Veterans sue over VA delay of Blue Water Navy Agent Orange claims until 2020

Abbie Bennett
July 22, 2019 - 11:57 am

Photo courtesy of courtney.house.gov

This story was updated July 30, 2019 at 1:30 p.m.

A veterans nonprofit advocacy group has filed a lawsuit asking the court to lift a stay on Blue Water Navy Vietnam veterans' VA claims ordered by Department of Veterans Affairs Secretary Robert Wilkie.

The lawsuit from Military Veterans Advocacy Inc. was filed in the Federal Circuit Court of Appeals and asks the court to overturn a stay ordered by Wilkie July 1, following President Donald Trump signing the long-awaited Blue Water Vietnam Veterans Act. The stay effectively stalled the benefits many veterans exposed to Agent Orange thought they had finally gained with the passage of the recent bill after decades of fighting. 

The Veterans Benefits Administration and Board of Veterans Appeals were ordered by Wilkie to stay any decisions on claims for disability compensation based on service in the offshore waters of Vietnam beginning Jan. 9, 1962 and ending May 7, 1975, a memo obtained and first reported by Connecting Vets reads. 

The VBA and board also "are ordered to stay decisions regarding claims for disability compensation that are based on service in or near the Korean Demilitarized Zone" beginning Sept. 1, 1967 and ending Aug. 31, 1971 as well as claims for benefits for spina bifida from children of veterans allegedly exposed to toxic herbicides such as Agent Orange while serving in Thailand from Jan. 9, 1962 to May 7, 1975.

"The stays shall remain in effect until Jan. 1, 2020," Wilkie's memo said.

After the lawsuit was filed, the court ordered Wilkie to submit a schedule for briefings and arguments in court. Wilkie submitted a schedule for September briefings and arguments in early October on July 30. 

MVA Executive Director John Wells told Connecting Vets the schedule "set the tempo" for the litigation and "we can live with it." 

In his memo, Wilkie said the legislation approved by both chambers of Congress and signed by the president gives him the authority to delay the claims until next year. But the lawsuit says that's not the case, arguing that Congress' intent was for claims to begin being processed before the Jan. 1, 2020 effective date and calling Wilkie's stay an "untimely and unlawful decision." 

"These claims for benefits are not handouts, rather they were earned through selfless service to their country. In return for that sacrifice, their claims for benefits have been repeatedly denied and delayed by the one agency, the (VA), that should be focused on assisting and mitigating the damage done by our own government’s actions," the lawsuit reads. "These veterans are dying at a high rate every single day ... These veterans deserve the peace of mind and sense of closure that accompanies a granted claim for earned benefits. Blue Water Navy veterans represent a generation who were involuntarily drafted into an unpopular conflict, then returned home to an ungrateful nation. Some of these veterans endured physical assaults upon their return, simply for answering their nation's call."

Procopio

The lawsuit also addresses the Procopio v. Wilkie Federal Circuit Court decision, which reversed a 1997 VA decision to deny that Blue Water veterans were exposed to the toxic herbicide Agent Orange while serving offshore of Vietnam. The Procopio decision earlier this year meant that the VA should presume veterans who served in the waters off the coast were exposed to Agent Orange at some point during their service, and as a result were eligible for related VA benefits. 

The lawsuit says it's likely the VA could interpret Wilkie's stay as precluding all claims related to Agent Orange exposure, including those under the Procopio decision. 

"The VA must abide by the ruling in Procopio and not delay claims," particularly since the court already denied a request for a stay from Wilkie, the lawsuit says. "Now the Secretary has taken it upon himself to usurp the authority of this Court by imposing an illicit and unsanctioned stay of proceedings."

"If there is any basis for a stay," the lawsuit says, "none exists to claims brought under Procopio. ... Procopio claims must be exempted by (VA) to ensure Blue Water Navy veterans receive the benefits they have earned." 

VA response

When asked about the lawsuit, VA spokeswoman Susan Carter told Connecting Vets Monday that "VA doesn't typically comment on pending litigation." 

“VA is dedicated to ensuring that all veterans receive the benefits they have earned,” Wilkie said in a news released issued by VA hours after Connecting Vets’ original report on July 5. “We are working to ensure that we have the proper resources in place to meet the needs of our Blue Water veteran community and minimize the impact on all veterans filing for disability compensation.”

In the July 5 news release, the VA said Blue Water veterans are "encouraged" to submit their claims for conditions related to Agent Orange. Veterans 85 and older, or "with life-threatening illnesses" will have "priority in claims processing," VA said. But those claims will not be decided until 2020, according to Wilkie's order.

Veterans previously denied an Agent Orange-related presumptive condition can file a new claim under the new law, the VA said. Eligible survivors of deceased Blue Water Navy veterans can also file claims for benefits based on their veterans' service. 

The law passed by Congress and signed by the president affects veterans who served on a vessel no more than 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia, according to VA, about 420,000 to 560,000 Vietnam-era veterans. 

John Wells, Navy veteran and executive director of Military-Veterans Advocacy wrote a letter to Wilkie following the publication of the stay order, asking that he rescind his stay order. 

"Time is of the essence ... Blue Water Navy veterans are dying every day ... These veterans have waited long enough." 

A list of the diseases currently linked to Agent Orange and eligible for benefits can be found here. 

Veterans who want information from the VA can call 800-827-1000 or click here.

‘I’m at their mercy’: Decades later, Agent Orange veterans still waiting on VA to decide claims


VA Secretary Wilkie orders 'stay' on Blue Water veteran disability benefits cases until 2020

President Trump signs Blue Water Navy Vietnam Veterans bill into law

Senate unanimously passes Blue Water Navy bill that could benefit 90,000 veterans

DoJ won't appeal case granting benefits to 90,000 veterans exposed to Agent Orange

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