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Legislation Update: Blue Water Veterans

Blue Water Veterans Legislation (May 2018)

Representative Phil Roe, Chair of the House Committee on Veterans’ Affairs (HVAC), introduced new legislation on May 4, 2018, by nature of a substitute to a previously similar bill, to expand VA disability and health benefits to Navy Veterans who served in the territorial seas of the Republic of Vietnam during the Vietnam War, known as Blue Water veterans. The HVAC passed the Bill on May 7, 2018, with full bipartisan support and has 329 cosponsors. The Bill now proceeds to the full House of Representatives.

WHAT DOES “BLUE WATER” MEAN? Blue Water 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. Under current law, VA does not consider veterans who served aboard a ship that navigated in the inland waterways of Vietnam, or that had visitation to the mainland of Vietnam, to be Blue Water veterans.

VA’S AGENT ORANGE PRESUMPTION Currently, VA’s regulation establishing presumptive herbicide exposure mandates that VA presume 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 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.”

ARE BLUE WATER VETERANS GOING TO GET BENEFITS? The bill introduced to the United States Congress concerns veterans “who, during active military, naval, or air service, served in the territorial seas of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.” This language is meant to explicitly include Blue Water veterans, ending VA’s long-held practice of excluding these veterans from presumptive benefits for Agent Orange exposure during service.

The bill would alter the language of VA’s current regulation of presumption for herbicide exposure to include Blue Water veterans, and allow them to obtain presumptive service connection for conditions associated with Agent Orange exposure.


Blue Water Veterans Legislation

Procopio v. Wilkie oral argument

How to use Navy Deck Logs as evidence



Robert: Good afternoon Facebook Live. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. We’re here today with Kerry Baker and Brad Hennings. And today we’re going to be talking about Blue Water Navy veterans. But as I promised at the end of our last Facebook Live, we have a little bit of an update on RAMP. RAMP again. We’ve been talking about this is the Rapid Appeals Modernization Program. And yesterday, I got a little bit of information on some statistics. First of all, we learned that 15,645 individuals have opted out of Legacy Appeals and into the RAMP program. And this is a one-way opt in. You cannot go from RAMP back to Legacy Appeals. So, that’s the important point there. Of those cases pending, 64.6% have opted into what they call higher level review and 35.4% are supplemental claims. And the total RAMP payments as of May 14th are $15.5 million.

The other thing we wanted to share with you, and many of you may have received an email that looked something like this. I’m going to hold this up here for a second to make sure that it can be seen. There’s a little delay. Do we got a good view here? A little closer. And so, what this email did was invite anyone who has an appeal in Legacy Appeals, and whose appeal is not at the Board of Veterans’ Appeals, to opt in to RAMP. So anyone can opt in to RAMP at this point. And our advice, and it’s been our advice all along, is there are consequences. There are pros and cons to opting in to RAMP and that you should discuss it with an experienced VA practitioner before you do that. So if you have any questions about RAMP, please feel free to reach out to us on Facebook.

And now we’re going to turn our conversation to the topic at hand today, which is Blue Water veterans. So what we have here is a map, and I thought we would start with the map to sort of give you a lay of the land. And what we’re really talking about is the presumption of exposure to Agent Orange during the Vietnam War. So anyone- and I’m hoping that this is visible. Anyone who stepped on the landmass of Vietnam is covered under the Agent Orange Act, as long as it was during the period of war for Vietnam. And I’m going to ask Kerry for the precise dates to make sure I have this accurate.

Kerry: Generally from 1962 to 1975, the ending of Vietnam.

Robert: Okay.

Kerry: If you want the precise dates, I can…

Robert: We will have those on our – we’ll put those up on Facebook, the precise dates. So anyone who set foot on land mass, even if it was for 10 minutes is covered under the Agent Orange Act and is presumed to have been exposed to Agent Orange. Anyone who was in the inland waterways, that is the rivers, what we call brown waters, is presumed to have been exposed to Agent Orange. What we’re talking about today are the veterans who served in the Navy and the waters offshore of Vietnam during the Vietnam War. And they have been labeled Blue Water Navy Veterans. Okay? So, that’s what we’re talking about. We’ll show the map again. But we’re really talking about these, the Navy boats that were off the coast of Vietnam. Anyone that was in a Navy boat that went ashore and set foot on the landmass would be covered. Correct?

