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VA News

Plan for ‘blue water’ Vietnam Veterans benefits on the move again

BWN Vets Benefits 002

 

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.

Source

House panel considers 'Blue Water' bill in wake of court ruling

House Panel Considers

 

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.

Source

Costs of Expanding Agent Orange Vet Benefits Perplexing Congress

Robert Wilkie 21

 

  • 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.

Source

Supreme Court delays final ruling on ‘blue water’ Vietnam Veterans benefits

Supreme Court Delays

 

The Supreme Court this week granted a 30-day extension to Department of Justice officials contemplating an appeal of a lower court ruling in January which extended presumptive benefits to tens of thousands of Navy Veterans who have claimed exposure to toxic chemical defoliants during the Vietnam War.

But advocates say they are not concerned by the move, calling it a typical legal maneuver and not a serious threat to getting benefits to the group of so-called “blue water” Veterans.

“This just seems to be going through the motions,” said John Wells, retired Navy commander and the executive director Military-Veterans Advocacy, which has lobbied on the issue for years. “It’s not a setback for us. Veterans Affairs Secretary (Robert) Wilkie has told us this was not initiated by his department.”

In January, a federal court ruled that VA officials for years has used faulty reasoning to deny disability benefits to Veterans who served in ships off the waters of Vietnam.

VA officials had argued that for years that existing law established only that troops who served on the ground on on ships close to shore were entitled to the presumption of exposure to chemical defoliants like Agent Orange, speeding the process for their disability benefits.

Sailors on ships further out to sea were not, even though many contracted the same rare cancers and respiratory illnesses that their land-based counterparts did. They have been required to provide proof of chemical exposure during their combat tours, a near-impossible prospect given the decades that have passed and lack of environmental monitoring at the time.

Until the court ruling in January, VA officials had also argued that extending presumptive benefits to the estimated 90,000 blue water Veterans would cost as much as $5 billion over 10 years, a figure that advocates have disputed.

But since the ruling, Wilkie has said publicly he will work with Veterans groups and Congress on a path ahead for awarding the benefits. He also advised Justice officials against appealing the federal court ruling.

Department of Justice officials had until next week to raise that objection, but instead asked for a 30-day extension. In their court request, lawyers for the department did not indicate they intend to fight the decision, but needed more time to research the potential impact of the ruling on other pending court cases.

Wells said he would not be surprised if the department requested another extension next month too. He said the move does not affect congressional work to draft an implementation plan for the benefits, and has not stopped the Board of Veterans Appeals from starting to accept some Veterans’ benefits cases based on the federal court ruling.

Several bills are pending in the House and Senate to address the issue, including bipartisan legislation announced last week from Sens. Kirsten Gillibrand, D-N.Y., and Steve Daines, R-Mont. The House Veterans’ Affairs Committee is scheduled to discuss a proposal from Chairman Mark Takano, D-Calif., during a hearing next Wednesday.

Source

Supreme Court delays final ruling on ‘blue water’ Vietnam Veterans benefits

Final Ruling BWN

 

The Supreme Court this week granted a 30-day extension to Department of Justice officials contemplating an appeal of a lower court ruling in January which extended presumptive benefits to tens of thousands of Navy Veterans who have claimed exposure to toxic chemical defoliants during the Vietnam War.

But advocates say they are not concerned by the move, calling it a typical legal maneuver and not a serious threat to getting benefits to the group of so-called “blue water” Veterans.

“This just seems to be going through the motions,” said John Wells, retired Navy commander and the executive director Military-Veterans Advocacy, which has lobbied on the issue for years. “It’s not a setback for us. Veterans Affairs Secretary (Robert) Wilkie has told us this was not initiated by his department.”

In January, a federal court ruled that VA officials for years has used faulty reasoning to deny disability benefits to Veterans who served in ships off the waters of Vietnam.

VA officials had argued that for years that existing law established only that troops who served on the ground on on ships close to shore were entitled to the presumption of exposure to chemical defoliants like Agent Orange, speeding the process for their disability benefits.

Sailors on ships further out to sea were not, even though many contracted the same rare cancers and respiratory illnesses that their land-based counterparts did. They have been required to provide proof of chemical exposure during their combat tours, a near-impossible prospect given the decades that have passed and lack of environmental monitoring at the time.

Until the court ruling in January, VA officials had also argued that extending presumptive benefits to the estimated 90,000 blue water Veterans would cost as much as $5 billion over 10 years, a figure that advocates have disputed.

