Agent Orange in Vietnam
From November 1964 to July 1967, Mr. Procopio served aboard the USS Intrepid, which, during that time, was deployed in the territorial waters offshore of the Republic of Vietnam. Inland in the country, millions of gallons of the defoliant “Agent Orange” were being sprayed over a vast expanse of jungle and marshlands. Eventually, the chemical agent drained into the territorial waters where Mr. Procopio and his fellow sailors served aboard U.S. Navy ships. These vessels pumped this contaminated water into onboard desalinization plants so the water could be used for drinking, washing, and cooking purposes. Agent Orange is now infamous for the serious health issues it has caused countless service members deployed throughout Vietnam during the conflict. It has been found to cause many diseases, including several types of cancers, diabetes, Parkinson’s disease, heart disease, and numerous other disorders.1 And as Mel Bostwick, lead counsel on Mr. Procopio’s appeal, notes, “[e]ven now, half a century after the Vietnam War, we are still learning new information about the health effects of exposure to Agent Orange and other toxic chemicals, and the mechanisms by which those effects occur.”2
The Agent Orange Act
The connection between Agent Orange and certain diseases is so strong that in 19913 Congress passed the Agent Orange Act (Act), codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to service members who “served in the Republic of Vietnam” during the Vietnam war. This meant that the veterans no longer had to prove the disease was caused by their time in the military.4 Despite the well-documented effects of the chemical agent, however, the VA chose to interpret this Act as applying only to those who actually stepped foot on Vietnamese soil, and eventually those who served in the inland navigable waterways (so-called “Brown Water” Navy veterans),5 a decision upheld by the Federal Circuit in 2008 in Haas v. Peake, which was the controlling case for over a decade.6 Thus, tens of thousands of Vietnam veterans who served in ships off the coast of Vietnam (known as “Blue Water” Navy veterans) have been denied the benefits that their fellow veterans received for the exact same medical conditions.
The Blue Water veterans were excluded from the Act through regulations created by the VA, one of which stipulated “[s]ervice in the Republic of Vietnam includes service in the waters offshore . . . if the conditions of service involved duty or visitation in the Republic of Vietnam.”7 A General Counsel opinion interpreted this regulation to mean that service members were “in the Republic of Vietnam” for purposes of the Act if the “service involved duty or visitation on the landmass . . . of the Republic of Vietnam.”8 In 2008, the U.S. Court of Appeals for the Federal Circuit upheld the VA’s interpretation of the phrase “in the Republic of Vietnam” contained within the Act as reasonable.
However, this interpretation is not only incongruent with the plain meaning of the Act, but it is inconsistent with accepted international law. According to the United Nations (UN), each country exercises sovereignty over its territory, which extends “beyond its land territory and internal waters . . . to an adjacent belt of sea” that is not to exceed 12 nautical miles.9 The United States adopted the UN’s definition of a nation’s sovereign territory by Presidential proclamation in 1988. In issuing the proclamation, President Reagan even noted that “[i]nternational law recognizes that coastal nations may exercise sovereignty and jurisdiction over their territorial seas.”10 Therefore, from both an international and U.S. domestic legal point of view, Blue Water Navy veterans who sailed within 12 nautical miles of Vietnam’s coastline served within that country’s territory.
Each bill introduced by Congress meant to clarify that Vietnam-era Navy veterans were entitled to the same presumption of service connection under the Act as their fellow service members, however, has failed. The most recent attempt, in December 2018, was shot down at the last second by Sen. Mike Enzi of Wyoming, who cited the cost of adding tens of thousands of veterans to the list of eligible claimants on the VA’s roster as his reason for voting no.11 With that recent rejection, it seemed that the likelihood of a clear resolution of the meaning of the Act in the Blue Water Navy veteran’s favor was slim.
The central issue in Mr. Procopio’s case was whether service members like him, who served in the territorial sea of the “Republic of Vietnam” during the war, actually “served in the Republic of Vietnam” within the meaning of the Act.
In a 9-2 decision, the U.S. Court of Appeals for the Federal Circuit overturned the Court of Appeals for Veterans Claims when it held that because Congress chose to use the language “in the Republic of Vietnam” in the Act, a phrase “which all available international law unambiguously confirms includes its territorial sea,” Congress “unambiguously referred . . . to both its landmass and its territorial sea.”12 To the Court, this meant that there could then be no doubt that the “Republic of Vietnam” included its territorial waters, expressly overturning the court’s earlier decision in Haas.13 Therefore, the Court held all Vietnam-Era Navy veterans who served within those waters were entitled to the same presumption of service connection as those who fought inland.14 On March 27, 2019 VA Secretary Robert Wilkie recommended that the Department of Justice not appeal the federal court’s ruling, making it apparent that the VA will abide by the decision and will begin processing claims under Procopio’s guidance.15
The apparent impact from the ruling in Procopio is that it will require the Veterans Benefits Administration (VBA) – which is tasked with distributing pensions, compensation, and other benefits to veterans – to extend the presumption of service connection where the veteran can show (1) service in the territorial seas of Vietnam in the time period specified in 38 U.S.C. § 1116(a) of the Act and (2) that he or she suffers, or suffered, from one of the diseases listed in 38 C.F.R. § 3.309(e), all of which are presumed to be caused by Agent Orange exposure.16
Although Blue Water Navy veterans do have cause to be cautiously hopeful, there is still some uncertainty regarding the impact of the decision. Bart Stichman, Executive Director of the National Veterans Legal Services Program, which provides free legal services to veterans, noted the following regarding the potential retroactive application of Procopio:
The Procopio decision corrects a major judicial error that unjustly prevented thousands of former sailors and their survivors from receiving disability and death benefits for their Agent Orange related illnesses. All Blue Water Vietnam veterans and survivors whose benefit claims were pending on, or filed after the date of the Procopio decision should now be entitled to benefits for these diseases, retroactive to the date of claim. But what is unsettled at this point is entitlement to additional retroactive compensation. The courts will likely be called upon in the future to decide whether veterans and survivors are entitled to benefits retroactive to the date of a claim that was finally denied by VA based on the erroneous interpretation of the Agent Orange Act overturned in Procopio.17
While some uncertainty remains as how the VA will proceed following the Procopio decision, as noted above, the acknowledgment by the court that Blue Water Navy veterans are entitled to the same benefits as other Vietnam veterans is a hard-won and much-deserved victory.
To ensure that Procopio is implemented in a fair and efficient manner, Blue Water Navy veterans and their representatives will have to do what they do best -- continue to fight.