Haas v. Nicholson Is Decided

Haas v. Nicholson was the case brought on behalf of “blue water” veterans who argued that the presumption of exposure to herbicides (Agent Orange) should be extended to veterans serving in the waters off the coast of Vietnam.

The presumption of exposure to Agent Orange has been defined by the Department of Veterans Affairs (DVA) as “served in the Republic of Vietnam.” This definition means a veteran must have performed duty or visited the country of Vietnam to be considered to have “served in the Republic of Vietnam.” This presumption of exposure, therefore, did not extend to those serving in the waters off the coast of Vietnam.

The argument made by the appellant, Jonathan L. Haas, was that the presumption should extend to those who served in the waters off the coast of Vietnam. The Board of Veterans Appeals (BVA) upheld the VA’s regulatory interpretation that presumption to exposure to Agent Orange did not extend to these “blue water” veterans.

Mr. Haas appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC). CAVC set aside the Department of Veterans Affairs (DVA) interpretation as too restrictive. This decision opened the DVA claims process for “blue water” veterans to claim service connection for the conditions listed in 38 CFR 3.309 as conditions presumed to have resulted from exposure to herbicides.
DVA appealed the CAVC decision to the United States Court of Appeals for the Federal Circuit. This court reversed the CAVC decision and upheld the DVA interpretation of what constitutes exposure to herbicides as permissible.

The DVA is in the process of establishing procedures to begin adjudicating the “Haas” claims that were placed in a pending status since this issue began winding through the court system.

What does this mean to veterans who have claims designated by DVA as “Haas” claims? It is not clear yet how the decision is to be implemented. DVA is still determining how to handle the large number of claims in this category. All veterans with “Haas” claims are CAUTIONED to carefully examine any decision by the DVA denying these claims. Careful review of these denial decisions need to be completed to ensure DVA Regional Offices implement the final processing procedures correctly, and that individual DVA decision-makers follow these procedures.

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