Two years ago, Military Veterans Advocacy, Inc (MVA) began 2019 with a major victory in the courts as the Court of Appeals for the Federal Circuit handed down the Procopio v. Wilkie decision in January. This landmark decision forced the Department of Veterans Affairs to begin processing Blue Water Navy Vietnam Veteran Agent Orange claims once the mandate was issued in March. As we were waiting for the mandate, we coordinated with the House Veterans Committee staff to try to ensure any codifying legislation would remain in-line with Procopio and prevent further delays throughout the winter and spring.
For more than a decade, MVA presented evidence to Congress and the VA that runoff from Vietnam included the toxins from Agent Orange, which was ingested into water distillation systems on Navy ships offshore, affecting servicemen who never set foot on Vietnamese soil.
Despite the Procopio win, Congress last spring passed the Blue Water Navy Vietnam Veterans Act (H.R. 299) to serve these veterans’ needs. The legislation allowed for administrative tinkering with the implementation and included ambiguous language that helped justify the stay in the eyes of Secretary Wilkie and the Courts. MVA reluctantly withdrew its support before passage, but circumstances pressured Congress to pass the measure without regard for the unintended consequences. One of those consequences was VA Secretary Robert Wilkie issuing an administrative stay order through the end of 2019, and MVA sought a legal remedy through Procopio v. Secretary of Veterans Affairs (Procopio II).
During the first week of November 2019 the Court of Appeals for the Federal Circuit heard oral arguments in Procopio II. In December, the Judges told the VA they were not to even consider extending the stay. Unfortunately, they also found that the Congressional language authorized Secretary Wilkie to stay proceedings until January 1 2020.
Have we won?
We have confirmed that starting January 21, 2020, as Secretary Wilkie promised, Blue Water Navy Vietnam veterans’ benefits are being awarded. That is great news.
MVA, now merged with the Blue Water Navy Vietnam Veterans Association, Agent Orange Survivors of Guam, and Thailand Agent Orange Veterans, is a full membership organization and we also know we must continue to fight. Why? Didn’t we finally win the day, you ask? Unfortunately, no, we haven’t won accountability and benefit awards on ALL toxic exposures. Of course we’re still not finished fighting for herbicide exposure (agent orange or its companion chemical component herbicides produced in the same era) benefits. As an example, some 55,000 veterans who operated outside of the territorial sea were exposed to herbicide but not covered by the Act or the Procopio decision.
Media reports in 2020 confirm the need for our continued fight. First, in a report in January 2020 by Steve Andrews of WFLA in Florida, he highlighted that “claims languish for veterans who served in Thailand during the Vietnam War and were exposed to a dangerous herbicide known as Agent Orange” even though “Margarita Devlin, principal deputy undersecretary for veterans benefits contends there is no longer a huge back-log of veterans waiting for their claims to be processed and completed.” Devlin even audaciously asserted the VA freely gives benefits to veterans, directly contradicting the reality that it took the VA almost 20 years, and only after a after a precedent setting court case victory and new legislation from Congress to award some blue water navy Vietnam veterans the benefits they deserve.
A second report in late January revealed that VA disputes a National Academies of Sciences, Engineering and Medicine, or NASEM, science panel’s findings on proposed Agent Orange diseases after a 3-year delay and expects a VA internal “study” won’t be ready to make a decision until late 2020. No, the VA drags its feet and has for decades on the matter of toxic exposure in the American military. The evidence proves that fact but let’s not stop there.
Yet another and third report was published one day after the second that shows the Department of Defense and the Department of Veterans Affairs continue to actively prevent veterans claims being approved for toxic exposure, including for Agent Orange in Thailand. The report stated “The Department of Defense has released a new list of locations outside Vietnam where herbicides like Agent Orange were tested and stored, a compilation that could provide some veterans proof of exposure needed to support their VA disability claims. But the list, published Jan. 27 by the Department of Veterans Affairs, omits more than 40 locations previously noted as exposure sites by DoD in 2018 — deletions that could undermine other veterans’ pending claims.”
