As some of you may have heard, the VA is implementing a new program of new procedures with the goal of speeding up the handling and resolution of appeals. The program has been dubbed the Rapid Appeals Modernization Program (RAMP) and has begun to be offered to veterans in select areas as of October 2017 to opt into the process. It will be a voluntary option and totally up to the veteran as to whether he/she chooses to opt into the new program or remain with the existing appeals process. To opt-in, the veteran must file a “RAMP Opt-In Election” Form that will be attached to a letter sent by the VA informing the veteran of this new process.
Today the U.S. Department of Veterans Affairs (VA) announced a series of immediate actions to improve the timeliness of payments to community providers.
As a VA claims processor, Veterans often ask me about Individual Unemployability (IU), also called Total Disability based on Individual Unemployability (TDIU). The following is a more formal version of what I tell them.
Eligible Veterans may now be entitled to disability compensation benefits
WASHINGTON — The U.S. Department of Veterans Affairs (VA) is preparing to process Agent Orange exposure claims for “Blue Water Navy” Veterans who served offshore of the Republic of Vietnam between Jan. 9, 1962, and May 7, 1975.
These Veterans may be eligible for presumption of herbicide exposure through Public Law 116-23, Blue Water Navy Vietnam Veterans Act of 2019, which was signed into law June 25, 2019, and goes into effect Jan. 1, 2020. They may also qualify for a presumption of service connection if they have a disease that is recognized as being associated with herbicide exposure.
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.
“VA is dedicated to ensuring that all Veterans receive the benefits they have earned,” said VA Secretary Robert Wilkie. “We are working to ensure that we have the proper resources in place to meet the needs of our Blue Water Veteran community and minimize the impact on all Veterans filing for disability compensation.”
Blue Water Navy Veterans are encouraged to submit disability compensation claims for conditions presumed to be related to Agent Orange exposure. Veterans over age 85 or with life-threatening illnesses will have priority in claims processing.
Veterans who previously were denied for an Agent Orange related presumptive condition can file a new claim based on the change in law. Eligible survivors of deceased Blue Water Navy Veterans also may benefit from the new law and may file claims for benefits based on the Veterans’ service.
The new law affects Veterans who served on a vessel operating not more than 12 nautical miles seaward from the demarcation line of the waters of Vietnam and Cambodia, as defined in Public Law 116-23. An estimated 420,000 to 560,000 Vietnam-era Veterans may be considered Blue Water Navy Veterans.
To qualify, under the new law, these Veterans must have a disease associated with herbicide exposure, as listed in 38 Code of Federal Regulations section 3.309(e).
Agent Orange presumptive conditions are:
- AL amyloidosis
- Chloracne or similar acneform disease
- Chronic B-cell leukemias
- Diabetes mellitus Type 2
- Hodgkin lymphoma, formerly known as Hodgkin’s disease
- Ischemic heart disease
- Multiple myeloma
- Non-Hodgkin lymphoma, formerly known as Non-Hodgkin’s lymphoma
- Parkinson’s disease
- Peripheral neuropathy, early-onset
- Porphyria cutanea tarda
- Prostate cancer
- Respiratory cancers (lung, bronchus, larynx or trachea)
- Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma).
For more information about Agent Orange exposure in Vietnam waters (Blue Water Navy Veterans), visit https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/navy-coast-guard-ships-vietnam/.
House-passed legislation aimed at getting Vietnam Veterans more disability benefits would mean help for thousands who served. But for many others who say they need help, it could actually mean no benefits, Veterans’ advocates say.
Supporters of “blue water” Navy Veterans— mainly Vietnam War Navy personnel who say they were exposed to toxic chemicals while serving off the coast of Vietnam—disagree with House lawmakers on how to determine who qualifies for benefits.
House legislators used geographic coordinates to draw a line in the ocean around Vietnam. The bill, which the House passed by a 410 to 0 vote in mid May essentially says that if a U.S. ship operated within that line, then the Veterans aboard that ship would be eligible for disability benefits from the Department of Veterans Affairs.
About 80,000 “blue water” Veterans would qualify for coverage, the Veterans and their advocates said. The amount of benefits the Veterans could get would depend on their level of disability.
John Wells, the director of the Military Veterans Advocacy group and lawyer representing the Veterans, estimated that, on average, qualified Veterans would receive $1,200 to $1,700 per month.
