As some of you may have heard, the VA is implementing a new program of new procedures with the goal of speeding up the handling and resolution of appeals. The program has been dubbed the Rapid Appeals Modernization Program (RAMP) and has begun to be offered to veterans in select areas as of October 2017 to opt into the process. It will be a voluntary option and totally up to the veteran as to whether he/she chooses to opt into the new program or remain with the existing appeals process. To opt-in, the veteran must file a “RAMP Opt-In Election” Form that will be attached to a letter sent by the VA informing the veteran of this new process.
Today the U.S. Department of Veterans Affairs (VA) announced a series of immediate actions to improve the timeliness of payments to community providers.
As a VA claims processor, Veterans often ask me about Individual Unemployability (IU), also called Total Disability based on Individual Unemployability (TDIU). The following is a more formal version of what I tell them.
It’s taken more than 50 years, but the dangers that Vietnam Veterans such as Keith Trexler faced during the war finally are being recognized.
Tens of thousands of sailors including Trexler — who served on ships offshore — long have been denied the same benefits that the government has granted soldiers who fought in the jungles.
“They sent us into harm’s way. They exposed us to certain things and they’re not standing by their people,” said Trexler, 71, of Whitehall Township.
The government may be forced to stand by them.
In late January, a federal appeals court ordered the U.S. Department of Veterans Affairs to treat sailors the same as soldiers, by presuming they were exposed to Agent Orange during the war. The court said the VA should pay them benefits for cancers and other ailments that scientists have linked to those chemicals.
Before that ruling, offshore personnel could obtain benefits related to Agent Orange only if they could prove they were exposed. There was no presumption as with personnel who had “boots on the ground” or served on boats on inland rivers, directly where the chemicals were sprayed to kill jungle growth and clear the way for combat.
As Trexler’s case illustrates, it hasn’t always been easy for offshore Veterans to prove exposure.
He contends he could have come in contact with Agent Orange, a blend of herbicides, in many ways. He said the chemicals eventually would have drained into the harbors and sea, and ship crews drank and cooked with distilled seawater. They swam in the water, too.
One of the ships he served on, the USS De Haven, operated inland on the Saigon River. Trexler was not aboard at the time, but he questions whether the ship could have spread contaminants to sailors who later sailed on it.
Those arguments weren’t enough to convince the VA, at least at first. Trexler’s benefits claim was denied in 2013. I wrote about his beef with the agency in 2015.
He kept fighting, and with help from former Congressman Charlie Dent’s office, was granted benefits in 2017 for prostate cancer and diabetes. Those are two conditions the VA recognizes as possibly stemming from exposure.
I reconnected with him recently to get his take on the court ruling, knowing it may not be the final word because the VA has the option to appeal it.
Trexler said what I thought he would: “It’s about time.”
He sees the ruling as a long overdue acknowledgement for Veterans such as him. He hopes it will make it easier for his comrades to get benefits.
And while he’s already being compensated, he hopes the ruling could help him, too. He intends to seek increased compensation, for health problems he says are side effects of his prostate surgery, and for a skin disorder on his leg and ankle.
The VA long has expressed sympathy for Veterans such as Trexler, known as “blue water Veterans,” while maintaining that science doesn’t support their claims of exposure.
The agency says herbicides that got into seawater would have been significantly diluted. It has argued that allowing additional benefits claims would add to its work backlog and cost taxpayers.
Last year, the Congressional Budget Office estimated the cost would be $894 million over the next decade if blue water Veterans were presumed to have been exposed to Agent Orange.
The VA estimates the cost to be much higher — $5.5 billion. It says the budget office significantly underestimated the number of eligible Veterans and their survivors, and didn’t consider that 803 new employees would be needed to handle their claims.
The budget office estimated 30,000 Veterans could qualify — and another 22,000 who may have qualified are presumed dead.
Trexler isn’t the only local blue water Vietnam Veteran who has struggled to get benefits.
