Blue Water Navy Veterans Agent Orange exposure

Background of Blue Water Navy Claims (1991 – 2018)

In 1991, Congress passed a law, known as the Agent Orange Act, that required the VA presume that veterans who served in the Republic of Vietnam were exposed to Dioxin (i.e., Agent Orange.)

Two years later the VA published regulations that included in that group, veterans who served in the territorial waters of the Republic of Vietnam.

In 1997, along came the VA’s Office of General Counsel, who issued an opinion that the presumption did not help a veteran unless they set foot on the landmass of Vietnam or its inland waterways.

By 2002, the VA’s attorneys had persuaded the Federal Circuit to adopt their interpretation, and from 2008 to 2016, so-called “Blue Water Navy Veterans” could only get the presumption of service connection for certain medical conditions that resulted from Agent Orange exposure if they showed actual, direct exposure to herbicides such as Agent Orange.  The case where the Federal Circuit excluded Blue Water Navy Veterans was Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

Procopio v. Wilkie: Courts extend the presumption to Blue Water Navy veterans.

Then, in 2017, Commander John Wells of the Blue Water Navy Veterans Association brought an appeal before the U.S. Court of Appeals for the Federal Circuit – this is the appeal known as Procopio v. Wilkie.

In Procopio, he argued that the presumption did cover Blue Water Navy Veterans, and he sought to over-rule the Haas decision.

Court watchers figured Procopio was just another “forlorn hope” – a charge “once more into the breach” that was destined to failure.

Until oral arguments.

One of the judges on the panel wanted the parties to provide supplemental briefing on the role of the pro-veteran canon in the interpretation of Section 1116.

The Veterans advocacy community descended on the circuit en masse…there was teamwork and collaboration among veterans groups rarely seen.

All of the groups were pushing the Federal Circuit to reverse Haas and extend the presumption of Agent Orange exposure to Blue Water Navy vets.

At oral arguments in December 2018, it quickly became clear to all familiar with the Court:

The die was cast, and there were enough votes to overrule the Haas case and extend the presumption of Agent Orange exposure to Blue Water Navy veterans. In January 2019, the court issued its decision.

By May 2019, the government decided not to appeal and Procopio became the law of the land.

The Court of Appeals for Veterans Claims and the Board of Veterans Appeals began to process claims and appeals affected by Procopio.

Until….

Congress Passes Blue Water Navy Legislation.

Shortly after the Court’s decision in Procopio, in June 2019, Congress passed a law that did extended the presumption of Agent Orange exposure to Blue Water Navy veterans. 38 U.S.C. §1116A.

That law defined the area covered by the presumption as “not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting [a list of points].” 38 U.S.C. §1116A.

The law also did some things for Korean DMZ vets, who we will talk about in another post.

This law led to a flurry of supplemental claims – Blue Water Navy veterans whose service connection claims had been finally denied and were no longer appealable were able to file supplemental claims to reassert their claim.

If a veteran who was previously denied service connection for a condition presumptively related to herbicide (Agent Orange) exposure filed a supplemental claim, the statute directed the VA to treat the date on which the veteran filed a prior claim as the effective date on which the veteran filed that supplemental claim.

In other words, the veteran gets the effective date – and the backpay – back to the prior claim date that was denied.

This is huge, by the way. If you file a supplemental claim and don’t get your prior claim’s effective date, you are going to want to talk to an attorney to get that fixed.

So, to summarize, there are two paths veterans follow to get compensation for their Blue Water Navy Agent Orange exposure claims:

1. Supplemental Claims.  If your claim was previously denied and no longer appealable, file a supplemental claim for those conditions denied. (Your effective date should be the claim date of the prior claim.) Don’t file a “claim to reopen” – under the AMA law, those don’t exist any more.

2) Procopio claims: If your claim was previously denied, and IS still appealable or in the appeal process, then simply continue to keep your claim alive (i.e., don’t miss your deadlines) and the claim should ultimately get granted. However, if you are like me and have seen the VA not tell you about deadlines, or tell you the wrong deadline, you can be double sure by filing a supplemental claim as well.

Now that we understand the two ways Blue Water navy veterans can recover benefits for conditions presumed service connected to Agent Orange exposure, it’s time to talk about ….

The Stay.

On 7-1-2019, issued a stay on all Blue Water Navy cases affected by Procopio and by 38 USC §1116A until  January 1, 2020.

This means that Blue Water claims and appeals currently pending will not be adjudicated until the stay is lifted, nor will any claims filed before the stay is lifted.

Now, you are rightly afraid if you worry that the VA will continue this stay beyond January 1, 2020.

The Federal Circuit recently published a decision confirming that they cannot do this, but the VA is known not to listen to Courts – after all, what’s the penalty?

None. Nothing happens to the VA if they ignore a Court order.

In that same decision, the US Court of Appeals for the Federal Circuit held that the stay in the new law governs both the claims filed under the new version of 38 U.S.C. §1116A, but also to appeals controlled by the earlier Procopio decision.

Bottom line: if you have a Blue Water Navy claim or appeal, nothing is going to happen until January 1, 2020.

Nobody is really clear on what is going on during this stay.

Some folks are telling us that the VA is charting all of the known ship locations during the Vietnam War by ship and by date, so that they can more easily determine whether or not a particular veteran served within the territorial waters.

There is a rumor that the VA is developing a digital database, but I don’t know the VA to be able to react, design and contract a database this quickly. And, if they do, the likelihood that it will be available to veterans is slim to none, and “Slim” is already on holiday.

Others are telling us that the VA is doing nothing. Only time will tell.

Bottom line: all Procopio and §1116A claims and appeals are on hold until January 1, 2020.

Is this another case of “Deny, Deny, Deny until they Die?”

Maybe. As much as I think that there are a lot of good people working with the VA, trying to do the right thing, there are more than a few people high up the food chain who have ulterior motives.

Veterans gripe and moan that federal employee unions are keeping bad apples in the VA, and that these are the bad apples screwing with the veterans. This couldn’t be further from the truth. It is often the upper level execs within the VA, and the VA attorneys in the Office of General Counsel, who render the system unsustainable.

A lot of veterans are concerned, and rightly so that they will pass away and never see these benefits. This is a legitimate concern and here are steps you can take if you have that concern:

  1. File a Supplemental Claim for service connection of any condition you have, or think you might have, that you believe is related to your Agent Orange exposure.
  2. Tell your survivors – maybe a spouse, dependent child, or dependent parent – to file substitution claims to step into your claims and appeals, immediately, for accrued benefits purposes. If they are a qualified survivor, they should be able to  step into the claim or appeal as if they were you.
  3. If you do NOT have an eligible survivor, be sure that whoever administers your estate knows to contact an attorney – Agent Orange claims are unique. They do not die with the veteran, and pass to the veteran’s adult children, former spouses, and estates.

Takeaway points

  1. The BVA and VA should, as of January 1, 2020, begin processing Blue Water Navy claims based on Agent Orange exposure, whether the veteran won under Procopio or the new Blue Water Navy Agent Orange Act (38 U.S.C. §1116A)
  2. If you are granted service connection of your Blue Water Navy Agent Orange claim, your effective date – at a minimum – should be the claim date of the previously denied claim. But don’t forget Nehmer, as well as the open and pending claim effective date rules.
  3. The claims and appeals of Vietnam veterans with Agent Orange exposure claims do not die – they pass to a broader list of survivors and, ultimately, to the veteran’s estate.

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