The Department of Veterans Affairs must redecide thousands of Blue Water Navy veterans' benefits claims that may have been wrongfully denied, and pay retroactive benefits, a federal judge ruled last week.
The U.S. District Court for the Northern District of California ruled in favor of thousands of Blue Water Navy veterans, those who served off the coast of Vietnam, and their survivors, enforcing a 29-year-old class action consent decree established in Nehmer v. VA.
The court ordered VA to "automatically" redecide thousands of Blue Water benefits claims the court found were wrongly denied and to pay retroactive benefits if VA finds veterans served in the territorial seas of Vietnam. The court's decision was first reported by Court House News on Thursday.
“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,” National Veterans Legal Services Program (NVLSP) Executive Director Bart Stichman said in a statement Nov. 6. “These veterans and their surviving family members have already been waiting years for benefits to which they are entitled ... simply because they did not set foot in the landmass of Vietnam.”
NVLSP estimates the decision could affect 2,000 to 15,000 veterans and their families, and could lead to each of them receiving an average of $28,000 in "tax-free benefits," NVLSP spokeswoman Patty Briotta said. "Ultimately, this decision could result in tens or hundreds of millions of dollars in relief to Blue Water Navy veterans and their survivors."
The 1991 consent decree, a settlement VA agreed to, applied to a class of hundreds of thousands of Vietnam veterans and their survivors who applied for service-connected disability or death benefits at VA for exposure to Agent Orange. The settlement, decided nearly 30 years ago, required that VA redecide all prior VA benefit claim denials whenever the department recognized an additional disease as connected to the toxic herbicide and pay retroactive benefits to the date of the previously denied claims.
But after a change in VA policy in 2002, the department stopped awarding retroactive benefits to veterans based on whether they received a Vietnam War service medal without first deciding if a veteran had served on land or on inland waterways of Vietnam (brown water veterans). This largely left out Blue Water vets who had previously been awarded benefits for more than a decade before the change.
Last week, U.S. District Judge William Alsup rejected VA's arguments that it never intended to include Blue Water Navy veterans in the earlier settlement.
"The objective and reasonable intent of the consent decree was to require automatic readjudications for all persons entitled to benefits under the Acts. The agency itself in its first 11 years, in fact, extended the benefits (of the settlement) to anyone who had received a Vietnam service medal, which included Blue Water veterans," Alsup wrote in his ruling. "The agency now says that was a decade-long mistake and that the agency should have all along denied relief under the (settlement)."
When Procopio v. Wilkie was decided last year, Blue Water Navy veterans should have been granted presumptive exposure to Agent Orange for VA benefits purposes, but "surprisingly ... the agency refused to do so," Alsup wrote. "This was in error."
NVLSP has served as counsel for the class since 1987 and in July filed a fourth motion for enforcement of the consent decree, this time to apply to recent changes for Blue Water Navy veterans. NVLSP filed three previous enforcement motions, and all three were granted, leading to billions more in benefits for Vietnam veterans and their families over more than three decades. When VA appealed the decisions, the court upheld them.
Now, based on the Court's decision last week, VA must, within 120 days, identify all claims that need to be re-evaluated and within 240 days, issue a new decision that decides if the veteran served in the territorial waters off Vietnam during the war and if so, how much retroactive compensation they or their surviving family is entitled to. VA must also provide NVLSP with documentation of all those decisions.
This means that Blue Water Navy veterans who previously filed Agent Orange claims that were denied should have those claims automatically reviewed without needing to file a new claim, and extends to the children or estates of veterans who have died. This is a major departure from the Blue Water Navy Vietnam Veterans Act Congress and the president passed into law last year which required veterans or their families to file new claims. The new law and the previous settlement overlap, but the new law is clear that it in no way infringes on veterans' rights under the previous settlement.
Veterans or their families who have questions or need assistance can contact NVLSP's Nehmer class team at 855-333-0677.