful stay instructions to the regional offices is a reference to claims with "multi-issues" and not (purely) based on Haas/VSM ruling.     Ignored.     Arbitrary (arrogant) decision once I emailed Senator Reid for assistance, slap me with a stay notice -- after the Ribaudo 1/9/07 order! And finally, the agency taking the position that it is not in contempt when Ribaudo was continued to a final order on 4/13/07.     If they agency was genuinely concerned * with claimant rights to judicial appeal, I would have received (shortly thereafter) a notice lifting the stay.     Instead, I have to mail a notice of rebuttal on the 4th of July without response. *   "Although we would be concerned if our orders were not complied with, in the end, the petitioner has done a disservice to the Court by filing a contempt motion so quickly, particularly when, as is the case here, it is clear that the Secretary is engaged in an ongoing effort to comply with our decision in Ribaudo." Disservice?     Is the Court ignorant to the practices of the agency, or the burden of proof placed on the appellant Ribaudo to show what the agency already knows:   they are not complying. The agency is not engaged in any form of effort to comply with the order and continued to issue new (unlawful) stay notices to people like myself.     Mediocre staffing?     Administrative error?     How many excuses do you give an agency that time after time demonstrates incompentency? Summary 4/21/05 .. file initial claim for disability benefits based upon "visitation to Vietnam" -- not VSM award 5/24/06 .. DRO meeting (Las Vegas V.A. Office) 8/16/06 .. Haas landmark ruling for claimants awarded the VSM 9/21/06 .. Unlawful Stay Memo issued with instructions * 1/9/07 .. BVA (Court) ruled in Ribaudo to rescind this memo for those in appeal 1/26/07 .. Agency files a motion for (lawful) stay ** 2/21/07 .. email Senator Reid's office for "assistance" 2/27/07 .. RO sends me a stay notice based upon Haas 3/14/07 .. Soc Worker Foger (Harry Reid's office) phones         Phone VSO; SMR, morning reports, "other reports" and Rep Shelley Berkley 4/13/07 .. BVA (Court) ordered again that appeals be allowed and memo rescinded;     stay of all other claims not adjudicated was ordered based upon agency motion 7/7/07 .. Rebuttal letter sent to RO for lifting stay, etc. 3/13/08 .. no response to date .. eight months ***   .. one year (VSO)   .. one year plus (appeal video hearing) To be updated as required; agency is in contempt of court per Ribaudo 1/9/07 ruling * RO Instructions on Scope of Stay 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. ** From Haas ruling 8/16/06 until the Court provided an injunction; lawful stay on 4/13/07, the agency (in all its arrogance) created a state of unlawful holding of all veteran claims affected. *** Per VCAA/2000, acknowledgment of claim, at minimum, certainly is in order. Perspective:   Katrina was two years ago (unresolved); my claim (add six months) Conclusion Although my claim (and appeal) would be favorably affected by the Haas ruling, my claim (and appeal) is based upon "visitation to Vietnam" under the existing regulation provisions and not simply based upon award of the VSM.     Therefore, the agency has denied by rights to due process and hearing and is in contempt for the instrument used, the Haas stay notice.     Furthermore, the Ribaudo order of 4/13/07 explicitly states that all such appeals would have the Haas ruling applied to same which in effect, makes it unnecessary to have any further hearings and grant benefits. Next (planned) action(s):   to contact the Court that issued the Ribaudo orders for instructions, send a copy to Senator Reid's office again; if no action from the majority leader, send to other congressmen beginning with Nevada delegation.     Why?     Simple.     To confirm that the veteran stands alone, without any proper support, in fighting the agency; Congress has allowed the agency to work under an umbrella of protection from penalties, interest and provisions for termination of claims after the claimant dies from service connected medical conditions.     And, what does our Congress legislate in such matters?     Temporary financial relief while the agency "works" with its backlog?   (No.)     Provide for interest and penalties for delays above a reasonable amount of time, ie, due process?   (No.)     No.     The veteran is continuously denied proper legal representation since a law passed in 1866 after the Civil War.     An agency that wishes to further deny access to such legal counsel by throwing up road blocks against attorneys that would otherwise take on such cases pro bono.     When will it all stop?     Simple.     When the veteran dies from his in the line of duty medical complications; as will the claim for reimbursement to the veteran's heirs.     We are living in a time where an arrogant Bush administration signs into law corrective action to many domestic issues, but then does not appropriate proper funding (by Congress) to see it through.     A time when the people not affected just look the other way.

