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LANDMARK DECISION REGARDING BLUE WATER NAVY VETS

Heidi Hrabcak
February 27, 2019




In our last post regarding the Blue Water Navy Vietnam Bill (aka H.R. 299) we informed you that the bill unanimously passed through the House of Representatives and was pending in the Senate. This past December the bill came to a crashing halt when a few Senators held up the bill which required unanimous consent. The legislation was introduced again this past January during the first days of the 116th Congress. While we wait to see the bill’s progression in the Senate, there has been substantial progress made in the federal court system.

On January 29, 2019, the Court of Appeals for the Federal Circuit ruled that Vietnam veterans who served on ships offshore during the Vietnam War are eligible for benefits to treat illnesses linked to exposure to the chemical herbicide Agent Orange.

SUMMARY OF PROCOPIO V. WILKIE

In this case, the veteran, Alfred Procopio, Jr., 73, served on the USS Intrepid located off the coast of Vietnam from November 1964 to July 1967. He filed disability claims for prostate cancer and diabetes mellitus due to Agent Orange exposure and was ultimately denied.  Upon appeal, Mr. Procopio challenged the previous court’s ruling which held that the “Republic of Vietnam” in the Agent Orange Act of 1991 only included those service members who served on the ground and inland waterways in Vietnam. Mr. Procopio argued that the Agent Orange Act of 1991 should also include those service members who served off the coast of Vietnam. As support, Mr. Procopio pointed to evidence showing that the waters offshore of Vietnam contained the chemical herbicide, known as Agent Orange, which was then filtered through distillers for drinking water for the Navy ships stationed offshore.

The court’s ruling (9-2) reverses a previous decision from the Court of Appeals for Veterans Claims, which upheld the denial because Procopio couldn’t show direct exposure to Agent Orange.

The federal court stated, “Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus”. “Accordingly, we reverse.”

Mr. Procopio fought for over ten (10) years to get his claim approved by the VA. Mr. Procopio is just one of thousands of Blue Water Navy veterans who served aboard aircraft carriers, destroyers and other ships and were deemed ineligible for the same disability benefits as those veterans who served on the ground and inland waterways. It is estimated that there are approximately 90,000 veterans who will be positively affected by this decision.

Blue Water Navy veterans still need Congress to pass the bill, in order for the veterans’ eligibility to be written explicitly in law and not left up to future courts to interpret. However, for now, the VA is required to follow the latest precedent set forth by the Procopio decision.

WHAT DOES THIS MEAN FOR YOU?

The decision in Procopio v. Wilkie sets a precedent that Blue Water Navy veterans are entitled to the same presumptive benefits from herbicide agent exposure as those service members who served on the ground and in the waterways in Vietnam. If the VA wants to appeal the decision, they have 90 days to take the case to the U.S. Supreme Court. However, the Supreme Court is already considering another Blue Water Navy case, Gray v. Wilkie.

 Blue Water Navy veterans includes all service members who, during active military, naval or air service, served offshore of the Republic of Vietnam from January 9, 1962 to May 7, 1975. It would also include survivors of veterans who submitted a claim for disability compensation on or after September 25, 1985 and before January 1, 2019.

As a result of the Procopio ruling, Blue Water Navy veterans can now file their claims connecting certain health problems to Agent Orange exposure. In order to make a claim, Blue Water Navy veterans must prove that they served onboard a ship the VA has already approved for possible Agent Orange exposure, and must provide evidence that shows they were exposed to herbicides while serving.

WHAT CONDITIONS ARE LINKED TO AGENT ORANGE?

The VA has recognized the following 15 diseases, as presumptive conditions, linked to Agent Orange exposure.

  • Hodgkin’s disease
  • Multiple Myeloma
  • Non-Hodgkin’s lymphoma
  • Early-onset peripheral neuropathy
  • Porphyria cutanea tarda
  • Prostate cancer
  • Respiratory cancer
  • Soft-tissue sarcoma
  • Chloracne
  • Type 2 diabetes mellitus
  • Light chain amyloidosis
  • Ischemic heart disease
  • Chronic B-cell leukemia’s
  • Parkinson’s disease
  • Spine bifida in offspring of veteran’s.

WAYS YOU MAY HAVE CONTACTED AGENT ORANGE

  • On C-123 Airplanes (between January 9, 1962, and May 7, 1975)
  • On Thailand Military Bases (between January 9, 1962, and May 7, 1975)
  • In Vietnam or Korea (between January 9, 1962, and May 7, 1975)
  • Outside of Vietnam or Korea (between January 9, 1962, and May 7, 1975)
  • In Testing and Storage Areas Outside of Vietnam (between 1944 and a yet-to-be-determined date)
  • On U.S. Navy and Coast Guard Ships in Vietnam (between January 9, 1962, and May 7, 1975)
  • In Waters in or near Vietnam (between January 9, 1962, and May 7, 1975)

CONTACT US TODAY

If you or a loved one is a Blue Water Navy veteran and you have questions about this landmark decision, call us today.