Court Denies Sea-Based Vietnam Vets’ Claim against VA over Agent Orange Disease Benefits

Tuesday, August 02, 2016
Judge Thomas B. Griffith

By Jack Bouboushian, Courthouse News Service


(CN) — The D.C. Circuit upheld the dismissal of "blue water" Vietnam veterans' claim that the Department of Veterans Affairs wrongly refused to compensate them for injuries caused by Agent Orange exposure.


The U.S. military used Agent Orange as a defoliant to clear forested areas throughout the Vietnam War, and thousands of soldiers were exposed to the herbicide mixture.


A list of potential health consequences posted on the VA's website notes that exposure can lead to increased rates of acute leukemia, Hodgkin's lymphoma and non-Hodgkin's lymphoma, throat cancer, prostate cancer, lung cancer, colon cancer, Ischemic heart disease, soft tissue sarcoma and liver cancer.


Exposure to Agent Orange was so prevalent that Congress eventually recognized the long-term health effects of the chemical and passed the Agent Orange Act of 1991, which creates a presumption that veterans who served between 1962 and 1975 were exposed.


If these veterans develop diseases linked to Agent Orange, they can receive disability compensation without proving they were exposed to the herbicide.


However, the VA does not offer such benefits to veterans who served on ships offshore, never set foot on Vietnamese soil, or served on ships that entered inland waterways.


Instead, these "blue-water" veterans must prove exposure on a case-by-case basis. The Blue Water Navy Vietnam Veterans Association unsuccessfully challenged the distinction in a 2015 lawsuit.


The veterans noted that the presence of Agent Orange in the waters off the coast of Vietnam was unmistakable.


"Whenever ships anchored, the anchoring evolution would disturb the shallow seabed and churn up the bottom," they claimed. "Weighing anchor actually pulled up a small portion of the bottom. The cavitation of military ships moving along the coast line, especially within the 10 fathom curve, at high speeds, further impinged on the sea bottom. This caused the Agent Orange to constantly rise to the surface."


After churning up Agent Orange while traversing and anchoring offshore, unsophisticated methods of turning saltwater into potable water intensified the chemical, furthering their exposure, the veterans said.


On Friday, the blue-water veterans lost their appeal of the dismissal of their case. D.C. Circuit Judge Thomas B. Griffith acknowledged that proving individual exposure is "an extremely difficult task," but insisted that his hands were tied.


His 15-page opinion (pdf) focused almost totally on jurisdiction, stating that federal law has long been interpreted to "preclude judicial review of VA decisions affecting the provision of veterans' benefits."


Griffith wrote that although the law "does not give the VA exclusive jurisdiction to construe laws affecting the provision of veterans benefits," the D.C. Circuit cannot review either individual benefits determinations or policy-level challenges to veterans' groups.


 riday's opinion suggests that the veterans may be able to bring their challenge in the Federal Circuit if it can be construed as a challenge to a regulation. The group may also have access to the Board of Veterans' Appeals or the U.S. Supreme Court.


Last year, the VA expanded its Agent Orange regulations to cover reservists who flew planes previously used to spray the chemical. 


To Learn More:

Blue Water Navy Vietnam Veterans Association, Inc. v. Robert A. McDonald (U.S. Court of Appeals for the District of Columbia) (pdf)

For First Time in 3 Decades, VA to Launch Studies into Agent Orange Effects on Vietnam Vets (by Charles Ornstein and Terry Parris Jr., ProPublica, and Mike Hixenbaugh, Virginian-Pilot)

Politics and Cost Wrongly Influence VA Decisions on Agent Orange Vet Benefits (by Charles Ornstein, ProPublica, and Mike Hixenbaugh, The Virginian-Pilot)

New Evidence Linking Bladder Cancer to Agent Orange Gives Vietnam Vets Hope in Fight for VA Benefits (by Mike Hixenbaugh, The Virginian-Pilot, and Charles Ornstein)


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