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Blue Water Navy 2020 Update

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Robert Chisholm: Hello everyone, and welcome to our Blue Water Navy 2020 update. We have some news to share with you about what is going on with Blue Water Navy cases at the VA. My name is Robert Chisholm, from Chisholm Chisholm & Kilpatrick LTD. Joining me today is Courtney Ross, and Bradley Hennings, and we are going to be talking about Blue Water Navy. So first, a little background information. The Blue Water Navy Act of 2019 did the following: They permitted veterans aboard a vessel operating not more than twelve nautical miles, sea board of the line of demarcation commencing on the South Western demarcation line of the waters of Vietnam and Cambodia, and intersecting coordinates listed in the Act are now eligible for the presumption of herbicide exposure. Previously, denied claimants may be eligible for retroactive benefits, if they had filed in the past and they were denied. And we are going to go into that and a little bit more detail. But Courtney, we have been doing some digging at the VA trying to discover how they are handling these claims and can you sort of talk to us a little bit about what we have learned and more importantly how we learned.

Courtney Ross:Yes, absolutely. Thank you, Robert. So, we obtained a lot of the information that we are going to talk about today through a request under the freedom of information act, or what we call FOIA, and essentially FOIA is a law that allows the public to request access to records that are held by federal agencies. And federal agencies like VA have to disclose the information unless it falls under one of nine different exemptions under the law. They typically deal with privacy or security concerns. So, we submitted a request to VA for documents that were related to how VA was planning to adjudicate Blue Water Navy claims, and what we have received back was a number of document including training document and policy documents that helped us create an outline of the way that VA is planning to adjudicate these claims. And what was clear is that there is multiple layers to the adjudication, and so that is what we are going to walk through today but the first thing is that, there is eight designated regional offices that these Blue Water Navy claims are going to be adjudicated that. So, the VA’s national work cue is going to route all of the Blue Water Navy claims that are filed to these eight specific regional offices. It includes St. Louis, Cleveland, Waco, St. Paul, Roanoke, St. Petersburg, Phoenix, and lastly, Salt Lake City.

Robert:So, let us say, in providence we rely on, where we actually are, and we are not in one of those regional offices. How does that work?

Courtney:So, the claim will be filtered to the national work cue as we wanted to note as a Blue Water Navy claim, and they will designate it and send it to one of these eight specific regional offices.

Robert:And the idea is that these eight specific regional offices will have teams that have expertise in this. Is that the idea?

Courtney:Exactly. So, what is called centralized processing team. The initial regional office has a very limited role and that it is responsible for the initial processing of the claim, as well as gathering service records but from there it gets sent to the central processing team that is going to be responsible for reviewing the military records and additional development.

Robert:And Brad, can you sort of share what we have learned about the central processing teams and how they operate at these specific regional offices?

Brad Hennings:Yes, so the centralized processing teams they are designed to ensure that appropriate development is complete and determine if the presumption of exposure can be conceded. So, what these teams are doing is they are using the veterans benefits administrations ship locator tool, which leverages navy and coastguard deck logs. Coordinate data. They are using that tool to determine whether if all the claimant falls in under the presumption. So, the centralized processing team is responsible for ensuring that there is evidence of a condition that can be granted under the regulatory presumption. They determine if the veteran had duty or visitation on the ground in Vietnam. They determine if the veteran ship served in a qualifying bay or harbor for the Blue Water Veterans. They ensure that all the military records have been requested and obtained, and then they send a subsequent development letter to the claimant requesting additional service details if that is required.So, the main bays and harbors within the eligible off shore waters that confer this presumption of herbicide exposure include Haiphong Bay, Da Nang Harbor, and Nha Trang Harbor. There is a number of other bays and harbors that are included but those are three of the biggest ones that we typically see claimants come to us, veterans come to us and say, “Hey, I have served on a ship that was in one of these places, and now they are covered by this Blue Water herbicide presumption.”

Robert:So, if they are in the twelve mile limit, or they are in one of the harbors that we just mentioned and the other ones, then VA is going to concede herbicide exposure and the claim will move on fairly quickly assuming they can make the determination. But not everyone is going to fall into those categories, is there a process, Courtney? For when someone does not immediate- when VA is investigating this during the analysis, when they do not meet that criteria? At least, initially.

Courtney:Yes. So, this is another layer of it. So, if the centralized processing team has done, gone through the process that Brad has just described, and are still unable to concede exposure to herbicide. The case will then be sent to what is called a records research specialist team. And essentially, this team is responsible for doing a little bit more digging and additional research to see if they can place the veteran within the twelve nautical mile under the law. So, this team is responsible for: one, making sure that all of the developments that the centralized processing team is responsible for has already been done. And then, they will do additional research using other tools including seven approved tools already approved by the veterans benefits and administration. It includes things like muster roles, command history reports, documents from the national archives and records administration – often referred to as NARA, maybe cruise books. They will do additional research into deck log. They will consult with military services. Basically, they are responsible for documenting and making evidence based determinations for ship locations, if the centralized processing team was unable to do so in their initial review.

Robert:We can imagine that the VA is handling all of these claims, and that a number of these veterans had previously filed claims, Brad. And so now, let us say someone filed a claim initially in – just for the sake of this – 1996, right? And they were in a vessel that is within the twelve nautical miles, and now it is 2020 and they have an opportunity to file a new claim. What kind of a claim do they file first of all? Because we are in the AMA world now. And then two, how does retroactive payment work, or is it suppose to work here?

