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Advice for Blue Water Vietnam Veterans About Procopio v. Wilkie Decision

Released 2/7/19 | Tags: Agent Orange, Veteran's Benefits

Advice for Blue Water Vietnam Veterans Regarding Procopio v. Wilkie Decision

On January 29, 2019, the U.S. Court of Appeals for the Federal Circuit issued the groundbreaking decision Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019). The Court held that veterans who served in the 12 nautical mile territorial seas of the Republic of Vietnam during the Vietnam era are entitled to the presumption that they were exposed to Agent Orange. This decision overruled the Court’s previous decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), which held that the Department of Veterans Affairs (VA) could exclude veterans from the presumption of Agent Orange exposure if they  did not set foot on land or serve on the inland waterways of Vietnam.

If the Federal Circuit’s decision in Procopio becomes final, it would open the door for tens of thousands of Blue Water Vietnam Veterans or their survivors to obtain service-connected VA disability or death benefits for diseases caused by Agent Orange exposure. Right now, the Procopio decision is not final because the VA has 90 days (until April 29, 2019) to appeal the decision to the U.S. Supreme Court. If the VA does not petition the Supreme Court within the 90-day timeframe, the decision will then become final.

If the decision becomes final, veterans who served within the 12 nautical miles of Vietnam during the Vietnam era would be entitled to service connected disability benefits for diseases the VA presumes are associated with Agent Orange exposure.  Those diseases  include ischemic heart disease, type 2 diabetes, Parkinson’s disease, and numerous cancers. A full list of the diseases that the VA presumes are associated with exposure to  Agent Orange can be found at https://www.publichealth.va.gov/exposures/agentorange/conditions/.  Survivors of Blue Water Vietnam veterans who died from one of these diseases would also become entitled to service connected death benefits (known as DIC).

NVLSP has some advice regarding actions that Blue Water Vietnam veterans and their survivors may wish to take to preserve their rights during the period of time leading up to a final decision in the Procopio case.  The advice we provide below is relevant to Blue Water Vietnam veterans who suffer from or have died of a disease that the VA presumes is associated with Agent Orange exposure.

1.       If the VA previously denied service-connected disability or death benefits for an Agent Orange-related disease on the ground that  the veteran was not exposed to Agent Orange because he or she served only in the waters offshore Vietnam, and that denial has become final, then it cannot hurt, and may help to immediately file a new claim with the VA for service connection or DIC for the Agent Orange-related diseases.  We suggest that you state on the claim  that the U.S.Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits.

2.      If the VA has denied service-connected disability or death benefits for an Agent Orange-related disease on the ground  that the veteran was not exposed to Agent Orange because he or she served only in the waters offshore Vietnam, but the denial has not yet become final, you should appeal the denial or continue pursuing the appeal of that denial.

3.      If the veteran or survivor has not previously submitted a claim for service-connected disability or death benefits for an Agent Orange-related disease, but the veteran suffers from or died of an Agent Orange-related disease, you should immediately file with the VA a claim for service connected disability or death benefits for all relevant Agent Orange-related diseases.  The earlier you file the claim, the earlier will be the effective date for the award of benefits if you ultimately are granted benefits based on Agent Orange exposure.  We suggest that you state on the claim that the U.S. Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits.

4.     If the veteran or survivor  has a pending claim for service-connected disability or death benefits for an Agent Orange-related disease and the VA has not yet issued a decision on that claim, no action is required. However, there is no harm in submitting a Statement in Support of Claim stating that the U.S. Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits.

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