I wrote last year about Barry Mensch of Whitehall, who served on a Navy hospital ship for about 11 months in 1968. In 2008, he had surgery for cancer. The VA denied his claim for Agent Orange-related benefits.
The ship he served on, the USS Sanctuary, is on a VA registry of watercraft determined to have been exposed to herbicides because it docked, sailed on inland waterways or operated close to shore with evidence that crew members went ashore.
Mensch told me he went ashore at least twice. He suspects he also came in contact with Agent Orange through helicopters that brought wounded soldiers to the ship from the battlefields. He occasionally carried stretchers from those helicopters.
His challenge is different from Trexler’s, though, and the January court ruling may not help him.
His cancer, squamous cell carcinoma, is not on the list of illnesses that the VA acknowledges stem from herbicides. So even if the court ruling means he is presumed to have been exposed, that’s not enough. He must prove his cancer was connected to military service.
He sent the VA letters from three physicians to support his claim. The VA countered that his cancer could have stemmed from smoking. So he’s at a stalemate. Mensch told me Wednesday he may not pursue the claim.
“I’m just totally frustrated,” he said. “I’m 71 years old. I’m not going to fight with them for another 10 years.”
January’s ruling, which came from the U.S. Court of Appeals for the Federal Circuit, resolved a claim from another Navy Veteran, Alfred Procopio Jr. of Minnesota. He had been denied benefits for prostate cancer and diabetes.
That court ruled against blue water Veterans in a similar case in 2008. But it sided with Procopio and overturned its previous ruling. A majority of the court concluded that the law passed by Congress in 1991 to grant benefits to Vietnam Veterans — with the presumption that they were exposed to Agent Orange — was meant to apply to all who served in Vietnam, including offshore.
Judge Kathleen O’Malley wrote in a concurring opinion that the court had to follow a “pro-Veteran” canon that says if there is ambiguity regarding benefits rules for Veterans, those rules should be “liberally construed in the Veterans’ favor.”
The VA could appeal the ruling and ask the U.S. Supreme Court to overturn it. The deadline to file an appeal is in late April. VA spokeswoman Susan Carter told me the agency is reviewing the decision “and will determine an appropriate response.”
The appropriate response would be to drop the fight and finally give Veterans their due.
A Jan. 29 federal appeals court ruling could expand the pool of Vietnam Veterans able to claim disability benefits connected to Agent Orange, a chemical weapon known to cause serious health problems in those exposed.
“It’s about time,” Veteran John Ranson said Monday.
That category — those exposed — for years did not technically include Navy Veterans like him.
Agent Orange was a defoliant herbicide American soldiers deployed to thin out the Vietnamese jungle, depriving guerilla insurgents of both cover and food. When its deadly long-term health impacts became clear, Congress passed the Agent Orange Act of 1991 to provide some financial relief for all those who served.
However, the Department of Veterans Affairs repeatedly denied the claims of so-called “Blue Water Veterans,” claiming only soldiers present on the Vietnamese mainland could reasonably claim to have interacted with the substance.
That’s not what Rex Settlemore, who served from 1967 to 1998 and spent two tours in Vietnam, thinks. He watched from the U.S.S. Durham and U.S.S. Richard S. Edwards as airplanes releases chemical weapons overhead, and he remembers how close to the shore both ships sailed.
Agent Orange particles must have made it into the ocean water he and the rest of the crew used, he said, if not the air they breathed. He believes some of the early deaths among his comrades from that time are connected to that exposure.
“Ships who ingested the sea water, even if the sea water was distilled for fresh water on board, would still contain the Agent Orange contaminants,” he said, citing an Australian Naval study.
Dr. Ralph Erickson, the VA’s chief consultant of post-deployment health, had repeatedly argued that ships never took in sea water fewer than 12 miles off the coast. Settlemore said he knew nothing about any similar rule during the war.
“We served off the coast well within 200 yards, and we did not turn off the sea water suctions when we were operating in close,” he said. “I am unaware that was ever a policy, and it certainly was not a policy that was typically followed by the destroyers that were on gunfire support.”
