Judges will hear arguments in lawsuit over 'Blue Water' Vietnam veterans' Agent Orange benefits Friday

Photo credit Photo by Abbie Bennett/Connecting Vets
By Connecting Vets

Twelve "Blue Water Navy" Vietnam veterans have died since Department of Veterans Affairs Secretary Robert Wilkie issued a stay on processing their Agent Orange disability claims, an advocacy group told Connecting Vets Wednesday. 

On Friday, the Federal Circuit Court of Appeals will hear oral arguments in a lawsuit filed by a veterans nonprofit group, Military Veterans Advocacy Inc. (MVA), asking that the delay on processing those claims ends. The delay affects more than 400,000 veterans or surviving family members who could be eligible for benefits, according to VA. 

The courts have 'lost patience' with VA over delay on Blue Water Navy veteran benefits

MVA Executive Director John Wells told Connecting Vets his group knows of at least 12 veterans who have died since Wilkie ordered the stay July 1. 

After decades of trying to win disability benefits from the VA, thousands of Blue Water veterans exposed to toxic herbicide Agent Orange are still waiting for a chance to receive disability benefits -- even after a landmark court decision and a law awarding those benefits passed Congress and was signed by President Donald Trump.

The lawsuit attempts to overturn the stay ordered by Wilkie and first reported by Connecting Vets in July. The stay was allowed under the law passed by Congress and the president, Wilkie says, and it stalls all claims processing until Jan. 1, 2020. 

The lawsuit also attempts to clarify the Procopio v. Wilkie Federal Circuit Court decision, which reversed a 1997 VA decision to deny that Blue Water veterans were exposed to Agent Orange while serving offshore of Vietnam. The Procopio decision earlier this year meant that the VA should presume veterans who served in the waters off the coast were exposed to Agent Orange at some point during their service, and as a result were eligible for related VA benefits. 

So far, both routes to benefits for Blue Water veterans have been shut down by the stay.

Wells said the VA has delayed all claims for Blue Water veterans -- including those that should have moved forward since the Procopio decision, and veterans are dying while they wait. 

"It's a shame," he said. "This shouldn't have ever been allowed to happen." 

On Friday, arguments in the lawsuit will be heard by a panel of three judges, but a decision Friday is unlikely, as the appellate court typically issues written opinions following arguments. 

"We're going to make a case on why the stay should be lifted," Wells said Wednesday. "Our position is that the stay is illegal" and benefits should be issued to veterans who qualify based on the Procopio decision. 

There is no provision in the law that says VA can't delay the claims beyond Jan. 1, 2020, Wells said.

"Our concern is there's nothing in the statute to prevent extending it," he said.

"If you believe VA, I've got some great bridges I'd like to sell you. Cash only," Wells joked. 

No plans to lift the stay

Despite lawmakers, veteran service organizations and dying veterans asking for VA or even Trump to end the stay, VA leaders made clear during a House Veterans Affairs hearing last week the department has no plans to begin processing any claims before Jan. 1. In fact, leaders said they can't.

VA Deputy Undersecretary for Field Operations Willie C. Clark Sr. thanked Congress for allowing VA to delay the claims.

Rep. Mike Bost, R-Ill., asked Clark if any claims were being worked on during the stay. 

"No," Clark said. "Our folks are not trained to do this work. We want to get this right. We have learned that we have rushed sometimes ... We want to get it right the first time ... We're not ready. That's why this stay is important." 

Those claims could also take weeks or "many months," VA leaders told Congress. 

 Eight VA offices will handle the claims, Clark said, and VA is hiring 800 employees and crafting training for employees who will process the claims. That training should be completed by mid-December, Clark said. 

"We are prepared to be ready on Jan. 1," Clark said. "We will be ready without fail." 

Wells was skeptical of VA leaders saying they are unable to begin processing claims now. 

"It takes minutes to look at the top of a deck log and see if a ship was in a harbor, or what class of ship it is ... That could determine claims for about 85-90 percent of those folks," he said, adding that MVA offered thousands of documents and help training employees, but was rebuffed or ignored. He said MVA has had similar trouble communicating with House Veterans Affairs majority leaders, who he blames for the stay. 

Claims can be submitted now

Previously, VA has said Blue Water veterans and their families are "encouraged" to submit their claims for conditions related to Agent Orange. Veterans 85 and older, or "with life-threatening illnesses" will have "priority in claims processing," VA said. But those claims will not be decided until 2020, according to Wilkie's order.

About 77,000 Blue Water veterans have previously submitted claims and been denied, VA leaders said. They must file a new claim. Eligible survivors of deceased Blue Water Navy veterans can also file claims for benefits based on their veterans' service. 

A list of the diseases currently linked to Agent Orange and eligible for benefits can be found here

Veterans who want information from the VA can call 800-827-1000 or click here.

Reach Abbie Bennett: abbie@connectingvets.com or @AbbieRBennett.
Want to get more connected to the stories and resources Connecting Vets has to offer? Click here to sign up for our weekly newsletter.