SE Texas Record

Saturday, October 19, 2019

U.S. Court of Appeals Finally Allows Blue Water Veterans to Gain Agent Orange Benefits

Their View

By Matt Hill of Hill and Ponton Disability Attorneys | Jun 3, 2019


In January, the US Court of Appeals for Veterans Claims (CAVC) issued a landmark decision in Procopio v. Wilkie. This case established that US Navy veterans who served within 12 nautical miles from the baseline of the furthermost island of the Republic of Vietnam ("blue water veterans") from January 9, 1962, to May 7, 1975, are entitled to VA disability compensation benefits for medical conditions shown to result from exposure to herbicides such as Agent Orange. This marks a change in the established VA law (38 USC § 1116), which since its implementation in 1991 has provided for presumptive benefits for Vietnam veterans who served in Vietnam during the specified time period and have a diagnosis of one of the medical conditions listed in the statute.

Prior to the ruling in Procopio, only veterans who could show that they were “boots on the ground,” (physically on the landmass of Vietnam) were entitled to the presumptions of 38 USC § 1116, which allowed those veterans to claim entitlement to benefits for conditions such as type 2 diabetes or respiratory cancers which have been scientifically associated with exposure to Agent Orange or other herbicides use in Vietnam. This application of the law led to many blue water veterans unable to access benefits for serious health conditions caused by their military service. The CAVC’s recent decision marks a huge victory for veterans and veterans’ advocates, who have been fighting for years for blue water veterans’ right to claim these presumptions.

The CAVC’s holding in Procopio has opened the doors for thousands of veterans to claim entitlement to benefits, but some questions remain. A major factor that has yet to be determined is the effective date of blue water veterans’ claims.  Any time a claim for benefits is granted by the VA, the agency establishes an effective date for the benefits. This date is usually determined based upon the date the veteran claimed entitlement to the benefits, which can be months, years, or sometimes decades prior to the date that benefits are actually granted. However, because this case represents such a shift in prior procedure, it is not yet known how the VA will determine effective dates. Currently, the VA has currently issued a stay on all current appeals that concern blue water veterans’ entitlement to the recognized conditions while the agency determines how to implement the holding of Procopio. Until the VA makes this determination, current claims and appeals of blue water veterans are in limbo.

This issue has long been a topic of discussion in the field of veterans law. A case which also affected blue water veterans' entitlement to benefits, Gray v. Wilkie, was scheduled to be heard at the Supreme Court this February, but was removed from the Court’s calendar when the holding of Procopio was released. Two bills which are intended to expand blue water veterans' rights to presumptive benefits are currently pending in the House and the Senate.

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