This Order   April 13, 2007

    The Court granted Mr. Ribaudo's petition for extraordinary relief in an opinion issued on January 9, 2007.     Ribaudo v. Nicholson, 20 Vet.App. 552 (2007) (en banc), appeal filed (Fed. Cir. Apr. 2, 2007) [hereinafter Ribaudo].     Therein, the Court (1) held unlawful and ordered rescinded the Board of Veterans' Appeals (Board) Chairman's Memorandum 01-06-24; and (2) ordered that "[t]he Secretary will proceed to process the appeals that were stayed in accordance with that unlawful memorandum 'in regular order according to [their] place on the docket'" and will apply this Court's decision in Haas v. Nicholson, 20 Vet.App. 257 (2006), appeal docketed, No. 07 7037 (Fed. Cir. Nov. 8, 2006) to those appeals. Ribaudo, 20 Vet.App. at 561 (quoting 38 U.S.C. § 7107(a)(1)).     The Court also outlined a procedure by which the Secretary could file a motion to stay the precedential effect of Haas.   Id. at 560-61.

Emphasis of ..

(a)   .. "[and] will apply this Court's decision in Haas"

(b)   "[t]he Secretary will proceed to process the appeals that were stayed"

Editorial:   that means that the Order of 4/13/07 does give the Secretary an injunction on the adjudication of new claims, but the estimated 1,500 claims already in the appeals process (like my own) must move forward on the docket and have the Haas decision applied!

    On January 26, 2007, the Court issued an order, staying until further order of the Court, adjudication before the Board and VA regional offices cases that are potentially affected by Haas.

[the] Secretary rescinded Board's stay order and directed Board to resume adjudication of stayed claims); Waterhouse v. Principi, 3 Vet.App. 473, 475 (1992) (holding that parties before Court must "personally have suffered some actual or threatened injury as a result of the putative illegal conduct"

    This important exception to the broad stay sought by the Secretary addresses the concerns raised by Mr. Ribaudo regarding the detrimental impact that a stay would have on individual claimants with compelling circumstances.     The stay granted by the Court is narrowly tailored so as not to harm that special class of claimants.

    [How] is it known that these veterans could not be entitled to service connection based upon other theories?     There is simply no way to know the answers to all of these questions until such claims are adjudicated.

- Judge in Ribaudo Order 4/13/07

    In defense of an unlawful stay of the court ruling in Haas, Secretary Nicholson pleaded that this new law * would cause harm to the agency to the tune of some 832,000 Vietnam Era claimants.     See Irreparable Harm.

Editorial:     with one major agency action, Secretary Nicholson has taken it upon himself to violate the rights of thousands of potential claimants.     This is not about causing harm to the agency.     It is about money. ¹     Like his predecessors in this cabinet position, historically, the agency position is to deny disability compensation to those that served our country and deservingly so.     In this instance, the Secretary/the Chairman issued an unlawful stay to all regional offices that, in so many words, deny adjudication of Haas-affected claims.     I am the recipient of such an agency notice that ignores my rights to appeal under the existing regulations.

    See under investigation   re:   Haas appeal;   "Soldiers of Justice" and actions to date.

¹   "I agree with the majority's conclusion that the risk of irreparable harm to the Secretary (or absence thereof) weighs against granting the Secretary's motion for a stay. In short, I do not believe that the Secretary's expenditure of resources constitutes irreparable harm. VA's resources are limited only by congressional appropriations."

- SCHOELEN, Judge   (Ribaudo's Court Order April 13, 2007)

    To date, nothing in the form of affadavits or other legal brief documents have been presented in a defense on appeal in a Federal Circuit Court, and the expectation or concerns of V.A. Board Judges is that there will be no attempt to remedy by judicial action.     The reason being fairly simple, no legal basis.