But Wells and the “blue water” Veterans argue that the line drawn by the bill is too close to the mainland and could actually exclude an additional 20,000 to 50,000 Veterans who served on ships beyond the line.
“This House bill is just terrible,” Wells said.
Wells said that he and the Blue Water Veterans Association pulled its support from the House bill after legislators declined to remove the geographic coordinates from the bill.
The House Veterans’ Affairs Committee, the committee found the Veterans could not produce enough evidence to show that thousands of Veterans would miss out on disability coverage.
Mark Takano, a California Democrat who chairs the House Veterans affairs committee, told a military service and news organization called Military.com, that the committee wanted the geographic parameters to be “very specific,” so that the VA could not attempt to shrink the coverage area.
The House bill came soon after a January federal court decision saying the VA had to provide disability benefits to “blue water” Veterans. That court case, titled Procopio v. Wilkie, was filed against the VA by a “blue water” Navy Veteran.
Wells, who argued on behalf of the “blue water” Veterans in federal court, said that the ruling permitted disability benefits for Veterans who served well beyond the line drawn by House lawmakers. Wells said the court ruling already provided for disability benefits for the “blue water” Veterans.
“In all honesty we don’t even need a bill,” Wells said. “This is the case of a bunch of Congress people trying to jump on board, on the backs of Procopio and do what they should’ve done 10 years ago.”
Sam Genco, a 71-year-old “blue water” Veteran suffers from ischemic heart disease—a condition that the federal government links to Agent Orange exposure. Genco, who recently lived in Pine Knoll Shores, North Carolina, but now lives near Cleveland, Ohio, said he’s been denied VA benefits because of his status as a “blue water” sailor.
Genco said he was hoping that the Procopio hearing would be “the end of the story,” but he said that continued debate over legislation was “maddening.”
“I think they’re just waiting for more sailors to die,” Genco said.
It’s unclear how the Senate will treat the recently passed House bill, as it is considering a similar measure to grant VA disability benefits to “blue water” Veterans. The Senate version includes those who served in a larger but more ambiguous geographic area. Wells said that the Veterans would prefer the Senate bill.
That bill has not been brought up for a vote and has not been publicly discussed in the Senate’s Veterans affairs committee, but 55 senators have already signed on and shown support for the legislation.
Senator Bill Cassidy, a Louisiana Republican who sits on the committee, suggested that there wasn’t much need for a bill and said that the federal court decision was enough to grant the disability benefits to “blue water” Veterans.
“The courts have already taken care of that issue,” Cassidy said. “What’s the ‘blue water’ bill doing that the courts have not already done?”
The lawsuit can still be appealed to the Supreme Court, but VA secretary Robert Wilkie has publicly requested that the suit not be appealed. Lawyers representing the VA and the Department of Justice have until June 28 to decide whether to appeal, and it’s possible that the Senate Veterans’ affairs committee is waiting on the outcome of that case to see how or whether to proceed.
Cassidy said the lawsuit likely wouldn’t be appealed because the VA “knows that they’ll lose.”
A spokesperson for Sen. Johnny Isakson of Georgia, the Republican committee chairman, said in a statement that Isakson was pleased with the court decision and that any legislation should be informed by the status of that suit.
Many “blue water” Veterans have been barred from receiving Department of Veterans Affairs disability benefits since 2002 because they never set foot on the Vietnamese mainland, but stayed offshore on Navy ships.
Many suffer from diseases that are often linked to exposure to several of the toxic chemicals, like Agent Orange, and feel that they should receive the same benefits as other Veterans who were exposed to the toxins.
Don Lorash was in the U.S. Navy from 1965 to 1968. He lives in Boyd. He went to school in Joliet. This is part of his Vietnam story.
Lorash: "When I got drafted in 1965, my dad had just had a heart attack and he needed help at home and we went to the draft board and got me a 90-day deferment so that I could finish up the fall work because my brothers were all younger than me and they were all in school. So, during that 90-day deferment, I had heard about the Navy Reserves which allows you to drill for a year and you go to boot camp and you drill for a year and then you go for two years of active duty. That worked out really well with dad being sick and me being able to help him at home. That's what I did. I joined the Navy Reserves in fall 1965."
