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Veterans Fight for Agent Orange Benefits in Court

Last Wednesday, attorney Stephen Kinnaird argued on behalf of veterans in California’s Northern District Court in San Francisco. Kinnaird’s arguments called for the VA to pay retroactive benefits to thousands of Navy veterans who served on ships off the coast of Vietnam, without making the veterans file new claims.

These Blue Water Veterans have been previously excluded from the class of veterans that qualify for coverage from the VA for the myriad of health problems tied to Agent Orange. These illnesses include leukemia, lymphoma, throat cancer, and many other diseases.

When the Agent Orange Act was passed in 1991, it required that the VA assume that all veterans who serviced in the “Republic of Vietnam” from 1962 to 1975 were exposed to Agent Orange. Furthermore, a supplementary consent decree was established that forced the VA to reexamine denied claims, if they were for illnesses that were subsequently tied to Agent Orange. Unfortunately, both the Agent Orange Act and the consent decree failed to include Blue Navy Veterans in this group.

In the years since, four motions have been filed to enforce the consent decree. This year, one was filed specifically for Blue Water Navy veterans, seeking retroactive benefits for those who never actually set foot in the “Republic of Vietnam.” Yet, they served on ships in the nation’s territorial waters, which meant exposure to Agent Orange.

Before 2019, these veterans were not entitled to a presumption of Agent Orange exposure under the 1991 law. However, the ruling in Procopio v. Wilkie ruling changed the law last year. Under this ruling, Blue Water Veterans would be included but only if they filed a new claim, which brings us to Kinnaird’s argument in court last week.

Following Procopio v. Wilkie, the Blue Water Navy Vietnam Veterans Act of 2019 was passed. The Act, establishes retroactive benefits but only with a new claim. The VA sent approximately 77,000 letters to Blue Water vets and surviving family members whose claims were previously declined. The letters outlined the way in which these vets could reapply. Of the 63,800 subsequent claims, 71% have been approved, and over $583.8 million in retroactive benefits have been doled out to Blue Water Navy veterans.

Kinnaird is arguing that the consent decree that followed the original 1991 law must be extended to the Blue Water Navy veterans. This means that denied claims must be reviewed without requiring veterans to re-file their claim.

On behalf of the Justice Department, Andrew Zee argued that the consent decree only applied to ships that entered Vietnam’s rivers. “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.

Judge Alsup heard both sides of the argument and took them 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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