Vietnam Vets Take Fight for Agent Orange Benefits to Court

A sign that says “Dangerous” stands in an area of Bien Hoa air base in Vietnam where the Pentagon is decontaminating soil poisoned with dioxin from Agent Orange. The sign stands in an area of the base where Agent Orange contaminated the soil. U.S. forces stored the Agent Orange at this base during the Vietnam War. (AP Photo/Robert Burns)

SAN FRANCISCO (CN) — The U.S. Veterans Administration should pay retroactive benefits to thousands of Navy veterans who served on ships off Vietnam’s coast for Agent Orange-related health problems without making them file new claims, an attorney argued in court Wednesday.

“I think it’s untenable to say there’s an exclusion of the Blue Water veterans from the class,” said attorney Stephen Kinnaird, who represents a class of Vietnam vets in a 34-year-old lawsuit over veterans’ benefits.

Kinnaird’s clients sued the government in 1986 for denying claims for benefits based on diseases that it subsequently found were tied to exposure to the toxic contaminant dioxin in Agent Orange, an herbicide used to clear forested areas in Vietnam. Agent Orange has been tied to a slew of health problems, including leukemia, lymphoma, throat cancer and many other diseases.

In 1991, Congress passed the Agent Orange Act, which requires the VA to assume all veterans who “served in the Republic of Vietnam” from 1962 to 1975 were exposed to Agent Orange. A few months later, the VA agreed in a 1991 consent decree to reexamine claim denials for diseases that it subsequently found were tied to Agent Orange and to grant retroactive benefits where appropriate.

Over the next 29 years, attorneys for veterans would file four motions to enforce the consent decree, including one filed this year seeking retroactive benefits for so-called Blue Water Navy vets who never set foot on Vietnam soil but served on ships in the nation’s territorial waters.

Prior to 2019, a series of court rulings found Blue Water vets were not entitled to a presumption of Agent Orange exposure under the Agent Orange Act. That changed last year when an en banc Federal Circuit panel ruled in Procopio v. Wilkie that excluding Blue Water veterans would violate the plain meaning of the 1991 statute, overriding its prior 2008 decision that deferred to the VA’s interpretation of the law.

During a telephonic hearing on a motion to enforce the consent decree Wednesday, U.S. District Judge William Alsup asked how the government can deny benefits to Blue Water vets given the controlling Federal Circuit’s recent ruling.

“The Federal Circuit en banc decided this issue against you,” Alsup said. “I don’t see why you don’t just give up and pay the money.”

U.S. Justice Department lawyer Michael Andrew Zee explained the VA has approved claims for Blue Water vets. After the Procopio decision, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019, which entitles Blue Water vets to retroactive benefits, but only if they file a new claim.

After the law was passed, the VA sent over 77,000 letters to Blue Water vets and their surviving family members whose claims were previously denied to let them know they could reapply for retroactive benefits. The VA received 63,800 claims, issued decisions on nearly 29,000 and granted 20,690, or 71%, of the decided claims. The VA has paid out $583.8 million in retroactive benefits to Blue Water vets as of August, according to a declaration by the VA’s Undersecretary for Benefits Margarita Delvin.

Class attorneys say the consent decree requires the VA to automatically review prior claim denials without requiring Blue Water veterans to file new claims.

The government says the court must look at what the parties intended in the agreement when they signed it in 1991. Zee said the government expected the consent decree to only apply to “brown water” vets whose ships entered Vietnam’s rivers and veterans who served on land.

“There is no language in the consent decree itself, no text that says to include Blue Water veterans in the scope of relief,” Zee said.

From 1991 to 2002, the VA awarded retroactive benefits to Blue Water veterans under the terms of the consent decree. At that time, the VA used a Vietnam War service medal as the basis for assuming Agent Orange exposure.

In 2002, the VA changed its policy and instead started looking at whether each veteran had served on land or on inland waterways of Vietnam.

Noting that the way a contract is carried out can serve as “the single best indicator” for what was intended, Alsup asked how the government can get around its prior decision to award benefits to Blue Water vets from 1991 to 2002.

“Both sides went along with that until you changed your mind in 2002, so don’t we give some weight to that?” Alsup asked.

Zee replied those benefits decisions were based on “internal guidance to VA adjudicators,” not a policy that was binding on the agency.

“Those grants to Blue Water veterans for that 11-year period was the result of an overbroad proxy, not the result of an interpretation of the act that included Blue Water Navy veterans,” Zee said.

Arguing for the class, Kinnaird said the consent decree defined the class as those in “active duty service” in Vietnam. The Agent Orange Act of 1991 defined veterans entitled to benefits as those who “served in the Republic of Vietnam,” he added.

“Service in Vietnam means service in the entire republic, which would include service in the territorial seas,” Kinnaird said.

After 90 minutes of debate, Judge Alsup took the arguments under submission.

“You’ve both made very interesting points,” he said. “I have some work to do. I don’t have an answer for you.”

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