He went on active duty in October 1966. He was an engineman, a diesel mechanic. Many of the assignments for the typical engineman were on swiftboats being used in the "Brown Water Navy" in Vietnam's rivers.
Lorash: "When I found out that I would be going overseas, it wasn't a real good feeling. You go through lines of shots for days when you go over there. You get everything from smallpox and whatever. We got our orders and I knew I was going overseas, but when I got my orders, I went to the Current, which was a rescue/salvage ship. That's because the main propulsion guys were electricians and diesel mechanics. I lucked out for most enginemen. I wasn't assigned to a swiftboat in the middle of the Mekong Delta, being cannon fodder for the Viet Cong. Anyway, it was a very interesting job for me because I enjoyed the mechanics part of it. But, you're on a ship that's 140 feet long, 40 feet wide, flat-bottomed. It's like riding a cork in a bathtub."
"When you're that small and flat-bottomed, you're just bobbing and weaving and whatever and when you look past the fan tail of the ship, and one time all you can see is the dirtiest, muddiest, stinking water you've ever seen and you can't see above those waves. Then the next thing you see is this cloudy gray sky and you'd have to look over the edge of the boat to see the water beneath you. Then when you go off the wave, those twin screws that are built for power, they come out of the water, and when you go back into it, those four blades on the props and start hitting the water, that old ship, she just shudders and you go down and up the other side. We'd do that sometimes for days, going around the typhoons. You're stuck with 85 to 90 guys like the size of three normal houses, you know? You sometimes get tired of each other. And you're working -- a lot of times because you were shorthanded -- you'd be six hours on, six hours off. You did have some stuff you had to do if you were doing the 4 to 10 watch, then during the day, they had stuff, normal maintenance stuff, it was very interesting ship for me.... I was in the A gang, which was out of the machine shop, (taking care of) the divers, their compressors, which were 125-pound compressors that supplied air for the divers when they went down in hard suits or to fill their bottles for their scuba gear. ...My job when we were at sea was to run the evaporator, making fresh water. You bring cold water in to this pressure cooker and there's steam running through coils, and the fresh water comes up off the brine, then it goes over the top and gets the cooler. That's how we made fresh water at sea... When George Bush decided that us blue-water sailors were not included in the contamination of Agent Orange, they found out — the Australians did a terrific study on that — that because we concentrated the ocean water, that we got even more Agent Orange than guys who were drinking the water on the land. That was one of the things that we did. We were the support group for the guys were on land in Vietnam. We brought ships that were aground, we got them floated again. We had a tanker setting in the bay that the Viet Cong sabotaged and sunk it. We had to patch that hole and pump all the water out of it, and get everything out of it that they had had."
"Because we were built for power, not speed, our top speed was 13 mph. If we were towing something, that dropped us five or six. It took us forever to get anywhere we were trying to go."
Gazette: You spent a lot of time traveling?
Lorash: "We did. We spent a lot of time at sea. When the only thing you can see out there is water and you came from the hills of Montana here, and the biggest body of water was Cooney Dam, then you get out in the middle of the ocean and all you can see is water and sky, it's kind of unnerving at times. We never saw anybody else. It isn't like you travel in groups like the aircraft carrier guys."
About a fourth of the personnel on Lorash's ship were divers.
Gazette: So if something goes down, because of enemy fire or if something runs aground, or sinks, it's your job to go get it and salvage it?
Lorash: "That's what we did. The ship that the Viet Cong blew a hole in and sunk, that was a fuel tanker. They had unloaded, luckily. But, they sabotaged it so that it couldn't go back and get more fuel. You need food not only for the troops, but you need fuel, which is the food for the mechanical stuff, tanks, whatever. But the merchant vessels and that one tanker and the rest of them were merchant vessels with — I don't know what was on there because I was always under deck — I didn't see what they brought off the ships. It was cargo. It could have been anything from ammunition to food for the troops. But, it would take days to off-load them onto barges and take them in. A couple of times we weren't that close (to land). One vessel went aground 200 miles north of Da Nang. They were a long ways from port when they went aground. They were a long way from port when they went aground. The tugs come up with the barges and you load the barges and you take it back to where it was supposed to go or go to the nearest port."
Gazette: It's kind of hard to imagine these ships running aground.
