From the Hill & Ponton Disability Attorney Web Site

Blue Water Veterans – Should I file a VA Claim?

September 21, 2015/in Agent Orange, Blue Water, Veterans /by Mary Klements, Claims Advocate

When you had that heart attack unexpectedly a few years ago, you were shocked to discover that you had ischemic heart disease. Heart disease did not run in your family, so where did it come from?

While in the waiting room at the VA medical center for your monthly checkup, you start talking to another patient who, as it turns out, served in the Navy during the Vietnam era – same as you. He tells you that he has a claim pending at the VA for Diabetes Mellitus, but they keeping turning him down. Why? You ask. He gives a rather confusing explanation about being a Blue Water vet, and how the VA will not grant service-connection for Blue Water veterans. “It’s a tough fight”, the fellow patient mutters darkly. “I keep wanting to quit, but my wife won’t let me.”

Back at home, you do some research online about ischemic heart disease. You discover that Agent Orange has been known to cause ischemic heart disease—so that’s where it came from! In fact, it’s on the VA’s list of conditions that are presumed to be caused by exposure to herbicides. But, like the Navy vet at the VA clinic said, the VA will only grant this kind of service connection to Navy veterans if you were “boots on the ground” in Vietnam. And you never went ashore while you were deployed to Vietnam. The question that you ask yourself is:  is it worth it to file a claim?

The answer is: absolutely yes!

For a Blue Water veteran, hope of obtaining service connection is not futile. Thanks to a recent case (Gray v. McDonald) that was won at the Court of Appeals for Veterans Claims, the VA is now under a lot of pressure to revisit the Agent Orange Act of 1991 in an effort to include Blue Water Navy veterans in the group eligible for VA benefits.

The Agent Orange Act established that certain conditions would be considered as being caused by exposure to herbicide agents, including Non-Hodgkin’s Lymphoma, soft-tissue sarcoma, and chloracne. The Act defined the affected group of veterans as any “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era.” The Agent Orange Act also required the Secretary of the VA to contract with the Institute of Medicine (IOM) of the National Academy of Sciences (NAS) to review and evaluate the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides. In other words, the IOM would determine if there were any other conditions that were likely caused by exposure to herbicides. If the IOM and the Secretary jointly agreed that these other conditions would be related to exposure to herbicides, these conditions would be added to the presumption list.

Later, the VA informally redefined the eligibility requirements for Navy veterans when the VA’s internal adjudication manual (M21-1) advised that “service in Vietnam will be conceded if the records show that the veteran received the Vietnam Service Medal.” Because the Vietnam Service Medal was typically awarded to veterans who served aboard a ship in the waters offshore Vietnam, regardless of whether they set foot on Vietnamese soil, this Manual M21-1 provision appeared to eliminate any need for these veterans to prove that they set foot on land in Vietnam. Of course, the VA being what it is, this practice was not exercised consistently. In some cases, the VA would grant the case; in other cases, the VA would deny the case based on the fact that the veteran never set foot on land in Vietnam and was therefore not entitled to the presumption. To make matters worse, the subsequent Haas v. Peake case ruled that veterans must have been present within the land borders of the Republic of Vietnam in order to qualify for the Agent Orange presumption. This meant that veterans who served on ships that operated in the inland waterways of Vietnam were eligible, but the veterans who served on ships in the wider bays or on deep-sea vessels were not.

The Gray case finally challenged the VA’s capricious and arbitrary determination on what was considered an “inland waterway”. In the months to follow, the Secretary must revisit the regulations to determine a more reasonable and consistent way of “drawing the line” for Blue Water veterans.

What does this mean for Blue Water veterans now?

With the ever-growing pressure on the VA, we are hopeful that the Secretary’s revisitation of the regulations, coupled with the new bill that is being pushed in Congress, the H.R. 969, will result in a favorable outcome for Blue Water veterans. Therefore, it is important for veterans to continue to fight for the benefits that they so richly deserve.

So for the Blue Water veteran who wants to know if he/she should file a claim: file that claim! Change is in the wind, whether the VA is ready for it or not!