Kerry: Yes. That’s correct.

Robert: But we’re really talking about those Navy veterans who never set foot on the landmass of Vietnam or who never went into the brown waters. So, that’s the background. And what I’d like to do now is talk about some new legislation that is pending presently in the House Veterans Affairs. And Kerry, I’d like you to sort of start the conversation here.

Kerry: Okay. So the legislation we’re going to talk about is right now the bill is called H.R. 299, called the Blue Water Navy Vietnam Veterans Act of 2017. Before we get in…

Robert: And just in simple terms, what does the H.R. refer to, do you know?

Kerry: House of Representatives.

Robert: Right.

Kerry: So now – I’ll give you some administrative things about the bill and then we’ll discuss the particulars of the bill. This particular one was introduced originally in January 2017 by David Valadao, if I’m pronouncing that right. He’s a representative for the 21st district California. A hearing was held on this bill in November 2017. And here just recently on May the 8th, the House Veterans Affairs Committee did a full committee markup where they introduced additional amendments to the bill. And that was done by Chairman Roe, the chairman of the House of Veterans Affairs Committee. And it has been passed out of the House Veterans Affairs Committee. So it is now in the full House. It is not scheduled for a vote yet. They don’t schedule these things out very far and it could happen next week or the end of the year or any time in between. So it’s – we just don’t know yet. The House does have three – or the House bill does have 329 co-sponsors. So, that right there means it’s got a lot of bipartisan support. There is a sister bill in the Senate, and that bill is S422, S for Senate bill. And that bill was introduced in about a month after the one in the House, and it has 50 co-sponsors in the Senate right now.

Robert: So let me just start off by saying even though the bill was introduced in 2017 and has only passed the House Veterans Affairs Committee, there’s a time clock by which it has to be voted on or it’s dead for the legislative session.

Kerry: That’s correct. We’re in the 115th session of Congress right now. That started basically January 2017 and it will end the end of 2018. So it’s a two-year window. So any bill that gets passed – gets introduced and passed in that two-year window, that’s what must happen for it to become law. If we go into the 116th Congress and that bill has not passed, then it kind of dies on the vine, so to speak. And it has to be reintroduced.

Robert: And a recent example of something that sort of died on the vine was Appeals Reform in the last legislative session. And then it came right back in this legislative session was passed very quickly in this legislative session.

Kerry: That’s correct.

Robert: Okay. So tell us a little bit about what this bill would do if it is passed and signed into law?

Kerry: Okay. So this bill does a few things, and not only just for Blue Water veterans but that’s the – that’s obviously the biggest part. This bill considers any veteran who served in the Navy or on ship otherwise in the territorial seas of Vietnam presumed exposed to herbicides just like if they were to set foot on land or go up the brown waters.

Robert: Alright. So when we’re talking about the territorial seas and we’re talking about off the coast of Vietnam, but is there a limit, a mileage limit?

Kerry: There’s not a mileage limit in the bill. But the bill does say in the territorial seas of Vietnam.

Robert: Okay. And we don’t know precisely what that means to be candid, at this point.

Kerry: At this point, there’s a chance it could be open for interpretation by VA. They may have to use international standards. I find it highly unlikely that they would make up their own rules on this. There’s going to have be some standard or they could just include anybody that was in the South China Sea as part of the Vietnam effort. But some ships were well under a 12-mile limit, which some people think is the territory seas, some were farther out than that. So where VA would stop that or draw that line? We don’t know yet.

Robert: Okay.

Kerry: So the bill does a few other things, if you want me to go on.

Robert: Yup, please.

