James E. LaPointe - Comment on VA Adjudications Manual, M21-1; Rescission of Manual M21-1 Provisions Related To Exposure to Herbicides Based on Receipt of the Vietnam Service Medal

The Secretary claims rescinding parts of the Adjudication Manual will result in minimizing inconsistency. I disagree. First, the Secretary does not address those cases where service connection was properly established under the former provisions and any action he may contemplate to sever service connection. Next, since the former provisions were used to establish service connection for prostate cancer (for example), the same veteran now claiming service connection for diabetes would be denied as having no evidence of exposure. Even a single veteran?s own claims would be inconsistently decided. The criteria for awarding the Vietnam Service Medal at Executive Orders 10977 of 4 December 1961 (for the Armed Forces Expeditionary Medal, later the VSM) and 11231 of 8 July 1965 are mostly consistent with the VA?s definition at 38 CFR 3.307(a)(6) and 3.313 as well as Order 11216 of 24 April 1965 establishing the Vietnam Combat Zone and the provisions of the manual. The only inconsistency is in the litigation position adopted the Secretary in the HAAS case. Finally, if the Secretary believes that other evidence (beside the award of the VSM) indicates the veteran did not serve in Vietnam as defined then he should identify what evidence is acceptable ?affirmative evidence to the contrary? under 3.307(d) to rebut service incurrence. The Secretary has a remedy in existing regulations. Rescinding an interpretation that has been effective for over 16 years in order to deny benefits is inconsistent with the Secretary?s stated purpose of administering the law under a broad interpretation (see 38 CFR 4.3 and 3.102.)