Blue Water - South Dakota Points/Blue... · Blue Water Navy Veterans are now entitled to a presumption of service connection for conditions related to Agent Orange exposure. This

Blue Water

November 2019

Veterans who served on open sea ships off the shore of Vietnam during the Vietnam War are referred to as Blue Water Navy Veterans. “Veterans who served on a vessel operating not more than 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia as defined by Public Law 116-23.” This may also include Coast Guard Ships.

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Introduction to Blue Water

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Coastal Area

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History of Herbicide Use

• Operation Ranch Hand: 1962 – 1971

• Estimated 20 million gallons of defoliant and herbicide were aerially sprayed over South Vietnam

‒ around 20% of South Vietnam was sprayed at least once

‒ sprayed using Air Force C-123s

• Operated primarily out of:

‒ Bien Hoa Air Base

‒ Da Nang Air Base

• Several different types were used, known as Rainbow Herbicides, but the most common were Orange, Blue and White.

DEVELOPMENT

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In-Service Event

• The in-service event (exposure) must be:

• supported by credible evidence

• factual and consistent with the Veteran’s service

Credible supporting evidence

• indicates the Veteran served in the area and

• during the appropriate time frame

Personal primary evidence includes:

• Service personnel records

• Pay records

• Hazard pay records

• Service Treatment Records (STRs)

• Military performance reports

• Military occupation evidence

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Primary Evidence

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Primary Evidence (continued)

Unit primary evidence includes:

• Unit and organizational histories• Daily staff journals• Operational Reports – Lessons Learned (ORLL)• After action reports (AAR)• Radio logs, deck logs, and ship histories• Muster rolls• Command chronologies and war diaries• Monthly summaries and morning reports

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Secondary Evidence

Secondary sources of evidence include but are not limited to:

• Buddy statements• Contemporaneous letters and diaries• Newspaper archives• Information from VBA sanctioned web sites

Note: Receipt of VSM, VCM, AFEM and/or the Vietnam Cross of Gallantry is not acceptable proof of RVN service for proving herbicide exposure.

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Verifying Exposure

• DD-214

• look for Vietnam service

• medal alone is not sufficient

• Personnel Records

• Look for location, unit, and/or job duties

• Form 201a

• Unit history

• Evaluations

• Medal citation

• Service treatment records to include dental records

- Look for location

APO Codes

APO Job Aid

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Verifying Exposure (continued)

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JSSRC Coordinator

• If verification cannot be completed using a Veteran’s service records, further research can be done by VA using the Joint Services Records Research Center (JSRRC)

• The JSRRC Coordinator at the VARO is responsible for additional research and developing to:‒ Joint Services Records Research Center

(JSRRC) and ‒ National Archives and Records Administration

(NARA).• The location where the exposure took place and

a two month window are needed

• To ensure consistency in decision making, VBA created a “12-Mile Team” to make the evidence-based determination for placement in the 12-nautical mile territorial sea of RVN. This serves as a temporary stop gap until VBA develops a ship locator tool, which will consist of data transcribed from deck logs located at NARA.

• The team will use VBA-approved tools to make evidence-based determinations. Upon determination by the 12-Mile Team, cases will be routed to stations for any additional actions pursuant to current claims processing policies and procedures.

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VBA 12-Mile Team

• VBA is also working on drafting a robust Standard Operating Procedure (SOP) for the 12-Mile Team which will eventually be used for updating the M21-1. VBA has a drafted a post-stay Policy Letter that outlines this policy and description of the 12-Mile Team.

• Please note that the issue of whether Nehmer (or liberalizing effective date) will apply to these Procopio cases is still pending with OGC.

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VBA 12 Mile Team (continued)

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Development (continued)

A claim based on herbicide exposure is no different than any other claim for service connection. All necessary development must be completed before a decision can be made.

• Veteran• Federal Records• Private Medical Records• Examination

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• The VARO will develop to the Veteran if:‒ there is not sufficient evidence of record to

concede herbicide exposure and‒ the Veteran has not provided any information

• Phone development by VA is acceptable and encouraged

• VA will allow the Veteran 30 days to submit the requested evidence.

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• A claim is not substantially complete if a Veteran claims herbicide exposure during service, but does not claim service-connection for a specific disability.

• VA will treat as an incomplete application and inform the Veteran that they must identify a specific disability, since exposure in and of itself is not a disability.

