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The Blue Water Navy Vietnam Veterans Association
Nov 6, 2018 —
The US Supreme Court granted certiorari in four cases Friday...
In Gray v. Wilke the court will answer the question of “whether the Federal Circuit has jurisdiction under 38 USC § 502 to review an interpretive rule reflecting VA’s definitive interpretation of its own regulation, even if VA chooses to promulgate that rule through its adjudication manual.” The question arises out of the VA’s interpretation of the Agent Orange Act, an act that made it easier for veterans “to obtain disability compensation.” The Agent Orange Act “creates an automatic presumption of service connection” for any veteran who served in the Republic of Vietnam and developed “one of several diseases medically linked to Agent Orange.” However, “[o]ver the past 20 years, VA has repeatedly narrowed its understanding of which Vietnam War veterans ‘served in the Republic of Vietnam’ and thus qualify for the Agent Orange Act’s automatic presumption.”
certiorari (Noun) A grant of the right of an appeal to be heard by an appellate court where that court has discretion to choose which appeals it will hear.
certiorari (Noun) A grant of review of a government action by a court with discretion to make such a review.
THE FUTURE OF BLUE WATER NAVY VETERANS: ORAL ARGUMENT IN PROCOPIO V. WILKIE
WEDNESDAY MAY 16, 2018 Chisholm Chisholm & Kilpatrick LTD
On May 4, 2018, oral argument was held in the case Procopio v. Wilkie before the United States Court of Appeals for the Federal Circuit. The appellant, Alfred Procopio, is a Blue Water Navy veteran who served on the aircraft carrier USS Intrepid off the coast of Vietnam from November 1964 to July 1967 during the Vietnam War, He was denied entitlement to service connection for prostate cancer and diabetes mellitus by VA as due to Agent Orange exposure. He appealed to the Court of Appeals for Veterans Claims which affirmed the Board of Veterans Appeals denial for service connection. His case was then appealed to the U.S. Court of Appeals for the Federal Circuit.
Attorney and Navy veteran, John Wells, presented oral argument on behalf of the veteran, Procopio, and Eric Bruskin presented on behalf of the United States Department of Justice.
WHAT'S THE ISSUE?
Mr. Procopio contends that he is entitled to VA benefits due to his exposure to Agent Orange while serving on the USS Intrepid. VA's current regulation for the presumption of service connection due to Agent Orange exposure only includes those veterans who served in-country Vietnam, and those with :service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam' The Federal Circuit upheld this determination in the case of Haas v. Peake.
However, Mr. Procopio argues that Haas v. Peake was wrongly decided and that the intent of Congress in including the phrase 'Republic of Vietnam' in the Agent Orange Act of 1991 was to include those service members that served off the coast of
Vietnam. In addition, Mr. Procopio asserts that the Haas case dealt with a different legal question than presented here.
BACKGROUND: THE DECISION IN HAAS V. PEAKE
The Federal Circuit ruled in Haas v. Peake that “a veteran who never went ashore from a ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection." The argument in Haas hinged on whether the use of "Republic in Vietnam" in the Agent Orange Act of 1991 was ambiguous and could include service in the territorial waters of Vietnam.
If the Court held that Congress used the phrase "Republic of Vietnam' in the Act as it pertains to international law, then the presumption would include veterans with service in the waters 12 nautical miles off the coast of Vietnam. However, the Federal Circuit ruled against Haas and allowed VA to continue the interpretation of their regulation to exclude Blue Water veterans.
BACK TO PROCOPIO - WHAT DOES "REPUBLIC OF VIETNAM" MEAN?
Mr. Procopio argued that Haas was wrongly decided and that the phrase "Republic of Vietnam" should not only include those who served "foot-on-land," but also those who served in the territorial seas off the coast of Vietnam. When Congress passed the Agent Orange Act of 1991, they understood the Republic of Vietnam to include the territorial seas by virtue of international law recognized by Congress. The United Nations holds that the territory of a sovereign nation includes the territorial waters 12 nautical miles off the coast of the country's landmass.
Mr. Procopio also argues that there is evidence that Agent Orange was carried out to the waters offshore from Vietnam and was then filtered through distillers for drinking water on the Navy ships offshore. Service members would then drink the contaminated water onboard, exposing them to the harmful effects of the herbicide,
WHAT WOULD THIS CASE MEAN FOR BLUE WATER NAVY VETERANS
If the Federal Circuit court agrees with Mr. Procopio, VA would be obligated to expand their regulation of presumption for Agent Orange exposure to include veterans who served aboard ships off the coast of Vietnam, aka Blue Water Navy veterans.
However, if the Court rules in favor of the United States, VA will be able to continue with their current interpretation of the regulation to exclude Blue Water Navy veterans from the presumption.
The Federal Circuit court has not issued a final decision in the case.