Kerry: So one important aspect of the Blue Water part of the bill presuming veterans exposed herbicides for those vets, is the effective date provisions of the bill. The effective date provisions of the bill basically state that if you’ve filed a claim for a covered herbicide disease between September 25th 1985 and up to – right now it says to January 1st, 2019 because that’s the next session of Congress. But basically, any time between September 25th, 1985 and the time the bill passes and you come back and file another claim once the bill does pass, then that original claim should be your effective date as long as all other requirements are met. You’ve got the diagnosed condition that you were claiming when you claimed it. So you could get – people that have been denied under the current practices could get substantial retroactive increases in substantial retroactive benefits under this bill.

Robert: We have a question from Paul. First of all, thank you for reaching out to us. If you have any questions, I should have said this at the beginning, please reach out to us on Facebook. And Paul’s question is I don’t understand why Vieges, the world’s largest Superfund site, isn’t included in the conversation about toxic exposures, Agent Orange, depleted plutonium, etcetera. And I don’t know that much about that, to be honest with you. If we’re talking about Vieges, that’s off the coast of Puerto Rico. It’s a small island. And if that’s what we’re talking about, I know it was used as a sort of a bombing run to drop bombs for pilots to sort of test their accuracy. I don’t know that much about the Superfund site to be perfectly candid. So sorry, I don’t have any more information about that. But, Kerry, if you want to continue.

Kerry: So another good thing I believe about the Blue Water aspect of this bill is it requires VA to conduct outreach to all veterans that would normally be classified as Blue Water veterans so that they’re aware that this bill is in play. If they haven’t filed a claim in the past, they can do that.

Robert: So if I could stop you there and ask Brad. Brad, we have a little bit information about the number of veterans we are potentially talking about that served and let’s just say for now the territorial waters of Vietnam.

Brad: Yes, at least according to one lawsuit that’s pending at the US Court of Appeals for the Federal Circuit. They’ve identified 90,000 individuals who had sea service, as they call it.

Robert: Okay. Thank you.

Kerry: And that’s about the number that I’ve heard in VA over the years is they anticipate about 90,000. So we’ve got a presumption for all Blue Water veterans. We’ve got the effective date, the same as those for in Vietnam back to September of ‘85 potentially.

Robert: So let’s walk through an example of – these are the so called Nehmer rules that you’re talking about for Vietnam.

Kerry: Right.

Robert: And they have very favorable effective dates.

Kerry: Correct.

Robert: So let’s take an example. If this becomes law as written today, and there’s no certainty yet about that, but there’s reason to be optimistic I would say.

Kerry: Right.

Robert: But let’s suppose a veteran filed for coronary artery disease in 1989 and they were a Blue Water veteran.

Kerry: Okay.

Robert: And they had a diagnosis of coronary artery disease and they were denied in 1989. And they file again after this bill becomes law. What happens?

Kerry: VA…

Robert: Assuming they still have coronary artery disease, of course.

Kerry: All other assumptions aside, they should get service connection for that disability effective the day they first file that claim in ’89, not the day they filed it currently when the bill – once the bill passes.

Robert: Right. So that’s a very generous benefit, if this in fact becomes law as it’s written.

Kerry: Correct. So, and essentially what Congress has done is taken the Nehmer rules and written them into this bill.

Robert: Right.

Kerry: That’s in my opinion very important because it doesn’t give VA the chance to say Nehmer would not otherwise apply to this new legislation. Congress made sure that it’s going to apply, and that’s a really good move for veterans. So this bill does a few other things. It also creates a presumption of service connection for veterans who served on the Korean DMZ between 1967 and 1971, I believe. Now…

Robert: What’s the DMZ? For the purposes of this discussion.

Kerry: That’s the Demilitarized Zone, the zone between North and South Korea. So, what that basically does is takes VA’s current practice and codifies it into a statute. And so it doesn’t necessarily change much for veterans who are already getting benefits for DMZ service, but right now there’s a statute that talks about benefits for children of veterans who served on the DMZ and the date range is larger than the current date range that VA considers for veterans themselves.