If herbicide exposure is the sole issue:

• VA will not process the claim as a denial, or• VA will establish end product (EP) control for the

incomplete claim – EP 335

• Regardless if exposure can be conceded or not, STRs are always needed

• If exposure can be conceded, VA will not regularly develop for a Veteran’s personnel file

• VA will continue to develop until the evidence requested is received, or a negative response is of record

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Development of Federal Records

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Effect on Blue Water

• The presumption of exposure to herbicides can be extended to any Veteran who, during active military, naval, or air service served in the Republic of Vietnam (RVN) during the period beginning on January 9, 1962, and ending on May 7, 1975.

‒ on land

‒ on the inland waterways

‒ aboard vessels docked to a pier or shore (w/ land visitation)

‒ aboard vessels on the offshore waters (w/ land visitation)

‒ aboard vessels within the 12 mile limit

Blue Water Navy Veterans are now entitled to a presumption

of service connection for conditions related to Agent Orange

exposure. This extension of the presumption is a result of

Public Law 116-23, the Blue Water Navy Vietnam Veterans Act

of 2019, signed into law on June 25, 2019. The law takes effect

January 1, 2020.

"Brown Water" Veterans are those who served on U.S. Naval

and Coast Guard vessels which navigated the inland waterways

and rivers of Vietnam. "Blue Water" Veterans are those who

served on U.S. Naval ships positioned on the open ocean

waters off the coast of Vietnam.

Development of Blue Water

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• Include any evidence Veteran has of service in the offshore waters of the Republic of Vietnam during the required timeframe. Include the name(s) of the ship(s) and the date(s) they crossed within 12 nautical miles of the Republic of Vietnam, if you have that information.

• Provide medical evidence showing a diagnosis of a current Agent Orange presumptive condition or tell us where they are being treated.

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Development Sample Letters

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Sample Letters for Previously Denied Claims

• If a veteran has already passed away due to an herbicide related condition, and their service is now considered presumptive under the law, their survivor(s) as defined by VA will be eligible for Dependency and Indemnity Compensation (DIC) and related ancillary benefits.

• If a survivor had previously filed a claim for DIC and was denied due to the fact that the veteran did not serve in Vietnam, but is now covered under Public Law 116-23, they will be eligible for DIC and related ancillary benefits. Important: Public Law 116-23 establishes that the effective date should be the date of the original claim for DIC.

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Development For DIC Claims

• If the Veteran served on a Navy or Coast Guard ship that operated not more than 12 nautical miles from the demarcation line of the waters of Vietnam and Cambodia as defined in the Blue Water Navy Act of 2019 and the cause of death was from a condition related to exposure to Agent Orange, then VA may award entitlement to DIC on that basis.

• If the claimant dies while his or her claim is pending, a living dependent, such as a spouse or child, may file a request to be substituted as the claimant.

• The death certificate will need to show that the cause of death was related to Agent Orange presumptive condition, or show competent medical or scientific medical opinion relating cause of death to AO.

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Development for DIC (continued)

• If the Veteran had an Agent Orange claim with one or more presumptive conditions denied in the past, you should file a new claim. Provide any new and relevant information regarding the claim such as dates the veteran believes their ship traveled within 12 nautical miles of the Republic of Vietnam, or updated medical information.

• Claims that are currently in the VA review process or under appeal will be reviewed under the new policy

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Previously Denied Claims

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Effect on Korean DMZ

• Public Law 116-23 establishes that veterans who served in a unit that operated in or near the Korean DMZ during the Vietnam War are considered to have been exposed to herbicides if their service on the DMZ was between September 1, 1967 and August 31, 1971. These veterans are eligible for presumptive service connection for the 14 conditions listed in 38 CFR 3.309(e).

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Development of Korean DMZ

• If the evidence of record shows the Veteran served with one of these units during the appropriate time frame, you can establish presumption of exposure to herbicides

• If the Veteran alleges service on the Korean DMZ outside of the appropriate time frame and/or the unit he served with is not on the list, further development and/or research will be needed.

• The VA and DOD have compiled a list of all units that served on the Korean DMZ during this time period, which are listed in M21-1, Part IV, Subpart ii, 1.H.4.b.

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Effect on Thailand Service

• Spina bifida benefits (including compensation, health care, and in some cases, vocational rehabilitation) are now available to biological children of veterans who served in Thailand during the Vietnam War, and were born after the veteran mother or father’s service in Thailand.

