BREAKING NEWS: Court Rules Blue Water Navy Veterans Should Be Eligible for Agent Orange Presumption
- U.S. Federal Circuit Court Findings
- Who are the Blue Water Navy veterans? Where did they serve?
- VA’s Agent Orange Presumption & why it matters for Blue Water Navy veterans
- The main issue in Mr. Procopio’s case
- The Decision: Federal Circuit overrules Haas v. Peake
- Why overruling precedent is such a big deal
- What does the VA have to do now?
- Who is now eligible for Agent Orange benefits?
- How to use VA’s online Navy Deck Logs to show eligibility
- Will the decision impact Vietnam-era Thailand veterans exposed to Agent Orange?
- Do we think the Department of Veterans Affairs (VA) will appeal the Federal Circuit’s decision to the Supreme Court? Will the Supreme Court take the case?
- Blue Water Navy legislation in Congress – What happened to it?
- Who is now eligible? Will it have an effect on Vietnam Veterans who are already eligible?
- Final Thoughts
*Please note: this transcript has been added to reflect legally accurate language of H.R.299 – Blue Water Navy Vietnam Veterans Act of 2019.
Zach: Good afternoon from Providence, Rhode Island. This is Zach Stolz with Chisholm, Chisholm & Kilpatrick. I am here today with two of my colleagues, Brad Hennings and Courtney. We are here to talk today a little bit about the Procopio case that just came down from the Federal Circuit. It’s a little bit of short notice because the case just came down today. It is a huge case in the world of Veterans Law. What it essentially found is that the entire Federal Circuit, the en banc Court, which means all the judges on that court aside from two of them who were recused for some – for one reason or another, decided the case. They overruled their previous precedent and found in favor that Blue Water Navy Veterans are now going to be eligible for the presumption of exposure to Agent Orange and other herbicides and toxins during the Vietnam War era. So, let’s talk a little bit about the case with Courtney and Brad today. So, who are the Blue Water Navy Veterans and where did they serve, Brad?
Brad: So, the Blue Water Navy Veterans are veterans who served out in the ocean off of Vietnam. Typically, we refer to Brown Water Veterans as those who served in rivers or inland waterways within the actual landmass of Vietnam or obviously the veterans who served on the landmass itself of Vietnam. So, these are folks – these are veterans who served in the ocean typically on ships.
Zach: Right, and so we get the word, “Blue Water” versus “Brown Water,” basically just because that’s how the water looks. The blue water is the deeper water in the gulf area and in the ocean off of the landmass of the Republic of Vietnam. Brown water is – refers to the inland river waterways, because in that particular part of the world, those waters, if you look at them from a satellite image, are brown and so, it is just that simple and the short hand that we use kind of in the veteran’s law arena. So, Courtney, what about the Vietnam Agent Orange presumption and why does this matter so much for Blue Water Navy veterans, and why was this such a big day for them?
Courtney: Yeah, so until now, the presumption would apply to veterans who were boots on the ground in Vietnam, which means they served on the actual landmass of the country, or veterans who were considered Brown Water veterans, so the veterans that served on the rivers or the inland waterways, or in other cases, if you served on a ship that docked in Vietnam. You were entitled to the presumption if you later developed one of the conditions the VA has identified, which basically means VA will presume your exposure to Agent Orange and presume that that condition was related to that exposure. And this is so important because until this case, it didn’t apply to Blue Water veterans and now, with Procopio, this presumption will apply to those that served in what’s considered as the Blue Water as we just detailed.
Zach: So, how did the court kind of start coming to this decision? What was actually an issue in Mr. Procopio’s case, Brad?
Brad: So, the issue was, what is service in the Republic of Vietnam according to the underlying statute that established these presumptions, and, whether the Republic of Vietnam includes the 12 nautical miles from the line of demarcation, which are sort of the territorial waters of a country, in this case, Vietnam.
Zach: And so, as I mentioned when we started today, the court today handed down this major decision and it to go en banc, which means they all had to – it was all of the judges of the court to overrule a previous decision and that previous decision was 10 years ago now, it was decided by 3 judges on the Federal Circuit and it became the precedent that dealt with Blue Water Navy veterans, Brown Water veterans, people who served on the land mass of Vietnam, and it was called, “Haas.” Could you explain, Courtney, a little bit about what happened in that case 10 years ago now?