Robert: Right.

Kerry: So literally speaking of a child of a DMZ veteran could get benefits for a period of service where the veteran themselves is not considered exposed. It just doesn’t make sense.

Robert: It’s inconsistent is what you’re saying.

Kerry: Right. It’s inconsistent. So Congress is creating an actual presumption just like there is for Vietnam veterans that encompasses that whole date range. And then one other things the bill does that’s pertinent to this conversation, it also codifies benefits for children of veterans who served in Thailand. And it doesn’t create a presumption of service connection for those veterans.

Robert: Right. So if we can go back to the map for a second, there were a number of air bases in Thailand…

Kerry: Correct.

Robert: -during the Vietnam War. And currently VA does have a policy regarding Agent Orange exposure. But there’s not a law, a statute passed by Congress yet.

Kerry: Correct.

Robert: And so, this bill, this Blue Water Navy Veterans Bill, has a presumption in there, if you will, for the children who suffer from spina bifida.

Kerry: Correct.

Robert: And why don’t we talk a little bit about spina bifida and its relationship to Agent Orange? Because this is a very unique benefit, frankly.

Kerry: Right. So one of the one of the early problems that science, for lack of a better word, revealed was a result of herbicide exposure was spina bifida in the children of male veterans that had been exposed to the herbicide agents. So Congress decided to make sure that those particular children were entitled to healthcare, voc rehab if needed, certain compensation monetary benefits, and it didn’t matter whether the veteran themselves had a dishonorable discharge, for example. So they weren’t going to punish the children for the parents’ actions. So you know that’s – for those affected, and it’s a very serious disability, that could be a lifesaver set of benefits there.

Robert: And I have to say, in our experience – and I’ve been representing veterans for over 25 years, I’ve never seen a spina bifida claim denied other than on the basis that didn’t have the correct diagnosis…

Kerry: Right.

Robert: -to get the benefits. We’ve never seen one of these claims that was improperly denied in our experience. And Brad, I don’t know either on the court or when you were working at the Board or as a Veterans Law Judge at the Board if you ever saw any of those particular claims.

Brad: No, my experience is very consistent with that. In fact the only thing that was ever at issue was whether the veteran’s child had spina bifida.

Robert: Exactly.

Brad: Or the equivalent of..

Robert: Of spina bifida.

Brad: -of spina bifida.

Robert: So it’s frankly one of the few benefits they seem to get right, frankly. And that’s a good thing.

Kerry: Yeah.

Robert: That’s a really good thing.

Kerry: One kind of unique aspect about the Thailand insertion of this bill is that it does what the statute on the Korean veterans originally did. So, it’s almost as a step like process. So years ago Congress created the statute for spina bifida in Korean – DMZ veterans’ children. Now they’re doing that in – for Thailand. But for Korea, they’re creating an actual statutory presumption of the exposure. They haven’t done that here in this bill for Thailand. But in my opinion, it’s going to be pretty difficult for VA to say that the veteran was not exposed when Congress is conceding that the child was.

Robert: Was exposed, right.

Kerry: So it’s a step in the right direction for Thailand veterans as well.

Robert: So I don’t know who wants to answer this next question. But obviously, a statute like this that’s going to potentially affect 90,000 veterans has a cost associated with it. And under the Congressional rules, there’s something called PAYGO. So is there – and PAYGO really refers to there has to be a funding mechanism or an offset against that cost, if you will. So what’s interesting about this bill is there’s a financial mechanism to balance the book, so to speak.

Kerry: That’s correct.

Robert: And so, that gives one hope that the bill will actually pass.

Kerry: Hope.

Robert: Hope. Okay. We’re not going to lay any kind of odds on the fact that it’s going to pass or not pass. Is there anything else you want to talk about in terms of this bill before we move on to another area about the Blue Water Navy veterans that anyone wants to share?

Kerry: Unless Brad wants to add something.

Brad: No, I don’t have anything else.

