On behalf of Blue Water veteran, Robert Gray, Hill & Ponton filed an appeal for his claim for service connected compensation at the Court of Appeals for Veterans Claims (CAVC). It is Mr. Gray’s contention that Da Nang Harbor should be considered an inland waterway for Agent Orange compensation purposes. The case is Robert H. Gray v. Robert A. McDonald 13-3339. After Mr. Gray and the VA submitted all of their briefs in the case, the CAVC decided to review this issue with a panel of three judges. This review will be precedential, meaning it will affect every other case where a veteran served on a ship that went into Da Nang Harbor. Before jumping into the particulars of Agent Orange and Da Nang Harbor, it is important to see how Da Nang Harbor fits into the history of Agent Orange cases.
After decades of fighting veterans on the dangers of exposure to Agent Orange, Congress passed the Agent Orange Act of 1991 and forced the VA to admit that the chemical is not only harmful, but deadly, and that any soldiers on the landmass of Vietnam between 1962 and 1975 were exposed. But the VA draws a line in the sand, literally, when it comes to veterans who served offshore Vietnam in the Navy or Coast Guard. In fact, the VA has found that veterans who did not step onto land in Vietnam were not exposed to Agent Orange unless the veteran’s ship went into an “inland waterway.” In VA terms, this means that the ship went up a river, and the VA has explicitly taken a position that harbors are not inland waterways. This is a problem for Navy and Coast Guard veterans who served on ships that were anchored, and sometimes even docked, in Da Nang Harbor, a harbor in Vietnam that is surrounded by land on three sides.
Before we discuss the issues for veterans who were on ships in Da Nang Harbor during the Vietnam War, it is first important to understand how the VA treats Navy and Coast Guard veterans generally when it comes to Agent Orange claims. For Agent Orange claims in general, a veteran does not need to prove actual exposure to Agent Orange if he served in Vietnam during the period of January 9, 1962 to May 7, 1975 or along the Korean DMZ between April 1, 1968 and August 31, 1971. Under current VA policy, “service in Vietnam” means active military, naval, or air service which includes stepping foot on land or being on the inland waterways.
Things were different for naval veterans from November 1991 to February 2002, when the VA Manual M21-1 provided that unless there was evidence to the contrary, service in Vietnam would be conceded if the veteran’s service records show that he received the Vietnam Service Medal. This medal was often awarded to veterans who served on offshore waters, so proving receipt of the medal was a way for naval veterans to get the presumption of exposure and possibly get their claims awarded (if they suffered from a disease on the presumptive list). Even if a veteran was not awarded the medal, the manual required that the VA confirm that his ship was near Vietnam for a significant amount of time, not just passing through. Despite these guidelines, the VA was still not uniform in granting claims for so-called “Blue Water” veterans; some of these veterans were successful while others were not.
After years of inconsistency, the issue was finally addressed in 2006 in the case Haas v. Nicholson. In that case, CAVC sided with the Blue Water veterans and decided that they should receive the presumption of exposure to Agent Orange. Unsurprisingly, the VA appealed that decision to the U.S. Court of Appeals for the Federal Circuit. In a huge blow to Blue Water veterans, that court reversed the CAVC’s decision, and determined that the VA lawfully and reasonably changed the policy in 2002 to require service on land or on an inland waterway in Vietnam to be eligible for the presumption of exposure to Agent Orange (note that if a Blue Water veteran was awarded service connection between 1991 and 2002, the VA cannot apply the Haas decision retroactively and take service connection away from that veteran). As a result, if a Blue Water veteran wants to succeed with an Agent Orange claim, he must prove that he stepped foot on land in Vietnam or that the ship he served on went up a river. This can be shown through deck logs, personnel records, or even photographs.
So what does this mean for veterans who served on ships that were in Da Nang Harbor? According to the VA, these veterans are Blue Water veterans, and as a result must prove that they stepped foot on land or went up a river. But, there is a strong, reasonable argument to be made that the Da Nang Harbor is an inland waterway, and, therefore, those veterans are eligible for the presumption of exposure without proving they set foot on the landmass of Vietnam.
In fact, the Board of Veterans Affairs (BVA) reached that very conclusion in a decision from 2009. In that case, the BVA decided that “if the Veteran’s service had been limited to service on the U.S.S. Oklahoma City outside the territorial boundaries of the Republic of Vietnam, the presumptions … would be inapplicable to his case as he would not have met the criteria for service in the Republic of Vietnam. However … the Veteran’s service was conducted on a ship that frequently anchored in a harbor within the territorial borders of Vietnam. The evidence of record clearly shows that the Da Nang Harbor is well sheltered and surrounded on three sides by the shoreline of Vietnam. The harbor is nearly totally surrounded by land … As such, given the location of the harbor as being surrounded on land by three sides and the evidence that the harbor is within the territory of Vietnam, and resolving all doubt in the Veteran’s favor, the Board finds that Da Nang Harbor is an inland waterway for the purposes of the regulation.”
While this BVA decision should have been a huge win for Blue Water veterans, the VA has again been inconsistent in its treatment of naval veterans. Despite the fact that the BVA found in the above case that Da Nang Harbor is an inland waterway, in later cases it has found the opposite. Note that BVA decisions are not precedential, which means that the BVA is not required to follow their own decisions when it decides later cases. But, the BVA’s own rules do say that it strives for consistency in its decisions, and it is failing to provide consistency when it comes to veterans who served in Da Nang Harbor. It is difficult to see how Da Nang Harbor is an inland waterway for one veteran but not an inland waterway for another veteran. This raises substantial due process concerns, because the Constitution guarantees equal protection under the law, and two veterans who were both present in Da Nang Harbor should not be treated differently by the VA. This is not only unfair; it is completely arbitrary because the VA is not able to point to any authority other than its own internal policies as to why Da Nang Harbor is not an inland waterway.
In fact, in 1967, as part of the United Nations Law of the Sea Conventions, the boundary line of a nation’s inland water at the location of a harbor was defined as the line between the natural entry points to the harbor as long as the entry points are no more than 24 miles apart. The opening to the sea of Da Nang Harbor is only 4.24 miles wide, as illustrated below.
In addition, a Supreme Court case (United States v. Louisiana, 394 U.S. 11 (1968)) strengthens the argument that Da Nang Harbor is an inland waterway. In that case, the Court stated that “Whether particular waters are inland depended on historical as well as geographic factors. Certain shoreline configurations have been deemed to confine bodies of water, such as bays, which are necessarily inland.” Again, note that the VA is unwilling to provide any historical or legal authority to support its policy that Da Nang Harbor is not an inland waterway.
The BVA already made the correct decision one time, in the 2009 decision referenced above, and we hope that the VA will soon be forced to acknowledge that the Da Nang Harbor is an inland waterway so that veterans who served on ships docked there will be treated consistently and fairly. The arguments for Da Nang Harbor being an inland waterway greatly outweigh the VA’s internal policy that is nothing more than an arbitrary distinction.
Mr. Gray’s case is extremely important: this is an opportunity to obtain a precedential opinion as to whether Da Nang Harbor is an inland waterway or not. If Mr. Gray prevails, this decision will force VA to grant benefits to all the sailors who went into Da Nang harbor and any other deep water harbor in Vietnam. This case, hopefully, will finally put the Blue Water sailors that went into deep water harbors on the same footing as those veterans who were boots on the ground in Vietnam.
See our latest webinar, recorded on Sept 10th, 2015, for an update on this topic here.
In this webinar, Matthew Hill and Commander John Wells, Esq., the Executive Director, Military-Veterans Advocacy, Inc., will cover what has and hasn’t changed in the Brown Water/Blue Water Debate.