WASHINGTON D.C. — U.S. District Court for the Northern District of California ruled in favor of thousands of so-called Blue Water Navy Vietnam Veterans and their survivors Nov. 5.
The ruling was in response to a motion filed by attorneys from the National Veterans Legal Services Program (NVLSP) to enforce the 29-Year Old Class Action Consent Decree in Nehmer v. U.S. Department of Veterans Administration. The Court ordered the VA to automatically readjudicate thousands of benefits claims that the Court found had been wrongly denied under the Consent Decree. The Court also ordered the VA to pay retroactive compensation if it finds the veteran served in the territorial seas of Vietnam.
“We applaud the Court’s recognition that Blue Water Navy Vietnam Veterans and their survivors have been wrongly denied retroactive disability and death benefits ever since 2002, when VA reversed its prior position and denied the presumption of Agent Orange exposure to veterans who served in the territorial seas of Vietnam,” said National Veterans Legal Services Program Executive Director Bart Stichman. “These veterans and their surviving family members have already been waiting years for benefits to which they are entitled under the Consent Decree simply because they did not set foot in the land mass of Vietnam.”
The 1991 Consent Decree applies to a class consisting of hundreds of thousands of Vietnam veterans and their survivors who applied to the VA for service-connected disability and death benefits due to exposure to Agent Orange, the toxic herbicide used by the U.S. government during the Vietnam War. That Decree required the VA, whenever it recognized an additional disease is associated with exposure to Agent Orange, to identify and readjudicate all prior VA denials of benefit claims filed for that disease and pay benefits retroactive to the date of the claim that led to the prior denial.
On July 10, 2020, NVLSP, which has served as counsel for the class since 1987, filed its fourth motion for enforcement to obtain compliance with the 1991 Consent Decree. The District Court had granted all three prior enforcement motions. As a result of the prior three successful enforcement actions, VA conceded that it paid billions of dollars in retroactive benefits to Vietnam veterans and their survivors.
The VA’s 2002 change in policy challenged in the fourth enforcement motion was that these “Blue Water” Vietnam veterans were not covered by the language of the Agent Orange Act of 1991, which provided that veterans who “served in the Republic of Vietnam” during the Vietnam era “shall be presumed to have been exposed during such service” to Agent Orange. But in 2019, in Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit rejected VA’s interpretation of that language and ruled that Congress intended that all Vietnam veterans who served on ships in the territorial sea of Vietnam—within 12 nautical miles of the coast—be entitled to the presumption of exposure. NVLSP filed its enforcement motion after VA refused to redecide the post-2002 claims of “Blue Water” Vietnam veterans and their survivors that were denied under the VA policy rejected in the Procopio decision.
The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) codified the presumption of herbicide exposure for Blue Water Vietnam veterans. However, the BWN Act does not automatically require the VA to assess if any Blue Water Vietnam veteran or survivor is eligible for retroactive compensation. The BWN Act requirement to pay retroactive compensation is triggered only if a Blue Water Vietnam veteran affirmatively files a claim after January 1, 2020 and the veteran specifically identifies the Agent-Orange related disease that was the subject of the earlier claim.