DOES REASONABLE DOUBT EXIST? Tom Brown The VA continues to ignore their reasonable doubt regulation when adjudicating service connected disability claims for presumptive herbicide exposure filed by Blue Water Navy Vietnam Veterans (BWNVV). The reasonable doubt regulation, 38 CFR Section 3.102 provides: It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a)). The VA reasonable doubt regulation clearly raises the following three (3) interpretive questions with regard to BWNVV service connected disability claims for presumptive exposure to tactical herbicides used by the US Military during the Vietnam War: (1) Did the basic incident; i.e., exposure to tactical herbicides used by the US Military during the Vietnam War, allegedly arise under combat, or similarly strenuous conditions for Blue Water Navy Vietnam Veterans (BWNVV) who served on ships and other offshore vessels that entered into or otherwise operated within harbors, territorial waters (seas), including the Gulf of Tonkin, of the former Republic of Vietnam? (2) Does reasonable doubt exist with regard to those BWNVV presumptive herbicide exposure claims because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim? (3) If reasonable doubt exists for the claims referenced in questions (1) and (2) above, is it a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility? FACT: The BWNVV was awarded the Vietnam Service medal and received hostile fire pay (a/k/a combat pay) while serving in such combat designated areas providing vital combat support missions commensurate with the overall military strategy for the conduct of that war. FACT: In April 2015, the U.S. Court of Appeals for Veterans Claims (CAVC) in Gray vs McDonald vacated the Board of Veterans Appeals decision on appeal "as arbitrary and capricious because the decision was based on VA's flawed interpretation of 38 C.F.R. Section 3.307(a)(6)(iii)". FACT: The CAVC remanded the matter for the VA "to reevaluate its definition of inland waterways ‚ particularly as it applies to Da Nang Harbor ‚ and exercise its fair and considered judgment to define inland waterways in a manner consistent with the regulation's emphasis on the probability of exposure". FACT: A January 12, 2016 bi-partisan letter addressed to VA Secretary Robert McDonald co-signed by 14 Senators contained the following language: “We respectfully request that you use your statutory authority to afford the presumption of service connection to veterans with Agent Orange-related diseases who served in the territorial seas of the Republic of Vietnam between January 9, 1962 and May 7, 1975. We implore you to implement this change to the regulations immediately, so that the thousands of Blue Water Navy veterans can begin receiving the benefits that they have heretofore been unjustly denied.” FACT: The VA refused to resolve this issue under its own regulatory authority as requested. In an interpretive document released February 5, 2016, the VA stated it would continue to limit benefits related to Agent Orange exposure to only those veterans who set foot in Vietnam, where the herbicide was sprayed, and to those who were on boats in inland rivers. FACT: On February 25, 2016, Congressmen Chris Gibson & David Valadao and Senators Kirsten Gillibrand & Steve Daines wrote a letter to then VA Secretary McDonald and Deputy Secretary Sloan Gibson which read in part: "We are greatly concerned that these Veterans have long been overlooked since the 2002 regulatory change, which excluded them from presumptive coverage for illnesses connected to Agent Orange exposure. This 2002 decision swung the pendulum too far, excluding tens of thousands of Veterans who were exposed while serving offshore through direct exposure and through their ships‚ distillation processes. With significant medical and other research data, including evidence compiled by the Australians that has led to Australia‚recognition of Agent Orange exposure for these Veterans, over three quarters of the United States Congress (341 total Members of Congress, including 303 Representatives and 38 Senators) support H.R. 969 and S. 681, the Blue Water Navy Vietnam Veterans Act to correctly extend presumptive coverage for Agent Orange exposure to those who served in the Territorial Seas and bays and harbors of South Vietnam." The VA has time and again asserted that it has no intentions of restoring presumptive exposure benefits to Blue Water Navy Vietnam Veterans using the VA Secretary’s regulatory authority. The VA policy of discrimination and deceit will continue because Congress is unwilling or lacks the political will to legislate a fix to this travesty. The BWNVV has died and suffered from service-connected diseases and illness the VA acknowledges are attributed to exposure to toxic herbicides like agent orange. Yet, unlike Vietnam Veterans who served “in country” on land or inland waterways, the BWNVV is denied compensation and other benefits for their service-connected diseases and illnesses. The Blue Water Navy Vietnam Veterans served this nation honorably and continue to be discriminated against by politicians and a broken VA bureaucratic system. How long must they suffer the consequences of their military service without receiving the disability compensation benefits they are clearly entitled to. The citizens of this country and the military veterans who served and sacrificed on their behalf deserve a full accounting of why the BWVN has been arbitrarily discriminated against with regard to service connected disability claims for presumptive exposure to toxic herbicides.