Courtney: Sure. So, in Haas, the court essentially said that the presumption did not apply to Blue Water Veterans, so they found that the presumption only applied again, to veterans that were boost on the ground in Vietnam or were Brown Water veterans.
Zach: And essentially, what they did, and I have – I am referring to the case that just came down today, and we are still digesting it, to be perfectly honest. It is a very – it was a decision that had a large majority of judges that agreed that Haas should be overturned and that in fact, the Federal Circuit wrongly decided that case 10 years ago, and what that case really dealt with – the legalese of it is, in Haas, they interpreted 38 United States Code 1116, and allowed the Department of Veterans Affairs to define Republic of Vietnam as only the landmass of Vietnam, and then the brown water that we talked about earlier that’s within that land mass. And VA was able to exclude veterans that served on ships in the Blue Water or offshore of Vietnam. That has been the law for lo these past 10 years, and today, Judge Moore wrote the majority opinion. She was joined by several of her colleagues. There were two concurring opinions, which means the two judges agreed with the result that would have reasoned differently to reach it, and then there was a dissent by two of the judges who were in the minority of this particular case, and so they dissented, they will not – their dissent will have no force of law as of right now. They’re interesting – they had some interesting reasons for why they dissented and I’m sure that we can all get into that at another time when we’re more prepared, but because this just came down a couple of hours ago, we’re just kind of trying to hit the highlights of this.
So, like I say, the en banc decision overruled what the court had previously done. This is a very rare thing. In fact, one of the dissents that I talked about, Judge – or the dissent which was signed by Judge Dyk and Judge Chen from the court, made particular note of this – that this is a big deal and that the Federal Circuit should not be in the position of overruling its previous precedent, because it is very important, you know, once they announce with the law is that they don’t really change their minds. Nevertheless, the majority of their colleagues did not agree with them, decided that it was imperative that the 38 United States Code 1116 was interpreted differently, and this time interpreted and read in a way that favored a large class of veterans who had very important service in Vietnam. So, what is the VA kind of going to have to do now, Brad, now that the law has changed, Blue Water Navy veterans are recognized as being presumed exposed to herbicides in service, now what?
Brad: So, that’s a really excellent question. We’re not entirely sure what the VA is going to do, how they’re going to handle these cases. We believe that this is now the law of the land and so, any veterans who had this kind of Blue Water service within the 12 nautical miles of Vietnam during the Vietnam era, should get the presumption, but how VA is going to interpret that, whether they’re going to include anything in their regulations to further refine their process for handling this, if they’re going to revisit cases, we just don’t know yet.
Zach: But, if you served in this class of people – if you served offshore, if you served within – and the definition now is within 12 nautical miles from the line of demarcation of Vietnam, and you served from what – 1960?
Courtney: 1962 to 1975.
Zach: 1962 to 1975. It would be a good idea if you don’t have a claim already going, if you have something – if you are sick or have a disease that is presumed due to exposure to Agent Orange or other herbicides – it’d be a great idea to start filing a claim today, because this is the law of the land, at least for now.
Brad: And –
Zach: Go ahead.
Brad: – just one thing to add to that. This will include the various harbors that existed many large ships never actually docked on the landmass of Vietnam, but they did put down anchor in the harbors or not far offshore, so this really should include a tremendous number of additional veterans who are eligible.
Zach: Go ahead, Courtney.
Courtney: And that – I would just add to that, the VA actually has a resource that you can use online, to see if you could place your ship within those 12 nautical miles, or at one of the harbors as Brad had mentioned. There’s Navy deck logs that VA posts on their website that list all of the ships that were – where they were stationed and during the – at what time periods they were stationed where.
Zach: And, for those of you who have watched some of our Facebook Lives before or have spent some time on our website, you know that Thailand Veterans are a big part of what CCK does and one of the last times we came to you from Providence on Facebook Live, we talked about the Hudick decision, which affects Thailand, but anything today on Procopio that’s going to affect a class of veterans that really is not, you know, the specific Blue Water Navy?