But since the ruling, Wilkie has said publicly he will work with Veterans groups and Congress on a path ahead for awarding the benefits. He also advised Justice officials against appealing the federal court ruling.

Department of Justice officials had until next week to raise that objection, but instead asked for a 30-day extension. In their court request, lawyers for the department did not indicate they intend to fight the decision, but needed more time to research the potential impact of the ruling on other pending court cases.

Wells said he would not be surprised if the department requested another extension next month too. He said the move does not affect congressional work to draft an implementation plan for the benefits, and has not stopped the Board of Veterans Appeals from starting to accept some Veterans’ benefits cases based on the federal court ruling.

Several bills are pending in the House and Senate to address the issue, including bipartisan legislation announced last week from Sens. Kirsten Gillibrand, D-N.Y., and Steve Daines, R-Mont. The House Veterans’ Affairs Committee is scheduled to discuss a proposal from Chairman Mark Takano, D-Calif., during a hearing next Wednesday.

Source

Will the benefits for ‘blue water’ Vietnam Veterans be settled soon?

BWN Benefits 002

 

The fate of disability benefits for “blue water” Vietnam Veterans will be among the key topics lawmakers tackle when they return from their district break at the end of the month.

In January, a federal court ruled that the Department of Veterans Affairs for years has used faulty reasoning to deny disability benefits to Veterans who served in ships off the waters of Vietnam. VA officials had argued that extending the benefits to an additional 90,000 Veterans would cost as much as $5 billion over 10 years, a figure that advocates have disputed.

This week, Sens. Kirsten Gillibrand, D-N.Y., and Steve Daines, R-Mont., announced plans to reinforce that ruling and establish a permanent fix for those Veterans, who claim exposure to cancer-causing chemical defoliants has caused a host of rare cancers and respirator illnesses.

Already the chairman and ranking member of the House Veterans’ Affairs Committee have introduced similar plans, and that House panel is preparing for an expansive hearing on the topic early next month.

The Department of Justice has until the end of the month to appeal the ruling, but VA Secretary Robert Wilkie has advised against doing so.

“Even though the court has ruled that the VA must provide these benefits, there is no guarantee it will happen,” Gillibrand said in a statement. “Congress must create a permanent legislative fix.”

Lawmakers came close to passing a bill doing that last year, but the measure was blocked on the Senate floor in the final days of December. Gillibrand and Daines said Congress needs to act now to ensure that any VA response to the court ruling isn’t crafted too narrowly, again blocking aging Veterans from receiving their deserved payouts.

The “blue water” Veterans problem centers on the idea of presumptive benefits claims. Because of the heavy use of chemical defoliants (like Agent Orange) during the Vietnam War, VA assumes any Veteran who served on the ground there and later contracts an illness that could be related to toxic exposure should be presumed to have a service-connected health condition.

That significantly reduces the paperwork and wait for disability benefits, worth up to several thousand dollars a month.

Under current department rules, the “blue water” Veterans — individuals who served in ships up to 12 miles off the coast who never made landfall — can receive medical care for their illnesses through VA.

But to receive disability benefits, they must provide scientific proof that their ailments are directly connected to toxic exposure while on duty. Advocates have said that, given the time that has passed since the war, obtaining such proof is impossible and unfair.

So while a Veteran who served on the shoreline could receive disability payouts after contracting maladies like Parkinson’s Disease or prostate cancer, another Vet who served on a ship a few miles away would have to provide evidence of direct contact with hazardous chemicals to receive any payouts. Supporters have said such successful claims are rare.

Earlier this month, Wilkie said he was already working with lawmakers on possible future plans for awarding the benefits, and how to pay for them. John Wells, retired Navy commander and the executive director of group which filed the lawsuit, Military-Veterans Advocacy, has said he is in conversations with VA leaders about those issues as well.

The House hearing is expected to touch on the costs — estimated by Congress at $1.1 billion over 10 years, although the court ruling changes how Congress must account for those expenses — and other eligibility questions. The full House chamber could vote on a compromise plan in May.

Daines called quick action on the issue a “common sense” move to help Veterans who served honorably. Gillibrand said she is hopeful the Senate can act quickly on the issue.

