Who is Eligible for Blue Water Navy Agent Orange Benefits?

CCK Law: Our Vital Role in Veterans Law

Who Are Blue Water Navy Veterans?

Vietnam-era Blue Water Navy 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.  It is estimated that there are between 50,000 and 90,000 Blue Water Navy veterans.

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.  However, VA’s interpretation of this regulation over the past few decades has been inconsistent, and has excluded Blue Water Navy veterans from the presumption of exposure.

Procopio v. Wilkie

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, which previously excluded Blue Water Navy veterans from the presumption of exposure to herbicides during the Vietnam War, was wrongly decided.  Mr. Procopio asserted 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.  Additionally, Mr. Procopio submitted evidence that Agent Orange traveled via rivers and inland waterways to the offshore waters of 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.

On January 29, 2019, the Federal Circuit issued a decision in Procopio v. Wilkie.  In its decision, the Federal Circuit overruled Haas v. Peake.  Specifically, the Federal Circuit found that “Republic of Vietnam” includes both the country’s landmass and its territorial seas in which Blue Water Navy veterans served.  This decision impacts thousands of Blue Water Navy veterans who will now be afforded the same presumption of exposure to herbicides as veterans who served “boots on the ground” in Vietnam.  These Blue Water Navy veterans will now have an easier path to getting the benefits to which they are rightfully entitled.

Eligibility Requirements for Blue Water Navy Agent Orange Benefits

In order to be eligible for the presumption of Agent Orange exposure as a Blue Water Navy veteran, you must meet the following criteria:

• You served within twelve nautical miles seaward of the demarcation line of the landmass of Vietnam between 1962 and 1975; and
• You are currently diagnosed with one of the medical conditions associated with Agent Orange exposure acknowledged by VA

If you meet the above-mentioned criteria, you are now eligible for Blue Water Navy Agent Orange benefits and VA should award service connection on a presumptive basis.  This decision effectively adds the Blue Water Navy class of veterans to the already established presumption.

What About Thailand Veterans?

Unfortunately, the Federal Circuit’s decision in Procopio does not affect Vietnam veterans who served in Thailand.  Rather it is specific to the Blue Water veterans serving off the coast of Vietnam.  However, it is important to note that VA and the superior courts are starting to understand that herbicide exposure has a wide-ranging effect.  Recent decisions from the courts regarding Agent Orange exposure in Thailand, such as Hudick v. Wilkie, indicate that this issue is moving in a more positive direction for our Nation’s veterans.