    The agency intent on stone-walling the granting of compensation benefits is obvious, especially in every attempt to deny a special provision in the laws for petitioning for extraordinary relief, ie, Ribaudo petition.

    Secretary Nicholson and his predecessors have fought for generations to disallow compensation benefits to veterans ** of all generations and wars.     I am sure you know of someone that was affected, eg, a friend, a relative that fought for years and years.     The agency hopes that such veterans become intimidated, or die off before they have to pay out benefits.

    The Haas ruling is of such magnitude that would right an injustice promulgated by the current Secretary of the V.A. in adjudicating claims based upon presumption of exposure to herbicides in Vietnam.

* Rulings by the V.A. Board Court become a part of public policy and law; often referred to as legal precedence.     Thereafter, any claimant case with similar background is affected.     Secretary Nicholson has ceased to process any such Haas-affected claim realizing that it will cause the administration undue financial liability.

The welfare of veterans affected by service-connected medical conditions has never been a concern of our government.

** If it wasn't for the recent scandal at Walter Reed Army Medical Center, you would have never been informed on the attrocities and harrassment of honorably discharged service personnel with injuries while on active duty in the wars in Iraq and Afghanistan, eg, zero-rating disability awards, army ratings in the bottom 4%.


    These stories and much more can be found on this website, including hefty bonuses paid out to agency executives, up to $33,000 each.     Yeah, I'd say the Secretary has done a darn good job in denying benefits to those that served and were injured during such service.

    Kinda makes you wish you got a deferment during the Vietnam War ...

Footnotes:

¹   Legal Precedence Court Ruling on "presumptive policy on herbicides in Vietnam," Haas v. Nicholson
²   Haas Stay Instructions to all ROs, click here;   Background
³   Ribaudo v Nicholson Petition for Extraordinary Relief;   subsequent Court Order
 
7/17/07

Nicholson to Leave VA and Return to the Private Sector

Secretary of Veterans Affairs Jim Nicholson announced on July 17 that he has tendered his resignation to President George W. Bush, effective no later than October 1, 2007.     "The VA is a dynamic organization dedicated to serving our nation's finest citizens – our veterans," Nicholson said.     "It has been an honor and privilege to lead the VA during this historic time for our men and women who have worn the uniform. We have accomplished so much and the VA is always striving to improve our services to veterans."

    Editorial:   Gee - I sure hope the President gives him the Freedom Medal for denying an entire Class of Vietnam Era Veterans (832,000) their just due disability compensation.     Atta boy -- just think how much money Nicholson saved the administration!     It may not be right, but when did that ever matter?     See Hall of Shame.     Now, Nicholson's pix can hang there like his predecessor Principi, and a long tradition of "giving the shaft" to disabled veterans.     These political-types really know how to pat themselves on the back; give themselves exorbitant bonuses, and in general, take credit where credit is not due.

    I hereby nominate Nicholson for the Freedom Medal like the other cabinet members that is making the legacy of our President for getting us in this Iraqi war, and more casualties and disabilities of the future.     Their motto:   "Hell yeah -- as long as it ain't me!"
.. thinking of ya Dick Cheney, big guy.     And, of course, your boss that was off to school deferment too after jet fighter pilot training at taxpayer's expense during the Vietnam war.

BULLETIN:   CNN interview yesterday, everything sounded rosy, and "[the] VA is meeting the bar of expectations for veerans' healthcare."     What PLANET is he and Senator McCain on???     First, a stroll through a Bagdad marketplace with a "few bodyguards," ie, 100 soldiers, gunships over head and VA budget cuts and everything is "humpty-dorie."     Nicholson -- spell "blog"; now "CNN."

    I suggest a petition for award of the Freedom Medal, with Oakleaf Cluster for each campaign against Vietnam, Korean, WWII, Desert Storm, Afghan and Iraqi disabled veterans screwed with either   (a) low-ball rating,   or   (b) better -0- no rating, zero.     And, because of the lack of trust and negligence this Secretary has displayed, the following award.

"To those that answered the call of duty,
you made sure their welfare & integrity
were honored with court injunctions .."