Courtney: No, this won’t apply to Thailand veterans. For now, this is specific to the Blue Water veterans serving off the coast of Vietnam.
Zach: But it is important that VA and that the courts are starting to understand that this is a complicated issue and that herbicides had a wide-ranging affect that maybe has not been really recognized until now, and so at least everything is trending in more – in a more positive direction for our nation’s veterans. We can end on a little bit of prognostication, what’s going to happen with the case. This is from the Federal Circuit and so, those of you who may not be too familiar with the way Veteran’s Law works, in veteran’s compensation claims, you file a claim at the regional office, you have a right of appeal to the Board of Veterans Appeals in Washington, DC. From there, you can go to the Court of Appeals for Veterans Claims. From there, you can go to the Court of Appeals for the Federal Circuit. From there, you can get them to hear you en banc, so have all of the judges, I think it was 12 of them, come in and hear your case, which is their choice to do, and then you can appeal to the United States Supreme Court. So, the government lost, the Department of Veterans Affairs lost in Procopio. Procopio – the Department of Veterans Affairs took the position that Blue Water Navy veterans are not entitled to the presumption of exposure to herbicides and so now, the Department of Veterans Affairs can appeal it. They have about 90 days, maybe a little less to file a petition for a Writ of Certiorari at the Supreme Court. We don’t know if they’re going to do that. Brad?
Brad: There’s 2 schools of thought on that. One is that because this could potentially cost VA and taxpayers a significant amount of money to pay out this disability compensation, that VA will appeal this to the Supreme Court. Now, that being said, even if they do appeal it, the Supreme Court’s not obligated to take the case, because they get to choose their cases. The other side of the coin is that they will not appeal it, because they don’t want to be perceived as seeming anti-Blue Water Navy veterans, or they just feel that it’s not worth their time. So, we’ll have to wait and see.
Zach: This has been an evolving issue as well, because while Procopio was winding its way through the Federal Court system, there was in fact, a bill introduced to Congress. It passed the House last Congress, so before the change in January – it passed the House, went over to the Senate and never saw the light of day, is our understanding, I think – my understanding at least, of what happened over there. Leader McConnell, I don’t believe, ever brought to the floor for a vote and so, while Congress was working to maybe start compensating Blue Water veterans, as well as some Thailand veterans and others, while they were doing that, this case kind of beat the bill and made it through the system a little bit faster, and now the courts have awarded relief for the – for these Blue Water veterans. Courtney, can you remind everybody who the class of veterans affected by this?
Courtney: Yeah, yeah. So, they are Blue Water veterans, so veterans that served within the 12 nautical miles from the line of demarcation of Vietnam and if they served during the time period between 1962 and 1975.
Zach: And, this has no effect on people who were previously afforded the presumption, which are people who served on the land mass and the brown water. It just adds this class of veterans to the presumptive conditions, so that in a nutshell is what happened today. It was one of the biggest decisions in probably the past 20 years of Veterans law. It’s a huge decision – there’s a lot of complicated legal concepts that are at play in it. We have a ton of information about it on cck-law.com. We have a blog up about it, we’ll have a link to the opinion so that people can do their own research and learn a little bit about it on their own. So, closing thoughts Brad?
Brad: One final thing, and that is, any time you’re dealing with exposure cases or presumption cases, whether it’s to Agent Orange or anything else, you really want to get some assistance with your claim, so please consult with a Veterans Service Organization like our colleagues at DAV or a VA accredited agent, VA accredited attorney, someone who’s knowledgeable about the area, who can help you with your claim in making sure that it’s filed correctly, and you’ve got all your T’s crossed and your I’s dotted.
Zach: Very good thought. Courtney? Closing thoughts?
Courtney: I do not. I think that’s a good way to end.
Zach: Alright, for Courtney, Brad. I’m Zach. Thank you very much for watching today. We will talk with you very soon as the law develops in this area. Thanks so much.
*Please note: this transcript has been added to reflect legally accurate language of H.R.299 – Blue Water Navy Vietnam Veterans Act of 2019.
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