• A claim based on herbicide exposure in Thailand cannot be denied based on failure to concede exposure without a Joint Records Services Research Center Memo.

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Thailand Development

• There are three categories of Veterans who receive this concession of exposure to herbicides:

• Veterans who served with the Air Force on a Royal Thai Air Force Base (RTAFB) who had an MOS of security policemen, security patrol dog handler, were a member of security police squadron, or had duties that placed him/her on or near perimeter of the base on a regular basis

• Veterans who served with the Army on a RTAFB who were involved with perimeter security detail*

• Veterans who served with the Army on an Army base who had an MOS of military police, were a member of a military police/military police unit, or had duties placing near perimeter on regular basis.*

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Development of Thailand (continued)

• The benefit-of-doubt rule does not apply to herbicide exposure in Thailand

• Exposure can only be established based on facts-found

• The perimeter is the outermost perimeter of the base

• There could have been multiple fence lines within this outermost perimeter

• Exposure to herbicides cannot be extended to Veterans whose duties placed them on or near an interior fence line

• *The veteran must state that they worked on the perimeter

Spina bifida benefits (including compensation, health care, and in some cases, vocational rehabilitation), except for those diagnosed with spina bifida occulta, are now available to biological children of veterans who served in Thailand during the Vietnam War, during the period January 9, 1962 to May 7, 1975, and were born after the veteran mother or father’s service in Thailand.

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Effect on Spina Bifida

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Development for Spina Bifida

• A child born with spina bifida or other birth defects may be eligible for compensation if their biological parent served in Vietnam or Korea during the Vietnam Conflict Era, or Thailand, and were born after the veteran mother or fathers service in Vietnam

• The child’s birth certificate showing veterans name as a parent will also need to be submitted, along with medical diagnosis

• Any claim involving Chapter 18 benefits should be routed to the Denver Regional Office

• VA Form 21-0304, Application for Benefits for Certain Children with Disabilities Born of Vietnam Veterans and certain Korea Service Veterans.

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VA Form 21-0304

• Naval Historical Center

• Dictionary of American Naval Fighting Ships (DANFS)

• National Archives For Ships Logs

• VA Blue Water Ships List

• Master List of Unit Awards and Campaign Medals, Department of the Navy dated 18 September 2002

• APO Job Aid

• Dictionary of American Aviation Squadrons

• US Naval Bases and Support Activities in Vietnam

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Resources

• Using VA Blue Water Ships Listing

• Using Naval Historical Center

• Using Dictionary of American Fighting Ships

• Using National Archives Ships Log site

• Using APO Job Aid

• Using Master List of Unit Awards and Campaign Medals dated 18 September 2002

And not official sites of:

• https://bwnvva.org

• https://www.hillandponton.com

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Example Ship Development Using Resources

https://bwnvva.org/

https://www.hillandponton.com/

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VA Blue Water Ships List

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Naval Historical Center

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DANFS

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DANFS (continued)

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DANFS (continued)

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NATIONAL ARCHIVES

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NATIONAL ARCHIVES (continued)

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APO Job Aid

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Master List of Unit Awards

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Master List of Unit Awards (continued)

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Master List of Unit Awards (continued)

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bwnvva.org

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bwnvva.org (continued)

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Hillandponton.com

**Please note that the VFW does not endorse any law firm in regards to the representation of veterans. We have included this slide to show the coverage area of the new presumptive rule.

VA BLUE WATER DOCUMENTS

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Interim Procedures VBA Letter 20-19-05 dtd February 15, 2019

• VA has gathered data from the National Archives and the Department of the Navy on ship logs and is developing a system to verify service in Vietnamese waters, using the definition in Public Law 116-23. IT tools will be available for claim processors and service officers to determine these locations.

• If the veteran already has records showing service in the 12 nautical mile area, these records should be submitted with the claim.Veterans and survivors will be receiving notification letters from VA that they may be eligible under the new law, so they may contact you for assistance.VA is developing claims that are under the stay so that they will be ready for decision by January 1, 2020.

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Effect of Interim Guidance

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• Veterans are already receiving VCAA notification letters and VA anticipates that C&P examinations will be scheduled in the fall so that claims can be ready for adjudication by January 1.

• Development letters may be sent to veterans so they can be granted compensation now if they qualify under existing law as boots on ground or brown water Navy. Otherwise, the decision will be stayed until the new law can be implemented.VA may decide to grant benefits point forward and defer a decision on retroactive benefits if they are not ready to do both at once on January 1.



