We have been talking about Blue Water Veterans. The first post covered the context and history of how the term blue water came about and how the VA went back and forth in granting the presumption of exposure to Agent Orange. The next post looked at the turning point, the case Gray v. McDonald, in which the CAVC declared that the VA’s definition was arbitrary and capricious and they cannot simply assign categories to waterways however they pleased. The Court said there needed to be an explanation as to how the VA classifies its waterways based on the likelihood of exposure to Agent Orange. This leads us to where we are today…
In February 2016, there was an update. The VA released their revised provision on the definition of inland waterways in Vietnam. Unfortunately, the revised provision once again gives a definition of “inland waterways” without providing any kind of rationale. What’s worse is that it still excludes so many veterans.
The VA revised its rule on brown water versus blue water, but managed to ignore the CAVC’s instructions from Gray. The VA was supposed to consider the locations of where Agent Orange was sprayed when determining what constituted an inland waterway, which would provide a rationale for why some veterans are denied the presumption of exposure. Instead, the VA provided new terms, fresh water and salt water, to create the distinction and continue excluding veterans without mentioning anything about where Agent Orange was sprayed.
Remember that the presumption of exposure to Agent Orange is based on who served in Vietnam, who was actually on land. The VA includes those who served aboard ships on inland waterways as being exposed. The problem was defining what constitutes an inland waterway. The VA’s new definition of inland waterway is “freshwater rivers, streams, and canals and similar waterways,” that “end at their mouth or junction to other offshore water features.” If the river or waterway ends on a coastline, the end of the inland waterway is determined by “drawing a straight line across the opening in the landmass leading to the open ocean or other offshore water feature such as a bay or inlet.” The VA is drawing the line between inland and offshore at the point where the mouth of the river touches the harbor, bay, or inlet. This means the following would be considered inland waterways:
- All rivers, from their mouth on the coast, or junction with adjoining coastal water feature, and throughout upstream channels and passages within Vietnam
- All streams
- All canals
- All navigable waterways inside the perimeter of land-type vegetation
- Land-type vegetation includes trees and grasses, not seaweed or kelp
That is how the VA defines inland waterways, or brown water, and those aboard ships in waterways that meet that definition would be granted the presumption of exposure to Agent Orange. The VA also explained how they define offshore waters, or blue water, which is not given the same presumption of exposure to Agent Orange. The new provision defines offshore waters as “the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence,” this includes “salty and brackish waters situated between rivers and the open ocean.” The following harbors are specifically listed as being offshore waters (blue water):
- Da Nang Harbor
- Nha Trang Harbor
- Qui Nhon Bay Harbor
- Cam Ranh Bay Harbor
- Vung Tau Harbor
- Ganh Rai Bay
Da Nang Harbor, which was at the center of Gray, is still denied the status of an inland waterway. It is also important to note that Qui Nhon Bay Harbor and Ganh Rai Bay were previously considered brown water.
The VA has said it will continue to extend exposure for those who served aboard ships that were already on the VA’s list of brown water ships. The VA maintains a list of ships associated with military service in Vietnam and exposure to Agent Orange based on military records. It was an evolving list, where ships and dates would be added depending on records found or classifications of bodies of water. Using the VA’s list and deck logs, many veterans were able to prove they were exposed. What the VA has said now, however, is that with their new provision in place, they will no longer add ships or dates to the list of brown water ships.
These new provisions do not include reasoning for the distinction between brown and blue water, or connect the distinction to exposure to Agent Orange. It continues to be an arbitrary and capricious determination of what constitutes an inland waterway. And so this will not be the end of this battle against the VA, as we will continue to fight for blue water veterans.