Posted by Gregory M. Rada | February 4, 2019 | Disability Compensation
Last Tuesday the Court of Appeals for the Federal Circuit handed a major victory to Vietnam veterans who served offshore in Vietnam’s territorial waters. Since the late 1990s, the VA has excluded the group known as “Blue Water” veterans, who served offshore, from receiving a presumption of agent orange exposure, and thus a presumption of service-connection for qualifying conditions.
The court in Procopio v. Wilkie, found that these veterans are eligible for the same disability benefits as those who put boots on the ground or who traveled inland waters. This decision overturns long-standing case law and VA policy and paves the way for tens of thousands of deserving veterans to secure the benefits Congress intended them to have.
The Plaintiff in the case, Alfred Procopio, served in Vietnam aboard the U.S.S. Intrepid. Mr. Procopio sought VA disability benefits in 2006 and 2007 for diabetes and prostate cancer, asserting that his conditions are connected to his service. Mr. Procopio based his claims on the 1991 Agent Orange Act, codified at 38 U.S.C. § 1116, which creates a presumption that certain conditions are service-connected for veterans who served “in the Republic of Vietnam” during the war.
Although § 1116 of the Agent Orange Act does not distinguish between veterans that served on land from veterans that served on ships, the VA has historically applied its own regulations to deny veterans like Mr. Procopio benefits by limiting the definition of service “in the Republic of Vietnam” to service on land and inland waterways. According to the VA, veterans like Mr. Procopio did not serve “in the Republic of Vietnam,” only in its offshore waters, and therefore must directly prove agent-orange exposure and service-connection for their medical conditions. The VA found Mr. Procopio lacked the required evidence and denied his request for benefits.
As many have done before him, Mr. Procopio appealed, arguing that he should be entitled to a presumption of service-connection and that he could directly connect his medical conditions to exposure to agent orange.
In a surprising turn, the Federal Circuit agreed that Mr. Procopio is entitled to a presumption of service-connection. In doing so, the Court overturned established law set 10 years prior in a case called Haas v. Peake. In Haas, the Federal Circuit upheld the VA’s interpretation that service “in the Republic of Vietnam” excluded Vietnam’s territorial waters. The Procopio court addressed the previous Haas decision without fanfare, simply stating that the Haas court “went astray.” The Procopio court did not decide whether the VA’s interpretation of the statute was reasonable (and should, therefore, be referred to), because the Procopio court found clear congressional intent to include Vietnam’s territorial waters:
“The intent of Congress is clear from its use of the term ‘in the Republic of Vietnam,’ which all available international law unambiguously confirms, includes its territorial sea.”
With this holding, the artificial boundary put in place by the VA for the better part of two decades has fallen away. Veterans who served in the Republic of Vietnam, including on ships in Vietnam’s territorial sea, are now presumed to have been exposed to agent orange.
This case represents an unusually strong statement from the court in favor of veterans. Not only did the court overrule prior case law, it did so en banc—meaning that all 11 Federal Circuit judges considered the case, rather than the usual panel of three. Only two judges dissented from the majority opinion, and notably, no judge believed that Mr. Procopio should be denied benefits. Moreover, the court reached its conclusion without reference to the entire canon of pro-veteran rulings providing that statutes should be interpreted in favor of veterans.
Although the VA could attempt to appeal to the Supreme Court and has 90 days to do so, for now, the decision represents a major victory for the thousands of veterans exposed to agent orange in the waters of Vietnam. If you served in the Republic of Vietnam, which includes its territorial sea, you may now have access to life-changing benefits.
If you or a loved one were exposed to Agent Orange during the Vietnam War as a “Blue Water” vet, call Afterservice LLC today.
Gregory Rada is a Veterans Benefits Attorney who practices Nationwide. He graduated from the University of Connecticut School of Law, and has been practicing law for six years. Gregory Rada believes in fighting for fellow veterans. Learn more about his experience by clicking here.