Source

Navy Veterans see hope for VA benefits tied to Agent Orange exposure

Hope for Benefits

 

WILLIAMSON — Mike Sherwood applied nine years ago for government compensation for exposure to Agent Orange during the Vietnam War, complaining it caused the coronary artery disease and other serious health problems that still afflict him today.

The Navy Veteran believes he came into contact with the toxic defoliant while serving aboard the Intrepid aircraft carrier in the Gulf of Tonkin and South China Sea between 1968 and 1969. But the Veterans Affairs Department rejected his application, saying he needed to submit evidence of “in-country service” in Vietnam or proof of exposure to herbicides, a high bar decades after the fact. So, Sherwood gave up.

However, a January federal appeals court ruling in favor of another seaman with similar complaints who served on the Intrepid and related legislation pending in Congress are renewing hopes for Sherwood. He is among the so-called Blue Water Navy Veterans — an estimated 90,000 served on ships off the coast of Vietnam — who could be eligible for VA benefits for Agent Orange exposure under the court decision. Sherwood is gathering his records and has contacted an attorney about pressing his claim with the VA.

“I have been denied for not having boots on the ground,” said Sherwood, a 71-year-old retired homebuilder who lives about 40 miles south of Atlanta. “When I finally heard about this and the possibilities of it, I just went kind of crazy. I started digging.”

Georgia senator in the mix

During Operation Ranch Hand, the U.S. military sprayed Agent Orange to deprive Communist forces of cover and crops in the dense jungles. The herbicide — it got its name from the orange-striped barrels in which it was stored — contained one of the most toxic forms of dioxin, a compound linked to some cancers.

The VA provides compensation and health care to troops who served on the ground in Vietnam or on its inland waterways and are suffering from seven forms of cancer and seven other illnesses it says are linked to Agent Orange exposure, including the ones that trouble Sherwood today.

The VA has resisted extending those benefits to Navy Veterans like Sherwood who never set foot on Vietnamese soil, warning the science linking them to Agent Orange exposure is tenuous. The non-partisan Congressional Budget Office has said the additional cost of the benefits could reach $2.5 billion over 10 years. And the VA said that would divert funding from other priorities.

“The accomplishments we have made with congressional assistance will be stymied due to the fact that we will have to research and evaluate what could total over 30,000 potential claims,” VA Secretary Robert Wilkie wrote in a September 2018 letter. The Veterans Benefits Administration’s “current resources,” he added, “are not adequate to begin this workload.”

On the opposing side of the fight has been Georgia Republican Sen. Johnny Isakson, chairman of the Senate Veterans’ Affairs Committee. He has pushed legislation to extend benefits for the Navy Veterans. While the House unanimously passed it last year, a pair of fiscal conservatives blocked its progress in the Senate. One of them was libertarian Sen. Mike Lee, R-Utah. He urged colleagues to wait for the results of a scientific study to first ensure there was a clear link to Agent Orange exposure for those Veterans.

G-II Varrato II — an Air Force Veteran, Phoenix Realtor and director of the Arizona chapter of the Veterans Association of Real Estate Professionals — also fought the legislation. He supports the plight of Blue Water Vets but took issue with some of the ways the bill proposed offsetting the cost of the expanded care. It would have raised certain VA home loan fees.

“It is not about the dollar. It’s about honoring those that served and gave part of themselves to this country,” said Varrato, himself a disabled Veteran.

Isakson’s House colleagues are ready to try again this year. They introduced H.R. 299, which would extend benefits to Veterans who served offshore of Vietnam during the war. The measure includes a retroactive provision to cover those who filed VA compensation claims as far back Sept. 25, 1985.The U.S. Court of Appeals for the Federal Circuit changed the political dynamic in January when it ruled in favor of Alfred Procopio Jr. He served on the Intrepid during the war and was rejected for VA benefits for his diabetes and prostate cancer. The government has linked both ailments to Agent Orange exposure. The court ruling requires the VA to cover the costs of extending the benefits to Blue Water Veterans, regardless of whether Congress passes its own legislation.

The Justice Department has until April 29 to decide whether it will appeal the ruling to the Supreme Court. A Justice Department spokeswoman declined to comment about her agency’s plans. But Wilkie recently told federal lawmakers he has recommended that the Trump administration stand down. If the appeals court decision holds, Isakson has pledged to work with the VA to help implement it.

Isakson said he wants to make Blue Water Navy Veterans benefits “simple and right. That’s what I intend to do.”

