Court decides 'Blue Water' Navy veterans should be eligible for Agent Orange benefits
By NIKKI WENTLING | STARS AND STRIPES Published: January 29, 2019
WASHINGTON — A federal court ruled Tuesday that Vietnam veterans who served on ships offshore during the war are eligible for benefits to treat illnesses linked to exposure to the chemical herbicide Agent Orange – a decision that has the potential to extend help to thousands of veterans.
The Court of Appeals for the Federal Circuit ruled 9-2 in favor of Alfred Procopio, Jr., 73, who served on the USS Intrepid during the Vietnam War. Procopio is one of tens of thousands of “Blue Water” Navy veterans who served aboard aircraft carriers, destroyers and other ships and were deemed ineligible for the same disability benefits as those veterans who served on the ground and inland waterways.
The decision comes one decade after the Department of Veterans Affairs denied Procopio’s disability claims for diabetes and prostate cancer. The court’s ruling reverses a previous decision from the Court of Appeals for Veterans Claims, which upheld the denial because Procopio couldn’t show direct exposure to Agent Orange.
“Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus,” the decision issued Tuesday states. “Accordingly, we reverse.”
Judge Kimberly A. Moore, who wrote on behalf of the majority, added: “We find no merit in the government’s arguments to the contrary.”
At issue was interpretation of the current law, which allows easier access to disability benefits for veterans who “served in the Republic of Vietnam” and suffer from one of a list of illnesses linked to the Agent Orange. The herbicide has been found to cause respiratory cancers, Parkinson’s disease and heart disease, as well as other conditions.
The court determined territorial seas should be included in the definition of “Republic of Vietnam” – a point the government disputed.
For Procopio and other Blue Water Navy veterans, the decision could result in thousands of dollars of disability benefits each month. John Wells, one of the attorneys on the case, estimated 50,000 to 70,000 veterans could now become eligible for benefits. Veterans affected by the ruling must still go through a VA evaluation to ensure they meet all of the eligibility criteria.
“We’re walking on air right now,” Wells said. “We feel that the court listened to our arguments, read the briefs and came to a good, commonsense conclusion.”
The government could seek a review of the case from the U.S. Supreme Court. VA Press Secretary Curt Cashour said the department is reviewing the decision and “will determine an appropriate response.”
While pursuing Procopio’s case, Wells and other advocates spearheaded efforts on Capitol Hill in recent years to extend benefits to Blue Water Navy veterans.
Congress failed to pass the legislation late last year during the final days in session. The bill stalled in the Senate after VA Secretary Robert Wilkie and several former VA secretaries came out against it. Wilkie cited high costs and insufficient scientific evidence linking Blue Water Navy veterans to Agent Orange exposure.
“We’d been dealing with Congress for eight years and were unable to get it through,” Wells said. “We felt we had to work through the courts. It was a multifaceted approach.”
The legislation was introduced again this month during the first days of the 116th Congress.
Wells still sees a need for Congress to pass the bill, in order for the veterans’ eligibility to be written explicitly in law and not left up to future courts to interpret, he said.