As you may know, Procopio v Wilkie decision by the Federal Circuit Courts, in Washington DC, has reinstated The Agent Orange Act of 1991. This entitles Vietnam veterans operating in the Territorial waters off South Vietnam and their surviving widows presumptive exposure to Agent Orange and Dependency Indemnity Compensation (DIC). Haas v Peake in the Federal Circuit Courts has been overturned. VA was found at fault for not complying with Congressional intent, not to mention the erroneous interpretation of the law and their definition of territorial waters as ratified by states around the globe as found in the U.N. Convention and Law of the Sea 1982 (UNCLOS), also signed by President Reagan on March 10, 1983. You may recall, the Federal Circuit Courts in Gray v McDonald found the VA’s definition of inner waterways “capricious and arbitrary” and mandated they redefine their definition. The VA response was to remove port visits by ships from the adjudication process unless the veteran could prove “boots on soil”.
The en banc hearing for Procopio v Wilkie, held on Dec. 7, 2018, at the Federal Circuit Courts, in Washington DC, by 10 judges, with one absent, and one that recused himself, where the courts awarded the precedent setting decision 9-2 on Jan. 29, 2019, with profound overwhelming support of our veterans and widows.
The VA Secretary’s only choices are:
1.) Concede to the Federal Circuit Courts precedent setting decision and ruling that effectively restores eligibility to Blue Water Navy veterans and widows.
2.) Petition the SCOTUS in an attempt to be heard and have the decision over turned.
We doubt seriously that the SCOTUS would even entertain such a petition based on the number of Federal judges that were involved in the decision. The VA Secretary, Mr. Wilkie, has Issued his letter dated Feb. 15, 2019, with his directives on Procopio v Wilkie decision to his employees which officially places a Stay (hold) on processing all Blue Water Navy claims, until further notice.
I have put together a list of ships, with available ships Deck Logs that I have processed thus far. It is found in the BWNVVA Master List. Every ship that has a deck log linked operated in territorial waters. There are three sections:
Section 1 — Ships known to operate in territorial waters initially
Section 2 — Created to reflect ships in the Naval Gunfire Support gunline
Section 3 — Ships assigned to Operation Market Time, the coastal patrol of South Vietnam.
Additionally, our agency is working on a comprehensive Toxic Chemical Exposure piece of legislation that will assist all veterans of all periods of service going forward. The Military Installation Contaminant Listing, is a work in progress, but there is sufficient information available to successfully develop direct exposure claims. In the future this spreadsheet will include additional medical links, exposure to burn pits in Iraq and Afghanistan, along with harmful vaccinations, such as anthrax. We’ve already successfully used this information to get veterans service connected. One was a Gulf of Tonkin veteran that never made it to the territorial waters of South Vietnam, but returned home only to be further contaminated through groundwater and other environmental hazards at NAS Alameda, Hunter’s Point Naval Shipyard, and NAS Whidbey Island, awarded VA 100 percent service connect compensation.
If veterans/widows currently have an open Blue Water Navy claim, or appeal ongoing, with the VA no action is required.
Based on Procopio v. Wilkie, I took the liberty to plot the ship Alfred Procopio served onboard, the USS Intrepid CVS-11, as it operated in the territorial waters of South Vietnam IAW UNCLOS as determined by the Federal Circuit Courts. You will note that the territorial waters of 12nm begins at the baseline and flows out to sea. Any position inside the baseline (between South Vietnam and the baseline) is considered the sovereign territory / inner waterways of South Vietnam as noted here:
USS Intrepid CVS-11 30 Jul 1966
0800 09 00N 107 17E 0.92nm inside baseline 55.71nm from Mekong Delta Region
1200 09 07N 107 11E 9.97nm inside baseline 47nm from Mekong Delta Region
2000 09 16.3N 107 08E 19.60nm inside baseline 39.33nm from Mekong Delta Region
USS Intrepid CVS-11 31 Jul 1966
0800 09 09.5N 106 55E 20.25nm inside baseline 43.51nm from Mekong Delta Region
1200 09 15N 107 14E 15.36nm inside baseline 45.12nm from Mekong Delta Region
2000 09 02.5N 106 47E 17.83nm inside baseline 40.62nm from Mekong Delta Region
So now our veterans are operating onboard ships with service in the Republic of Vietnam IAW The Agent Orange Act of 1991.
It has been a massive undertaking, but I’m just proud to have had the opportunity to have played a role with the Military Veterans Advocacy and Blue Water Navy Vietnam Veteran Association in the entire process, leading to an overwhelming victory for not only those veterans/widows of Shelby County, but across the nation.
Next up is Guam and herbicide exposure legislation, as well as HR 299 that provides a look back by the VA to re-adjudicate all previously denied Blue Water Navy claims back to their original effective dates from Sept. 25, 1985, to present.
Funding for HR 299 is no longer a major issue with the Procopio v Wilkie decision, as the VA was found at fault, and now has to pay benefits out of their current budget.
So we expect overwhelming support by members of Congress with HR 299 Blue Water Navy Veterans Act of 2019.
Recommend those that have been previously denied their benefits by the VA, consider reopening your claim with a deck log showing service in the territorial waters of South Vietnam, to be adjudicated under Procopio v Wilkie. See your County Veteran Service Office today, or call 937-498-7282 for an appointment.
The writer is retired from the United States Navy and the retired executive director of the Shelby County Veterans Service Office.