Marking an enormous, long-overdue victory for Vietnam veterans, the Federal Circuit set precedent Tuesday in a decision that finally extends Agent Orange presumption to “blue water” Navy veterans. For over a decade, the VA has excluded these up to 90,000 Vietnam veterans from receiving disability benefits for Agent Orange exposure – until now.
VA Excludes Vietnam Navy Vets from Disability Pay
Saving money is a top priority for the Department of Veterans Affairs, apparently much more important than caring for our nation’s veterans. And cutting thousands of Vietnam veterans out of disability benefits is one way to do it.
Over 1 million Vietnam vets were exposed to Agent Orange, a toxic defoliant sprayed over 12,000 square miles of Vietnam forests between 1962 and 1971 as a part of “Operation Ranch Hand”. This dangerous herbicide contains the contaminant, TCDD, a cancer-causing agent that enters the body through touch, inhalation, or ingestion.
Studies conducted in the 70s and 80s determined that Vietnam veterans were indeed developing disease from Agent Orange exposure, but the problem wasn’t truly addressed until Congress enacted the Agent Orange Act of 1991.
Under the Agent Orange Act, [38 USC § 1116] the VA automatically presumes veterans who served in Vietnam between January 9, 1962, and May 7, 1975, and develop certain diseases associated with Agent Orange exposure are eligible for disability benefits.
The statute says the Agent Orange presumption applies to any “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and while so serving was exposed to that herbicide agent…”
Seems pretty clear right?
But for years, the VA has denied disability benefits for Navy veterans who served off the coast of Vietnam (saving millions of VA dollars in the process), by arguing that the statute’s language doesn’t include sailors who never set foot on land.
In a nutshell, the VA continually refuses these veterans benefits by arguing:
- That veterans stationed offshore didn’t technically serve in the “Republic of Vietnam,” and
- That veterans stationed offshore couldn’t have been exposed to herbicides.
Numerous blue water Navy veterans have fought back over the years, saying the language of the Agent Orange Act clearly says “…naval veterans who served in the Republic of Vietnam,” meaning the land, plus the waters extending 12 nautical miles offshore.
But the fight has been unsuccessful, the Court ruling that veterans who never went ashore weren’t truly in the “Republic of Vietnam” and couldn’t have been exposed to Agent Orange.
Veteran Procopio Argues Blue Water Vets Suffered AO Exposure
Enter 73-year-old Alfred Procopio Jr., a veteran who served on the USS Intrepid off the coast of Vietnam from November 1964 to July 1967.
In 2011, and again in 2015, the Board of Veterans Appeals denied Mr. Procopio service connection for his prostate cancer and diabetes (both listed as VA Agent Orange presumptive diseases) because he wasn’t “present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange...”
But Mr. Procopio didn’t give up. He continued to claim he was eligible for benefits, citing several studies showing that Navy veterans were indeed exposed to Agent Orange when they bathed in, cooked with, and drank from the ship’s water filtration system coming from the contaminated South China Sea.
Again, the VA argued that when Congress said presumption applies to service in “the Republic of Vietnam,” it meant “the territorial waters over which a sovereign nation has dominion and control” and doesn’t include “territorial waters as part of the definition of the country itself.”
Nevertheless, Mr. Procopio’s willingness to fight for his rightfully-deserved benefits paid off. In Tuesday’s groundbreaking decision, the U.S. Court of Appeals for the Federal Circuit ruled 9-2 that Congress obviously intended to include sailors serving off the coast of Vietnam in the coverage granted by the Agent Orange Act.
Circuit Judge Kimberly A. Moore wrote, “By using the formal term “Republic of Vietnam,” Congress unambiguously referred, consistent with that backdrop, to both its landmass and its territorial sea.”
“We also note that the statute expressly includes “active military, naval, or air service… in the Republic of Vietnam,” reinforcing our conclusion that Congress was expressly extending the presumption to naval personnel who served in the territorial sea,” said Judge Moore.
“Because “the intent of Congress is clear, that is the end of the matter,” Judge Moore concludes. “Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus.”
Thousands of Vietnam Navy Vets Now Eligible for Disability Benefits
In light of Tuesday's decision (and barring an appeal to the U.S. Supreme Court), the VA must now presume that any veteran who served in Vietnam (on land or offshore) was exposed to Agent Orange, and, therefore, must grant service connection if the veteran has one of the following conditions:
- AL Amyloidosis
- Chronic B-cell Leukemias
- Chloracne (or similar acneform disease)
- Diabetes Mellitus Type 2
- Hodgkin’s Disease
- Ischemic Heart Disease
- Multiple Myeloma
- Non-Hodgkin's Lymphoma
- Parkinson's Disease
- Peripheral Neuropathy, Early Onset
- Porphyria Cutanea Tarda (PCT)
- Prostate Cancer
- Respiratory Cancers (including lung cancer)
- Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma)
Finally, with the Court’s decision in favor of tens of thousands of sailors exposed to Agent Orange while serving offshore in the Vietnam war, our valued blue water Navy veterans are eligible for the same VA benefits as those stationed on land or in inland rivers.
For more information on collecting disability benefits for Agent Orange exposure, read our complete guide: How Vietnam Veterans Win VA Disability Compensation Benefits for Agent Orange Exposure.
If you or someone you know is a Vietnam blue water Navy veteran and have questions about what Tuesday's precedential decision could mean for you, please give us a call at 888.878.9350.