"I believe in all the men who stood up against the enemy, taking their beatings without whimper and their triumphs without boasting.   The men who went and would go again to hell and back to preserve what our country thinks right
and decent.   My country, America!"
- Audie Murphy (1949)

Images of soldiering ..

Reflections .. and Thailand vets

    The above is a tribute to the soldier; answering the call to duty
-- no matter what that may be.     The images were selected to
convey a very special meaning from spirit to diplomatic to sacrifice.

    To the right, a different war, are members of the 538th Engineer Battalion on road work for "Friendship Highway."     They didn't choose their assignment.     They just went where they were told to go.

    Now, here we have a Secretary of the VA that arbitrarily places on hold the future benefits (and integrity) of some 832,000 such veterans.* I think it makes it easier to understand when you put a face on the men. **

Consideration:   for every fraudulent filing, how many proper claims are being denied because of this injunction?     Think about it, please.

* 832,000 is the number the Secretary gave, unsubstantiated by the way, in the motion to stay the Haas ruling until appealed in the Federal District Court in some century.   - Ribaudo Order   (4/13/07)   See Thailand Vets for Equal Treatment and The Steps in Denial.

** The average soldier was paid less than $5 a day, or $150 per month.     India workers make more.     Pay voucher for E-4.

 

"Soldiers of Justice"

    Talk about injustice: No group has done more to protect American values and preserve democracy than the more than 25 million living veterans of the U.S. armed services. Yet as recently as a decade ago, military vets and their families were routinely shut out of the justice system when disagreements arose over the benefits to which they’re entitled.

    Congress created the U.S. Court of Veterans Appeals in 1989 to develop a reliable process of judicial review for decisions made by the Department of Veteran Affairs (VA). The majority of appeals heard by the Court involve compensation for mental and physical disabilities, pension issues, education benefits, and life insurance claims.

    “There was no real availability of judicial review for veterans prior to the creation of our court,” says Kenneth Kramer, a former Colorado Congressman who serves as Chief Judge of the Court of Veterans Appeals. “The district courts can take veteran cases, but those are infrequent and far between.”

    The Court was an important first step, but its creation alone could not solve the problems of most veterans appearing before it. As with any court of law, litigants’ success hinges on their ability to secure adequate counsel to press their cases. But service members relying on disability checks and pensions for sustenance could hardly be expected to pay for legal representation, leaving these onetime defenders of justice facing the prospect of no justice at all.

    “In the beginning, three quarters of the appellants did not have lawyers and did not know how to present a claim,” recalls David Isbell, a Korean War veteran and chair of the program’s executive board since its inception. “The Court was wasting a lot of time, and the appellants were not getting the benefits they would have received if they had adequate legal representation.”

    Unlike traditional legal services offices—which require clients to affirmatively seek out help—the Veterans Consortium takes a proactive approach. Vets meeting income eligibility guidelines are sought out if they remain unrepresented 30 days after filing an official notice of appeal with the Court.

    “For many veterans, this is their first time dealing with an attorney,” says Brian Robertson, a career Navy officer who serves as the group’s director of Case Evaluation and Placement. “Many are pleasantly surprised that attorneys are willing to put in as much time as they do.”

    Since its inception, the program has trained more than 1,500 private attorneys to handle veteran appeals. “We have more volunteer attorneys than we do cases,” Isbell says. “This is a good thing.”

    The Consortium uses law firm donations and an annual grant administered by the Legal Services Corporation ($895,000 in 2001) to conduct national outreach, making presentations to interested attorneys and conducting in-depth training sessions. When a volunteer lawyer accepts a case, he or she is provided with a detailed memo outlining the key issues and is then referred to a mentor attorney, who offers advice and reviews draft filings. Throughout the entire process, Consortium leaders “monitor each case to make sure volunteer attorneys aren’t dropping the ball,” Isbell says. “The program takes these matters very seriously.”

    The Consortium, which handles an average of 50 cases at any given time, has referred out more than 2,000 over the past decade. The program has proven to be extremely popular with Congress. Each year, Judge Kramer goes to Capitol Hill to submit the Court’s budget and update lawmakers on the Consortium’s needs. He is greeted warmly by legislators, who appreciate the role the court and pro bono program play in ensuring access to justice for U.S. veterans.

