Changes in Agent Orange/Blue Water Considerations for VA Claims

Based on the very recent successful appeal in Gray vs. Mc Donald (VA), the court rejected the VAs contentions regarding who qualifies for presumptive exposure to Agent Orange.  Please read thefollowingarticle written by the head of the organization which has been fighting for years to obtain equity for all Vietnam veterans.

 Remember that this appeal decision merely addresses the VAs interpretation of the law, an interpretation which has always been contested.  Currently there are both House and Senate Bills pending that would supersede all of this and have any veterans wearing the Vietnam Service Medal as presumed to have been exposed to Agent Orange.

 Yours in service,

 Chuck Weber

Veterans Service Officer

 

What can now be done with Blue Water Navy Exposure Claims?


  • "...the Court finds that, with respect to Da Nang Harbor, the manner in which VA defines inland waterways is both inconsistent with the regulatory purpose and irrational."
  • "...they do not explain how VA's designation of Da Nang Harbor relates to the probability of exposure based on herbicide use."
  • Regarding the IOM Report of 2011 (Blue Water Navy Vietnam Veterans and Agent Orange Exposure), "...the general and inclusive nature of the report falls short of the Secretary's assertion that the report specifically "confirmed" that there was no likelihood of exposure to herbicide in Da Nang Harbor." [Note: This is in keeping with and supports the Blue Water Navy Association's Call for Public Censure of the VA because this was announced in a December 26, 2012 Notice in the Federal Register.]
  • "Absent a connection to the probability of exposure based on spraying, the Court finds the rationale supporting VA's designation of Da Nang Harbor is inconsistent with the regulation's purpose of compensation based on the probability of exposure."
  • " ...the Secretary's concession at oral argument that a river mouth does not have definite boundaries..."
  • "The Court declines to usurp the Agency's authority and impose its own line. Rather, the Court will vacate the Board decision on appeal as arbitrary and capricious because the decision was based on VA's flawed interpretation of 38 CFR 3.307(a)(6)(iii). The Court will remand the matter for VA to reevaluate its definition of inland waterways - particularly as it applies to Da Nang Harbor - and exercise its fair and considered judgment to define inland waterways in a manner consistent with the regulations emphasis on the probability of exposure."

So, what does this mean for compensation claims? While this ruling stands (e.g., until the VA provides new regulations to correct its errors, or until the ruling is appealed and all claims stayed, or until this Court rules otherwise), the rating of a VA claim CANNOT use the following reasons for denial:

- A claim for inland water service cannot be limited to the current designation of ships that are on the "Ships List" because the court has ruled that the rules for designating inland water are "inconsistent... and irrational." Therefore, a ship in a harbor or bay you believe to be inland should be submitted as being on "inland waters" with rationale that shows its designation is a mingling of brown water and blue water status. The emphasis should be on the likelihood of exposure to herbicide. A copy of the ruling with the pertinent sections highlighted should be included with the filing.

- A claim for exposure to herbicide while onboard a ship should be filed, because the Court has ruled that the VA's reliance on the 2011 IOM report to state that exposure on offshore vessels did not occur is not acceptable because the IOM report is too "general and inconclusive in nature" to hold such a belief. The VA rating system therefore cannot contend that offshore vessels were NOT contaminated by Agent Orange.

- A ship that was in the vicinity of a river mouth, and was likely within the outflowing "plume" of river debris should be assumed to have been contaminated by that river's outflow. Satellite images are a good source to show the outflow plume, as is common sense when the ship was "in the vicinity of" that river mouth. Note that most bays and harbors are formed by the outflow of a river feeding the water that is captured in the bay or harbor.

- Ships in the vicinity of Vung Tau Harbor should be assumed to have been exposed to herbicide flowing out of the Delta, and may also be assumed to have been in Ganh Rai Bay.

- OTHER possibilities may present themselves.

Note: These are not LEGAL conclusions, they are merely my ideas of how Blue Water Navy Claims might take advantage of this new development in VA Law.

John Rossie, Executive Director
Blue Water Navy Vietnam Veterans Association
navy@bluewaternavy.org

Link to the site::        CAVC Ruling on Gray v. McDonald