Lorash: "I can tell you they're not supposed. That's how that goes, you know. You don't know why. It's like running into a chuckhole on a road. There's a coral reef, you know they're there. You're in the middle of the Pacific Ocean and you're off three or four miles, you know, that's not a long way. But, if there's a coral reef there, you better know where that is and you better steer around it. That's what happened to them. A couple of them were coming into the harbor and they hit a mudbar. One of the ships that was right in the mouth of the harbor, hit on the mudbar and we had to drag it off that. That ship sat there for a week with the tide and everything rolling it back and forth, so it just kept on sinking deeper and deeper and deeper. That was one of the longest times that we ever worked on one, when that was stuck on the mud. When they were on the coral, then you get the high tide and get them off loaded, once you get it to start moving, there's only so much noise because the coral is so coarse, it's kind rubbing it on sandpaper, so once you get enough force and start moving, that vibration came through the tow cable and it was just piercing on your ears. You knew — you knew when that outfit you were pulling on started to move because you could hear it. I don't care where you were. Engines were roaring and we were at full speed and sometimes we'd do that for six or eight hours, just as hard as those old engines could run with just as much electricity as they would generate for those main motors. When it moved, you knew it, there was no doubt. Man, there was pandemonium. Everyone was doing high-fives and whatever
"It takes everybody to make something like that work. When we went over there and pulled them off a reef or a mudbar, we were doing our part to support those guys that were on the ground in Vietnam."
House passes Blue Water Navy bill that could grant benefits to 90,000 Veterans exposed to Agent Orange
Members of the House voted Tuesday to make permanent a court ruling that grants benefits to about 90,000 sailors who say they were exposed to toxic Agent Orange during the Vietnam War.
Those sailors, the so-called “Blue Water” Veterans, could get a second chance to finally receive the Department of Veterans Affairs benefits they’ve been denied for decades. Last year, a similar bill to grant presumptive benefits to those Veterans passed the House unanimously but ended stalled in the Senate.
The Blue Water Navy Vietnam Veterans Act will “finally eliminate a 17-year barrier” that “denied access to VA benefits for the scourge of Agent Orange illnesses” and is “a long overdue justice for people who served in the Vietnam conflict,” Rep. Joe Courtney, D-Conn., said, adding that the House should “force the Senate to do the right thing and provide justice for those who served in that conflict and who are still suffering.”
“Congress has failed our Blue Water Navy Veterans -- plain and simple,” said House Veterans Affairs Committee chairman Rep. Mark Takano. “It was unjust then and it is unjust now. But today we have an opportunity to right this wrong.
“Congress didn't find the resolve to act until 1991 and it left out key groups exposed to agent orange ... effectively denying their suffering that was a direct result of their service. This bill is the quickest and surest way to deliver benefits to these Veterans.”
Veterans who served on ships in the waters off the coast during the war “must provide evidence they were actually harmed by herbicides” under current policy, unlike their comrades who served on the ground. But it’s difficult to provide proof.
Ranking member Rep. Phil Roe, R-Tenn., served near the Korean demilitarized zone. “I’ve no way to prove where I walked 40 years ago.”
The bill follows the Federal Circuit Court decision in Procopio v. Wilkie to reverse a 1997 VA decision which denied that Blue Water Veterans were exposed to Agent Orange while serving offshore of Vietnam. The court decision means the VA should presume that Veterans who served in the waters off the coast were exposed to Agent Orange at some point during their service.
The Supreme Court earlier this month granted the Department of Justice a 30-day extension to appeal the lower court ruling to grant the benefits to Blue Water Veterans. That extension does not prevent the VA from beginning to accept Veterans’ benefits. The bill passed by the House Tuesday further solidifies Blue Water Veterans’ right to those benefits, even if DoJ appeals.
About 523 Vietnam Veterans die each day, Roe said. “If VA and this government waits, we’ll all die.”
"With this bill, we ensure that #BlueWaterNavy Veterans will be treated fairly and receive the benefits that they earned and deserve,” Rep. Dan Meuser, R-Penn., said.
Leaders of Veterans service organizations threw their support behind the bill.
"As leaders of major Veterans’ organizations, and on behalf of our more than 5 million combined members, we write to offer our strongest support for the Blue Water Navy Vietnam Veterans Act," they wrote in a letter to Takano and Roe. "For decades, tens of thousands of Veterans, their families and survivors have been denied their earned benefits. While it is long past due, it is time that we correct the injustice done to Blue Water Navy Veterans and provide protection of the Procopio decision by passing H.R. 299."