    In 1997, Bob Dole and George Mitchell – both former U.S. Senate Majority Leaders – teamed together to help commemorate the program’s 1,000th case. U.S. Army veteran James E. Gaddis, a Bronze Star recipient, suffered from multiple sclerosis and was seeking government help for his care, and Dole and Mitchell successfully persuaded the Veterans Court to remand the case to the VA for reconsideration.

    That result, Isbell says, is typical of the Consortium’s success. “It would be hard for the court to exist without the work of our group,” he says.

    Judge Kramer agrees: “Increased accessibility gives the outside world—and most importantly, the litigants themselves—the perception that justice is available. We owe it to our veterans to ensure they receive an opportunity to have their day in court.”

For more on Legal Representation, click here.

Allegations - U.S. Govt Cover-Up
for Thailand Vets
Exposure to Toxins/AO
Cover-Up consistently denied
for disability benefits
associated with service in Thailand
Concerned?   Learn more - details.


Attention to VBA Decision!

August 21, 2006
.. a little   .. 40 years too late.

NBC News reported that

Appellee (V.A./Secretary/Board)
disobey ruling and make an unlawful stay
affecting all claims previously denied
as well as any new claims ..

Ribaudo Ruling Lifts Unlawful Stay on Haas-VSM Claims
by V.A. Secretary and Board Chairman RO Directive

February 21, 2007 .. six months hence

V.A. stonewalls .. disregards second court ruling in Ribaudo
pleads "equity in [claimant] treatment"
and "need to file [legal] brief" in appeal ..

More on Government Cover-Ups.

[violates] the Court's decision in Ramsey, in which the Court held that "any unilateral imposition of a stay by the Board Chairman or Secretary as to the effect of any of this Court's decisions is unlawful."   20 Vet.App. at 39.     See Background/Argument in Ribaudo.     [Secretary] asserts that "the duration of the stay would not be unreasonable, and would essentially be that necessary to pursue an appeal of Haas."     See "Secretary argues"     First, the Board is part of an executive agency, it is not a federal court.   Second, unlike the neutral role played by Federal courts in the resolution of matters before them, the Secretary is both the decisionmaker at the agency level and the appellee in every appeal that comes before the Court.     See Executive Agency     [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     See "It is clear .."     [the] Secretary believes that he is empowered to never apply this Court's decision in Haas.     Simply put, the delay at issue in this case is of indefinite duration -– a duration that conceivably includes efforts by the Secretary to legislatively reverse an unfavorable result in the U.S. Supreme Court.     [This] we cannot accept.     See "Secretary believes .."     [we] see no reason not to follow the universally accepted Federal practice that a motion for a stay or injunction pending appeal first be sought in the subordinate court.     See also FED. R. APP. P. 8 (providing that a party "must ordinarily move first in the district court" for "a stay of the judgment or order of a district court pending appeal"). Thus, if the Secretary or Board Chairman wishes to stay the effect of Haas, the Secretary must file with this Court, or the Federal Circuit, a motion to stay the effect of this Court's decision in that case.     [Whether] such a motion is granted is entirely within this Court's discretion,     See Process for Seeking a Stay Pending Appeal F.     Summary     In sum, although the Secretary characterizes the issuance of Board Chairman's Memorandum 01-06-24 as a proper exercise of his "inherent authority" to manage the docket before him, he possesses no authority, inherent or otherwise, to stay, arbitrarily and unilaterally, the processing of appeals merely because he disagrees with a decision of this Court in a proceeding to which he is a party.   See infra at 5-7.     To hold otherwise would be to allow an executive agency to nullify the effect of a judicial decision.   See INS v. Chadha, 462 U.S. 919, 951 (1983) ("The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, [l]egislative, [e]xecutive, and [j]udicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.");   Marbury v. Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").     This we will not permit.     [Further,] because the law does not give the Secretary and Board Chairman the authority to unilaterally stay cases before the Board because they disagree with a decision of this Court     Accordingly, the petition is granted.     Board Chairman's Memorandum 01-06-24 is unlawful and we order that memorandum rescinded .   See 38 U.S.C. § 7261(a)(3) (providing that the Court may set aside "decisions, findings, conclusions, rules, and regulations" of the Board or the Secretary "found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").     The Secretary will proceed to process the appeals that were stayed in accordance with that unlawful memorandum "in regular order according to [their] place on the docket" and will apply this Court's decision in Haas to those appeals. 38 U.S.C. § 7107(a)(1).