• VA is still determining where claims will be adjudicated: whether they will be distributed through National Work Queue or in centralized processing locations.VA will be publishing regulations implementing the law.

• We are not sure at this time whether they will be proposed rules with a comment period, or interim final rules which will go into effect at the time of publication, with a chance to comment afterward.

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• The RVSR will rate the unrelated issue(s)

• The RVSR WILL NOT DENY OR DEFER the Procopioissue(s)

• The RVSR will make a note to authorization identifying the Procopio issue(s) and directing that an EP 335 be established in accordance with VBA Letter 20-19-05

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Effect on Rating Decisions

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VAOPGADVIS dtd March 29, 2019

• VA has the authority to promulgate regulations and implement policies regarding the evidence necessary to establish service within the territorial sea of Vietnam, so long as the regulations and policies are consistent with the existing laws governing the consideration of evidence in VA benefits cases.

• When the evidence of record is insufficient to determine whether the Veteran served with the 12 nautical territorial sea of Vietnam, the Board should generally remand the case for further factual development. However, if the file contains sufficient evidence for such a determination, the Board should decide the case.

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Effect of General Counsel Opinion

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BVA Memorandum 01-19-02dtd April1, 2019

The purpose of this Memorandum is to rescind a stay on the adjudication of appeals which may be affected by the ruling of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Procopio v Wilkie, No. 17-1821, (U.S. Fed. Cir.) imposed by the Chairman’s Memorandum 01-18-15, as well as to set forth procedures for the resumption of processing of cases affected by the stay.

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Effect of BVA Memorandum

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Stay of Pending Claimsdtd July 1, 2019

The Blue Water Navy Vietnam Veterans Act of 2019 (BMNVV) authorized the Secretary to stay certain pending claims for benefits that may be affected by that Act until the implementation of the statutory amendments Congress directed to go into effect January 1, 2020.

The Secretary exercised that authority.

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Effect of Stay

• VBA and BVA were ordered to stay all decision regarding claims for disability compensation for Agent Orange presumptives based on service in the offshore waters of Vietnam during the period January 9, 1962 to May 7, 1975.

• VBA and BVA are ordered to stay decisions regarding claims for disability compensation based on service in the KMZ for Agent Orange presumptives during the period September 2, 1967 to August 31, 1971.

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Effect on BVA Decisions

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AMO Policy Letter 19-02dtd July 18, 2019

• An exception to the Stay, dated July 1, 2019, allows VA to execute any BVA decisions issued prior to the date of July 1, 2019, that concede herbicide exposure and grant benefits under Procopio.

• All other legacy appeals, higher-level reviews, and supplemental claims involving exposure to herbicides during Blue Water Service not decided by BVA prior to July 1, 2019, must be stayed until January 1, 2020.

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Effect on BVA decisions

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VBA Policy Letter 20-19-08Dated September 4, 2019

• This is a compilation of all the other documents we have looked at. It puts all that VA is doing in one document since January 29, 2019.

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Effect of Letter

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VBA Letter 20-19-10 dated October 7, 2019

• Establishes VBA Policy for Veterans and Survivors seeking service connection for presumptive condition based upon exposure to herbicides during service in the territorial waters of the Republic of Vietnam with an effective date of January 1, 2020

• On this date, VBA will treat the pending claim as a premature filing that VBA held in abeyance and declined to accept for processing for the limited purpose of adjudicating entitlement to the retroactive payment, the claim should be treated as filed on January 1, 2020. This will enable VBA to award retroactive benefits to pending claims.

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Effect of Letter

• VA Form 21-526EZ – for new claims

• VA Form 21-534EZ – for DIC claims

• VA Form 21-601 – for Accrued claims

• VA Form 20-0995 – for Supplemental Claims

(new and relevant)

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Required Forms

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Review of Herbicide Related Conditions - Presumptive

The following diseases are presumptive to herbicide exposure:

• AL amyloidosis

• chloracne or other acneform disease consistent with chloracne

• type 2 diabetes mellitus

• Hodgkin's disease

• ischemic heart disease (including coronary artery disease)

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Presumptive (continued)

• all chronic B-cell leukemias

• multiple myeloma

• non-Hodgkin's lymphoma

• Parkinson's disease

• early-onset peripheral neuropathy (PN)

• porphyria cutanea tarda (PCT)

