VA secretary recommends DOJ not challenge ruling on ‘blue water’ benefits
By NIKKI WENTLING | STARS AND STRIPES Published: March 26, 2019
WASHINGTON — Department of Veterans Affairs Secretary Robert Wilkie recommended the Justice Department not contest a federal court ruling that could extend benefits to Vietnam veterans who served on ships offshore during the war, he announced Tuesday.
The Court of Appeals for the Federal Circuit ruled 9-2 in January that “blue water” Navy veterans are eligible for benefits related to the chemical herbicide Agent Orange. The decision could pave the way for disability compensation for tens of thousands of veterans who served aboard aircraft carriers, destroyers and other ships but had been deemed ineligible for the same disability benefits as those who served on the ground and inland waterways.
The Justice Department and the VA, which disputed the veterans’ eligibility for the benefits, could challenge the decision before April 29 by seeking a review of the case from the U.S. Supreme Court.
Wilkie said publicly for the first time Tuesday that he opposed a Supreme Court review. The announcement came during his testimony to the Senate Veterans’ Affairs Committee.
“Is it true, Secretary Wilkie, that the blue water Navy court decision isn’t being challenged?” asked Sen. Johnny Isakson, R-Ga., the chairman of the committee.
Wilkie replied, “That would be my recommendation from VA.”
His stance differs from last year, when Wilkie fought efforts in Congress to extend benefits to blue water Navy veterans. At the time, he cited high costs and insufficient scientific evidence linking the veterans to Agent Orange exposure.
Since the court ruling in January, some lawmakers and veterans organizations have urged Wilkie and President Donald Trump to end the court battle.
Wilkie announced during his testimony before the Senate Veterans’ Affairs Committee on Tuesday that he recommended the Justice Department not pursue the case.
Sen. Mazie Hirono, D-Hawaii, asked him to “use your persuasive powers to make sure that happens.”
“I think your recommendation will be key,” said Sen. Richard Blumenthal, D-Conn. “I would express … that the recommendation be adopted and endorsed heartily by this committee to bring fairness and justice to our blue water Navy veterans. It would culminate a bipartisan crusade.”
Some veterans have fought for years to secure the benefits.
The subject of the Court of Appeals case was Alfred Procopio Jr., 73, who served on the USS Intrepid during the Vietnam War. Ten years ago, the VA denied his disability claims for diabetes and prostate cancer.
At issue in his case 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 any illness on a list of those linked to 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 that territorial seas should be included in the definition of “Republic of Vietnam” — a point the government disputed.
John Wells, one of the lawyers for Procopio, lauded Wilkie’s announcement Tuesday.
“We thank the secretary for bringing this tragic episode to a close and look forward to working with him on issues dealing with implementation,” Wells said.
Wells estimated that between 50,000 and 70,000 veterans could become eligible for benefits.
Isakson said if the court case goes unchallenged, the process of extending the benefits will be a formidable task.
“If that happens, we’re going to be in the process of beginning to swallow a big bite,” he said.
Likewise, Wilkie said the VA must work with Congress and might require creating a “historical division” that works with the Defense Department to comb through Navy records. He said Tuesday that he had opposed extending the benefits because, “I don’t think people had the way ahead laid out.”
“I thought it was coming fast and furious, and I had not been given the opportunity to say, ‘If this happens, we have to come back to Congress to talk about what happens to appeals,’ ” Wilkie said. “We’re going to have to create, really, a historical division.”
Chairman of the Senate Committee on Veterans' Affairs Sen. Johnny Isakson, R-Ga., gives opening remarks during a hearing on Capitol Hill on Tuesday, March 26, 2019. Isakson said if a court ruling that could extend benefits to Vietnam veterans who served on ships offshore during the war goes unchallenged, the process of extending the benefits will be a formidable task.
CARLOS BONGIOANNI/STARS AND STRIPES