Chicago NOVA Conference Covers New Blue Water Case

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NOVA Conference Chicago
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NOVA Conference Chicago

Benjamin KrauseYesterday marked the start of the fall NOVA Conference (National Organization of Veterans Advocates) this year being held in sunny Chicago, Illinois. Today started with covering new case law benefiting blue water veterans.

Today, I am tuned in here listening to legendary veterans rights attorney Kenneth Carpenter talk about foibles in Veterans Affairs’ interpretation of its own manuals concerning Navy veterans, herbicide exposure and “brown water” vs “blue water” in Vietnam. The veteran was represented by Matthew Hill, at Hill & Ponton, in Florida.

READ MORE: Da Nang Harbor Brown Water Case

Carpenter points out the need to locate the actual definition of any key term or concept VA uses to justify a denial. Apparently, the agency will soon stop its somewhat questionable Fast Letter process where the documents are not publicly published. Instead, the agency will, in real time, update its manuals online. This allows veterans and advocates quick access.

As for Matthew Hill’s synopsis of the case, here is a quote of the takeaways from his blog:

  1. This decision is a small first step in the battle for the veteran sailors fighting for the benefits they deserve from being exposed to Agent Orange in any inland waterway of Vietnam. The Court understood that VA’s interpretation of inland waters was invalid and threw it out.  But it decided to allow VA to re-interpret the regulation in a seemingly endless fashion.  Work on all cases where a veteran is fighting VA to classify a body of water in Vietnam as an inland waterway will stop until VA makes its new interpretation on what inland waterway means.  The Court put no timeline on VA to do this.
  2. The Court left the door open for other veterans to obtain benefits under the equal protection clause of the Constitution in the two ways that it found that Mr. Gray’s case was different from the veteran in the 2009 decision.
  3. First, it distinguished Mr. Gray from the 2009 case by saying that there was credible evidence that the 2009 veteran went ashore. The BVA decision stated there was credible evidence of the veteran going ashore but not corroborating evidence.  A veteran can be credible in his statement but, usually, to prove service connection, he still needs another person or document to corroborate (i.e. back up) what he is saying.  Here, the Court seems to say that all he needs is credible evidence, which could be just the veteran’s word.
  4. Second, is the Court’s use of the inland waterways registry. Currently, VA will only give benefits for those veterans on a ship on the inland waterways registry if they were on the ship when it was in an inland waterway, not after.  The Court here seems to indicate that if a veteran was on a ship at any time after the ship entered an inland waterway then he is presumed to have been exposed.
  5. Getting VA to recognize the exposure of all these veterans serving in bays and harbors is a fight we must take to Congress and to VA itself. There currently is legislation being pushed in the House and Senate to extend the presumption to these veterans.  VA itself is at a point where it understands that it needs to be more pro-veteran.  This is an opportunity to reach out to and educate the current leadership about the injustice of this issue.

Be sure to check out his full article for resources including maps and other forms of evidence Matt used to win a remand.

I plan to follow up on this and other issues but for now I going to get back to the conference. Have a great weekend!

Source: https://www.hillandponton.com/da-nang-harbor-case/

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12 Comments

  1. I served aboard the salvage ship USS Grasp (ARS-24) . During the period January 1969 to April 1969 the ship was doing repair work in the Song Cua Dia River in Nam. I was aboard as a crewman during those months. The Grasp is on a list of ships presumed to have been exposed to Agent Orange. I’m currently on a 50% disabled. I have recently applied for a higher rank and am waiting for any results of my application. Do I stand any chance of getting my rating increased? Thanks

  2. To all, please read my two comments I just put on yesterdays blog today.
    They are at the top.
    1.) It’s an article by Tom Philpott of “The Military Advantage Blog”,
    titled;
    “VA Chief to Hill: The Health Reforms You Seek Are Here”
    published on October 8th, 2015.

    This article is a follow-up on another one from the day before, by Bryant Jordan of “Military dot com”! titled ;

    “McDonald Pans Proposed VA Governance Board, Says Thats Congress’ Job”
    written on October 7, 2015.

    Also, please google,
    2.) An article(s) out of Roseburg, Oregon titled,

    “Obama Not Welcome In Roseburg, Says Local Newspaper Publisher”

    This article is self explanatory.

    • Here’s another article from ‘the Associated Press” y’all need to Google;

      “Louisiana Veterans Affairs Secretary Resigns Amid Investigation”

      It seems Sec. David LaCerte was in a real hurry to leave his “Lucrative job” as Secretary of Louisiana’s Veterans Affairs! According to VA Spokeswoman Robin Keller, “LaCerte left no explanation” for his departure.
      How’s that for bullcrap on veterans and taxpayers!? He must have been warned to get the hell out. Why else so much haste in his departure?
      There’s still an investigation, yet just like all the rest of the VA a$$wipes who get out, there will probably be no charges against him!