The VA may still decide to resist the court’s finding and continue adhering to a boots-on-the-ground retirement for disability benefits connected to Agent Orange. If it hopes to succeed, however, it will need the support of the Supreme Court of the United States.
John Ranson is hopeful that court would rule in favor of Veterans like himself.
“I hope they do and see the right side of this,” he said.
TAMPA, Fla. (WFLA) - A federal court ruled the Department of Veterans Affairs got it wrong when it deprived tens of thousands of Vietnam Veterans the benefits they deserve.
In an 8-3 decision, the U.S. Court of Appeals decided Navy Veterans of the Vietnam War are absolutely entitled to Agent Orange related medical and disability benefits.
Alfred Procopio, a Veteran who served on the U.S.S. Intrepid off the coast the Vietnam, suffers from diabetes and prostate cancer, two diseases linked to Agent Orange exposure.
The VA denied his claim, pointing out that Procopio never stepped foot in Vietnam.
The Court of Appeals pointed out in its decision that Congress was specific when it passed the Agent Orange Act in 1991, to include "active military, naval, or air service... in the Republic of Vietnam."
The court decided Procopio served in Vietnam's territorial waters which are part of the "Republic of Vietnam."
The ruling affects between 50,000 to 90,000 Navy Veterans the VA excluded from benefits.
For nearly 20 years, the VA presumed that members of the military who served on the ground during the Vietnam War were exposed to the toxic herbicide.
Agent Orange killed and made ill thousands of service members.
The VA provided medical care and disability benefits to those who developed diseases linked to the toxic weed killer.
However, it excluded Navy Veterans like Mike Kvintus of New Port Richey, who served along the coast of Vietnam.
Kvintus' ship also anchored in Vietnam harbors.
"We've been fighting them since 2001," Kvintus stated.
Blue Water Navy Veterans argue Agent Orange ran into rivers and streams, ending up in Vietnam's bays and harbors.
Their ships pulled in that water, for drinking, bathing and cooking.
Distilliation systems didn't eliminate Agent Orange, they enhanced it.
Kvintus has three diseases associated with Agent Orange exposure.
Former Navy Commander now attorney John Wells, executive director of Military Veterans Advocacy, fought the VA in Congress and the courts.
"It feels very good. I mean we've been fighting for this for eight years," Wells said.
Last year, the U.S. House of Representatives unanimously passed a bill restoring the rights to Blue Water Navy Veterans that the VA stripped away.
Senator Mike Lee (R) Utah effectively torpedoed the bill when he asked for more studies on the matter by the VA.
The VA can fight the Court of Appeals the ruling by taking it to the U.S. Supreme Court.
If it does, Wells is confident the VA will lose there too.
Wells points out the fight for Veterans benefits doesn't stop here.
"We have the Guam bill coming up and we have general toxic exposure," he said.
"We have millions of Veterans exposed to various forms of toxic exposure. We can't stop with Blue Water Navy, this is just the first step."
Today, January 29, 2019, the Court of Appeals for the Federal Circuit released a decision which marks a seismic shift in the field of Veteran’s law. A decade ago, the Haas case allowed the Department of Veterans Affairs to exclude Blue Water Veterans from receiving the same benefits as other Veterans who served in the Vietnam theater. Today, in Procopio v. Wilkie, the Federal Circuit undid the damage done by Haas and restored those benefits to the Blue Water Veterans.
As a little bit of background, Veterans who served “boots on the ground” in the Republic of Vietnam are entitled to a presumption that they were exposed to Agent Orange, a herbicide which is known to cause a host of health concerns such as cancers, diabetes mellitus, and ischemic heart disease. This presumption of exposure was extended to Veterans who served on the rivers or “brown waters” in Vietnam. The VA determined that so-called Blue Water Veterans, those who served aboard ships in the territorial seas of the Republic of Vietnam which did not enter the rivers, were not entitled to that presumption of exposure.
