Written by William & Mary student Austin Swink

Many readers of this blog are likely aware that the Blue Water Navy Veterans of the Vietnam War, those who served on ships offshore, have been arguing for a presumption of service-connection for certain diseases and health conditions related to exposure to the herbicide commonly known as Agent Orange.[1] There was some positive change in April 2015, when the U.S. Court of Appeals for Veterans Claims held that the Department of Veterans Affairs’ definitions for what constituted a blue or brown (read offshore or inland) body of water was arbitrary.[2] The court further required the VA to explain how this policy distinction was related to the likelihood that veterans were exposed to herbicides. This month, VA has responded by further supporting its policy of denying a presumption of exposure to Blue Water Veterans. They have also launched a new study of Blue Water Veterans’ Health, and ended the adding of ships and dates to a presumptive list.

VA Denies Blue Water Veteran Exposure

On February 5th, 2016, the VA released a Fact Sheet justifying its policy denying a presumption of Agent Orange exposure for many Blue Water Veterans in the wake of Gray v. McDonald.[4] The Fact Sheet states that VA policy regarding Blue Water Veterans is“[c]onsistent with the decision in Gray.”[5] The Fact Sheet supports the VA’s denial of presumption with the oft cited to Institute of Medicine (IOM) report Blue Water Navy Vietnam Veterans and Agent Orange Exposure (2011).[6] Further, in a FAQ section, the Fact Sheet addresses a number of issues that will be familiar to advocates working with Blue Water Veterans.[7] For instance, The VA counters an Australian study that suggested Blue Water Vets were possibly exposed to Agent Orange. VA reports that, although the IOM validated the methodology of the Australian study, IOM found there was a “lack of evidence regarding the extent of any herbicides in the seawater” that would lead to exposure through the desalination processes aboard Blue Water Navy ships. [9] This was followed in the Fact Sheet FAQ with a rebuttal to the claim that there is new scientific evidence supporting Blue Water Veteran exposure.[10] VA reported that “environmental health experts in VA’s Veterans Health Administration have reviewed the available scientific information and concluded that it is not sufficient to support a presumption.”[11]

New Study of Blue Water Veterans’ Health

Despite the negative news for Blue Water Veterans, there may be something to keep an eye on in 2017. The Fact Sheet reports that VA will conduct a “groundbreaking study” that will collect data and publish analyses, hopefully next year, on the health of Blue Water Veterans.[12] This study is conducted in partnership with Veterans of Foreign Wars, the Vietnam Veterans of America, and Blue Water Navy Vietnam Veterans.[13] In the meantime, all Agent Orange related claims for Blue Water Veterans will continue to be evaluated by VA on a case-by-case basis.[14]

VA Will No Longer Add Ships or Dates to Presumptive List

Recently, VA had been updating a list of ships that VA considers to have served in Vietnam for purposes of extending a presumption of herbicide exposure.[15] However, the February 5th Fact Sheet also presented a change in this policy. This policy change was reflected in a statement at the top of the list of ships on the VA website, and in the VA’s internal adjudication manual, the M-21. The M-21 now states, “VA will no longer add new vessels to the ships list, or new dates for vessels currently on the list, based on entering Qui Nhon Bay Harbor or Ganh Rai Bay or any other offshore waters.”[18] Additionally, the M-21 changed in that a required “criteria of the ship having ‘operated on close coastal waters for extended periods of time’ was changed to ‘sent crew ashore.’”[19] Such a policy change will certainly require advocates to do more investigation into ship histories in order to build a factual record supporting each Blue Water Veterans Agent Orange related claim.

While February 5th was disappointing for Blue Water Veterans, 2017 will hopefully hold more answers if the VA study is published. At present, the best course of action for advocates is to investigate further and press harder for service connection for the Agent Orange related claims of Blue Water Veterans.

 

[1] See Rachel Strubel, Blue Water versus Brown Water Veterans: A long continued debate ripe for resolution, The Veterans Law And Benefits Blog, Oct 16, 2015 at 11:23 AM, http://vetlawandbenefits.org/2015/10/16/blue-water-versus-brown-water-veterans-a-long-continued-debate-ripe-for-resolution/.

[2] Id. (citing Gray v. McDonald, 27 Vet.App. 313 (Vet. App. 2015)).

[3] Id.

[4] Charles Ornstein and Terry Parris, Jr., Veterans Affairs again denies Agent Orange benefits to Navy vets, The Virginian-Pilot, Feb 8, 2016, http://pilotonline.com/news/military/veterans/veterans-affairs-again-denies-agent-orange-benefits-to-navy-vets/article_55e837f4-0607-5bed-aabf-7232b9bd43d0.html.

[5] Office of Public Affairs Media Relations, Fact Sheet: Agent Orange and Presumption of Service Connection: Inland Waterways and “Blue Water” Navy Veterans, Dep’t of Veteran Affairs, Feb 5, 2016, https://assets.documentcloud.org/documents/2706057/Blue-Water-Navy-Fact-Sheet.pdf.

[6] Id. at 1 (citing Institute of Medicine, Blue Water Navy Vietnam Veterans and Agent Orange Exposure, National Academy of Sciences, May 20, 2011, http://iom.nationalacademies.org/Reports/2011/Blue-Water-Navy-Vietnam-Veterans-and-Agent-Orange-Exposure.aspx).

[7] Id. at 3.

[8] Id.

[9] Id.

[10] Id. at 4.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Agent Orange: Alphabetized Ships List, Dep’t of Veteran Affairs, (2016), http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp.

[16] Fact Sheet supra note 5 at 5.

[17] VA: No new dates, ships for Blue Water Veterans, vetsHQ.com, (2016), https://www.vetshq.com/2016/02/va-new-dates-ships-blue-water-veterans/ (citing http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp; and M-21, Part IV, Subpart ii, Chapter 1, Section H, Topic 2, http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#2f).

[18] M-21, Part IV, Subpart ii, Chapter 1, Section H, Topic 2, http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#2f.

[19] VA: No new dates, ships for Blue Water Veterans, vetsHQ.com, (2016), https://www.vetshq.com/2016/02/va-new-dates-ships-blue-water-veterans/ (citing M-21, Part IV, Subpart ii, Chapter 1, Section H, Topic 2, http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#2f).