Court does nothing .. Congress knows nothing ..
..
State of Bliss

Court expands relief for Agent Orange victims
Ruling:   Veterans who served on ships off Vietnam coast are eligible

    Editorial:     I will take this time to expand on the "40 years too late" note above.     Many of our fellow servicemen have died from cancer-related exposure to herbicides used throughout the regions of S.E.A., eg, Thailand, Laos and Cambodia.     When this story first broke, it covered only Navy personnel offshore or "those on ships off of Vietnam" that never "stepped foot in Vietnam."     Now, drum roll ..

AGENT ORANGE LAWSUIT UPDATE:     Veterans who patrolled the waters off Vietnam can now claim disability benefits for exposure to Agent Orange under an appeals court ruling that opens the door for thousands of servicemen to seek medical coverage.     The ruling was handed down by the U.S. Court of Appeals for Veterans Claims in the case of Haas v. VADC-Nicholson by a former sailor who served on an ammunition ship during the Vietnam War but never stepped foot on land.     The court's order, issued 16 AUG, reverses the Veterans Affairs Department's denial of benefits for Jonathan L. Haas, who blamed his diabetes, nerve damage and loss of eyesight on exposure to Agent Orange.     Haas, represented by the National Veterans Legal Services (NVLS) argued that clouds of the toxic defoliate, which the U.S. sprayed on Vietnamese jungles, drifted out to sea, englfing his ship and landing on his skin.     Veterans officials said that to qualify for coverage, Haas was required to have docked in Vietnam and come ashore.

    The three-judge panel said regulations governing the benefits were unclear.     The court said it made no sense for veterans who patrolled Vietnam's inland waterways and those simply passing through the country to receive medical coverage while those serving at sea do not.     "Veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly,"   Judge William A. Moorman wrote.     The Court did not actually award a disability to Haas, but sent his case back to the Board for that determination.     If the Board rules in his favor, the Court directed that his other Agent Orange-related medical conditions also must be compensated.     The Veterans Affairs Department said Friday that it was reviewing the opinion and was not sure how many veterans would be affected or how much the added coverage would cost.

    This VCAA decision could eventually expand to cover more veterans than the decision appears to now cover.     During Vietnam was a short time frame where military service within the Theater of Operations within the Vietnam War justified the Vietnam Service Medal.    This included waters off the coast {so called brown water}, deep waters for air operations {so called blue water operations}, Thailand based Operations for USAF and other types of operations which included loading the Agent Orange aircraft.     Most Vietnam combat veterans receive some medical benefits, but if their illnesses are related to their service, they could receive full coverage and their families might be eligible for benefits.     David Houppert, director of veteran's benefits for the Vietnam Veterans of America, said the ruling could allow thousands of veterans to seek coverage for service-related illnesses.     Most are Navy veterans, he said, but some Marines and Army veterans could be affected.     Houppert said his group was encouraging these veterans to seek coverage quickly because the ruling left it up to government officials whether to change federal regulations in a way that could deny coverage.     Vets can refer to ../benefits/herbicide/ to review what benefits they could be eligible for.

Editorial:   In order for the V.A. to take any such adverse action, would be the basis of the Haas ruling, that all V.A. reg definitions were (unlawfully) promulgated.     So, this issue is a moot one, imho.

    As of 20 AUG the VADC-legal office had not filed a request for a stay order pending an appeal to the Supreme Court.     The Board of Veterans' Appeals is sitting at the Phoenix VARO.     The senior judge has agreed to contact his office in Washington DC to get current guidance on implementation of this decision.     The VCAA ruling over turned a BVA decision on Haas.     If the VADC-Sec Nicholson's office does not appeal they have no choice but to grant service connected for Agent Orange Presumptive Disabilities with military service with in the theater of Vietnam war for those with the Vietnam Service Medal.

