Before reading this post, be sure to read the previous one to understand where we are in this discussion of blue water veterans. For a quick recap, blue water veterans are those who served aboard ships offshore Vietnam. The presumption of exposure to Agent Orange is available to those who serve in Vietnam, and there is controversy whether this presumption extends to those veterans serving offshore Vietnam. First, it was unclear and some blue water veterans were afforded the presumption, while others were not. Then, the CAVC said blue water veterans are included in the presumption. And then the higher court sided with the VA, allowing them to make the distinction they chose, which was that only those veterans who served in inland waterways (brown water) were exposed to Agent Orange, not those who served on offshore waterway (blue water).
Now that we are all caught up, what does brown water and blue water really mean? Why was the VA so set on making this distinction, and how were they making it? It was known that brown water included rivers and mouths of rivers, although these terms themselves could be vague and apply to different waterways. It seemed no one really knew where the mouth of a river ended and where the open sea started. The VA had been relying on deck logs, saying that a ship in the mouth of the river had brown water status. But it denied claims of veterans who served on ships for which the decklogs stated that it was “near the mouth of the river.” Then there were some ships that remained solely offshore, but it did not matter how close they came to shore, they were not considered to have served in brown water so they were denied the presumption. That seemed to be fair for ships that were miles from the shore, but what about those ships that were so close to the shore “that swimmers were able to reach the ship from the beach?” Even those were considered blue water and denied the presumption.
Then there was the issue of harbors, bays, and ports along the Vietnamese coastline. The VA acknowledged some as inland waterways, while others were excluded and called blue water. The best example of this is Da Nang Harbor. This is what the Gray case was all about.
In February 2015, Gray v. McDonald made it to the CAVC. Gray brought attention once again to the distinction between brown and blue water veterans. It challenged how the VA defined what is considered an inland waterway. The veteran in the case, Robert Gray, served aboard a ship that docked on Da Nang Harbor. Da Nang Harbor is a harbor on the Vietnamese coast that is surrounded by land on three sides. Da Nang was not considered an inland waterway, but was designated as an offshore waterway. The VA identified it as a deep water port, which is open to the sea, and excluded it from brown water status, despite being located within the borders of the coast of Vietnam. Gray argued that its designation as offshore rather than inland is arbitrary, and that it should be considered an inland waterway.
The Board of Veterans Appeals (the intermediate appellate court) found that drawing the line down the coast was not arbitrary since it was based on where the spraying of Agent Orange was. Blue water or offshore waterways were defined as all major bays and harbors of Vietnam. The VA said these bodies of water were deep water because they were open to the sea, and thus were not granted the presumption of exposure.
The CAVC (the higher appellate court) recognized that the delineation the VA used did not identify any specific criteria in classifying bodies of water. It threw out the VA’s definition of inland waterways, finding the exclusion of Da Nang Harbor from brown water status had nothing to do with the likelihood of being exposed to Agent Orange (like the VA had alleged). It said that the VA was inconsistent with the application of its own rule. The Court held that the VA’s interpretation of the waterways was flawed, arbitrary, and capricious. It categorized the VA’s interpretations as “a ship without an anchor: aimless and adrift from the regulation”, pointing out that the VA “is not free to label bodies of water by flipping a coin”. It found that bays and harbors could not just be classified together and labeled as blue water based on geographic features of the land and depth of water.
The Court ultimately vacated and remanded the lower court’s opinion, meaning it threw out the old opinion and made the VA rewrite its policy and base the new policy on the likelihood of exposure in those bays and harbors. So the Secretary of the VA has to revisit the regulations and determine a more reasonable and consistent way of drawing the line between Brown and Blue Water veterans.
Our next blog will cover the latest on where the VA stands with its new regulations.