Non-Clinical Topics

VA Reverses Stance, Won’t Challenge ‘Blue Water’ Veteran Court Ruling

by Stephen Spotswood

May 14, 2019

WASHINGTON—In an about-face, the VA will recommend that the federal government not challenge a recent court decision ruling that the department cannot deny benefits to Vietnam-era Blue Water Navy veterans claiming Agent Orange exposure.

The news came from VA Secretary Robert Wilkie, who told legislators at a hearing last month. This reverses a stance that Wilkie and VA took last fall when Congress attempted to pass legislation granting Blue Water veterans automatic presumption of exposure to the toxic defoliant. This could signal the end to a roller-coaster ride of legislation, policy changes and court cases that have kept Blue Water veterans in a kind of legal limbo for decades.

In 1991, Congress passed the Agent Orange Act, which granted any veteran who had served in the Republic of Vietnam during the Vietnam War a presumptive service connection for Agent Orange exposure. The defoliant had been linked to illnesses such as heart disease, Parkinson’s, Type 2 diabetes and a laundry list of cancers. A presumptive connection could impact those veterans’ VA benefits and make it easier to receive care.

In 1997, VA’s general counsel held that “in The Republic of Vietnam” did not extend to ships serving off the coast. In 2002, this opinion was codified in VA’s internal policy, limiting the presumptive service connection to those servicemembers who served on land or in the inland waterways of Vietnam. In 2006, the Court of Appeals for Veterans Claims issued a decision in Haas v. Peake stating that the presumption should extend to Blue Water veterans. In 2008, the Court of Appeals for the Federal Circuit overturned that decision.

Attempts to change VA policy in the legislative arena were equally frustrating for Blue Water veterans.

In May 2018, the House passed the Blue Water Navy Vietnam Veterans Act of 2017 which would have reinstated benefits for Blue Water veterans. While that bill passed with full bipartisan support and 329 co-sponsors in the House, it stalled in the Senate. A handful of senators cited the bill’s budget impact and a lack of definitive evidence proving veterans off the coast of Vietnam had been exposed to Agent Orange. Their hesitancy kept the bill from reaching a vote on the Senate floor before the 115th Congress adjourned at the end of 2018.

But while legislators were drafting, revising and ultimately coming to an impasse on the bill, another case was making its way through the courts—Procopio v. Wilkie.

A Blue Water Navy veteran, Alfred Procopio Jr. served on the USS Intrepid in July 1966 when it was stationed off the coast of Vietnam. In 2009, VA twice denied service entitlement for his prostate cancer and Type 2 diabetes. A series of appeals to the Board of Veterans Appeals were denied, and the Court of Veterans Appeals upheld VA’s decision in 2016.

Procopio’s lawyers appealed his case to the U.S. Court of Appeals for the Federal Circuit, and in January of this year the court voted 9-2 to overturn its decision in Haas v. Peake, stating that Congress’ intent in using the phrase “in The Republic of Vietnam” included the waters offshore.

This decision effectively reincludes Blue Water Navy veterans in the umbrella of presumptive service connection for Agent Orange exposure. However, it’s still possible for the federal government to appeal the court’s decision.

Appearing before the Senate VA committee last month, Wilkie said he would be recommending that no appeal be filed. While he cautioned legislators that he did not have the final say in whether the government challenged the ruling, his recommendation will weigh heavily in the final decision.

During the hearing, Sen. Richard Blumenthal (D-NY) suggested that VA turn its attention to the toxic conditions found on modern battlefields, including those surrounding burn pits—a common way of disposing of waste at military sites in Iraq and Afghanistan.

“I agree with you,” Wilkie said. “We don’t want to go through what we went through with Agent Orange.”

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