    This decision will mean a potential liability of millions of dollars to the VA Medical budget and VA Administrative budget. Potential claims from the wives of already deceased Vietnam veterans could also mean considerable liability.     This helps explain why the VADC has been slow to provide positive guidance about this VCAA decision.     Haas is now the law of the land and therefore VA must abide by it.     However, it is possible that VA may amend their regulations in such a way that it is adverse to veterans who otherwise would have benefited from the court's decision.     Service organizations are recommending that other veterans like Mr. Haas who served offshore but did not set foot in Vietnam, and who suffer from diseases or conditions that they believe to be caused by exposure to Agent Orange should consider filing a claim for disability.     Members who have had such claims denied may wish to re-file based on the Court's decision.     Veterans are encouraged to seek the advice and assistance of an experienced veterans' service organization before proceeding.

[Source: Associated Press article 18 Aug & Arizona Department of Veterans' Services msg 23 Aug 06]

VSM Legal Precedence   (16 Aug 06)     Or the Armed Forces Expeditionary Medal (AFEM) that preceded the VSM This landmark decision sets aside the definition of "service in 'Nam" Over-turns any attempt by the VA to limit benefits to Vietnam-era Veterans NOTICE   (15 Sep 06 Update) .. take the above link to learn more about this landmark decision.

    I will clarify the issues later, but for now, let's just make sure everyone reading this VBA Section understands that it is too late and very little under any circumstances.     I will be publishing my personal claim experience for the disgrace of this so-called Veterans Affairs Department.     Anyone that wore the uniform of our military knows the issue of disgrace and wrong doing and how you would be answered when and where you did something out of line.

    The government, though, a slap on the hand (if that.)

    Case after case, in the past, if it wasn't in your SMR (Service Medical Records,) or you were awarded the Vietnam Service Medals for "other service," were quickly and decisively dismissed and denied.

    Read this section carefully, get your claim started asap as I learn more about the diseases covered and a very important secondary area:   secondary conditions.     You see, at this stage of my onset diabetes, after 14 years, I now enjoy my senior years with chronic kidney failure and dialysis treatment.     All because of exposure to herbicides used in S.E.A.     Thank you Uncle Sam for screwing up my retirement years.

Related Story --   Boston.com National News     August 18, 2006

    Here is the story that broke the news.     When I get my hands on the 31-page decision, I can confirm what NBC did not that Thailand, Laos and Cambodia veterans are also covered with or without stepping foot in Vietnam, with or without intransit thru Vietnam!

A federal appeals court for veterans claims in a ruling Friday (August 18th) expanded the group of Vietnam veterans who may have come in contact with the herbicide Agent Orange during the Vietnam War to include those who served on ships off the coast of Vietnam.

Editorial:   the proper way to refer to AO (Agent Orange) is herbicides, period.     AO is the largest group of those toxins, but there were several other herbicides used.

    The U.S. Court of Appeals for Veterans Claims ruled that Jonathan Haas, who served in the Navy off the Vietnam coast and never set foot in the country, is entitled to relief for exposure to Agent Orange.

    In 2001, Haas submitted an application for VA disability compensation, requesting service connection for diabetes mellitus, peripheral neuropathy and loss of eyesight resulting from "exposure to [A]gent [O]range/radioactive materials" during his service.

    Haas testified that during his tour aboard the U.S.S. Mount Katmai, he often saw large clouds of chemicals being dropped by aircraft over the forests. He further stated:   "[T]hese large clouds would drift out over the water because of the prevailing offshore winds, and they would engulf ships, my ship in particular.     Now you could see the chemicals, you could taste them, smell them, and they landed on your skin."

    Haas reported that his exposure occurred in 1966 or 1967.     He noted that he was on an ammunition ship about for approximately 20 days at a time, for eight months during each of his two deployments.     He testified that he would have to navigate in close proximity to the shoreline to deliver supplies because the "boats that were doing the patrolling could not leave the stations more than a certain amount of time[.] . . . [T]hey couldn't steam out 5 miles to pick up supplies. "

    Veterans groups applauded the court's decision.     John Rowan, national president of Vietnam Veterans of America, said in a written statement, "Some of the inequities of the application of presumptive coverage for exposure to Agent Orange have finally been set aside."     Rowan also said, "This Court decision will allow for an untold number of veterans and their families to receive the compensation and health care they are entitled to, as well as other VA programs."