A DoD spokesperson stated the new list replaces the one from 2018 and is “the result of DoD’s thorough review of the records for use, storage and testing of Agent Orange and other tactical herbicides outside of Vietnam.” Of course, emphasis on the term “tactical herbicides” is likely the way they eliminated some locations. It’s important for veterans and survivors filing claims to remember that this term is used for a herbicide’s operational purpose. Agent Orange and the other so-called “tactical herbicides” agents Purple, Pink, Green, Blue, White and their active ingredients were used in non-tactical applications on installations and in war zones but were not necessarily referred to as such. The chemical components of tactical and commercial herbicides are the same. We have direct evidence and soil sample evidence from as late as 2018 that proves these herbicides were used by the military on Guam, for example. Veterans service connection needs to be base don the chemical composition of these herbicides, not the published category. Don’t fall into this trap of confusion set by DoD and VA! The list is very important for veterans outside of Vietnam to prove exposure to the VA so this new list is likely to cause even more denials and delays for veterans and survivors who continue to pass away in large numbers every day.
Our priority goal at MVA is to obtain benefits for all victims of military toxic exposure of all types and veterans harmed by VA inaction or incorrect action through our three mission pillars of legislation, litigation, and education.
We are working with key Congressmen and women on a bill establishing a National Military Toxic Exposure Research Center that will use an epidemiology approach overseen by a DoD Advisory Board. The proposal is based on the successful Australian model that confirmed blue water navy Vietnam veteran’s agent orange exposure almost 20 years before the United States started awarding benefits this year. The system tracks and surveils active duty servicemembers, veterans, and their families for health research studies in the military and veteran communities.
The USA needs to establish our own center for a variety of reasons. Claims filed by Veterans continue to be denied, citing an alleged lack of evidence or presumptive status for service-connected disabilities. Bills to require coverage are tied up in Congress awaiting offsets required by the Pay As You Go Act of 2010.
Veterans and their family members are continuing to struggle with and suffer from the effects of toxic exposures. Unlike the more visible wounds of combat, the effects of toxic exposure are often invisible to the onlooker and affect more than the individual service member. Toxin-exposed Veterans and their descendants suffer from complex constellations of cancers, and a multitude of chronic medical disorders.
Over the long term, financial and human resources expenditures will be greatly reduced as exposures and diseases are detected earlier, enabling earlier medical intervention, and reducing or eventually eliminating our current reliance on presumptive exposures.
Of course, we continue to advocate for approval of bills awarding presumptive benefits such as HR 1713, the Lonnie Kilpatrick Central Pacific Herbicide Relief Act to cover herbicide exposures on Guam and other islands, HR 2201 to modify the presumption of service connection for veterans who were exposed to herbicide agents while serving in the Armed Forces in Thailand during the Vietnam era, and HR4086, the Protection for Veterans Burn Pit Exposure Act but these bills, like the Blue Water Navy Act, can take decades these veterans and their families don’t have to get passed.
That is why our litigation strategy includes requesting Administrative Procedures Act rulemaking from the VA mirroring the presumptive legislation. We expect we’ll be back in court this coming year. This pathway is the same strategy we eventually implemented for the Blue Water Navy presumption benefits which culminated with our winning Procopio court case, finally enabling Blue Water Navy legislation to pass last year after nearly a decade of failure in Congress caused by Pay-Go Rule issues.
Our 2021 education mission is a continuing legal education for attorneys and veteran service officer training offering on Blue Water Navy Claims education seminar. We just completed our first one in Tampa, Florida and plan to accomplish at least four more throughout the country this year.
Our fight continues. That is why MVA became a founding member of Toxic Exposures in the Military (TEAM) and fully supports the TEAM Toxic Exposure legislation. Shamefully, the reality is the DoD and VA are not being held accountable regarding military toxic exposures of all types: radiation, chemical, or biological and we must keep working together from all angles to find solutions to this decades long challenge.