A new Federal Circuit decision will result in awards of VA benefits to up to 90,000 “blue water” Vietnam veterans previously denied benefits based on a bad interpretation of statutory laws affecting Agency Orange herbicide exposure.

Giving the boot to the Department of Veterans Affairs manipulative “boots on the ground” requirement for presumptive service connection, the US Court of Appeals for the Federal Circuit overruled longstanding case law allowing VA to manipulate its regulations to preclude disability benefits for blue water veterans.

SEE Decision: Procopio v. Wilkie

The decision basically concluded Congress did not intend to exclude servicemembers in the seas around Vietnam when awarding presumptive benefits for designated illnesses related to Agency Orange exposure.

The decision, which I will explain below, will become final in the next 90 days so long as VA does not appeal it to the Supreme Court. This means affected veterans could receive payouts before they die.

Background

Since 1992, VA refused to provide presumptive service connection to veterans that did not have boots on the ground within Vietnam or traverse through inland waterways.

VA concluded Congress was ambiguous when it drafted statutes designating which veterans should receive presumptive service connection. The Court concluded VA was wrong, 9-2, when making that decision.

“These statutes cast no doubt on our conclusion that, by using the formal term ‘Republic of Vietnam,’ Congress unambiguously referred, consistent with uniform international law, to both its landmass and its 12-nautical-mile territorial sea,” the ruling states.

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Advocates working on this issue highlighted the impact of the landmark decision that undoes a significant chain of case law stemming from Haas v. Peake that allowed significant deference to whatever VA concluded.

“This is a big win,” said John Wells, retired Navy commander and the executive director of Military-Veterans Advocacy, which helped file the lawsuit. “We want to work with VA on how to implement this as painlessly as possible, but making sure these veterans get all they deserve.”

The decision puts its boot on congressional wrangling over legislation that stalled last year over a disagreement on cost between the Congressional Budget Office (CBO) and VA. The CBO said it would cost $1.1 billion over ten years while VA later said it would cost $5.5 billion.

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The disagreement resulted in the Senate stalling the legislation after receiving unanimous support in the House.

With the new decision, whatever Congress decides on new legislation this year will not matter unless VA lobbies Congress to rewrite laws implicated with the new decision.

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10 Comments

  1. 2017 – 1821? Lost me.

    The CBO bickering over costs when our tax dollars by the trillions fly out to foreign nations for nothing other than claims of being allies or the best friends money can buy while ruining our nation? Lost me again there Congress varmints and CBO clowns of the big top circus. Those “billions” would be a drop in the bucket to the lost monies or skids of dollars, lost, and the subject dropped from media. Out of sight out of mind… for most sheep. Too many have died already and still suffering. Pay them what is due and rightfully so.

    Seems there is no fighting city hall (the U.S. Gov too) while in service (active) or out over any issue out there. It’s all about the money, covering-up, and facade. The grand cover-ups and them all trying to justify any wrong doing or never exposing some realities out there. That said they all know damn well such exposures went far beyond any ’12 mile and other rulings.’

    One issue that always seems to be ignored is the shipping of stuff from over there, personal goods or military to back home. I don’t think I need to explain further about stuff being hidden in goods sent home or to be used by some wise-guys or those in the black market to be sold or spread around. Ya know the dirty little things like civy society that went on, goes on, in military life too. Back then it was weed, various goods to un-taxed smokes to make extra bucks state side… and beyond. Dare mention any of that back-when, or not care to join in, purchase some shite, face the consequences and probably finish your military career with sever punishments. Wasn’t that all part of the big change in military life supposedly post the Nam conflict? Not to forget the CIA and stuff being brought in by special couriers or politicians unchecked and protected luggage or whatever it is called that is by-passed by customs and checks.

    Some dots and illnesses or connections aren’t supposed to be investigated I guess.

  2. Long time coming, they of course deserve help for a chemical known o cause tremendous suffering. One step closer to having TCE and PCE help for myself also. Which may play into the decision to quickly get this passed and over for the Government. They don’t want to add in all the Vietnam veterans who was contaminated by TCE also. Just keep it only at Agent Orange and try to quickly close it out. Of course these guys and many of us up to 1995 was subjected to crazy amounts of TCE and many of us our in same boat as Camp lejuene, and burn pit victims, all of it is TCE , PCE, Benzene, agent orange and mixtures in between. VA don’t want it all inclusive, but wants to turn the contamination fight into sections so each fight takes time and is required to provide separate proof. But they will loose, way to much evidence for them to win unless people don’t appeal and give up, that is what hey want to achieve by drawing it out.

  3. Got this decision on my email subscription to the CAFC decisions a couple of days ago. Shows the courts are leaning more to the Vets after the Trump campaign showed public support for Vets. The public support was always there but never focused. Now Congress persons have to worry about being taken out for lack of support to veterans. This should bode well as it did in my BVA 2017 decision. But Denver VARO is still dragging its feet. Doesn’t have the resources to provide the remanded examinations in an area reasonably accessible to me.

  4. Veteran who I learning what your typing I appreciate it but email or called or Representatives or Senators what you saying on here no excuse like they don’t listen and what you got to lose……Semper Fi don’t Surrender.

  5. Its about damn time! These men (and women) deserve this and the shame is that it took so damn long for this. And to be fair this should include the Vets who had claims going and then died before this decision came out, as well as any children they had that may have been effected by this.

    Its pretty piss poor that you have to drag the VA kicking and screaming to the counter to do whats right!

  6. Fucking assholes at the VA they treat us animals and cry if feel their job is threatened. Spraying shit everywhere and let die. I can’t stand Wilkie or the look of him, can tell a dick. Can’t even say congrats, ruined too many lives wait 40yrs to pay, makes me sick.

    • You (we, all) are soon going to see how big of a prick Wilkie really is. I can assure you he will look to cut benefits in multiple other ways for every cent the VA pays out to Blue Water Vets. He is a Big Yes Man with a face that can only be described as Lamb Chop Face.

  7. Great for the blue water navy. I was navy Seabees 1972 that built the rose garden for the marines Nam Phong Thailand. That was the year Nixon mined Haiphong harbour and bombed the hell out of north Viet Nam, we built the airbase for the marines out of the jungle, not easy. I have multiple health issues Parkinson’s etc when do we get our do? We would go to the air force bases for r&r, no-one talks about Nam Phong Thailand. Read the CHECO report it was declassified. Most articles only talk about AFB that was heaven Nam Phong was out in the bush, it was a secret base making bombing runs up north etc. We were the last (MCB-5) Seabee battalion to have a full mount out in southeast Asia it was a big deal ask the marines of the “Rose Garden”.

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