By Lt. Col. Aniela Szymanski, USMCR
A Federal Circuit court on Tuesday ruled in favor of Blue Water Navy veterans, granting them presumption of exposure to Agent Orange during the Vietnam War.
These veterans served within 12 miles of the shoreline of the Republic of Vietnam, otherwise known as the territorial waters of Vietnam.
This victory in the U.S. Court of Appeals for the Federal Circuit is a major development for veterans and may result in as many as 90,000 Vietnam veterans gaining access to VA healthcare and disability benefits that they otherwise would not have been eligible for.
VA currently recognizes at least 14 conditions are presumptively caused by exposure to Agent Orange, including diabetes, ischemic heart disease, and multiple forms of cancer. For the past 22 years, Blue Water Navy veterans suffering from those conditions were not granted healthcare and disability benefits because VA refused to acknowledge that those veterans were exposed to Agent Orange. This court decision reverses that by forcing VA to recognize these veterans' exposure.
The Military Officers Association of America, along with many other veteran service organizations, have fought for these Blue Water Navy veterans. Early in the case, MOAA joined with other VSOs by signing a legal brief in the Federal Circuit that supported the cause.
The court stated that it found no merit in VA's position, and that Congress made clear that it intended to include Blue Water Navy veterans when it used the term "Republic of Vietnam" in the original Agent Orange Act of 1991.
Lt. Gen. Dana Atkins, USAF (Ret.), MOAA's President and CEO, was highly encouraged by the news of the court's decision.
“To say that Blue Water Navy veterans have waited too long for justice is an understatement of what these veterans and their families have had to endure," he said. "The vindication that this decision gives them, though, is secondary to the relief of finally having access to the benefits and care that they have suffered without for decades.”
MOAA will remain engaged with Congress and VA to ensure that the court's decision is implemented quickly.
The case, Alfred Procopio, Jr. v. Robert Wilkie, Secretary of Veterans Affairs, stems from a Navy veteran's fight for benefits related to two illnesses he believed to be servcie-connected: Prostate cancer and diabetes mellitus. Procopio served aboard the USS Intrepid aircraft carrier offshore of Vietnam. The VA repeatedly denied Procopio benefits, leading to this landmark case. Read the court document here.
Although VA has the right to appeal this decision, the only court it can be appealed to is the U.S. Supreme Court. The Supreme Court, however, only grants review in less than 5 percent of cases, and it is already considering another Blue Water Navy case this term, Gray v. Wilkie.
In Gray, the Supreme Court is deciding whether federal courts must defer to VA's interpretation of whether the Republic of Vietnam includes the territorial waters of Vietnam. Now that the Federal Circuit has already stated that Congress clearly intended that the territorial waters are included, it is possible the Supreme Court may not see the need to continue with the Gray case.
Further, while an appeal to the Supreme Court is pending, VA is obligated to follow the law as stated in this decision unless the Supreme Court grants a stay, which happens in less than 1 percent of cases.