In May 2008, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed a U.S. Court of Appeals for Veterans Claims (CAVC) decision that upheld the provision of VA disability compensation to Vietnam-era Navy veterans who served on ships that sailed in the waters off the coast of Vietnam, but never actually set foot ashore (often called “blue water” veterans).
The Federal Circuit’s decision reversed the CAVC’s 2006 decision in Haas v. Nicholson, in which the court struck down as unduly restrictive a VA regulation that required a veteran’s actual presence within Vietnam to be eligible for disability compensation under the Agent Orange Act of 1991. By a 2-1 majority, the Federal Circuit ruled that the VA had the authority to sever existing Agent Orange-related disability payments and deny new claims from “blue water” veterans.
Agent Orange, a now outlawed chemical defoliant that contained the highly toxic substance dioxin, was sprayed by U.S. forces across Vietnam to clear jungle vegetation that could provide cover to the enemy.The VA appealed Haas to the Federal Circuit because including blue water veterans in the group of veterans who are eligible for disability payments based on diseases that have been recognized as related to Agent Orange exposure would cost the government an additional $3.3 billion over 10 years.
The controversy is based on a provision of the VA’s claims processing manual that requires VA claims adjudicators to award service connection on a presumptive basis for certain diseases if blue water veterans had received the Vietnam Service Medal. That medal was awarded to all military personnel who served in Vietnam, its contiguous waters or the airspace above it, from July 1965 through March 1973.
On appeal, the Federal Circuit disagreed with the CAVC’s finding that the VA’s requirement that a veteran must actually set foot in Vietnam for presumptive service connection for an Agent Orange-related disease was too restrictive, in part because ships sailing offshore could have been exposed to dioxin from windborne coastal spraying and from dioxin run-off into the ocean from inland waterways.
The Federal Circuit majority opinion stated that Congress’ use of the phrase “served in the Republic of Vietnam” in the Agent Orange Act was not specifically defined and that such ambiguity left it up to the VA to define that requirement for presumptive service connection as it deems appropriate.
The dissenting judge disagreed, stating that the majority did not consider that by allowing presumptive service connection for Agent Orange-related diseases, Congress intended to make it easier, rather than more difficult, for exposed veterans to receive VA disability benefits. Consequently, the judge believed that the phrase should be liberally interpreted.The National Veterans Legal Services Program (NVLSP), whose attorneys represent Mr. Haas, plans to ask the Federal Circuit for en banc reconsideration before all of the court’s seven judges.