    In the 31-page decision, the court determined the Department of Veterans Affairs (VA) has been unlawfully denying presumptive disability compensation for exposure to Agent Orange for service members who served in the waters offshore of Vietnam and earned the Vietnam Service Medal.

Editorial -- Lesson #1   "Presumptive" (legally speaking) means "presumed."   No questions; assumed.     For those that may need a little lesson on S.E.A. geography, here is a photo of Ho Chi Minh Trail, the primary objective of defoliation operations.     It's a (tad) far from the oceans, offshore, but whose counting?

    Congratulations to another serviceman, Sailor Haas, after losing his eyesight to diabetes and God help him from having total kidney failure.     I will now research the (official) VA website for this 31-page decision.     In the past, attempting to find something significant to the welfare of veterans has been difficult.     This website will continue to blast the government (and the VA) for its lack of compassion.     I don't care if it is the president of the United States, I would argue that they have done far less than they should and should hang their (collective) heads in disgrace.

Example:   a veteran suffering from PTSD was denied healthcare here in Las Vegas.     He committed suicide and the VA Healthcare Director was slapped on the hand.     Las Vegas Review Journal article to follow when I can get my hands on it, September 25, 2005.
 

RE-OPEN YOUR CLAIM -- NOT RE-FILE -- RE-OPEN *     Based upon this landmark decision, two cases this year have come to my attention:   Remanded Case and Denied Case. Quote: The Board also wishes to notify the veteran and his representative that the United States Court of Appeals for Veterans Claims (Court) has scheduled oral argument in Haas v. Nicholson, No. 04-0491. As Haas involves the interpretation of "service in the Republic of Vietnam" within the meaning of the regulations, the Court's decision may have a significant impact on the veteran's claim.     Damn right -- it will "have a significant impact on the veteran's claim." ** * Both of these claims were decisions earlier in 2006, but if your case is on file, see a VSO for your rights to re-open whether the standard "One Year" law applies, or not.     Re-Opening an existing claim means "retro pay" $$$$.     New claim filing, screwed. ** If your duty included "offshore" in the waters of Vietnam.

 

VSM Legal Precedence   (16 Aug 06) Full-Text of Landmark Ruling   Haas v. Nicholson

    A recent judge opinion written in the Case of Haas v. Nicholson has overturned the Secretary of the VA authority to rescind a long standing (February, 2002) M21-1 Manual provision used to adjudicate veteran claims where "those in receipt of the VSM were conceded to presumption of Vietnam Service and associated diseases of herbicides."

    Furthermore, all regulations in which the Secretary promulgated the definition of "service in Vietnam to only step foot on land" has been found to be beyond the Secretary's authority.

    The Secretary authority to publish regulations based upon his interpretation of congressional legislation has been snipped in the butt by this VBA Court Judge and rightfully so.     The VA (and its Secretary) made assertions as to its reasoning for limiting the entitlement to soldiers having receipt of the VSM * and the judge did not accept their argument.



AGENT ORANGE LAWSUITS UPDATE 20 JAN 07 .. 6 months later.

See VVA Press Release

(Washington, D.C.) --   The Federal Court of Appeals for Veterans Claims on January 9th overturned a unilateral decision by the VA Secretary that had imposed a stay on so-called “Haas-type claims.     "These are claims for disability compensation for conditions presumptive to exposure to Agent Orange filed by service members who served in the offshore waters of Vietnam and earned the Vietnam Service Medal."

    The court acted in favor of an appeal by Vietnam veteran Nicholas Ribaudo, whose claim had been placed on hold by the VA Secretary.     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."
 
District Court of Appeal Update - November 7, 2007

    Here is an update from NVLSP on what will occur on November 7, 2007.

    The November 7th proceeding is, in fact, oral argument.     At oral argument the VA will present their side first, we will respond, and