Jan. 29, 2019: A landmark court decision should prompt past due benefits for countless veterans. Vietnam War-era troops who served in the “blue waters” off Vietnam now qualify for the presumption of exposure to the chemical defoliant Agent Orange.
In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit ruled that U.S. Navy “blue water” veterans’—those who served offshore in the territorial waters of Vietnam—are finally entitled to the same “presumption of exposure” extended to other Vietnam veterans.
Presumption of exposure means the VA presumes that a veteran’s disabilities were caused by military service, in this case due to the unique circumstances of the Vietnam Theater of war. The in-service exposure to Agent Orange replaces a veteran’s requirement to prove service connection.
Court Decision Favors Blue Water Veterans
In Procopio v. Wilkie, the court opinion was delivered in a 9-2 ruling in favor of offshore Vietnam War-era veterans. The case was brought by Navy veteran Alfred Procopio, who served from November 1964 to July 1967 aboard the U.S.S. Intrepid. Mr. Procopio patrolled the coastline in the waters offshore the landmass of the Republic of Vietnam.
The federal court ruling reverses a previous decision by the Court of Appeals for Veterans Claims, which denied service connection for Mr. Procopio’s prostate cancer and diabetes mellitus as a result of exposure to Agent Orange.
In this reversal, the federal court held that the language in the law—Title 38 U.S.C. § 1116—clearly entitles Mr. Procopio to a presumption of service connection. The Court ruled that the term “Republic of Vietnam,” as it appears in 38 U.S.C. § 1116, does indeed encompass its territorial waters.
What is the legal history that has troubled this “presumption of exposure”?
Agent Orange Act of 1991
Under the 1991 Agent Orange Act, all veterans who served during active military, naval, or air service in the “Republic of Vietnam”—during the period beginning January 9, 1962, and ending May 7, 1975—were presumed to be service connected for those diseases caused by Agent Orange.
This originally included service in offshore waters, were a veteran may have never set foot on Vietnamese land.
VA Opinion Ends Blue Water Veterans’ Agent Orange Presumption
In 1997, a VA General Counsel opinion restricted the definition of service when it interpreted the meaning of the “Republic of Vietnam” to include a “foot-on-land” requirement.
This meant only veterans who served either as (1) boots on the ground upon Vietnamese soil, or (2) “brown water” veterans who operated in the shallow, brown waters of inland rivers and canals — were presumed thereafter to have been in contact with Agent Orange.
With this decision, tens of thousands of Vietnam War-era veterans were no longer presumed eligible for disability benefits for Agent Orange exposure.
In 2006, the court battle of Haas v Nicholson ensued, in an effort to reach a decision that this interpretation was unreasonable. After a long and avidly argued case, the VA’s decision stayed put. The “Republic of Vietnam” would not include territorial waters of Vietnam.
In the following years, various veteran advocates have worked to enable legislation on behalf of Blue Water Veterans.
In 2017, proposed bill H.R. 299 “Blue Water Navy Vietnam Veterans Act” was drafted to clarify presumptions relating to the exposure of veterans who served in the proximity of the Republic of Vietnam, including a provision to define “offshore”:
“Determination of offshore
… the Secretary shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia …” [with geographical names/latitude and longitude]
The bill passed the House of Representatives unanimously in 2018; however, it has met with opposition in the Senate and remains unpassed.
Finally, an Immensely Overdue Win for Blue Water Veterans
Thanks to the ruling on Procopio v. Wilkie, we see the federal court is ready and able to take the right legal action of overturning its previous decision to reinstate the Blue Water Navy veterans’ right to presumption.
The VA will evaluate Mr. Procopio’s disabilities before determining benefits and disability rating. The VA will assess other Blue Water Navy veterans like him with pending cases. Tens of thousands of military men and women, not excluding children who sadly inherited a toxic condition, will benefit from this decision.
Contaminated with the chemical dioxin, Agent Orange is linked to at least 14 disabling conditions from cancers to Parkinson’s disease. According to the VA, about 2.7 million vets have been exposed.
Veterans Affairs disability claims are expertly handled by the attorneys at Marc Whitehead & Associates. Attorney Marc Whitehead is an Accredited Veterans Claim Attorney as required to practice law before the VA.