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May 2007

VIETNAM WAR NAVY VETERANS

Bad news has recently come out of the Veterans Court for Vietnam War Navy Veterans.

The effect of the presumption of Agent Orange exposure which brought the hope of getting benefits for cancers and diabetes caused by AO is not now available to “blue water veterans” (those who served on ships and boats off the coast of Vietnam).

Although that presumption was required by the Veterans Court’s ruling in the Haas case, see September 2006 newsletter, the VA predictably appealed the decision to the Federal Circuit and then decided on its own not to decide any AO exposure cases brought by “blue water veterans”.

After a veteran, Mr. Ribaudo, challenged the VA’s taking the law into its own hands by issuing a memorandum staying all AO exposure cases for “blue water veterans”, the Veterans Court first ordered the VA ” to proceed to process the appeals that were stayed in accordance with that unlawful memorandum” , but then, in a full Court decision, ruled to the contrary deciding 5 Judgers to 2 to grant the VA a stay.

It is small consolation for Navy veterans who are dying of cancers caused by AO exposure that 2 judges in Ribaudo v. Nicholson 06-2762, decided April 13, 2007 understood that the Court should not have agreed to the stay because of harm caused to those veterans who have life threatening cancers.

The only advice for those veterans is to try to build the record for the survivors. This means to make sure that there is a medical record in the file showing the diagnosis. Instructions should be given to survivors to request an autopsy and to make sure that the death certificate shows that death was due to the cancer. In the case of a cancer which is not on the VA’s list of cancers presumed to be caused by AO you must get a doctor’s opinion that it is more likely than not that exposure to AO caused the cancer. If you can’t get a treating doctor to provide the opinion an expert oncologist can be located to review the file nd provide an opinion. Remember all the available evidence should be submitted to the VA as soon as possible to make the record as complete as possible before the veteran’s death.

DUTY TO ASSIST AND RIGHT TO AN EXAM

Most veterans are now aware that the VA now has a duty to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a),(b). The question is when can you compel the VA to give you an exam.

In Palczewski v. Nicholson, 04-1001, April 24, 2007 the Veterans Court recognized that §3.159(c)(4)(I) requires the VA to provide the exam if there is not sufficient competent medical evidence and the record shows an event, injury or disease in service; competent evidence of a current disability or recurrent symptoms ; and evidence that the claimed disability or symptoms may be associated with the event, injury or illness in service. However, the Court rejected the veteran’s assertion that the passage of time between the regional office decision concerning his claim of hearing loss and the Board’s review required an exam.

The Court did recognize the need for a contemporaneous exam where the issue before the Board is current level of disability, that is, a request for an increased disability rating

In addition, concerning the veteran’s tinnitus claim because there was no current medical diagnosis of tinnitus, and because there were reports by the veteran of high pitched ringing in his ears and there was lay evidence of tinnitus in service the Court decided that the veteran was entitled to a tinnitus exam.

The lesson to be learned is that you must be aware of the evidence necessary to trigger the VA’s obligation to provide an exam.