The bill doesn’t just cover Blue Water Vietnam Veterans. It also extends benefits to Veterans who served near the demilitarized zone on the Korean Peninsula beginning in September 1967 and would require the VA to identify American military bases in Thailand where Agent Orange was used. Takano and Roe said they included a funding plan to cover the Blue Water Veterans and the others the bill would provide benefits to.
“We all know why Agent Orange was sprayed in Vietnam ... Turns out it was a horrific mistake and it's costing lives now. It's time to do the right thing,” Roe said. He and Takano challenged the Senate to pass the bill before Memorial Day, if not sooner.
"This is a once-in-a-generation opportunity to right an injustice and get justice for these Veterans,” Takano said.
For the second time in the last 12 months, House lawmakers overwhelmingly passed a measure to ease disability benefit rules for Veterans who served on ships off the coasts of Vietnam and suffered serious illnesses they insist are connected to chemical defoliant exposure.
And, once again, advocates are left waiting to see if the Senate will follow suit.
The legislation — the Blue Water Navy Vietnam Veterans Act — passed 410-0 with strong messages of support from both Democratic and Republican leadership. House Veterans’ Affairs Committee Chairman Mark Takano, D-Calif., said the move is needed to correct what he called years of mistakes in denying those Veterans disability benefits for their injuries.
“Congress has failed our blue water Navy Veterans, plain and simple,” he said on the House floor before the vote. “Today, we will right this wrong … This bill is the quickest and clearest route to delivering benefits to those who served. They have waited long enough.”
The measure affects about 90,000 Veterans who served on ships during the Vietnam War but never set foot in the country. If they had, they would be eligible for presumptive benefits from the Department of Veterans Affairs, a process which bypasses hard evidence connecting a Veteran’s illness to their military service because of an established presumed connection between the two.
So while a Veteran who served on the shoreline can receive disability payouts after contracting Parkinson’s disease or prostate cancer, a Veteran who served on a ship a few miles away would have to provide specific scientific evidence that they were exposed to toxic chemicals while on duty.
Advocates have said that is all but impossible to do decades after the war, with limited monitoring and water testing documentation still available. As a result, many “blue water” Veterans have been denied disability benefits, despite contracting some of the same illnesses as their peers.
In January, the U.S. Court of Appeals for the Federal Circuit ruled that VA officials have improperly interpreted the law in denying those claims, essentially awarding the benefits to the entire class of Veterans.
VA officials have recommended against an appeal of that ruling, but Department of Justice officials have not yet made a final decision. The deadline for an appeal was extended by the Supreme Court until the end of this month.
House lawmakers argued that regardless the outcome of the legal case, Congress should act now. The chamber approved nearly identical legislation last summer, again by an unanimous vote. The bill ultimately was blocked by a pair of senators in the waning days of the last legislative session.
Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga., has backed the measure in the past and promised to address the issue again at some point this year, but has also said he wants see how the court case is resolved.
Supporters in the House said they don’t want to wait for that.
“Congress should not wait for this issue to work itself out through VA or the courts,” said Rep. Phil Roe, R-Tenn., ranking member on the House Veterans’ Affairs Committee.
“These Veterans have waited long enough to receive acknowledgment from VA … Five hundred and twenty three Vietnam Veterans are dying each day. So if the VA and this government waits long enough, (they’ll) all die.”
The measure has support of a host of Veterans groups, including Disabled American Veterans, the American Legion, Vietnam Veterans of America, and the Veterans of Foreign Wars of the United States.
However, officials from the Blue Water Navy Vietnam Veterans Association and Military-Veterans Advocacy have announced opposition to the measure, saying the geographical parameters laid out in the measure are more restrictive than what the court order earlier this year included.
Lawmakers have also argued that Congress needs to act to find a way to pay for the additional costs of extending disability benefits to the “blue water” Veterans. Congressional Budget Office officials had estimated the new awards could total about $1.1 billion over 10 years, but VA officials said the figure could rise to more than $5 billion.
The legislation adds a new fee on some VA home loans to raise money for those expenses, although disabled Veterans would be exempt from those costs.