“Blue Water and Brown Water” Distinctions
The Haas Court found that the VA was allowed to draw a line determining where brown water becomes blue water, to clarify the intent of Congress, and that the Court had to give deference to that line. The line was supposed to be based on the likelihood of exposure. However, as the Blue Water Veterans are painfully aware, the dividing line was an arbitrary line, excluding Veterans whose ships anchored in harbors into which those rivers flowed and excluding Veterans whose ships came so close to the shore that they described bouncing off of the sand. As Blue Water Veterans are also aware, the drinking water on those “blue water” ships and the very air drifting from the shore was likely contaminated with Agent Orange as well.
The Blue Water Veterans were exposed to Agent Orange, and they were plagued by the same diseases and disabilities as the Veteran who served on the ground and in the brown water, but they were not allowed the presumption of exposure which would allow them to receive benefits for their disabilities. Today, the Procopio case attempts to right the wrong done to the Blue Water sailors.
Blue Water Sailors Today
The Procopio Court looked back to the plain language of the 1991 Agent Orange Act and determined that the legislation which provides a presumption of exposure to Veterans who served in the Republic of Vietnam unambiguously includes those Veterans who served in the territorial seas of Vietnam. Any ambiguity in that language was inserted by the VA itself. Where the language Congress included in the Agent Orange Act was clear, the Procopio Court held that the VA’s interpretation was not needed and, thus, owed no deference by the Court.
The Federal Circuit decision speaks directly to the point, “Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam” are entitled to [the] presumption . . . . They are. Because ‘the intent of Congress is clear, that is the end of the matter.” The fight for Blue Water Veterans to get their benefits has been long and hard, but they are now finally legally entitled to the presumption of exposure to Agent Orange…as they should have been all along.
The Department of Veterans Affairs shows no signs of backing off opposition to extending Agent Orange health care and benefits to "Blue Water Navy" Vietnam Veterans, setting up another major battle this year with Veterans groups and overwhelming majorities in the House and Senate.
The VA still lacks "sufficient evidence" to prove a presumptive link between service off the coast of Vietnam and the illnesses caused by the widespread use of the defoliant Agent Orange, Paul Lawrence, the VA's under secretary and head of the Veterans Benefits Administration, said Thursday.
"In terms of presumptives, they come with a real requirement of sufficient evidence to indicate it's warranted," he said in a panel discussion on a VA Town Hall webcast.
Veterans who served on the ground or on the inland waterways of Vietnam are now eligible for Agent Orange health care and benefits. But existing studies do not show definitive causation between the illnesses suffered by the estimated 90,000 Blue Water Navy Veterans and the use of Agent Orange, Lawrence said.
"We understand the situation," he said. "We talked about having more studies in 2019 that would give us more insight into what the causation was and the definitive conclusions behind it."
He gave no indication of when the studies might be completed.
Blue Water Veterans can file a claim, which will be evaluated on a case-by-case basis, Lawrence said, but they "must be supported by science."
He took a similar position on claims by Veterans that they suffered illnesses from the toxic fumes of the burn pits used in Iraq and Afghanistan, saying those claims also must be supported by scientific evidence.
On Monday, the U.S. Supreme Court rejected an appeal by Veterans for damages against companies that managed the open-air burn pits.
Last August, Lawrence and VA Secretary Robert Wilkie stunned Congress by announcing their opposition to a bill extending Agent Orange benefits to Blue Water sailors that had overwhelming bipartisan support in the House and Senate.
The bill had passed 382-0 in the House and appeared headed to easy passage in the Senate with the support of Sen. Johnny Isakson, R-Georgia, chairman of the Senate Veterans Affairs Committee.
However, Lawrence, at a Senate Veterans Affairs Committee hearing, said, "It's difficult to hear from Veterans who are ill," but "there is no conclusive science" from a report by the Institute of Medicine to show a service connection.
