Vietnam Veterans and Agent Orange Claims

With the election campaign’s discussion of the contribution of veterans while in the military and patriotism, it’s of interest to note a Rules Change that the Department of Veterans Affairs (DVA) is proposing. The proposal (RIN 2900-AM74) seeks to amend 8 CFR Part 3 on the “Definition of Service in the Republic of Vietnam” in connection with claims from exposure to the herbicide Agent Orange. The DVA proposed the rule change last November after the US Court of Appeals for Veterans Claims (CAVC) decision in Haas v. Nicholson, 20 Vet. App. 257 (2006). That case involved a claim by a Vietnam Service Medal recipient for compensation under the Agent Orange Act of 1991. The CAVC overturned the DVA rule requiring Vietnam veterans to have set foot in the Republic of Vietnam to qualify for the legal presumption that they were entitled to compensation for exposure to Agent Orange.

In response, the DVA moved on three separate fronts to limit claims for Agent Orange exposure to only those Vietnam veterans who had “boots on the ground” in the Republic of Vietnam. In addition to the Rules Change, the DVA requested Sen. Akaka (D-HI) to introduce the Agent Orange Equitable Compensation Act (S. 2026) to “amend title 38, U.S. Code, chapter 11, to …clarify that the presumption of herbicide exposure provided by 38 U.S.C. 1116(f) applies only to veterans who served in Vietnam on land or on Vietnam’s inland waterways and not to those who served only in waters offshore or in airspace above.” That bill is pending in Committee on Veterans’ Affairs.

The DVA also filed an appeal of the decision by the CAVC. In May 2008, the Federal Circuit reversed the decision of the CAVC in Haas v. Peake, 525 F.3d 1168 (Fed.Cir. 2008) (Westlaw password):

We reverse the Veterans Court’s ruling rejecting the DVA’s interpretation of section 3.307(a)(6)(iii) of the agency’s regulations as requiring the service member’s presence at some point on the landmass or the inland waters of Vietnam. We remand to the Veterans Court for further proceedings consistent with this opinion. Before the Veterans Court on remand, Mr. Haas is free to pursue his claim that he was actually exposed to herbicides while on board his ship as it traveled near the Vietnamese coast. However, he is not entitled to the benefit of the presumptions set forth in 38 U.S.C. § 1116 and the corresponding DVA regulations, which are limited to those who “served in the Republic of Vietnam.”

The National Veterans Legal Services Program has filed a brief with the US Court of Appeals for the Federal Circuit requesting an en banc review, or a re-hearing of the Haas case. Interestingly, under the proposed DVA “Definition of Service in the Republic of Vietnam”, a pilot who became a POW and was held in captivity in the Hanoi Hilton would not be entitled to a presumption for receiving benefits for Agent Orange exposure.