WASHINGTON — Following a federal court decision that Veterans who served offshore on ships during the Vietnam War should be eligible for Agent Orange benefits, lawmakers made their case Wednesday for why legislation is still needed to ensure it gets done.
A subcommittee of the House Committee on Veterans’ Affairs met to discuss the Blue Water Navy Vietnam Veterans Act of 2019 – the “quickest and clearest route” for providing benefits to so-called “blue water” Navy Veterans, argued Rep. Mark Takano, D-Calif.
The Court of Appeals for the Federal Circuit ruled 9-2 in January that blue water Navy Veterans are eligible for benefits. The decision could pave the way for disability compensation for tens of thousands of Veterans who served aboard aircraft carriers, destroyers and other ships but had been deemed ineligible for the same disability benefits as others who served on the ground and inland waterways.
After asking for an extension last month, the Department of Justice now has about a month to appeal the decision to the Supreme Court.
“[The ruling] was a huge step forward, but we need to do more,” Takano said. “We need to ensure blue water Veterans are protected in the event [it] is appealed to the Supreme Court and overturned.”
The legislation was the first that Takano introduced this year as the new chairman of the House Committee on Veterans’ Affairs.
The Department of Veterans Affairs was invited to Wednesday’s hearing to discuss its plans to extend benefits, given the federal court ruling. The VA sent a representative to discuss other bills being considered, but not the blue water bill.
“Because the administration is still considering its legal options, the VA does not have any views to offer on this legislation,” said Matthew Sullivan, with the VA’s National Cemetery Administration. “We must respectfully decline to answer any questions you have today about the bill.”
In its request for an extension to file an appeal, the Department of Justice wrote it needed more time to research the legal and practical impact of the ruling. VA Secretary Robert Wilkie has recommended the DOJ not appeal it.
Rep. Elaine Luria, D-Va., the chairwoman of the VA committee’s subpanel on disability assistance and memorial affairs, said the panel would soon hold another hearing, during which she would ask the VA to share its plans for extending benefits to the affected Veterans.
“We expect to have the VA appear at that time,” she said.
The House unanimously passed legislation similar to the 2019 blue water bill during last year’s congressional session, but the effort failed in the Senate. At the time, Wilkie and several former VA secretaries opposed the measure, citing high costs and insufficient scientific evidence linking blue water Veterans to Agent Orange exposure.
Rep. Phil Roe, R-Tenn., argued the bill was still necessary because it remains unclear how the VA will interpret the federal court ruling.
Two groups recently pulled its support for the bill. The Blue Water Navy Vietnam Veterans Association and Military-Veterans Advocacy believe language in the bill would inadvertently limit the number of Veterans who would be eligible for benefits if the court ruling were to stand.
John Wells, director of Military-Veterans Advocacy and one of the attorneys involved in the court case, has asked lawmakers to use broader language.
“It gives me no pleasure to withdraw support for this bill,” Wells said in a letter to Takano. “I’ve walked the halls of Congress for most of a decade trying to get benefits for these sailors. When Congress failed us, we turned to the courts and won. I implore you to refrain from marginalizing that victory with the limiting language of the present bill.”
Wells said he approved of a Senate bill that also aims to extend benefits to blue water Veterans, which he described as less restrictive.
- Court ruling may make benefits easier to get for Vietnam Vets
- CBO baseline update could make expansion cheaper, on paper
Lawmakers and Veterans advocates are split on how much to worry about the costs of expanding eligibility for disability benefits for some Vietnam-era Veterans in the wake of a recent federal court decision.
The trigger was a U.S. Court of Appeals for the Federal Circuit decision (Procopio v. Wilkie, Fed. Cir., 913 F.3d 1371, 1/29/19) in January that said Veterans who served on deep water ships off the coast of Vietnam are entitled to a presumption of benefits under the Agent Orange Act of 1991 (Public Law 102-4). The decision gave a win to the former members of the Navy who had fought for years to rectify a Department of Veterans Affairs decision limiting the presumption standard to those who had “boots on the ground.”
The Justice Department has until the end of this month to a make final decision about whether to seek a review of Procopio v. Wilkie by the U.S. Supreme Court, but it appears increasingly likely the decision will stand after VA Secretary Robert Wilkierecommended to DOJ to not challenge it.