• prostate cancer

• respiratory cancers

• soft-tissue sarcoma

• DC 7717 – Hemic and Lymphatic

• Rated as 100% disabling

• Caused when amyloid (abnormal protein that is produced in bone marrow) is deposited in any tissue or organ

• Affected organs may include heart, liver, bowel, skin, nerves, joints, or lungs

• Symptoms include fatigue, anemia, weight loss, numbness and tingling in limbs

• Not a cancer, but can occur because of some cancers

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AL Amyloidosis

• DC 7913 – Endocrine

• Rated from 10% to 100%

• Chronic condition that affects the way the body metabolizes sugar (glucose)

• Signs and symptoms develop slowly

• Many known complications as condition worsens

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Diabetes Mellitus Type II

• DC 7709 – Lymphatic and Hemic

• Rated as 100% with active phase or during treatment then rated on residuals

• Examination mandatory 6 months after cessation of surgical, radiation therapy, antineoplastic chemotherapy or other therapeutic procedures

• Is a genetic mutation causing cells to multiply rapidly causing many diseased cells that continue to multiply within immune system

• Symptoms include painless swelling of lymph nodes in neck, armpits or groin, fatigue, fever, night sweats, unexplained weight loss, itching, and increased sensitivity to effects of alcohol or pain in lymph nodes

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Hodgkin’s Lymphoma/Disease

• DC 7005, 7006 or others – Cardiovascular

• Rated as 10% - 100%

• Examination based on condition

• Generally refers to conditions that involve narrowed or blocked vessels that can lead to heart attack, chest pain

• Can also affect heart’s muscle, valves or rhythm

• Many symptoms depending on type of heart disease

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Ischemic Heart Disease

• DC 7703 analogous to Leukemia – Hemic and Lymphatic

• Rated 100% while active, then 0% or on residuals

• Examination mandatory 6 months after cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedures

• Most common types are Prolymphocytic Leukemia (PLL) and Hairy Cell Leukemia, B-cells are specific type of lymph cell affecting body’s immune system

• Symptoms are fatigue, weakness, frequent infections, weight loss, swollen lymph nodes, enlarged liver or spleen, easy bleeding or bruising, tiny red spots in the skin, and bone pain or tenderness

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Chronic B-Cell Leukemias


• Rated 100% for symptomatic and 0% for asymptotic, smoldering, or monoclonal gammopathy of undetermined significance (MGUS)

• Examination mandatory after 5 years after diagnosis of symptomatic multiple myeloma

• Cancer that forms in type of white blood cell called plasma cell which helps fight high infections by making antibodies that recognize and attacks germs

• Signs and symptoms include bone pain, especially in spine or chest, nausea, constipation, loss of appetite, mental fogginess or confusion, fatigue, infections, weight loss, weakness or numbness in legs, excessive thirst

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Multiple Myeloma

• DC 8004 - Neurological

• Rated minimum 30%, then rated on separate conditions

• Is a progressive nervous system disorder affecting movement

• Symptoms start gradually, sometimes with barely noticeable tremor in just one hand

• Can’t be cured, but medications might significantly improve symptoms

• Symptoms include tremors, slowed movement, rigid muscles, impaired posture/balance, loss of automatic movements, speech and writing changes

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Parkinson’s Disease

• DC 7528 – Genitourinary

• Rated as 100% while active then rate on residuals


• Cancer occurs in prostate gland

• One of most common types of cancer in men

• Symptoms include trouble urinating, slow urine stream, blood in semen, discomfort in pelvic region, bone pain, erectile dysfunction

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Prostate Cancer

• DC 6819 – Respiratory

• Rated as 100% then rated on residuals

• Examination mandatory 6 months after cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedures

• Lung cancer

oSmall cell – heavy smokers

oNon-small cell – includes squamous cell carcinoma, adenocarcinoma and large cell carcinoma

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Respiratory Cancers

oLaryngeal cancer – cancer cells form in tissues of larynx

- symptoms include sore throat and ear pain

oBronchial cancer – cancer forms in the mucous glands and ducts of lung airways/bronchi or in the salivary glands

- symptoms depend on where cancer is located

oTracheal cancer – rare cancer of windpipe

- symptoms include trouble breathing, cough etc

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Respiratory Cancers (continued)