      • To add insult and injury onto veterans, google this article/video about the possible “WHY” Sec. David LaCerte “resigned abruptly” yesterday. The title is,

        “La. VA secretary out amid patient care scandal”
        source: AP,WBRZ
        WBRZ staff

        There were five (5) VA “homes” veterans were being abused at. He needs to be prosecuted. No if, ands or buts about it. The “buck stopped with him”! He can’t say he didn’t know about it. Because someone, or many someones, had to turn his ass into the OIG, for them to start an investigation!
        This should be turned over to the DOJ so they can prosecute him. Don’t pass go, and don’t get any retirement- just straight to jail!

  3. Glenn,
    I was i Nam all of 1968, and part of 1969. I was stationed in IICorp. nothwest of Pleiku next to the Cambodian Border.
    They used AO, plus other ‘agents’, throughout the area. I have been fighting VA for decades (over 40 years) to get compensation concerning the many “presumptives” I’ve had to deal with. All I’ve received is 10% each (total of 40%) for all four (4) extremities on one (1) of the “presumptives”! It’s called “peripheral polynueopathy” (sic). Late last year a physician put in my medical file, after she reviewed it, that I have had to deal with at least (9) nine of the fifteen (15) known presumptives.
    When I contacted my POA (VFW), I was informed that since I’m already at 100% T&P. “Don’t scew around and lose what you have!” I was also informed that “Right now is not a good time to put in a claim!” He gave the same excuse as I’ve said, “Don’t screw around and lose what you’ve got!”
    So, to answer your question, your guess is as good as mine, or anyone else. I would contact a good veterans disability attorney for an answer. Because, if your already getting a high rate of compensation, you might not want to “screw around” with it.
    I’m not trying to discourage you!
    I wish you the best of luck, though….

  4. Glenn, have you gone to your Congressman? He or she can have his letter attached to your application. I am sure my claim benefited from doing so.

    • Thanks for the info. I have forwarded a copy of this article to Congresswoman Cheri Bustos to see if she can help.

  5. The VA is giving free flu shots. Watch them screw it up. They will either be caught using the wrong vaccine, manage to use dirty or used needles, or some new F up the VA could only come up with. They cannot pass up the chance to screw up something that involves injecting veterans by the thousands. Go to Walgreens or some other big drug store chain for one of their free flu shots if you feel you really want one. Also, there are reports that the vaccine they are using is useless. More like harmful. They WILL screw it up. Realize, the VA needs another big scandal to distract from all their existing ones. I’d sooner let an IV drug user give me an injection of whatever they were using than trust the VA to get it right.

    • Bruce,
      The CDC, I believe, came out about a week or so ago and stated the “…current flu vaccine was ineffective this year”! I not sure, but I believe the reason they gave was because the ‘strain’ was different this year.
      I also wouldn’t let the VA shove a needle in me. There’s been too many bad things going on over the past year and a half fo me to trust them.
      Did you Google the article/video about that VA Director in Louisiana resigning yesterday in a hurry? Great news coverage on it.

  6. Hey folks, how about this article from the,
    “Kansas City
    Business Journal”
    Morning Edition
    dated Oct. 6, 2015
    Sam Hodgson/Bloomberg
    titled:
    “KC airline pilot sues VA for $35M after misdiagnosis”

    Seems VA physicians strike again on a veteran. Only this time it’s gonna cost them big time, maybe!

  7. I’m reminded of a friend’s reply when I told him UA Flight 93 that crashed in Pennsylvania was destined for Washington where it was supposed to hit the Capitol Building. And, Congress was in session.

    “My feelings on that are ambivalent,” he said, then walked away.

  8. Congress’ Intent: Congressional Research Services / Statutory Presumptions (by law clerk Nichols October 2010) provides that the VA to include Incubation Period(s) in compensation awards and effective dates. See page 5 footnotes, and Title 38 references… for yourselves. *** Yes, the anchorage area within Da Nang Harbor is within “AN” estuary that consists of the Han River and The Cu De River(s). The estuary is well within Da Nang Harbor, well within the Vietnam’s geographical land mass surrounded by 3 shore lines, well sheltered from the open sea. The definition / contents / pollution of the estuary is the result of drainage from the two rivers and three shore lines. The estuary is not far from Da Nang Airport. The ESTUARY now reviewed, revealed, and many Justices Decisions , Da Nang Harbor is an inland waterway, more than meets the required CRS / Statutory Presumption NEXUS to establish direct exposure. Again, CRS Statutory Presumptions provide for Incubation Periods to establish true effective dates.

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