UPDATE: As of January 2020, Blue Water claims are being processed.
Today it is widely known that during the Vietnam Conflict the U.S. Military used the chemical defoliant Agent Orange to clear vegetation. This was part of the herbicidal warfare used by the military during Operation Ranch Hand. The operation was meant to destroy crops and deny the enemy combatants the cover of foliage. To that end, it accomplished its mission. However, it also accomplished one of the largest toxic exposures our military has ever seen. Used between 1961 and 1971, it is estimated that the U. S. Military sprayed up to 20 million gallons of defoliant herbicides. This spaying of herbicides exposed millions of our veterans to toxins known to cause a myriad of diseases.
The sheer scale of exposure eventually led to congressional action in 1991. This action was known as the Agent Orange Act of 1991. The act provided a presumption of service connection for fourteen diseases with a known link to Agent Orange exposure. In addition to those diseases, there are a number of secondary conditions that can also be linked to the exposure. This presumption was granted to any “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (January 9, 1962 – May 7, 1975, for compensation purposes) shall be presumed to have been exposed during such service to an herbicide agent.”
The VA, true to form, took this relatively simple concept and turned it on its head. For a number a years, a Vietnam Service Medal was considered proof of service in Vietnam. However, the VA was still inconsistent in its application of the law. This was addressed in 2006 in the case of Hass v. Peake. In Hass the VA argued that it was reasonable to delineate between veterans who served on or visited the Vietnamese landmass and patrolled its inland waterways and those who patrolled the seas around Vietnam or moored in its harbors. The VA argued that Agent Orange was only sprayed over land, and therefore the best proxy for exposure was service on the land. This case, in essence, is the source of the Brown versus Blue Water distinction. This distinction between Brown Water and Blue Water veterans has led to the denial of the Agent Orange presumption for thousands of veterans.
More recently, this distinction has come under fire again. In February of this year, the case of Gray v. McDonald made its way to the United States Court of Appeals for Veterans Claims (CAVC). Gray challenges the distinction made between Brown and Blue Water veterans. More specifically, it brings the distinction of what is considered an inland waterway under review. In Gray, Robert Gray argues that for purposes of the presumption of exposure to Agent Orange, Da Nang Harbor should be considered an inland waterway. The argument is that the VA’s designation of Da Nang Harbor as offshore rather than inland is arbitrary and capricious (a clear error in judgment).
Da Nang Harbor is a harbor on the Vietnamese coast that is surrounded on three sides by land. The CAVC recognized that the delineation failed to identify any specific criteria that the VA used in classifying bodies of water. It further pointed out that the VA has taken an inconsistent approach with the application that it was using. The Court identified, specifically, that in a 2008 C&P Bulletin, the VA “declare[d] Da Nang harbor and all other harbors along the Vietnam Coastline” as blue water. It went on to say that the policy advanced by the Secretary of the VA was contradictory to this. It stated that, “both Quy Nhon Bay and Ganh Rai Bay” were considered inland. The Court also took the opportunity to note that the way in which lines were drawn for Da Nang Harbor varies significantly from its approach to river mouths. An approach that states, “it is not practical to draw a line between the mouth of a river and the South China Sea.”
The Court, sitting in a three judge panel, accepted this argument. Unlike Board of Veterans Appeals (BVA) decisions, CAVC decisions have precedential value. This means that when the CAVC enters a decision, all cases that follow must abide by that ruling. In its ruling, the CAVC vacated and remanded the BVA decision “as arbitrary and capricious because it was based on VA’s flawed interpretation of 38 C.F.R. §3.3.07(a)(6)(iii). Further, the CAVC defined the interpretations as “a ship without an anchor: aimless and adrift from the regulation,” stating that the “VA is not free to label bodies of water by flipping a coin…”
The results of this decision could have far reaching effects for those Blue Water Veterans who have long been denied benefits. Because this is a precedential decision, the VA must now reinterpret their regulations in a way that is consistent with the court’s opinion. The Court remanded the case as arbitrary and capricious with instructions to reevaluate the definition with an exercise of fair and considered judgment and to “define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure.”
While the definition is still forthcoming, it is likely that it will be move favorable to Blue Water Veterans. The implications of could be far reaching and affect each veteran who entered Da Nang Harbor or any of the other deep water harbors along the coast. A more veteran friendly definition could open up the presumption of Agent Orange exposure to thousands of veterans who have previously been denied benefits because they were not “boots on the ground” or in an “inland waterway.” The Court has given the VA a very specific set of instructions, and that set of instructions is meant to benefit those who truly deserve it and to grant them the benefits that they have long fought for and deserve. This decision is blurring the line between Brown and Blue Water veterans. Please continue to check our blogs. As there are more updates from the VA, we will update you. Thank you for your service.
UPDATE: As of January 2020, Blue Water claims are being processed.
