Home BlogFederal Circuit Decides in Favor of Blue Water Navy Veterans: Procopio v. Wilkie
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Federal Circuit Decides in Favor of Blue Water Navy Veterans: Procopio v. Wilkie

January 29, 2019
Blue Water Navy veterans

Blue Water Navy Veterans

Blue Water Navy Vietnam veterans are considered to be those who served aboard ships in the open waters off the coast of Vietnam during the Vietnam War, and who did not go ashore.  VA’s regulation establishing a presumption of herbicide exposure mandates that VA presumes veterans “who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975” were exposed to an herbicide agent.  The regulation further states, “service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Historically, VA’s interpretation of this regulation has excluded Blue Water veterans from the presumption of exposure.

In August of 2006, the Court of Appeals for Veterans Claims (CAVC) issued a decision in the case Haas v. Peake, stating that the VA regulation providing for presumptive service connection for herbicide exposure must include veterans with “service in the waters near the shore of Vietnam, without regard to actual visitation or duty on land in the Republic of Vietnam”.  The issue addressed in this decision involved what service in the “Republic of Vietnam” meant in the Agent Orange Act of 1991Vietnam Blue Water Navy Veteran Map Agent Orange

This act established a process and procedure for adding conditions to the list of presumptive conditions associated with herbicide exposure and outlined the definition for those eligible for the presumption.  Haas argued that Congress used the phrase “Republic of Vietnam” as it related to international law, in which the territory of a country includes the waters twelve nautical miles off the country’s shore.  Importantly, this interpretation would have included Blue Water Navy veterans.

The CAVC originally ruled in favor of Blue Water Navy veterans, but was then overturned by the United States Court of Appeals for the Federal Circuit.  The Federal Circuit ruled that “a veteran who never went ashore from the ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection.”  This ruling was in favor of VA and continued VA’s interpretation of its regulation of the presumption of exposure to exclude Blue Water veterans.

Procopio v. Wilkie: Summary of the Case

Alfred Procopio is a Blue Water Navy veteran who served off the coast of Vietnam from November 1964 to July 1967 during the Vietnam War.  He was denied entitlement to service connection for prostate cancer and diabetes mellitus as due to Agent Orange exposure.  Mr. Procopio appealed this denial, contending that he is entitled to VA benefits due to his exposure to Agent Orange while serving on the USS Intrepid.  Specifically, he argued that Haas v. Peake was wrongly decided and that the intent of Congress in including the phrase “Republic of Vietnam” in the Agent Orange Act of 1991 was to include those service members that served off the coast of Vietnam.

Essentially, Mr. Procopio was seeking to overturn the Federal Circuit’s ruling in Haas.  Furthermore, Mr. Procopio asserted that there is evidence that Agent Orange was carried out to the waters offshore form Vietnam and was then filtered through distillers for drinking water on the Navy ships offshore.  Service members would then drink the contaminated water onboard, exposing them to the harmful effects of the herbicide.

The case worked its way through VA and was eventually denied at the CAVC.  The Court held that it was bound by the Federal Circuit’s decision in Haas and because Mr. Procopio did not serve on the landmass or inland waterways, he was not presumed to have been exposed to herbicides.  Mr. Procopio then appealed to the Federal Circuit.

On May 4, 2018, an oral argument was held before the Federal Circuit in which both a representative for Mr. Procopio and a representative for VA spoke before a panel of judges.  Subsequently, on May 21, 2018, the Federal Circuit issued an order for supplemental briefing, asking the two parties to answer the following question: “What is the impact of the pro-claimant canon on step one of the Chevron analysis in this case, assuming that Haas v. Peake did not consider its impact?”  Here, Chevron sets forth a two-step framework for interpreting a statute, like 38 USC § 1116 in this case.  The parties were required to file a response by June 4,2018, limited to fifteen pages.  The Court had to decide if it could apply the pro-claimant canon construction at step one of Chevron and allow Haas to be overturned without the court going en banc, meaning heard before the entire Court rather than a panel of judges on the Court.

On August 16, 2018, the Federal Circuit issued an order to hear the matter en banc and then make its decision.  Therefore, the en banc oral argument took place on December 7, 2018.  Today, January 29th 2019, the Federal Circuit issued its decision.

Federal Circuit Reverses the CAVC’s Decision and Overturns Haas

The Federal Circuit considered VA’s interpretation of § 1116 in Haas v. Peake and decided whether “service in the Republic of Vietnam” required presence on the landmass or inland waterways of the Republic of Vietnam.  Ultimately, the Federal Circuit held that the unambiguous language of 38 USC § 1116 entitled Mr. Procopio to a presumption of service connection for his prostate cancer and diabetes mellitus.  Moreover, the Federal Circuit determined the “Republic of Vietnam” includes the waters offshore, thereby including Blue Water Navy veterans in the presumption of exposure.  Specifically, the Federal Circuit found that the intent of Congress is clear from its use of the term “in the Republic of Vietnam”, which under all available international law includes both its landmass and its territorial seas.  This was true in 1991 when Congress adopted the Agent Orange Act, and the government has pointed to no law to the contrary.

VA argued the opposite, asserting that it was ambiguous whether Congress intended to impose the boots-on-the-ground requirement.  Namely, VA claimed that 38 CFR §§ 3.311 and 3.313, which it developed after § 1116, constituted this requirement.  § 3.311 grants a presumption of service connection for “service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.  Additionally, § 3.313 grants the presumption for “service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam”.  However, the Federal Circuit was not persuaded by this argument.  It maintained that even if the regulations were read in the way VA proposes, it still does not impose the boots-on-the-ground requirement as it still covers everyone whose service included duty or visitation “in the Republic of Vietnam”, which embraces the territorial seas.  The Federal Circuit also held that the government failed to cite any instance in which the unmodified use of a formal sovereign name, such as the Republic of Vietnam, has been construed to not include its territorial sea.  Therefore, the Federal Circuit would not read into § 1116 an ambiguity that relied on a distinction between §§ 3.311 and 3.313 made by VA only after § 1116 was adopted.

Accordingly, the denial in Mr. Procopio’s case was reversed to award service connection for his prostate cancer and diabetes mellitus, and Haas was overruled to include Blue Water Navy veterans under the presumption of herbicide agent exposure.  In this precedential decision, no judge determined that Mr. Procopio should be denied benefits under § 1116.  One concurrence concludes that § 1116 is ambiguous but found VA’s interpretation unreasonable.  Additionally, the dissent concludes that § 1116 is ambiguous but claims it is “premature” to decide whether the agency’s interpretation is unreasonable.  Regardless, the majority opinion contributed to a decision that greatly benefits Blue Water Navy veterans.

Blue Water Navy Veterans Going Forward

The decision in Procopio v. Wilkie is very significant for Blue Water Navy veterans as it overrules the interpretation of the regulation that previously excluded them from obtaining presumptive benefits for herbicide agent exposure.  Now, many more veterans are eligible for VA disability compensation and have an easier path to getting the benefits to which they are rightfully entitled.  It is estimated that there are between 50,000 and 90,000 Blue Water veterans that will be positively affected by this decision.

Legal Help for Blue Water Navy Veterans

If you have received an unfavorable decision on your VA disability claim, our attorneys may be able to help. Chisholm Chisholm & Kilpatrick LTD has been representing veterans for over 20 years. Contact us today for a free consultation at 800-544-9144.

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