Procopio v. Wilkie: Finally a Win for Blue Water Vietnam Veterans?

By Spring 2019 M-VETS Student-Advisor Katie Stegmuller

Between 1961 and 1971, more than 20 million gallons of herbicides including Agent Orange were sprayed over Vietnam, Cambodia, and Laos.[1] The Agent Orange Act extends a presumption of service connection for disabilities that are positively associated with herbicide exposure to veterans who served in the Republic of Vietnam during the Vietnam Era.[2]

The Procopio v. Wilkie decision rested on the plain meaning of Congress’s words in the Agent Orange Act, specifically “the Republic of Vietnam.”[3] According to international law, “the Republic of Vietnam” includes the territorial waters within twelve nautical miles of the coast.[4] This reasoning convinced most of the judges; however, Procopio’s lawyers alternatively argued that the pro-claimant canon would result in granting the presumption of service connection.[5] The dissenting judge in Procopio believes the language of the Agent Orange Act is ambiguous and that stare decisis should preserve the Haas v. Peake precedent, which denies veterans benefits if they cannot prove that they either stepped foot on land in Vietnam or traveled through its inland waters.[6] The dissenting judge also factored in Congress’s current legislative action on the issue in his opinion and emphasized the projected costs of extending disability benefits to Blue Water veterans.[7]

The DOJ (on behalf of the VA) originally had 90 days to appeal the Procopio decision to the Supreme Court.[8] The Supreme Court granted the DOJ a 30 day extension to appeal. Secretary Wilkie testified on March 26 before the Senate Veterans’ Affairs Committee and said that the VA would not appeal the Procopio decision.[9] Secretary Wilkie also recommended that the DOJ not challenge Procopio.[10]

Congressional Response

Congresswoman Elaine Luria, Chair of the Subcommittee on Disability Assistance and Memorial Affairs, has been trying since February 2019 to get an update from Secretary Wilkie on how benefits will be extended to Blue Water Veterans.[11] Congresswomen Luria stated, “Blue Water Navy Veterans have spent decades wondering if they will get benefits for diseases related to herbicide exposure during their service in the Vietnam War. They deserve clarity, and it’s inexcusable that they must wait another minute for an answer from the government.”[12]

The Blue Water Navy Vietnam Veterans Act was approved 410-0 this past Tuesday.[13] Representative Phil Roe of Tennessee stated, “We need to get it to the Senate and I believe the chairman and I would like to challenge the Senate to start hearing this and perhaps vote on it before Memorial Day. I think that would be the right thing to do.”[14] A similar bill passed the House last year but Senators Mike Enzi (R-Wyo.) and Mike Lee (R-Utah) opposed it.[15]

The Congressional Budget Office (CBO) has just released cost estimates for the Blue Water Navy Vietnam Veterans Act.[16] Some important things to note are that the CBO can only base its projections off the information that the VA can provide to them, and the VA itself only has projections to provide to the CBO. The CBO estimates should therefore be read with these considerations in mind. The CBO has previously estimated that enacting the bill would cost $1.2 billion, while the VA estimated it would cost 45.5 billion.[17] Moreover, note that the Blue Water Navy Vietnam Veterans Act provides for other benefits and programs not contemplated by the Procopio decision. The American Legion has stated, “Congress should enact into law the broadest definition possible and provide clarity and guidance for the expected VA regulations implementing Procopio. Together, we can put this issue to rest once and for all. Our veterans and families deserve no less.”[18]

[1] Patrick Jolly Vet to Vets: Agent Orange and blue-water service, American Canyon Eagle (Napa, CA), 10 February 2019, Copyright 2019 Napa Valley Register, 1615 Second St. Napa, CA, Patrick Jolly.

[2] 38 U.S.C.S. § 1116.

[3] Appeals court gives ‘Blue Water’ vets the win Congress denied, The Progress-Index (Petersburg, VA), 4 February 2019, Tom Philpott.

[4] Id.

[5] Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019).

[6] Appeals court gives ‘Blue Water’ vets the win Congress denied, The Progress-Index (Petersburg, VA), 4 February 2019, Tom Philpott.

[7] Id.

[8] Court case changes Agent Orange list, Winona Post (Minnesota), February 18, 2019

[9] Congresswoman Elaine Luria Presses VA Secretary for Answers on Blue Water Veterans; 20-Year-Navy Veteran Says It’s “Inexcusable” That Heroes Must Wait “Another Minute” For Clarity On Health Benefits; Rep. Elaine Luria (D-VA) News Release, Congressional Documents and Publications, April 4, 2019.

[10] Costs of Expanding Agent Orange Vet Benefits Perplexing Congress, Posted April 24, 2019, Megan Howard, Bloomberg Government

[11] Congresswoman Elaine Luria Presses VA Secretary for Answers on Blue Water Veterans; 20-Year-Navy Veteran Says It’s “Inexcusable” That Heroes Must Wait “Another Minute” For Clarity On Health Benefits.

[12] Id.

[13] Navy vets exposed to Agent Orange get new hope for benefits, Peter Urban, CTNewsJunkie.com Published 10:51 am EDT, Wednesday, May 15, 2019

[14] Id.

[15] Costs of Expanding Agent Orange Vet Benefits Perplexing Congress, Posted April 24, 2019, Megan Howard, Bloomberg Government

[16] CBO Issues Cost Estimate for Blue Water Navy Vietnam Veterans Act, Targeted News Service, May 13, 2019 Monday 8:50 AM EST

[17] Costs of Expanding Agent Orange Vet Benefits Perplexing Congress, Posted April 24, 2019, Megan Howard, Bloomberg Government

[18] Legion testifies on four bills affecting veterans, their families, The American Legion, MAY 07, 2019