‘Skinny rascal’ Sherwood recently sat at his kitchen table, sifting through his military records and copies of Intrepid deck logs and gazing at fading photos of himself serving on the carrier. In one picture, he is standing on the deck, holding his camera up to his face and taking a selfie. Shirtless, he is lean and wiry in the photo. Sherwood said he lost more than 30 pounds during the war, becoming a “skinny rascal.”

He never went ashore in Vietnam. But he pointed out the Intrepid drew its drinking, laundry and bathing water from off the country’s coast. He also worked on many airplanes that flew over Vietnam, securing them to the deck of the Intrepid, cleaning them, attaching bombs to them and strapping the pilots into them. Agent Orange, he said, “didn’t just stop at the shoreline.”

“It was in the water. It was on the planes. I mean, we crawled all over those planes,” he said.

In December of 2005, Sherwood felt ill and went the hospital, where he was diagnosed with ischemic heart disease. That’s one of the illnesses the VA says is linked to Agent Orange exposure. A nurse came into this room and told him he had experienced two heart attacks. He underwent quadruple bypass surgery. Three years later, his feet began tingling. Doctors told him he had diabetes, which can cause neuropathy, or numbness. In 2017, he had three stents inserted in his arteries. He now takes four types of medicine for his blood pressure and diabetes.

At stake for him, Sherwood said, is what he estimates could be more than $2,000 in additional monthly VA compensation for Agent Orange exposure. Now retired, he lives in a modest home southwest of Griffin with his wife, Brenda Hunton, drives a 2001 GMC truck with 180,000 miles on it and receives some Social Security benefits.

“That would help me make it until I die,” he said of the additional VA compensation he is seeking, adding there are many other Navy Veterans like him. “We are all struggling. Ain’t none of us Rockefellers here. We are all living day to day.”

Source

Agent Orange lawsuit ready for federal court

AO Lawsuit 001

 

EGLIN AFB — A local attorney and the attorney who argued the case of Vietnam Veterans exposed to the herbicide Agent Orange that led to a $180 million settlement in 1984 — the largest settlement of its kind at the time — are joining forces on behalf of civilian workers exposed to the chemical compound on Eglin Air Force Base ranges in the 1960s.

The two attorneys have drafted a complaint, but have not yet filed it in federal court, according to Santa Rosa Beach attorney Rusty Sanders. Sanders was approached some months ago by civilian workers for defense contractor Vitro Corporation, which was involved in applications of Agent Orange on the Eglin ranges.

Sanders subsequently brought in Upstate New York attorney Victor Yannacone, who took the Vietnam Veterans’ case and in the process, became an expert on Agent Orange.

The civilian workers’ case “is the same thing all over again,” Yannacone said Monday. One thing that’s different this time around, though, is that the 200-page potential court filing includes documentation indicating that manufacturers of Agent Orange knew that it was dangerous to humans, Yannacone said.

According to Yannacone and Sanders, the potential filing targets those manufacturers, including Monsanto, Dow, Diamond Shamrock and others, along with contractors including the successor company to Vitro Corporation.

Their effort is hampered, however, both men say, by a lack of resources. When the lawsuit is filed, Yannacone said, he and Sanders will be lined up against “seven major corporate law firms, and seven major corporations.”

“Unfortunately, you need tremendous financial resources,” Sanders said.

According to Sanders, he and Yannacone now are looking for some major law firms, or possibly a “public interest consortium,” to help them wage a legal battle on behalf of the former civilian range workers.

So far, about 30 former range workers and their families are named in the legal action, but Sanders said he also has a working list of many more former Vitro workers.

The potential legal action has attracted some attention in connection with a recent podcast for Living Downstream, an environmental justice initiative of Northern California Public Media. The 26-minute podcast was reported by New York City-based radio reporter Jon Kalish, who also reported on the Vietnam Veterans’ Agent Orange case.

In the podcast, online at https://bit.ly/2FP7DWi, a number of former Vitro employees recount their exposure to the chemical — used to defoliate Vietnamese jungles to deny hiding places to enemy troops — which included being sprayed themselves by the chemical as aircraft sprayed it from overhead, as often as three times weekly.

“I remember one time it was like thin mud,” one of the Vitro workers says in the podcast.

The spraying was recorded on film, and one worker recalled how he and others were instructed to ensure that the cameras were kept clean.

“They never told us anything about wiping ourselves down,” the worker said.

