UPDATE: As of January 2020, Blue Water claims are being processed.
In April of this year, the United States Court of Appeals for Veteran’s Claims (CAVC) gave the VA an ultimatum. Reexamine your classification of inland waterways, exercise fair and considered judgment, and “define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure.” The ultimatum was the result of the case Gray v. McDonald appearing before the CAVC.
The Gray case arose when a veteran, Robert Gray, who served in the U.S. Navy from September 1971 until February 1975 applied for VA disability compensation for number of disease related to his service. Mr. Gray served aboard the U.S.S. Roark which anchored in Da Nang Harbor multiple times in 1972. He was denied service connection for his disabilities. Although his ship anchored in Da Nang Harbor (a harbor surrounded on three sides by land) a number of times, his records did not show that he stepped foot on land in Vietnam, and Da Nang Harbor is considered blue water.
In addition to the CAVC decision, Congress is actively seeking to extend the presumption of Agent Orange exposure Blue Water Veterans. Currently both houses have bills pending, and in the House of Representatives, the Blue Water Navy Vietnam Veterans Act of 2015 has garnered over 269 co-sponsors. Passage of this act would mean that Blue Water Veterans are currently ineligible for the presumption of exposure to Agent Orange would finally qualify for the benefits that Brown Water veterans qualify for.
So, what does this mean for Blue Water Veterans? The Agent Orange Act of 1991 listed a number of diseases that were presumed to be service connected if a veteran was exposed to Agent Orange. This list was and is updated from time to time, and in 2009, medical evidence showed a link between Parkinson’s and Agent Orange exposure. It was subsequently added to the presumption list along with Al Amyloidosis, hair cell and other B-cell leukemias, and ischemic heart disease.
For those unfamiliar with Parkinson’s disease, or only familiar with it through hearing of Michael J. Fox or Muhammad Ali, Parkinson’s is an extremely debilitating degenerative disease. It is caused when nerve cells in the brain die causing loss of neurons in the brain. When the neurons die off, dopamine levels decrease, and the decrease in dopamine cause abnormalities in the brain leading to Parkinson’s symptoms.
At present, if a Blue Water Veteran has a Parkinson’s diagnosis, he must get service connection in a direct manner. This means that to get his Parkinson’s service connected, it must have been diagnosed or manifested during service. Manifestation for this purpose means that symptoms of Parkinson’s arose during service, but it had not yet been diagnosed. This is a very difficult case. However, the veteran’s Brown Water counterpart is presumed to have been exposed to Agent Orange. As mentioned above, the VA has conceded that Agent Orange does cause Parkinson’s disease. Because of this, the Brown Water Veteran’s diagnosis is presumed to be service connected.
Because the CAVC decision in April requires the VA to reinterpret their definition of an inland waterway in a manner consistent with the regulation’s emphasis on probability of exposure, the presumption is likely coming for Veterans who served in within the many of the coastal harbors of Vietnam. The Court pointed out that the VA’s had been inconsistent in its approach and application of the law to the point that the interpretations were “a ship without an anchor: aimless and adrift from the regulation.” By attaching an “anchor” to the VA’s ship, the Court has expanded the presumption to thousands of veterans who have wrongly been denied benefits since 2006 when they drew a distinction between Brown Water and Blue Water Vietnam Veterans.
In addition to the expansion the Court’s decision has made to the presumption, the changes that Congress is proposing to make will allow for more Blue Water Veterans to take advantage of the presumption. The VA has consistently denied those veterans whose ships patrolled territorial waters around Vietnam the Agent Orange presumption because, in their opinion, the veterans were removed from the spraying and thus were not exposed. However, scientific evidence has shown that these veterans were indeed exposed. These veterans, who had never sprayed or touched Agent Orange, were drinking it. In 2011, the Institute of Medicine conducted a study which showed that rather than removing the contaminants from drinking water aboard ships, the desalination process (which used a high heat-flash) could have enriched the chemical levels by at least a factor of ten.
It is obvious that the VA has been wrong in their denial of claims for Blue Water Veterans, and now due to the Court’s decision in Gray and the actions of Congress, they are going to have to start making their wrongs right. As the Court made clear, Vietnam veterans should not be denied their benefits based on the whims of the VA. In the words of the Gray decision, the “VA is not free to label bodies of water by flipping a coin.”
UPDATE: As of January 2020, Blue Water claims are being processed.
