New Court Ruling Finds Blue Water Veteran’s Regulation: “Irrational”

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UPDATE: As of January 2020, Blue Water claims are being processed. Navy Ships in Vietnam War list here!

From 1962 to 1975, US military sprayed herbicides over Vietnam to strip the thick jungle canopy that could conceal opposition forces, to destroy crops that those forces might depend on, and to clear tall grasses and bushes from the perimeters of US base camps and outlying fire-support bases.  Because of continuing uncertainty about the long-term health effects of the sprayed herbicides on Vietnam veterans, Congress passed the Agent Orange Act of 1991. The legislation directed the Secretary of Veterans Affairs to contract an independent organization, the Institute of Medicine (IOM) of the National Academies, to perform a comprehensive evaluation of scientific and medical information regarding the health effects of exposure to Agent Orange and other herbicides used in Vietnam.

As a result of the 1991 Act, all veterans who served in Vietnam that had boots on the ground, as well as those who served on ships in the inland waterways and at sea (offshore) were eligible for the presumption of benefits.  At that time, the VA identified a list of diseases which accepted as having been caused by Agent Orange.  If a veteran who had been exposed was affected by one of these diseases, it is presumed to have been caused by their exposure to Agent Orange and would, then, be considered service connected.

However, in 2002, the VA re-wrote its policy and excluded Blue Water veterans that served offshore from Agent Orange compensation unless they proved they set foot in Vietnam.  Most offshore Navy veterans receiving benefits at that time were grandfathered into the new regulation and kept their benefits.  From 2002 forward, Vietnam service requirement was met only if the veteran could prove they set foot on land in Vietnam or were on a ship that operated on the inland waterways of Vietnam, operated in Vietnam’s close coastal waters, and had crew members who went ashore, or docked in Vietnam, regardless of the time spent there.  This requirement excluded Navy veterans on ships offshore Vietnam.

The issue was revisited in 2008 when a federal appeals court upheld the VA’s 2002 policy and continued to exclude Blue Water veterans.  The 2008 review was beneficial to veterans that served boots on the ground and in the rivers of Vietnam, in that a new IOM report concluded that there is “suggestive but limited evidence that exposure to Agent Orange and other herbicides used during the Vietnam War is associated with an increased chance of developing” a multitude of diseases such as diabetes mellitus, ischemic heart disease, Parkinson’s disease, hairy cell leukemia, and all other chronic B-cell leukemias. VA’s final regulation recognizing this association took effect on October 30, 2010.  Once again, some 90,000 Blue Water veterans were disadvantaged.

Despite the fact that hundreds of veterans that served in Navy ships offshore have been diagnosed with cancers and other diseases that are currently presumed to have been caused by exposure to Agent Orange, the VA continues to deny presumptive benefits.  But we are confident, that is about to change.

In 2011, 20 years after the original legislature took effect, the IOM committee identified likely routes that Agent Orange could have diffused out to sea and used in the Navy’s distillation system.  In the 1960’s, the Navy used a distillation process whereby sea water was evaporated and distilled to be used by veterans in the ships. Desalted water was used to cook food, wash laundry, shower, and drink.  The study revealed that this process did not remove dioxin, the toxin used in Agent Orange from the water instead it would have enhanced it by a factor of 10.

In April of 2015, the U.S. Court of Appeals for Veterans Claims determined that the VA’s interpretation of the regulation denying presumptive Agent Orange compensation for offshore Navy veterans was “irrational and inconsistent” and remanded the case for interpretation.  The VA is now required to review, once again, where the VA may draw a line between inland waterways and offshore waters.

90,000 Navy veterans may soon be entitled to presumptive benefits based on Agent Orange exposure.  Depending on the final interpretation, so long as the veteran was exposed to Agent Orange (either directly or presumptively), he need not have been diagnosed with a presumptive disease within any certain time frame.   In other words, if a veteran served in Vietnam in 1969 and develops a presumptive condition forty years later in 2009, he is still entitled to service connection for his disease.

It is now imperative for all Navy veterans that served in ships offshore Vietnam to file a claim to protect their date of entitlement if they have been diagnosed with a disease that is presumptively caused by Agent Orange.

UPDATE: As of January 2020, Blue Water claims are being processed.

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  • Thank you to the firm of Hill & Ponton!! Brian Hill and his staff were able to get my 100% disability with the VA for my exposure to herbicides in Thailand. I have been fighting for this for many years and kept getting denied, after consulting with Hill & Ponton I decided to let them help me and it was the best decision I could have made. I found their professionalism to be outstanding.

    – Chip P.

    North Carolina

  • They got my disability rating after I was denied twice. They knew exactly how to format and submit the claim. I was rated 50%, Hill & Ponton weren’t done, they found other medical that related to exposure and submitted additional claims. I could not have received a disability rating without Hill & Ponton. If you need help, choose Hill & Ponton.

    – Thomas D.


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    – Judith K Zitzewitz


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