Presumptive benefits to Blue Water Navy veterans are a major win

It is often said that patience is a virtue, and no one understands this more than a group of Vietnam veterans known as “Blue Water Navy” veterans — those who served in the waters offshore during the Vietnam War.

Today, thanks to a decision by the United States Court of Appeals for the Federal Circuit in Procopio v. Wilkie, the group’s patience paid off. And the heroes of this story involve a cast of unlikely characters: lawyers.

{mosads}By way of background, when Congress passed the Agent Orange Act in 1991, the law stated that veterans who “served in the Republic of Vietnam” were presumed entitled to certain benefits that stemmed from exposure to herbicides such as Agent Orange.

However, shortly thereafter, in 1997, the VA General Counsel’s Office issued a precedential opinion limiting the definition of service “in the Republic of Vietnam” to service that involved “boots on the ground” within the landmass of Vietnam or its inland waterways. In effect, this opinion precluded tens of thousands of veterans who served aboard aircraft carriers, cruisers, destroyers and other ships during the war, from entitlement to the presumption of disability benefits.

As a result, a lengthy legal battle ensued. In 2006, the U.S. Court of Appeals for Veterans Claims held in Haas v. Nicholson that the VA’s regulatory interpretation of service “in the Republic of Vietnam” was unreasonable. That decision was subsequently overturned by the Federal Circuit in 2008, meaning the VA’s interpretation of the phrase was upheld. A petition for certiorari to the Supreme Court was denied in 2009.

In the interim, many well-intentioned advocates and service organizations lobbied Congress to change the law. Many of them could even taste victory when a bill that extended the presumption of benefits to Blue Water Navy veterans sailed through the House last year and seemed poised to pass the Senate. But in the final days of the 115th Congress, Sen.Mike Enzi (R-Wyo.) put a hold on the measure, citing VA’s concerns about the costs and uncertainty surrounding the science proving causation.

Despite this upset, veterans’ legal advocates were still working quietly behind the scenes, determined to have the 2009 decision in Haas overruled. While Congress was fighting over the cost of the legislation, John Wells, Executive Director of Military Veterans Advocacy — both a lawyer and a Blue Water Navy veteran — quietly filed a Notice of Appeal at the Federal Circuit on behalf of Blue Water Navy veteran Alfred Procopio.

And, as evidenced by today’s decision, the court was willing to take the unusual step of overruling its previous decision, and instead ruled in favor of the Blue Water Navy veterans.

So, what changed in the nearly ten years between the Haas decision and the Precopio decision? The answer is a significant increase in the number and quality of legal practitioners advocating for veterans.

In 2008, there were only about a half-dozen legal clinics that focused on veterans and military personnel; currently, there are over 50 clinics in 31 states and the District of Columbia. Moreover, a number of students who participate in veterans clinics emerge “practice-ready” and are pursuing legal careers helping veterans in both the public and private sectors.

As noted in a 2016 law review article published by the College of William & Mary Law School, there are now over 5,000 practitioners admitted to practice before the Veterans Court. These attorneys, in private practice and legal service organizations, devote their practice to veterans law. And, in addition to the lawyers themselves, there are now also a number of specialized organizations, events, and publications dedicated to the advancement of veterans’ law.

Of course, this is not to say that the work of non-legal advocates and service organizations should be overlooked, as many of these organizations provide quality advocacy on behalf of veterans across a myriad of policy issues. However, some of these organizations have, at times, remained overly concerned with the stereotype of the greedy lawyer, a stereotype that has been difficult to shed in the veterans’ benefits arena.

The stereotype of lawyers taking advantage, rather than helping, veterans stems from the post-Civil War era, when Congress passed a law limiting the amount of money a lawyer could charge a veteran for representation in connection with a claim for disability benefits to $10. At the time, lawyers were referred to as “vampires who suck the very life-blood of the poor dependent pensioners.”

The law was not changed until Congress passed the Veterans Judicial Review Act in 1988, creating the U.S. Court of Appeals for Veterans Claims. Since that time, most organizations have come around to working with lawyers, rather than against them, in furtherance of common goals for increasing veterans’ eligibility to earned benefits. To this end, nearly all of the major veterans service organizations partnered with veterans lawyers to file amicus curiae briefs in support of the Procopio case.

According to Chris Attig, a veteran, veterans’ law attorney and member of the board of directors for the National Organization of Veterans Advocates (NOVA), who filed an amicus curiae brief on behalf of that organization in the case, the importance of the Precopio decision should not be underestimated.

“The Federal Circuit correctly interpreted the law to ensure that all veterans who served in the Republic of Vietnam and its territorial waters have access to a variety of life changing benefits. In doing so, the Court honored Congress’ long-standing desire to ‘protect those who have been obligated to drop their own affairs to take up the burdens of the nation,’” he stated with approval.

As is often the case, patience is a virtue, but persistence and cooperation – particularly with hard working lawyers like Attig — are the keys to success, even in the face of a colossal bureaucracy and its complex regulations.

Rory E. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.