UPDATE: As of January 29th, 2019, Blue Water Veterans Now Get Agent Orange Rights
In previous blog posts, we talked about the presumptions available to veterans exposed to Agent Orange. The next topic we will cover is the ambivalent and sometimes confusing issue of blue water veterans. We have written several blogs about it and are keeping you up to date with the latest developments. This post (along with the next few) will provide an overview of the journey in getting blue water veterans the presumption of Agent Orange exposure. The issue blue water veterans face comes from the concept of what qualifies as service in Vietnam. In order to understand this issue, let’s provide some context to understand where we are in this conversation.
Remember that Vietnam veterans are afforded certain presumptions. The VA has conceded that there are certain diseases that were caused by Agent Orange. If you have one of those diseases and were exposed to Agent Orange, it is presumed that your disease is related to service and you should be granted service connection (without having to show a nexus). The next presumption is to help veterans establish that they were exposed to Agent Orange. To qualify for this presumption, you have to have served in Vietnam (or other area where Agent Orange is known to have been used) during the qualifying time period. If you fit into that time period, you are presumed to have been exposed to Agent Orange. But qualifying for this presumption can be trickier than it seems.
If you served in Vietnam during the qualifying time period, January 9, 1962 to May 7, 1975, you are presumed to have been exposed to Agent Orange. There is no requirement for how much time you spent there, only that you were present in Vietnam at some point during that time period. But what does it mean to have served in Vietnam? What about those who served aboard a ship in waters offshore Vietnam without ever setting foot on the landmass? Are they presumed to have been exposed to Agent Orange? These are blue water veterans.
The VA and the courts have gone back and forth on the matter, so let’s explain where the controversy comes from. To understand where blue water veterans stand now, we need to look at the history and progression of how the VA has considered blue water veterans.
From 1991 to 2002, the VA used the Vietnam Service Medal to determine if a veteran had served in Vietnam or not, as long as there was no evidence showing otherwise. If you received the Vietnam Service Medal during the qualifying time period, you were afforded the presumption of being exposed to Agent Orange. But even those who served aboard ships in waters offshore Vietnam were awarded the Vietnam Service Medal, despite not having set foot on Vietnamese soil. So for a while, the VA was awarding the presumption to blue water veterans. But of course, the VA was still not consistent in their findings because sometimes they would grant the presumption and sometimes they would not. This inconsistency and lack of clarity led the U.S. Court of Veteran’s Appeals (CAVC) to address the issue in 2006.
In a case called Haas v. Peake, the CAVC held that Vietnam veterans who served in the waters offshore Vietnam were entitled to the presumption of Agent Orange exposure. But the VA wanted to distinguish between veterans who served on the Vietnamese landmass or patrolled its inland waterways, and veterans who patrolled the seas around Vietnam or its harbors. They argued this distinction was reasonable because anyone on land or an inland waterway was presumed to have been exposed to Agent Orange, since Agent Orange was only sprayed on land. They argued this distinction between inland waterways and offshore waterways was the best way to determine exposure. This is where the terms Brown Water and Blue Water come from, brown water being the inland waterways and blue water being the offshore waterways.
In their attempt to keep their brown water v. blue water distinction, the VA appealed the CAVC’s decision in Haas to the higher court, the US Court of Appeals for the Federal Circuit. This higher court then decided that the VA is allowed to make this brown/blue water distinction, as long as it had a good reason to do so; and Agent Orange being sprayed on land was considered a good enough reason. So the VA was allowed to keep its distinction, and a veteran had to have been present within the land borders of Vietnam, or the inland waterways, to qualify for the presumption of Agent Orange exposure.
The VA did not go back and remove service connection for the blue water veterans that had been previously granted the presumption, but they refused to grant the presumption to blue water veterans going forward.
Luckily, that’s not the end of the story. The next blog post will cover how Gray v. McDonald challenged the VA once again and where we find blue water veterans now.
UPDATE: As of January 29th, 2019, Blue Water Veterans Now Get Agent Orange Rights
