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Why the Blue Water Navy Court Win Matters

February 27, 2019
Blue Water Navy veterans

Background: Blue Water Navy Veterans and VA Disability Benefits

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.  Historically, VA has excluded Blue Water Navy veterans from its presumption of herbicide agent exposure.  Therefore, these veterans were required to show on a factual basis that they were exposed to herbicides during military service in order to receive disability compensation for diseases related to Agent Orange exposure.  As a result, tens of thousands of veterans were denied VA disability benefits over the years.

Blue Water Navy Veterans in Court

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 1991.

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 overruled 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.

Most recently, the Federal Circuit heard a case revisiting the decision in Haas.  Specifically, Blue Water Navy veteran Alfred Procopio was seeking to overturn Haas, arguing that the case 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.  On January 29, 2019, the Federal Circuit issued a decision in favor of Mr. Procopio.  Specifically, the Federal Circuit overturned Haas v. Peake, finding that “Republic of Vietnam” includes both the country’s landmass and its territorial seas in which Blue Water Navy veterans served.  As a result, Blue Water Navy veterans will now be afforded the same presumption of exposure to herbicides as veterans who served “boots on the ground” in Vietnam.

What is the Significance of this Decision?

The Federal Circuit’s decision represents a major victory for Blue Water Navy veterans who have been fighting for disability benefits for many years.  “This decision ensures that justice is served for thousands of Blue Water Navy veterans,” said CCK attorney Brad Hennings.  “These veterans will now have an easier path to getting the benefits to which they are rightfully entitled”.  CCK partner Zachary Stolz further added, “Procopio v. Wilkie is one of the biggest decisions in probably the past 20 years of Veterans Law.  It is a very big deal that the Federal Circuit overturned its previous precedent.  This is a very rare thing.  Nevertheless, the Federal Circuit 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.”

This decision will likely impose significant costs to VA as Blue Water Navy veterans are now entitled to disability benefits for conditions associated with Agent Orange exposure.  Congressional Budget Office officials estimate that awarding the benefits to Blue Water Navy veterans could total about $1.8 billion in fiscal year 2019 and $5.7 billion over the next 10 years.  If the decision stands, VA will be forced to cover the costs regardless of whether an offset is agreed upon.

Will Blue Water Navy Veterans Receive Retroactive Benefits?

Seeing as Procopio v. Wilkie affords Blue Water Navy veterans the same presumption of exposure to herbicides as veterans who served “boots on the ground” in Vietnam, Nehmer should apply.  Nehmer claims are VA claims for compensation for presumptive diseases associated with Agent Orange exposure that were previously denied by VA under the 1984 Veterans Dioxin and Radiation Exposure Compensation Act.  When VA adds a new condition to the presumptive list, it must: (1) identify all claims for the recognized disease that were previously filed and/or denied, and (2) pay retroactive disability and death benefits to the veterans or their survivors back to the date of the veteran’s initial claim.  Furthermore, the Nehmer decision ruled that a veteran’s effective date would go all the way back to the date of their initial claim if their claim or denial for a presumptive condition falls between September 25, 1985 and August 31, 2010.  Importantly, the Nehmer ruling only applies to veterans who served in Vietnam between January 9, 1962 and May 7, 1975.  Now that Blue Water Navy veterans are considered to have served in the “Republic of Vietnam”, it is possible VA will consider them as part of the Nehmer class and award retroactive benefits.

However, until VA starts implementing the Federal Circuit’s decision, it is hard to know exactly what will happen in regards to revisiting cases, awarding retroactive benefits, or handling current cases.  It is possible that there will be a potential delay between the ruling and changes to how claims are processed.  Generally speaking though, VA has to abide by the Federal Circuit’s decision.  The question now becomes whether VA will appeal to the Supreme Court, which must be done within 90 days of the decision.  VA may decide to appeal considering the potential cost to itself and taxpayers.  On the other hand, VA may decide not to appeal the decision, in order to avoid being perceived as anti-Blue Water Navy veterans.  Regardless of whether VA chooses to appeal, the Federal Circuit’s decision is still in effect from January 29th, 2019 until otherwise noted.

 

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