Robert: Okay. So we’ve now talked about the bill. Again, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. Joining me today are Kerry Baker and Brad Hennings. And we’re talking about Blue Water Navy veterans. If you have any questions, please reach out to us on Facebook. And if you’re watching this later on, you can always reaches out to us on Facebook and we will certainly respond. So we’ve talked about the bill but there’s another way potentially now for the Blue Water Navy veterans to get the exact same relief as this statute, at least not in terms of Thailand and Korea but in terms of those who served in the waters offshore. And so Brad, I’d like to turn to you to talk about this case that’s pending before the United States Court of Appeals for the Federal Circuit. And the case is called Procopio. And we have a link to this oral argument that was posted on the Federal Circuit’s website on May 4th of 2018. And Brad, I was there live and I know you have had a chance to listen to it. And Kerry, you’ve had a chance to listen to it. So what’s the big deal here?

Brad: Well, the big deal about Procopio is it potentially takes the law in a different direction than it’s gone for the last 10 or 12 years. 10 or 12 years ago the US Court of Appeals for the Federal Circuit upheld the VA’s interpretation of the regulation basically saying you had to be boots on the ground or a brown water veteran to get benefits. That was “service in Vietnam.”

Robert: And so the critical words here are what was service in the Republic of Vietnam.

Brad: Yes. Exactly.

Robert: And they limited it as we said to those people who served on the landmass and to the inland waterways, and specifically excluded Blue Water Navy veterans.

Brad: That’s correct. And what’s interesting about this Procopio case is that the veteran and the veteran’s attorney have made some different legal arguments as to why Blue Water veterans should be included within that definition of serving within Vietnam. In particular, they’re arguing about the territorial seas and that territorial sea should be included in the definition of service in Vietnam. And they’ve made some arguments that were not made a number of years ago when this occurred. Why this is significant is, in the meantime, there was a US Supreme Court case that went through and dealt with veterans issues and basically said that it’s going to be more favorable to apply certain – what they call statutory canons. But without getting into that part of it, to make a long story short, the court, the judges on the Court of Appeals for the Federal Circuit were very interested in this argument and they seemed very willing to revisit this issue especially in light of the additional evidence that’s been developed in the years since by hydrologists and others talking about how Agent Orange got out into the seas and then was sucked up in some of the ships…

Robert: Water filter.

Brad: Water filtration systems, etcetera.

Robert: So I think the key takeaway here is the Federal Circuit could find service in the Republic of Vietnam includes the territorial seas out to like 12 miles potentially.

Brad: That’s correct. In fact, that may even happen prior to any action on this bill.

Robert: Yup. And can they do it without going en banc that is, does the whole Federal Circuit have to sit together to overrule the Haas decision? Because typically if the court makes a decision, the Federal Circuit, and typically it’s done in three-judge panels, in order to change the law, the whole Circuit has to sit together or the Supreme Court has to say, “You made a mistake,” and overrule it.

Brad: That’s true. And the judges of the Court and the attorney for Mr. Procopio talked about basically a way around that, that they didn’t think they’d have to go that direction that they could actually address the issue without going into the full court because of the nature of the arguments that were made in this particular case.

Robert: So typically, we get a Federal Circuit decision after an argument, and again the argument here was on May 4th. You can listen to it on our website or you can go to the Federal Circuit website and listen to it. Typically, they make a decision anywhere from 3 to 5 months, which is pretty fast for an appellate court to be frank.

Brad: It is.

Robert: So Kerry, let’s talk about it. Let’s suppose the Federal Circuit does that and let’s suppose the government doesn’t appeal.

Kerry: Okay.

Robert: You know what my next question is going to be? My next question is going to be..

Kerry: What’s the effective date?

Robert: What is the effective date for that? In other words, would the Nehmer rules apply in that situation?

Kerry: I believe they would because the Federal Circuit would simply be interpreting, in my opinion, what is service in Vietnam. And if they…

Robert: Nehmer covers veterans who served in Vietnam.

