WASHINGTON (CN) – Navy veterans who served primarily on warships off the coast of Vietnam during the war cannot sue for Agent Orange benefits, a federal judge ruled.
“The court is sympathetic to the many challenges faced by [these] veterans and their families,” U.S. District Judge Tanya Chutkan wrote Wednesday. “However, Congress chose to shield VA benefits decisions from review or channel them into specific courts, and the court therefore has no jurisdiction to hear these claims.”
U.S. forces sprayed Agent Orange and petroleum across the Vietnamese countryside in the 1960s and 1970s as part of Operation Ranch Hand, a program to defoliate Vietnamese jungles and destroy food supplies during the Vietnam War.
The chemicals washed into rivers and streams and eventually into the bed of the South China Sea.
Under the Agent Orange Act, the U.S. Department of Veterans Affairs affords a presumption that Agent Orange is responsible if any veteran “who served in the Republic of Vietnam” develops a certain disease.
Those veterans are entitled to benefits without actually proving exposure, but the VA has published a series of regulations defining service in Vietnam over the years.
Veterans who were not “on the ground” in Vietnam and have thus been denied an Agent Orange presumption sued the VA in 2013 through two organizations, the Blue Water Navy Vietnam Veterans Association and the Military-Veterans Advocacy Inc. They say proving Agent Orange exposure is nearly impossible given the death of records about the chemical’s use.
Judge Chutkan noted Wednesday that the VA commissioned a study by the Institute of Medicine of the National Academy of Sciences to determine to what extent Blue Water Navy vets were exposed to herbicides during the war.
“The results of the IOM Study, released in 2011, are vigorously disputed between the parties in this case,” she wrote. “The IOM Study found that there is no way to know whether Blue Water Navy veterans were or were not exposed to the same amount of herbicides as ground troops.”
Chutkan said she had to dismiss the suit for lack of jurisdiction because the case revolves around the Agent Orange Act and the provision of benefits.
In their complaint, the veterans noted that the presence of Agent Orange in the waters off the coast of Vietnam was unmistakable.
“Whenever ships anchored, the anchoring evolution would disturb the shallow seabed and churn up the bottom,” they claimed. “Weighing anchor actually pulled up a small portion of the bottom. The cavitation of military ships moving along the coast line, especially within the ten fathom curve, at high speeds, further impinged on the sea bottom. This caused the Agent Orange to constantly rise to the surface.”
After churning up the Agent Orange while traversing and anchoring offshore, unsophisticated methods of turning saltwater into potable water intensified the chemical, furthering their exposure, the veterans said.
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