A federal judge ruled in early November that the U.S. Department of Veteran Affairs must make retroactive payments to “Blue Water Navy Veterans” who served offshore in Vietnam and were wrongly denied benefits for exposure to the herbicide Agent Orange.

Agent Orange was a tactical herbicide used by the U.S. military to clear jungles for military operations and destroy Vietnamese crops during the Vietnam War. The chemical, which got its name from the orange-colored stripe on its barrels, was an equal mixture of two herbicides – 2,4-dichlorophenoxyacetic acid (2,4-D) and 2,4,5-trichlorophenoxyacetic acid (2,4,5-T). The latter contained trace amounts of the dioxin TCDD, which is classified as a human carcinogen by the U.S. Environmental Protection Agency. Upon returning home, thousands of veterans of the war began suffering major health problems associated with exposure to the chemical, including leukemia, Hodgkin’s lymphoma, and other kinds of cancer.

The recent ruling involves a 1991 class action consent decree that required the VA to identify and readjudicate prior VA denials of claim benefits whenever an additional disease associated with Agent Orange exposure is recognized (1). In 2002, though, the VA began excluding “Blue Water Navy Veterans” – veterans who served on ships off the shore of Vietnam – from receiving disability benefits on the grounds of a lack of evidence that they had been exposed to the chemical. But U.S. District Judge William Alsup pointed out, in a 10-page order, that the VA did in fact include some blue water veterans for the first 11 years of the decree and that “this practical construction of the agreement torpedoes the agency’s later change of heart (2).”

Looking ahead

Congress passed the Blue Water Navy Vietnam Veterans Act of 2019 (PL 116-23), which states that “veterans aboard a vessel operating not more that 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia, between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicides such as Agent Orange, and may be entitled to service connection for conditions related to that exposure (3).”  The law took effect January 1, 2020. As part of November’s ruling, Judge Alsup ordered the VA to reassess prior compensation denials it made to Blue Water Veterans.

Bart Stichman, executive director of the National Veterans Legal Services Program, issued a statement regarding the ruling, “We applaud the Court’s recognition that Blue Water Navy Vietnam veterans and their survivors have been wrongly denied retroactive disability and death benefits ever since 2002, when VA reversed its prior position and denied the presumption of Agent Orange exposure to veterans who served in the territorial seas of Vietnam. These veterans and their surviving family members have already been waiting years for benefits to which they are entitled under the Consent Decree simply because they did not set foot in the land mass of Vietnam (4).”

It is estimated that the decision could affect close to 15,000 veterans and their families.

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References

1.      https://www.swoknews.com/news/court-orders-va-to-redecide-thousands-of-vietnam-era-blue-water-navy-veterans-claims/article_eec4b0a8-708f-5551-83ee-830590e199c4.html

2.      https://www.law360.com/articles/1326842/va-must-pay-blue-water-vets-for-agent-orange-exposure

3.      https://benefits.va.gov/benefits/blue-water-navy.asp#:~:text=The%20Blue%20Water%20Navy%20(BWN,1962%20and%20May%207%2C%201975

4.      https://www.military.com/daily-news/2020/11/16/va-wont-fight-court-ruling-awarding-payments-blue-water-navy-vietnam-vets.html

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