Benefits Update

Offshore Exposure (Update)

Veterans Benefits Update
as reported in the vva veteran may/june 2007

BY DAVID L. HOUPPERT, ESQ., DIRECTOR, VETERANS BENEFITS

In the September/October issue of The VVA Veteran, we explained the then-recent Court of Appeals for Veterans Claims decision in the case of Haas v. Nicholson. We cited a retired member of the U.S. Navy who served in the waters offshore of Vietnam (but never set foot on the ground). He appealed a Board of Veterans’ Appeals denial for service connection for diabetes mellitus, peripherial neuropathy, and retinopathy as a result of exposure to herbicides during his Vietnam-era service.

In its denial, the Board “determined that although Mr. Haas had served in the waters off the shore of the Republic of Vietnam, such service did not warrant application of the presumption of exposure to herbicides under 38 C.F.R. 3.307(a)(6)(iii) (2004), which, the Board concluded, required a service member to set foot on land in the Republic of Vietnam.”

The issue on appeal was “whether VA’s asserted regulatory definition of ‘service in the Republic of Vietnam’ is a permissible interpretation of the authorizing statute, 38 U.S.C. 116(f), and whether the Board’s interpretation is a reasonable interpretation of VA’s regulation, 38 C.F.R. 3.307(a)(6)(iii).”
On August 16, 2006, the Court rendered its decision. As we previously reported, in its 31-page decision the Court determined the 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 who earned the Vietnam Service Medal. Claims for VA compensation covered by this decision are referred to as “Haas-type claims” by the VA. Following the decision in the Haas case by the Court, a stay was imposed on all Haas-type claims by the Secretary of the VA through the Chairman of the Board.

A veteran named Nicholas Ribaudo had a Haas-type claim that was placed on hold due to the stay imposed by VA. On September 26, 2006, Ribaudo, through counsel, filed a writ of mandamus asserting that the Secretary of the VA disobeyed the Court’s decision in Haas v. Nicholson through the issuance of Memorandum 01-06-24 by the Chairman of the Board that unilaterally imposed a stay on all Haas-type claims.

In its decision the Court determined that “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.” In its conclusion, the Court further stated that 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. Unfortunately for those with pending Haas-type claims, the Court did not close the door on the imposition of a stay through judicial means.

In order to avoid deciding these Haas-type claims, the VA sought the imposition of a stay through judicial means. On January 16, 2007, the Secretary of the VA filed a motion requesting that the Court:

Stay the precedential effect of Haas pending judicial resolution in Haas.
Stay the adjudication of cases potentially affected by Haas.
Rule expeditiously on the motion to stay.
Delay entering judgment in Ribaudo until the motion to stay has been ruled upon.

The Court’s decision, rendered in mid-April, is not veteran-friendly. Upon its consideration, the Court made the following determinations:

ORDERED that the petitioner’s motion to dismiss the Secretary’s stay motion is denied.

ORDERED that the January 26, 2007, temporary stay is dissolved. The Secretary’s January 16, 2007, motion to stay is granted in part. The adjudication of cases before the Board and VA regional offices that are potentially affected by Haas is stayed until mandate issues in the pending appeal of Haas to the Federal Circuit. The Secretary, however, may, upon the motion of an appellant, advance for consideration and determination compelling cases on the Board’s docket. Moreover, the Secretary’s authority to order equitable relief in appropriate cases is also unaffected.

ORDERED that the Secretary, upon issuance of mandate by the Federal Circuit in Haas, will proceed to process the claims that were stayed pursuant to this order, unless ordered otherwise.

ORDERED that the petitioner’s motion for an order that the Secretary show cause why he should not be held in contempt is denied.

Those who are familiar with this case are not overly surprised that the Court permitted the VA to impose a stay on the pending Haas-type claims. One interesting point was raised in the decision by the Court. The Court stated: “It is not disputed that the Court’s ruling in Haas could possibly extend to the presumption of herbicide exposure to 832,000 veterans not previously entitled to the presumption.” In her concurring-in-part and dissenting-in-part opinion, Judge Schoelen wrote:
“The Secretary has asserted: ‘Based on information provided by the Defense Manpower Data Center, the Haas decision could extend the presumption of exposure to herbicide to as many as approximately 832,000 veterans not previously covered.’

“Although the majority characterizes this assertion as ‘not disputed,’ I find the Secretary’s assertion that Haas could affect 832,000 veterans to be specious at best.

“First, such an unsubstantiated and unsupported statement in a pleading is not evidence. The Secretary cites no authority to support his assertion that 832,000 veterans may be affected by Haas. The Secretary provides no affidavits (which, unlike briefs, must contain oaths or affirmations as to the accuracy of their content) in support of his motion. He simply presents a bald, unsubstantiated statement in a pleading.

“Thus, even if Mr. Ribaudo does not object to the number provided by the Secretary, the accuracy of the Secretary’s assertion has not been established.
“Even assuming that the Secretary did provide a copy of this estimate from the Defense Manpower Data Center that 832,000 veterans may be entitled to presumptive service connection under Haas, I am left with several questions: How many veterans suffer from a disease for which presumptive service connection based on exposure to Agent Orange is warranted? What percentage of those veterans will ever file a claim with VA? How many claims will be decided before Haas is finally decided? How can anyone know whether these veterans will be awarded presumptive service connection based on the Secretary’s interpretation of 38 U.S.C. 1116(f); that is, how can anyone know that all 832,000 veterans never set foot on land in the Republic of Vietnam? 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. In this regard, I note the equivocal language used in the Secretary’s motion: ‘[T]he Haas decision could extend the presumption of exposure to herbicide to as many as 832,000 veterans not previously covered.’ Absent any proof provided by the Secretary, I simply cannot accept the specious suggestion that Haas could create entitlement for 832,000 veterans. Thus, I cannot find that this factor weighs in favor of granting the Secretary’s motion for a stay.”

These mathematical computations have left many wondering how the VA Secretary decided that up to 832,000 veterans will be affected by the Haas decision. We can only hope that the Court will properly determine that all of these eligible veterans should be entitled to presumptive disability compensation for exposure to Agent Orange. The Haas case could wind its way through the courts for years. We will keep you updated.