09 October 2014

VA Confirmed Non-Vietnam Agent Orange Exposure Coverage in "Haas" Decision

The US Court of Appeals spoke in 2006, forcing VA's reexamination of the earlier CAVC decision in Haas v. Peake, striking down Blue Water Navy claims but clarifying the issues for many different types of claims such as Brown Water Navy, BWN with VN docking histories, and also C-123 veterans.

VA expounded on Haas v. Nicholson in the Federal Register April 16 2008, Vol 73, No. 74, page 20589. Although Haas was readjudicated the following year, VA clarified its logic regarding non-Vietnam exposures, stating:
For the reasons explained above, we believe it is far more reasonable to interpret the presumption as limited to service on land than to service at some arbitrary distance from land.
We also note that a veteran who does not meet the requirements of § 3.307(a)(6)(iii) for application of the presumption of service connection based on service in Vietnam may establish direct service connection under § 3.307(a)(6) and § 3.309(e) based on herbicide exposure if the veteran can establish that he or she was actually exposed to herbicides in service. Section 3.307(a)(6)(iii) only defines when the presumption of exposure to herbicide agents will apply. Additionally, as part of its duty to assist, VA will assist a claimant in obtaining any relevant evidence related to a claim for exposure to herbicide agents.
The VA Acting Chief of Staff also detailed the exposure coverages for non-Vietnam veterans in his 2013 letter to Mr. John Walls of the Blue Water Navy.

Exposure is the key word, here and in every other Federal Register VA announcement touching on non-Vietnam Agent Orange claims. Exposure is the word and the toxicological event by which C-123 veterans qualify for presumptive service connection on the proof of the event.

Which is why in 2011 Veterans Health Administration/Post Deployment Health, acting "as part of its duty to assist," redefined exposure to prevent exposure claims. "Exposure = contamination field + bioavailability." Unique in the United States Government, and challenged by definitions set by the CDC, NIH and other authorities.

Which is also why VA Office of General Counsel in 2014 insisted VA had the right to redefine even fundamental scientific and toxicological terms contrary to their use by other government agencies, for the VA's own purpose...of preventing claims. Perhaps Counsel is unaware that the November 2013 proposed rule changes detailed in the Federal Register include the use of Merriam-Webster, Black's Law, Doward's and other standard references:
"We also propose to change the term‘‘accepted medical treatises’’ to ‘‘accepted medical literature’’throughout this section because ‘treatise’’ is a specific type of scholarly
literature, specifically ‘‘a systematic exposition or argument in writing including methodical discussion of the facts and principles involved and conclusions reached.’’ ‘‘Merriam-Webster’s Collegiate Dictionary’’ 1258 (10th ed. 1998). ‘‘Accepted medical literature’’ is a broader class of literature, sufficiently authoritative and more accessible to claimants than are ‘‘treatises’’."

This wrong-headed, anti-veteran attitude must be challenged! I can't believe Secretary McDonald knows about this kind of hair-splitting to prevent qualified veterans' disability claims.
FYI:  Marriam-Webster's definition of exposure is: "the fact or experience of being affected by something or experiencing something. The act of being exposed. Medically:
1: the fact or condition of being exposed: as
a : the condition of being unprotected especially from severe weather <the hiker died of exposure after becoming lost in the snowstorm>
b : the condition of being subject to some detrimental effect or harmful condition <repeated exposure to bronchial irritants> <risk exposure to the flu> <benign skin discolorations caused by sun exposure
2: the act or an instance of exposing—see indecent exposure

1 comment:

  1. I wonder if anyone questioned the nurse exposed to E-bola in Texas and made her prove her exposure + bioavailibility in order to get treatment.


Got something to share? Nothing commercial or off-topic, please.