Last week the president signed H.R. Bill 299 into law. This expands the area of service for Vietnam veterans where they are presumed to have been exposed to Agent Orange. Previously only those veterans who served “boots on the ground” or on inland waterways were granted the presumption. Now, veterans who served “offshore” of the Republic of Vietnam between January 6, 1962 and May 7, 1975 are presumed to have been exposed to an herbicide. In turn, this means that if a veteran currently has certain diseases on the VA’s presumptive list, they have a relatively easy path toward receiving disability compensation.
What does “offshore” mean?
There is some dispute as to whether the new law or the Federal Circuit’s decision in Procopio v. Wilkie are more favorable to veterans. Our read of both the case and the statute indicates that the new law is broader, covers more veterans, and is more favorable. The Procopio decision confined the new area to Vietnam’s “territorial waters.” This is commonly defined as any point within 12 nautical miles of the shoreline. H.R. 299, on the other hand, draws a line off the coast of Vietnam and then extends the area from that line. The image to the right is a rough estimation of this territory – the points are the coordinates set forth in the statute. We will soon have a tool available on our website where veterans may enter their ship’s lat/long coordinates to see if it falls within the offshore area as defined by the new law.
Veterans MUST file a new claim to qualify
This cannot be stressed enough. Under the new law, even if a veteran previously filed a claim (and was denied), you MUST file a new claim to be entitled to this benefit. Potentially thousands of “Blue Water” Vietnam veterans have been denied claims because they could not prove their exposure to Agent Orange. If you are in this boat, the statute says you must file a new claim. However, the effective date should be retroactive to the date the veteran filed the original claim. This is true if the reason the VA denied the original claim was because the veteran could not prove exposure to Agent Orange.
When to file the new claim is somewhat in question. The new law is not effective until January 1, 2020. For veterans who have previously filed and been denied claims because they could not prove exposure, the law instructs veterans to file their new claim after January 1, 2020. But in Senate testimony just a couple weeks ago, Secretary Robert Wilkie testified that the VA had begun processing claims even before the new legislation was passed. It is possible the VA was reacting to the Procopio decision, but we will hopefully have more clarity on this soon. What is important is that, according to the law, if a Vietnam veteran was previously denied a claim for a disease on the presumptive because he/she could not prove exposure, if a new award is granted the effective date should be retroactive to the date of the previous claim.
UPDATE: In a press release published two days ago, the VA advised it will not begin processing Blue Water Navy claims until after January 1, 2020 when the law formally goes into effect. The VA stated in the release that “The bipartisan Blue Water Navy Vietnam Veterans Act gives VA until Jan. 1, 2020, to begin deciding Blue Water Navy related claims. By staying claims decisions until that date, VA is complying with the law that Congress wrote and passed.” What the VA leaves out is that the new law does not prohibit the VA from processing these claims earlier.