Kerry: Right. So your brown water veterans now, it covers.

Robert: Yeah.

Kerry: Your Blue Water veterans that happen to show that they went on land.

Robert: Right.

Kerry: …it covers. So if the Federal Circuit is just going – if it interprets it to say the within 12 miles is also service in Vietnam, there should be no reason whatsoever that Nehmer does not apply.

Robert: Okay. We have a question regarding RAMP, which I’ll hit at the end. You can show it to me again. I want to finish up the discussion first on Blue Water Navy veterans. So my best guess though is, if the Federal Circuit were to find in Procopio that service in territorial waters of Vietnam included service in the Republic of Vietnam, I’m saying, if the service in the waters offshore was included in service in the Republic of Vietnam – I didn’t state that right the first time. I apologize. My best guess is the Department of Justice would take a serious look at appealing that up to the Supreme Court.

Brad: That’s likely true mainly because of the potential cost associated with it. And that drives a lot of the litigation that the Department of Justice would then pursue to the Supreme Court. That being said, there have been so few cases regarding veterans benefits that the Supreme Court has taken, a good bet is that that decision would stand in favor of veterans.

Robert: There’s another potential jurisprudential nerdy aspect to that for us who are engaged in this area of the law. And you were talking about this canon of construction. If the Federal Circuit actually uses this canon of construction, it could be very beneficial to future interpretations of statutes where there’s a question of the meaning of a statute.

Brad: And without getting too much into the legal part of it, it would be very significant because the interpretation and the way the Federal Circuit was talking about using the canon would be defined in a way or laid out in a way that really hasn’t been done before so explicitly.

Robert: And this would really be uprooting a lot of the way they analyze these kinds of statutory interpretation cases.

Brad: It could make a big difference down the road.

Robert: Yeah. So, those are all the points I wanted to make on the Blue Water Navy veterans, and we’re going to get back to that RAMP question in a second. But before we do, does anyone have any other questions?

Kerry: Well, I would ask both of you a question.

Robert: Sure.

Kerry: And I think we’ve talked about this before. Obviously, we don’t really know the answer. But what do you think the possibility is that the Federal Circuit is watching Congress and Congress is watching the Federal Circuit on this issue for the Blue Water guys?

Robert: Great question because during the oral argument, in fact there was a question about what’s the status of this bill. And I think – I would say that’s informational only. That was my understanding of it. I was present at the oral argument. We had a case that we were arguing that day and I happened to stay for this argument. And my sense was that was informational. I don’t think the Circuit is going to wait to see what Congress does. They’re going to make the decision they’re going to make.

Brad: I agree 100%. I think that if something had been pending, where both one house of Congress had already passed it. And they were – a vote was scheduled for the other. Maybe they’d pause. But they didn’t seem to be as concerned about waiting because they’re not sure exactly how long that would be. We’ll see.

Robert: All right. Let’s get back to the question on RAMP. This is from Patricia. What are the negatives of filing claims under RAMP? So you don’t actually file a claim under RAMP. You have a claim pending. And if that claim is denied and you have filed an appeal of that claim, you now have the ability to opt in to RAMP. And there are a lot of questions that one has to explore and we’re not in the position to give legal advice. We’ve laid out some of these in our prior posts on RAMP. My best advice is to seek the experience – an experienced – a veteran service organization, accredited agent or accredited attorney and have a conversation with them before you make a decision whether to go into the RAMP program or not because once you opt in, you can’t go back.

Brad: And let me just add in to add on to that. It really is a case-by-case analysis. It’s very fact-specific. And so every veteran is in a slightly different situation with a different claim and appeal history and a filing for different benefits. So it really is important. It’s not a one-size-fits-all answer.

Robert: Yeah. That’s a very good point. Thank you for sharing that, Brad. Well, Kerry and Brad, thank you for your time this afternoon. If you have any questions after watching our video, again please reach out to us on Facebook Live, it’s Robert Chisholm from Chisholm Chisholm & Kilpatrick.