Our next social will be Sunday, 28 April at Darcy’s, Spokane Valley. We celebrate our 45th anniversary as a MOAA Chapter. We also honor members and their spouses who have transferred to their final command. I hope you will join us at Darcy’s.
Agent Orange and Blue Water Exposure
What the Congress and VA have failed to correct may have been taken care of by the Federal Judicial system; the area for personnel affected by Agent Orange during Viet Nam should extend to the 12 mile coastal limit.
In a 9-2 decision on Procopio v. Wilkie, the court said those who served offshore in Vietnam should receive the same benefits as those who had "boots on the ground." This means that about 70,000 veterans potentially could be covered, and unfortunately about 20,000 have died during this process.
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.
The Federal Circuit heard the case of Blue Water Navy veteran Alfred Procopio was seeking to overturn Haas v. Peake, 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 who 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.
The Federal Circuit’s decision represents a major victory for Blue Water Navy veterans who have been fighting for disability benefits for many years. The Federal Circuit decided that it was imperative that the 38 United States Code 1116 be 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.
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.