• DC 7123 – of vascular origin – Cardiovascular

• DC 5329 - of muscle, fat, or fibrous connective tissue – Muscle

• DC 8540 – of neurogenic origin – Neurologic

• Rated as 100% while active and then on residuals


• First noticeable symptom is a painless lump or swelling

• Are multiple diagnoses

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Soft Tissue Sarcomas

• DC 7829 – Skin

• Rated from 0% to 30%

• Linked directly to dioxin exposure

• Must have manifested to a compensable level within one year of dioxin exposure

• Rare skin eruption of blackheads, cysts, and nodules

• Skin may become thicker and flake or peel

• Condition fades slowly after exposure

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Chloracne or Acneform Disease

• DC 8510-8530, 8610-8630, 8710-8730, based on affected nerve and level – Neurological

• Rated from 0% to 70% and major vs minor

• Consists of nerves outside of brain and spinal cord


• Symptoms include numbness, tingling or prickling in fingers or toes in early stages, may spread to hands or toes and may cause burning, throbbing or shooting that is worse at night

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Early Onset Peripheral Neuropathy

• DC 7815 – Skin

• Rated as 0% - 60% under general rating for skin


• Rare condition of skin

• Affected persons experience photosensitivity which causes painful blistering lesions to develop on sun-exposed areas of skin

• May cause increased hair growth as well as darkening and thickening of the affected skin, may cause increased liver abnormalities

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Porphyria Cutanea Tarda

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Non-Hodgkin’s Lymphoma

VA has extended the presumption of service connection for Non-Hodgkin’s Lymphoma to any Veteran who:

• had boots on ground or was in brown water

• had service in the offshore waters of the RVN, and

• a diagnosis of any of the subcategories of low, intermediate, or high-grade lymphoma

• This was effective October 26, 1990 under 38 CFR 3.313


• Rated as 100% during active disease, during treatment phase, or with non-contiguous phase of low grade NHL, then rated on residuals

• Examination mandatory 2 years after cessation of surgical, radiation therapy, antineoplastic chemotherapy or other therapeutic procedures

• Cancer originates in lymphatic system, tumors develop from lymphocytes, a type of white blood cell

• Symptoms include swollen lymph glands, abdominal pain or swelling, chest pain/trouble breathing, fatigue, fever, night sweats, weight loss

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Non-Hodgkin’s Lymphoma (continued)

Most cancers that involve a tumor are staged in five broad groups. These are usually referred to with Roman numerals. Other kinds, like blood cancers, lymphoma, and brain cancer, have their own staging systems. But they all tell you how advanced the cancer is.

• Stage 0 means there's no cancer, only abnormal cells with the potential to become cancer. This is also called carcinoma in situ.

• Stage I means the cancer is small and only in one area. This is also called early-stage cancer.

• Stage II and III mean the cancer is larger and has grown into nearby tissues or lymph nodes

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Diagnostic Issues

• Stage IV means the cancer has spread to other parts of your body. It's also called advanced or metastatic cancer

A physical exam and several tests are used to determine your clinical stage -- an estimate of how far the cancer has spread. Tests may include blood and other lab tests and imaging scans. Those may be X-rays or any of the following:

• Magnetic resonance imaging (MRI): Powerful magnets and radio waves are used to make detailed images of the affected area.

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Diagnostic Issues (continued)

• Computerized tomography (CT) scan: Several X-rays are taken from different angles and put together to show more information.

• Ultrasound: High-frequency sound waves are used to make images of the inside of your body.

• The Veteran also may have a biopsy, in which a small piece of tissue is taken and looked at under a microscope.

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Diagnostic Issues(continued)

What Is Metastatic Cancer?

• The main reason that cancer is so serious is its ability to spread in the body. Cancer cells can spread locally by moving into nearby normal tissue. Cancer can also spread regionally, to nearby lymph nodes, tissues, or organs. And it can spread to distant parts of the body.

• When this happens, it is called metastatic cancer. For many types of cancer, it is also called stage IV (four) cancer. The process by which cancer cells spread to other parts of the body is called metastasis.

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• When observed under a microscope and tested in other ways, metastatic cancer cells have features like that of the primary cancer and not like the cells in the place where the cancer is found. This is how doctors can tell that it is cancer that has spread from another part of the body.

• Metastatic cancer has the same name as the primary cancer. For example, breast cancer that spreads to the lung is called metastatic breast cancer, not lung cancer. It is treated as stage IV breast cancer, not as lung cancer.

