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NVLSP Files Challenge To Rule Preventing Payment of Retroactive Benefits to Blue Water Navy Veterans

Released 3/25/19 | Tags: Agent Orange, Veteran's Benefits



WASHINGTON – On March 19, 2019, The National Veterans Legal Services Program (NVLSP), together with Phillip Boyd Haisley, a “Blue Water Navy Veteran,” who served in the territorial waters of the Republic of Vietnam, filed a lawsuit in the U.S. Court of Appeals for the Federal Circuit challenging the legality of a rule recently issued by Secretary of Veterans Affairs Robert Wilkie that significantly limits when past VA benefit denials can be overturned due to “clear and unmistakable error.”  According to the new VA rule, a final denial of VA benefits cannot be clearly and unmistakably erroneous even if a court later decides that VA’s basis for the prior denial clearly violates the law.  NVLSP and Mr. Haisley filed the lawsuit with the pro bono assistance of Paul Hastings LLP. 

“This VA rule is an unjust poison pill for Blue Water Navy veterans,” said NVLSP Executive Director Bart Stichman.  “They just celebrated the recent decision of the U.S. Court of Appeals for the Federal Circuit in Procopio v.Wilkie, entitling them to disability benefits for Agent Orange-related diseases.  The Court ruled in Procopio that a longstanding VA policy denying veterans who served in Vietnam’s territorial waters the statutory presumption of Agent Orange exposure clearly violated the Agent Orange Act of 1991.  Even though VA was clearly wrong all along, the agency’s new rule is a transparent attempt to immunize VA from paying retroactive benefits due to clearly erroneous past VA decision-making. This rule runs counter to Congress’ intent when it required VA to pay retroactive benefits for prior claims denial that are the product of clear and unmistakable error.”

Mr. Haisley submitted a claim to the Department of Veterans Affairs (“VA”) in 2011 for service connected disability benefits for diabetes under the Agent Orange Act of 1991. That Act grants a presumption of service connection for certain diseases, including diabetes, to veterans who “served in the Republic of Vietnam” in specified time periods.

Before Mr. Haisley filed his claim, NVLSP litigated the Haas v. Peake case, which challenged the VA policy limiting the presumption of exposure to only those who served on the land mass or inland waterways of Vietnam.  In 2008, the Federal Circuit upheld the VA policy in a split 2-1 decision.  Because the VA did not consider Da Nang Harbor, where Mr. Haisley served, to be an inland waterway, the regional office denied him benefits based on the VA’s interpretation endorsed in Haas v. Peake

In Procopio v. Wilkie, all of the judges on the Federal Circuit convened in 2019 and explicitly overruled its holding in Haas, finding that Congress clearly intended the definition of “the Republic of Vietnam” to include the Republic of Vietnam’s territorial seas (which would encompass Da Nang Harbor).

Haisley and NVLSP v. Wilkie
In this petition, Haisley and NVLSP argue that this rule issued by VA Secretary Wilkie is arbitrary and capricious, an abuse of discretion and in contravention of statutory authority. This rule was issued by the VA on January 18, 2019 and made effective February 19, 2019.

Specifically, NVLSP and Mr. Haisley seek review of the “clear and unmistakable error” definition adopted in the rule.  NVLSP and Mr. Haisley argue that as currently applied, the “clear and unmistakable error” definition in this rule runs contrary to the governing statute that authorizes revision or reversal of prior decisions.  In Mr. Haisley’s case, this rule would prevent him from successfully challenging his prior final denial of benefits under Haas as “clear and unmistakable error” in light of Procopio.

Additionally, NVLSP and Mr. Haisley contend that in advancing this rule, VA Secretary Wilkie overlooked the pro-veteran canon of law and the administration of veterans benefits in a non-adversarial system as Congress intended.

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law.  NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation’s definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org. 

Media contact:
For NVLSP: Patty Briotta, office 202-621-5698, cell 703-517-1796, patty@nvlsp.org

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