Also according to the podcast, titled “The Forgotten Civilians of Eglin Air Force Base,” when former Vitro workers happened to come into contact with each other a couple of decades after their work with Agent Orange, they began to realize through their conversations that many of them were experiencing serious medical issues, from cancer to thyroid problems to skin issues to rampant arthritis.

A couple of years ago, a number of the former Vitro workers who believe their medical issues — and medical problems suffered by some family members — are a result of exposure to Agent Orange, approached Sanders about taking their case. In turn, Sanders contacted Yannacone.

The looming question for those workers, Sanders said, is, “What can be done for them now?”

Source

Justice Dept. Faces Pressure to Resist Appealing Vietnam Vets' Landmark Victory

Justice Dept 001

 

The U.S. Justice Department solicitor general's office is weighing a challenge to a Federal Circuit ruling that opened a door to Agent Orange-related benefits for Blue Water Navy Veterans.

Blue Water Navy Vietnam Veterans recently won the support of Veterans Affairs Secretary Robert Wilkie for a court ruling that could make tens of thousands of former service members and their survivors eligible for benefits stemming from exposure to Agent Orange decades ago. But now they are awaiting the Trump administration’s decision whether to challenge the ruling in the U.S. Supreme Court.

The Justice Department’s solicitor general’s office is weighing a challenge to the court ruling, issued by the U.S. Court of Appeals for the Federal Circuit. Any decision to appeal the court ruling would put the Trump administration at odds with Vietnam Veterans—and the head of the Veterans Affairs office. The benefits have been estimated to cost Veterans Affairs more than $1 billion over 10 years.

The so-called “blue water” Navy Vets served in the territorial waters offshore of the Republic of Vietnam. Until the Jan. 29 ruling by the full Federal Circuit, those Veterans had been denied the presumption of Agent Orange exposure during the Vietnam War. The Justice Department, supporting the Department of Veterans Affairs’s interpretation, had argued that the Agent Orange Act covered only those Veterans who served on the ground or inland waterways of Vietnam.

The 9-2 decision in Procopio v. Wilkie could open the door to tens of thousands of benefit claims by the Veterans. Diseases that the Veterans Affairs department presumes are associated with Agent Orange include ischemic heart disease, type 2 diabetes, Parkinson’s disease and various types of cancer. Wilkie recently said 51,000 claims are being processed.

During the March 26 budget hearing in the Senate Veterans Affairs Committee, chairman Johnny Isakson, R-Georgia, asked Wilkie: “Is it true, Secretary Wilkie, that Blue Water Navy’s court decision is not being challenged?”

“That would be my recommendation from VA,” Wilkie said. He cautioned that his recommendation is not the final word.

The U.S. solicitor general, consulting with federal agencies, generally makes decisions on government appeals to the Supreme Court. Another complicating factor for the solicitor’s office is the fact the U.S. State Department has expressed interest in having the Federal Circuit decision appealed.

The State Department is concerned the Federal Circuit ruling could have international law implications beyond the Agent Orange Act. A Justice Department representative said no decision had been made yet on an appeal.

“We’ve heard the State Department has some issues,” said John Wells of Slidell, Louisiana, who was on the Vietnam Veterans’ legal team with Melanie Bostwick, a partner at Orrick, Henderson & Sutcliffe who argued the case. The Federal Circuit rejected the government’s request to put its decision on hold until the government decided whether to appeal, Wells said.

“Since the mandate has issued, Procopio is now the law of the land unless and until it’s overruled,” Wells said. “On April 1, the chairman of the Board of Veterans Appeals lifted all stays [on claims] at the board and they’re starting to reassign those cases to be heard by a board member.”

The issue before the Federal Circuit was whether the phrase “served in the Republic of Vietnam” unambiguously included service in offshore waters within the recognized territorial limits of that country.

“The intent of Congress is clear from its use of the term ‘in the Republic of Vietnam,’ which all available international law unambiguously confirms includes its territorial sea,” Federal Circuit Judge Kimberly Moore said in the majority opinion. “This uniform international law was the backdrop against which Congress adopted the Agent Orange Act.”

Judges Timothy Dyk and Raymond Chen, both voting in dissent, said the Agent Orange Act was ambiguous and Congress, not the court, was the appropriate body to resolve the issue.

The Federal Circuit majority’s decision overruled an earlier decision, issued in 2008, in Haas v. Peake. That ruling had affirmed the Veterans Affairs office’s interpretation limiting the presumption of Agent Orange exposure to “boots on the ground.”

