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Blue Water Navy Agent Orange Update 2018: Reopening the Door to a Legal Presumption.

In 2018, the plot thickened for veterans who have fought to extend a legal presumption to veterans with Blue Water Navy Agent Orange exposure claims. The big news for those Vietnam era Blue Water Navy Vet has been the movement on the presumption of Agent Orange exposure.

Let’s bring you up to speed on the Blue Water Navy Agent Orange debacle.

First, veterans who served in the Blue Water Navy started experiencing certain illnesses and diseases at a higher rate than ground troops in Vietnam during the war. Then, in 1991, Congress passed the Agent Orange Act.

This statutes was intended to be a burden shifting statute, replacing the burden of Vietnam veterans to prove exposure to Agent Orange with a legal presumption. It was not intended to be a “risk of exposure statute” that gave the presumption of exposure to Agent Orange once enough veterans proved they were exposed to it and injured by it.

Nevertheless, after several years of extended the presumption of Agent Orange exposure to all veterans that served in the Vietnam war, the VA arbitrarily decided to limit the presumption to veterans that showed “Boots on the Ground” on the landmass of Vietnam.

Veterans challenged them in Court, and the Federal Circuit issued the now famous Haas decision – agreeing to limit the Congressional presumption of exposure to a veteran who could prove he put the tiniest tip of his toe on the landmass of Vietnam.

After Haas, Blue Water Navy Agent Orange exposure claims no longer benefitted from the presumption of Agent Orange exposure. Those veterans now had to prove actual exposure to Agent Orange – the exact opposite of Congress’s intent in the Agent Orange Act in 1991. The impossibility of that task has been mind-numbing. The VA and the rest of the federal government actively work to hide any evidence of when, where and how widespread the military’s use of Agent Orange was around the world during the 1960s and 1970s.

But, for years, that has been the law – a law that many veterans, advocates and Congressional representatives felt was wrong and cut against what Congress wanted.

That brings us to 2018.  Two major events have developed in the Blue Water Navy Vet Agent Orange debacle:

  1. Legislation designed to make it clear that the Agent Orange exposure presumption extended to Blue Water Navy Vets.
  2. A case challenging the Federal Circuit’s decision in Haas v. Peake, began to work its way up the appellate system.

Almost a full year has passed, and here is what know.

The legislation clarifying that the presumption of Agent Orange exposure extends to Blue Water Navy Veterans is dead in the water, no pun intended. The House of Representatives – despite being the most polarized and paralyzed in our nation’s history – unanimously passed the bill.

The U.S. Senate – after heavy lobbying by the VA Secretary – killed it. Special thanks to Senators Lee (Utah) and Enzi (Wyoming) for killing the bill – they blame it on the cost. They claim not to have been able to pay for the $2 Billion estimated price tag. Interestingly, the F-35 fighter that has consumed $1.5 trillion dollars of taxpayer resources – and which conveniently calls Utah home – didn’t seem to be subject to the same scrutiny. Another example of Senators waving the flag and putting veterans on pedestals when it benefits them, but not lifting a finger to treat the wounds our brothers and sisters support in battle.

The VA Secretary lobbied against the bill. I think that says it all. If the veteran community was as organized as we were in 2013 – 2014, (or if the administration cared about veterans enough to listen to us) that would have been the end of Mr. Wilkie as the Secretary.

That leaves the court case as the last chance to set the law straight. I’ve written extensively about the Procopio case on my law firm’s blog training lawyers about veterans law so I won’t repeat it all here.

I am optimistic about Procopio reversing Haas. But, there is an equal chance that it will not. We just need to wait and see.

In the meantime, the BVA has stayed all appeals for Blue Water Navy Veterans with Agent Orange claims.

Not sure that was legal, but hey, has that ever stopped the BVA?

Time will tell. If you know a veteran who served in the Blue Water Navy during the Vietnam War, let them know to keep an eye on this lawsuit.

I don’t know that it will happen before the New Year, so stay tuned for the 2019  Blue Water Navy Agent Orange exposure update.

©2018 – present, Veterans Law Blog®
First published: December 17, 2018 @ 06:17
Use of this content without the express and written consent of Chris Attig is forbidden.

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