The decision will have implications for lawmakers who have been trying to resolve the issue for the Veterans, often referred to as the Blue Water Navy for their service aboard coastal water ships as opposed to murky, inland water ways. While the court ruled the Veterans had been wrongly denied benefits due them, funding the expansion of services needed to include about 95,000 newly eligible Vets could be expensive and could also affect the chances of other exposed Veterans being made eligible for similar treatment.
Veterans Affairs Secretary Robert Wilkie has recommended the government not challenge a federal court decision expanding eligibility for Agent Orange-related benefits to Vietnam-era service members who served on coastal ships.
“They are going to need some funding,” Sen. John Boozman (R-Ark.), chairman of the Senate Military Construction and Veterans Affairs Appropriations Subcommittee, said in an interview.
That has left appropriators and top lawmakers on the Veterans’ Affairs committees wondering how to pay for the latest expansion of benefits—or whether to ignore the new costs altogether. Indeed, an update to the budget baseline for VA programs to be released May 2 by the Congressional Budget Office may make lawmakers’ decision easier.
Staff on the House Veterans’ Affairs Committee anticipate CBO will incorporate the Procopio decision into the upcoming baseline but haven’t seen that decision in writing yet, according to a Republican committee aide. Being in the baseline would reduce the score of legislation to expand eligibility, even though the costs would still add to the budget deficit.
‘Have to Find the Money’
“We’re going to have to find the money in the appropriations process,” said Sen. Brian Schatz (D-Hawaii), the top Democrat on the Senate Military Construction and Veterans Affairs Appropriations Subcommittee.
“We had a bill that was almost passed in the last Congress and it had a pay-for in it, so that’s something we need to look at,” Boozman said.
The Blue Water Navy Vietnam Veterans Act (H.R. 299 in the 115th Congress) overwhelmingly passed the House last year, but failed to clear the Senate after Senate Budget Committee Chairman Mike Enzi (R-Wyo.) and Sen. Mike Lee (R-Utah) voiced concerns. The measure included a provision that would have increased some fees associated with a VA home loan guarantee program in order to pay for some of the additional costs mandated by the decision.
While the Congressional Budget Office originally estimated in May 2018 that enacting the bill would cut mandatory spending by $271 million over a 10-year period, it reversed course in December 2018 and put the price tag at almost $1.2 billion. The VA estimated last year the legislation would cost almost five times that amount for a total of $5.5 billion, a figure some Veterans advocates consider to be unrealistic.
“CBO has learned from additional discussions with VA and from reviewing other research that there is considerably more uncertainty than we originally anticipated about the number of Veterans who are covered under current law,” wrote CBO Director Keith Hall in the December letter to Enzi. Gross costs could range from $1.4 billion to $4.2 billion over 10 years based on the number of newly eligible Veterans, according to the agency.
Boozman, along with House Veterans Affairs Committee Chairman Mark Takano (D-Calif.) and Rep. Phil Roe (R-Tenn.), the panel’s top Republican, would still like to see Congress pass the bill even if the court ruling stands, though for differing reasons.
Takano said the bill was necessary in order to expand a presumption of benefits to Veterans who also served elsewhere in southeast Asia and Korea and whose eligibility was not changed by the Procopio decision, while Roe said the bill was important to enact the measure’s cost offsets. The House Veterans’ Affairs Committee will meet on the legislation in the coming weeks.
“Due to the Procopio decision, the estimated costs of the bill have decreased significantly and I look forward to discussing this further at our upcoming hearing on the legislation,” Roe said.
Robbing Other Programs?
Veterans advocates would also like to see the court decision codified. Carlos Fuentes, legislative director at Veterans of Foreign Wars, said cementing the court decision through the bill is the best way forward and believes the price of expanding the presumption of benefits is less of an issue.
“Due to the court case and it being essentially the law of the land, the cost is not as big of a concern as it was last year,” Fuentes said.
Regardless of the debate over the need for offsets, Sen. Jon Tester (D-Mont.) said a bill may not be necessary any more if the court decision stands.
The top Democrat on the Senate Veterans’ Affairs Committee is no longer keen on raising home loan fees to cover the costs after championing the legislation last year.
“So we’re robbing from another program from the VA to do that? No,” said Tester, adding he thinks lawmakers don’t necessarily need to offset the costs.