In asking the appellate court to put its ruling on hold pending its decision on a Supreme Court appeal, Justice Department lawyers unsuccessfully argued that “there are substantial grounds for disagreement that warrant the granting of a petition for a writ of certiorari.”

The formal deadline for the solicitor general’s filing of a petition in the Supreme Court is April 29, but an extension of time may be requested.

“As I read the Federal Circuit opinion, it’s pretty well written,” Wells said. “If the solicitor general does take it up, we feel very comfortable fighting the issue in the Supreme Court. Unless the solicitor general particularly wants to lose, I don’t see them taking it up.”

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Veterans groups appeal to Trump over benefits for Blue Water Navy Veterans

Benefits for BWN Vets

 

WASHINGTON – Ten national Veterans organizations pleaded with President Donald Trump on Tuesday, asking him to direct the Justice Department not to appeal a recent federal court decision that could extend benefits to thousands of Vietnam War Veterans.

The Court of Appeals for the Federal Circuit ruled 9-2 in January that “Blue Water” Navy Veterans, those who served aboard ships offshore during the war, are eligible for benefits to treat illnesses linked to exposure to the chemical herbicide Agent Orange.

The Justice Department and Department of Veterans Affairs have until the end of the month to seek a review of the case from the U.S. Supreme Court. VA General Counsel James Byrne said last month that the agency hadn’t decided whether it would appeal but officials were “taking it under advisement.”

Veterans and lawmakers have asked VA Secretary Robert Wilkie not to contest the decision. On Tuesday night, 10 groups appealed directly to Trump.

“On behalf of the undersigned Veterans service organizations and our millions of members, we urge you to direct the Justice Department NOT to appeal the U.S. Appeals Court for the Federal Circuit decision,” they wrote in a letter to the president.

The court ruled in favor of Alfred Procopio, Jr., 73, who served on the USS Intrepid during the Vietnam War. Procopio is one of tens of thousands of Veterans who served aboard aircraft carriers, destroyers and other ships and were deemed ineligible for the same disability benefits as those Veterans who served on the ground and inland waterways.

The decision came 10 years after the VA denied Procopio’s disability claims for diabetes and prostate cancer.

At issue was interpretation of the current law, which allows easier access to disability benefits for Veterans who “served in the Republic of Vietnam” and suffer from one of a list of illnesses linked to the Agent Orange. The herbicide has been found to cause respiratory cancers, Parkinson’s disease and heart disease, as well as other conditions.

The court determined territorial seas should be included in the definition of “Republic of Vietnam” – a point the government disputed.

For Procopio and other Blue Water Navy Veterans, the decision could result in thousands of dollars of disability benefits each month. John Wells, one of the attorneys on the case, estimated 50,000 to 70,000 Veterans could become eligible for benefits.

The ruling followed a failed effort in Congress last year to approve the benefits.

The House voted unanimously in favor of the Blue Water Navy Vietnam Veterans Act last year, but the legislation stalled in the Senate after Wilkie voiced his opposition, citing high costs and insufficient scientific evidence linking Blue Water Navy Veterans to Agent Orange.

The House and Senate reintroduced the legislation at the start of the new congressional session.

The top lawmakers on the Veterans affairs committees – Sens. Johnny Isakson, R-Ga., Jon Tester, D-Mont., and Reps. Mark Takano, D-Calif., and Phil Roe, R-Tenn. – said in February that they would attempt again to pass the legislation.

The 10 Veterans groups argued Tuesday that the court decision authorizes the VA to make the benefits available now, without having to wait for legislation.

“We call on you to direct [Wilkie] to immediately begin implementing this decision so that justice is finally provided to the men and women who served in Vietnam, suffered from the devastating long-term health effects of Agent Orange exposure, but who today are denied the benefits and health care they have earned,” they wrote.

The letter was signed by Disabled American Veterans, Veterans of Foreign Wars, The American Legion, Paralyzed Veterans of America, AMVETS, Military Order of the Purple Heart, Fleet Reserve Association, Association of the United States Navy, Vietnam Veterans of America and Military Officers Association of America.

“Mr. President, a Veteran is someone who at one point in their life wrote a blank check made payable to the United States of America, for an amount up to and including their life,” the groups concluded. “We ask that you and our grateful nation take another step towards meeting that commitment.”

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