Brad:So, a claimant, or veteran in that particular case, would want to file a supplemental claim for the same condition that was covered by that prior claim, let us say, that was filed in 1986. So, the rule is that you have to filed an explicit claim had been denied of benefits for disability due to a lack of evidence of Vietnam service between September 25th 1985, and January 1st 2020. And if that is the case, and you file a supplemental claim, and it is granted now because you fall in the Blue Water presumption, the effective date will go back as early as that initial claim. In your example, as far back as 1986. However, it is crucially important that a veteran filed one of these supplemental claims in order to get that retroactive date under the famous Nehmer case that having to do with herbicide exposure. VA on its own went back through cases and assigned retroactive effective dates, but in the current legislation, the Blue Water Navy legislation, it requires the veteran itself to take affirmative action to file a supplemental claim and then VA will potentially take it back as far as that initial claim that was denied perhaps 20 years ago.

Robert:So, veterans cannot just wait for VA to adjudicate these claims, they need to file a supplemental claim if they have not done so already.

Brad:Exactly. VA is not going to do it on their own, they need a trigger to go in and re-investigate that, and the trigger in this case is filing a supplemental claim. So, I can not say, cannot emphasize enough how important that is to file that supplemental claim.

Robert:Over the years, when we have been representing veterans at CCK, and let us start with the veterans who stated that they served in country, in Vietnam and were therefore eligible for the presumption, but there is no record, service record of the veteran actually serving in country. And sometimes, we would have to get affidavit, sometimes we have to get buddy statements to prove servicing country in Vietnam. We can imagine that there will be some veterans who will be denied under the Blue Water Navy act because they can not prove, or the records this process that we have just outlined, does not show that this particular veteran was on a boat, or a vessel within the twelve mile limit. Those veterans, what would they have to show them if this process that VA is developed does not prove that they are entitled to the presumption? Is that the end of the claim for them? Or what should those veterans do?

Courtney:Veterans could also, similar to what you were saying about what we have done historically in cases where veterans have said they have served on land, and we have had to do additional development because there is nothing on the record clearly indicating that, then you can apply that same process- well, Blue Water Navy veterans. VA’s process may not have been able to locate a record placing them within that twelve nautical mile, within those twelve nautical miles, but if you can gather lay testimony from the veteran, perhaps from others that he served with that can also attest to how far from shore they were, even if they can recall maybe seeing the shore in a distance. Information like that can be helpful, and you can still use it for Blue Water and Navy claims that we have done in the past with boots on the ground Vietnam claims.

Brad:I think that I agree completely with what Courtney said. I think the lay evidence can be very powerful. For example, because sometimes the record just do not cover every possible circumstance, and you can use that lay evidence to fill the evidentiary gap to show the presumption, and I think it is very powerful if you can say, “Yes, our ship steamed in and I could see the shore. And looked like it was about three miles away,” in the absence of anything else, that can be enough.

Robert:So, it is important for veterans not to give up, if VA says, “We can not prove the ship was, or the vessel was within the twelve nautical miles.” If they can provide lay statements, buddy statements, other evidence, that could fill that gap potentially. Because VA has to consider lay evidence at the end of the day.Okay. So, what have we seen so far in the way VA has been adjudicating the Blue Water claims? What is- what are we learning?

Courtney:One last part of this process, is after- if the claim goes to the records research team and they are unable to verify exposure to the herbicide, the last step in the process is that they will send it to joint services records and research center, or what you might hear referred to as JSRRC, for additional research and search for a records to try to place the veterans within the twelve nautical mile. What we have recently learned is that JSRRC is actually closed indefinitely due to the COVID-19 pandemic, and so we are seeing it increase in weight times for Blue Water Navy, and other cases where veterans case might be at that point in the process where VA is trying to get record from JSRRC, because of the current closure of that office.

Brad:The other thing I think, and this is true with most VA claims, and that is if it is really obvious where your ship was, if they had really good records that show you were within the twelve mile demarcation line. VA has been pretty good about adjudicating those in a timely manner, granting the benefits that the veteran is entitled to and moving along. It is those cases where it is not so clear, where the evidence is not cut-and-dry, and those are the cases that you typically have to repeal and take longer, and it is important to have the lay evidence, and I think it is really important to have a representative who can help frame your story, frame the claim, bring the narrative to make VA understand why you are entitled.

Courtney:What we really have been talking about presumptive conditions, so those conditions that VA has already identified as where it is applicable for presumptive service connection to apply, if you can show the exposure and the diagnosis of the condition. But this law could also help veterans who might have condition that can be caused by herbicides but are not necessarily on VA’s presumptive list. So, I will use hypertension as a common example. If a veteran has a diagnosis of hypertension and can show that they were within the twelve nautical mile, and you can get a medical and access linking the two, the law can also help you, or the new law can also help veterans. It just will not be presumptive service connection, it is now direct service connection. You need that medical and access prior. But you no longer need to show- the exposure piece that is different under the new law, but I mean if you can place yourself within that first twelve nautical mile. So just to keep that in mind as well, if you have conditions that you think are due to herbicide but might not be on the presumptive list.

Robert:And I think that is a really good point Courtney, because we have been able to successfully represent veterans who were conceded exposed, but having medical condition that is not one of the presumptive conditions, and as you point out, you have to get a expert medical opinion in order to win those kinds of cases.

Brad:My biggest thought or piece of advice is to hang in there. Be patient, this is a long slog with some of these claims sometimes with VA, again when it is not cut-and-dry, VA really struggles with those kinds of cases. But you need to be patient, find a representative, find an accredited VSO like our friends at the DAV, or an accredited attorney or agent, have them help you prepare your claim, prepare your appeal. And again, just hang in there.

Robert:Courtney, Brad. Thank you both for joining today. This is Robert Chisholm from cck-law.com, continue to follow us on Facebook, Youtube, and check our website, we continually update as we learn new things. And thank you for joining us today.