Major Veterans service organizations (VSOs) disputed Lawrence on the evidence, but the bill failed in December when Sen. Mike Enzi, R-Wyoming, citing the costs, blocked a Senate vote.
The Congressional Budget Office had estimated that about 90,000 sailors could be covered by the bill, which would likely cost about $1.1 billion over 10 years.
Last week, House Democrats reintroduced the "Blue Water Navy" bill, setting up another lengthy battle with the VA on extending Agent Orange benefits.
In a statement, Rep. Mark Takano, D-California, the new chairman of the House Veterans Affairs Committee, said, "We must get to work and finally secure the benefits our Blue Water Navy Veterans earned over 40 years ago."
On Thursday, three VSOs -- the Paralyzed Veterans of America, Disabled American Veterans and the Veterans of Foreign Wars -- said that passage of the Blue Water Navy bill would be at the top of their legislative agenda for 2019.
"One of our key legislative concerns is ensuring that Veterans who were exposed to dangerous toxic chemicals and other environment hazards during their service receive full compensation and other earned benefits," DAV National Commander Dennis Nixon said in a statement.
WASHINGTON — Just days into the new session of Congress, leaders of the House Veterans’ Affairs Committee have reintroduced legislation to give benefits to tens of thousands of “blue water” Vietnam Veterans who saw their lobbying efforts last year fall just short of success.
Both committee Chairman Mark Takano, D-Calif., and ranking member Phil Roe, R-Tenn., are pushing congressional leadership for quick action on bills that would award presumptive benefits to sailors who served in the coastal waters off the shores of Vietnam during the 1960s and 1970s.
“Thousands of Veterans are still waiting for their government to deliver on its promise and grant them the benefits they have earned,” Takano said in a statement. “The fact that politics got in the way of our duty to care for Veterans affected by toxic exposure (last session) … is an insult to all Veterans who served with the expectation that their country would care for them.”
Many of those blue water Vietnam Veterans today — estimated at around 90,000 individuals — are experiencing rare heart conditions and cancers that have been linked with exposure to cancer-causing chemicals in defoliants like Agent Orange.
Under Department of Veterans Affairs rules, troops that served on the ground and inland waterways during the Vietnam War are presumed to have been exposed to the dangerous chemicals, and given a quicker path to receiving disability benefits.
Veterans who served on ships are eligible for VA medical care related to their illnesses but have to prove direct chemical exposure. Advocates have said in most cases, evidence of Agent Orange residue on those ships was not properly collected, making a scientific argument justifying the presumptive status impossible.
Last session, House members unanimously approved legislation mirroring the new Takano and Roe plans that would mandate VA award benefits to the blue water Veterans, and use a new fee on VA home loans to offset the costs.
But that plan was blocked by a small group of senators in the waning days of the last session, largely over concerns about the cost.
The legislation carries a price tag of about $1.1 billion over 10 years, but VA officials have insisted the total is closer to $5.5 billion. The department has opposed extending presumptive status to the group, saying the available science doesn’t back up their claims.
Advocates have called that response a cold, penny-pinching response to Veterans in need.
In a press conference late last month, multiple Veterans groups rallied to call for immediate action on the issue, saying any delay would likely mean allowing thousands more Veterans to die without seeing proper compensation.
“Giving blue water Navy Veterans the benefits they earned is simply a cost of war,” said Matthew Schuman, national legislative director for the American Legion. “These Veterans are dying because of exposure to Agent Orange. Sadly, the fight to ensure they get the benefits they deserve just gets harder.”
John Wells, executive director of the group Military-Veterans Advocacy, which has been at the forefront of the blue water dispute for years, said he wants quick action on the issue too but warned that lawmakers need to make sure they don’t repeat the same legislative failure as last session.
He also said that if lawmakers don’t act by this spring, the issue may be moot. He anticipates a decision on a pending court case brought by his group against VA by this spring. A favorable ruling there could force VA to award the benefits, regardless what Congress decides.