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Cancer cells spread through the body in a series of steps. These steps include:

• Growing into, or invading, nearby normal tissue

• Moving through the walls of nearby lymph nodes or blood vessels

• Traveling through the lymphatic system and bloodstream to other parts of the body

• Stopping in small blood vessels at a distant location, invading the blood vessel walls, and moving into the surrounding tissue

• Growing in this tissue until a tiny tumor forms

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• Causing new blood vessels to grow, which creates a blood supply that allows the tumor to continue growing

• Most of the time, spreading cancer cells die at some point in this process. But, as long as conditions are favorable for the cancer cells at every step, some of them are able to form new tumors in other parts of the body.

• Metastatic cancer cells can also remain inactive at a distant site for many years before they begin to grow again, if at all.

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What if not a Presumptive Condition?

• In herbicide related claims, if the claimed disability is not recognized as a presumptive condition under 38 CFR 3.309(e), then the claim must be supported by competent scientific or medical evidence showing that the claimed condition is medically associated with dioxin exposure.

• This should include medical opinion supported by reasons and basis from medical journals, medical treatises, or other recognized publications.

• The medical opinion must be written specifically for the individual and explicit to that individual's claim. It is important that the opinion be expressed as a degree of likelihood. The degrees of likelihood, arranged in ascending order from the lesser to the greater are as follows, "not likely", "at least as likely as not", "more than likely", "and highly likely". In the case of "at least as likely as not", the veteran always receives the benefit of doubt.

• Opinions are gleaned by a review of the pertinent records and facts. A professional opinion can be rendered based upon the record, the medical history, the facts, and the education and/or experience of the author of the letter.

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What if not Presumptive Condition? (continued)

• If a veteran whose service is now considered presumptively exposed to herbicides based on this new law, and if the veteran or survivor previously filed a claim for benefits after September 25, 1985 as a result of the exposure and was denied because of no incurrence in service/presumptive service, the effective date of compensation should be from the date of the original claim.

• This effective date rule is like Nehmer, except Nehmer covers veterans (and survivors) whose claims were denied because their medical condition was not previously recognized as herbicide related, and was later added to the presumptive list in 38 CFR 3.309(e).

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Effective Dates

• We do not know whether VA will consider any of the provisions of Public Law 116-23 as “liberalizing laws” for purposes of an effective date of claims filed after January 1, 2020.

• We will know when VA promulgates regulations. Therefore, if your client meets the criteria for compensation or DIC under Public Law 116-23, we are encouraging you to file claims as soon as possible to preserve the earliest possible effective date.

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Effective Dates

• Presumptive Agent Orange conditions granted for Blue Water Navy Veterans may be retroactive to the date VA received the original claim. If the claim was a previously denied claim and you resubmit your claim, the effective date will be determined on a case-by-case basis

• The one exception, like Nehmer, is that if the veteran did not have the diagnosis at the time they originally filed, then the date entitlement arose is later so the earlier claim date may not apply.

Effective Dates

• What about effective dates involving pension claim?

• What about inferred issues?

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Effective Dates

• Blue Water Navy Veterans are encouraged to submit disability compensation claims for conditions presumed to be related to Agent Orange exposure. Veterans over age 85 or with life-threatening illnesses will have priority in claims processing.

• Veterans who previously were denied for an Agent Orange related presumptive condition can file a new claim based on the change in law.

• Eligible survivors of deceased Blue Water Navy Veterans also may benefit from the new law and may file claims for benefits based on the Veterans’ service.

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Other Information

• 38 USC 1805, 1811, 1812, 1815, 1821, 1822, 1831

• 38 CFR 3.114

• 38 CFR 3.159

• 38 CFR 3.307

• 38 CFR 3.309

• 38 CFR 3.313

• 38 CFR 3.816

104

References

• M21-1.IV.ii.1.H

• M21-1.IV.ii.2.C.3

• M21-1.VI.1

• M21-1.VI.2

• Mayoclinic.org

• WebMD.com

• National Institutes of Health

• VA Public Health

• National Cancer Institute

105

References (continued)

• VBA Letter 20-19-05

• VAOPGCADVIS 1-19

• BVA Memorandum 01-19-02

• USB Memorandum dated July 1, 2019

• AMO Policy Letter 19-02

• VBA Letter 20-19-08 dated September 4, 2019

• VBA Letter 20-19-10 dated October 7, 2019

• Public Law 116-23



106

References (continued)

QUESTIONS?

Documents

Blue Water - South Dakota Points/Blue... · Blue Water Navy Veterans are now entitled to a presumption of service connection for conditions related to Agent Orange exposure. This