VA recommends dropping legal challenge over ‘blue water’ Navy veterans benefits

By: Leo Shane III  

U.S. Marines are brought ashore to in a swarm of landing crafts near the Vietnam demilitarized zone on Sept. 15, 1966. (Henri Huet/AP)

​Veterans Affairs leaders will not recommend appealing a federal court ruling to award disability benefits to thousands of Vietnam veterans who claim exposure to cancer-causing chemical defoliants during ship deployments off that country’s coastline, officials confirmed Tuesday.

During an appearance before the Senate Veterans’ Affairs Committee, VA Secretary Robert Wilkie said he will not ask the Department of Justice to continue to fight the legal issue. Federal officials have until late April to appeal the decision, issued by the U.S. Court of Appeals for the Federal Circuit in January.
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Wilkie emphasized that other federal officials could still offer arguments in favor of filing an appeal. But his recommendation is likely to be an oversized factor in any decision, given the potential impact on his department.

Letting the decision stand would give advocates for so-called "blue water” Navy veterans the victory they have been pursuing for more than a decade, arguing that thousands of ailing and aging Vietnam veterans have been unfairly blocked from collecting disability benefits for their on-duty injuries.

Under current department rules, the blue water veterans — an estimated 90,000 individuals — can receive medical care for their illnesses through VA. But to receive disability benefits worth up to several thousand dollars a month, they must prove that their ailments are directly connected to toxic exposure while on duty.

That’s not the case for other Vietnam veterans, who are presumed to have been exposed to Agent Orange and other defoliants known to cause serious and rare cancers.
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So while a veteran who served on the shoreline can receive disability payouts after contracting Parkinson’s disease or prostate cancer, a veteran who served on a ship a few miles away would have to provide evidence of direct contact with hazardous chemicals.

The federal court ruling sided with advocates who said that proof is nearly impossible to obtain now, decades after the toxic exposures occurred.

VA officials had said that adopting new “non-scientific” standards for disability benefits could open a floodgate of new claims. But lawmakers for the past two years have worked on legislation narrowly tailored to the “blue water” Navy veterans issue, and are urging VA to drop it’s opposition.

Wilkie’s announcement received immediate praise from several members of the committee. Sen. Richard Blumenthal, D-Conn., called the recommendation not to appeal “a chance to bring fairness and justice to our veterans.”

​If the court decision stands, VA will be faced with a sizable bill in coming years to cover the new disability benefits claims. Congressional Budget Office officials had estimated the new awards could total about $1.1 billion over 10 years, but VA officials said the figure could rise to more than $5 billion.

Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga., said lawmakers will have to work closely with VA officials in coming months to address those costs. John Wells, retired Navy commander and the executive director of Military-Veterans Advocacy — which helped file the lawsuit prompting the January court ruling — echoed that plan.

“(Wilkie’s) decision is consistent with what he has told (our group) privately,” he said. “We thank him for bringing this tragic episode to a close, and look forward to working with him on issues dealing with implementation.”

Mike Little, executive director for the Sea Service Family Foundation and a longtime advocate on the issue, called the announcement a “great day” for Vietnam veterans.

​“VA owes all these vets and apology for the years they spent denying them benefits,” he said. “Not appealing this court decision is the first step. I hope this decision brings peace of mind to those widows left behind.”

The full decision — Procopio vs. Wilkie — is available at the appeals court’s website.

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