Good afternoon, and welcome to CCK. My name is Robert Chisholm, joining me today is Amy Odom
and Brad Hennings. Today we are going to do a short take on what is happening with the
Blue Water Navy Veterans and we have two short updates. Brad, can we start with you? We got some
interesting information from the VA about the number of claims they have processed and
the percentage of grants so far. Brad Hennings:
Yes, thanks Robert. The VA has announced that
for a number of the sixty-six thousand eight hundred and fifty-three claims that they have
received, they have processed thirty-one thousand seven hundred seventy-four which is forty-eight
percent and granted twenty-two thousand five hundred and twenty-four of those which is
seventy-one percent grant rate of those that they have processed denying about twenty-nine percent,
and the claims granted represent about thirty-four percent of all the claims filed so far.
Robert: Do we know when VA says they granted a claim whether it is a full grant or a
partial grant that is- that the veteran may have gotten granted something but not everything
that they were entitled to? Do you have any information about that?
Brad: Knowing how the VA reports their numbers, this is clearly
a bunch of claims where they were partial grants- meaning typically a veteran is applying for
benefits for a particular disability. Let us say a cancer that may be presumptive to agent orange,
and so the VA will say, "Okay, you have exposure because of your Blue Water service
exposure to eight herbicide agents and you have a presumptive disability. So we are granting you
service connection for that disability." However, the rating may not be correct
and the effective date may not be correct. So when they say these are grants that just
means that they have connected the underlying disabilities to the veteran's military service.
Robert: Okay. Amy I want to pivot to you now, we also have some information regarding a motion
that was filed in California regarding the Blue Water Navy Veterans and the Nehmer case. Can you
tell us what is happening on that front? Amy Odom: Sure, thanks Robert. This summer,
National Veterans Legal Services Program filed a motion with the Northern District
federal court in California, asking the court to enforce the Nehmer settlement agreement from many
years ago against the government for veterans who served in the territorial seas of Vietnam.
This would be a great advantage to some people because it would provide retroactive benefits-
the Nehmer decree would provide retroactive benefits for more veterans and survivors,
potentially than what the Blue Water Navy Act currently does.
Robert: So we have a statute that was passed by Congress that covers the Blue Water Navy
Veterans now, for the same conditions that the veterans who served on the land mass in Vietnam,
but that statute does not require, as I understand it, VA to readjudicate past claims. If a veteran
filed a past claim and has now filed a new claim, they will adjudicate it, but they will
not automatically reedjudicate those claims and that is part of the Nehmer action. Isn't that
also part of it, if I understand it correctly? Amy: That is right. Veterans and survivors who
were previously denied benefits for lack of Vietnam service, have to file a new claim
under the Blue Water Navy Act. But under Nehmer settlement agreement, VA has to
find those people on its own and readjudicate the claims. Also,
under the Nehmer settlement agreement, VA has to pay
any retroactive benefits to a veteran's state if the veteran is deceased or to the veteran
survivors. Even if the veteran is deceased and it looks like under the Blue Water Navy Act,
a surviving spouse or child would be unable to recover benefits that should
have been paid to the veteran while he or she was alive, unless the claim was pending
at the date of the veterans death. Amy: So those survivors in the estate
would be covered under the Nehmer degree if NVLSP is successful, but they are not currently
covered under the Blue Water Navy Act. Robert: So sort of procedurally then,
NVLSP is essentially saying to the court in California that this group of veterans
should also be part of the Nehmer class. And they filed a motion, the government responded
and is the next step of hearing on the motion. Amy: Yes, as of today the hearing
is scheduled for October 28th. Robert: And then presumably the court
will issue a decision after that. Amy: That is right.
Robert: Okay. Brad, do we know anything about the claims that have been denied? You mentioned that
of the ones that have been finalized, there is about a thirty-four percent grant rate,
obviously some claims that are denied is VA saying why they are denying some claims.
Brad: So there has not been much that VA has said in terms of denials, but based on our
experience in working on these cases, there is a few common reasons: one would be if the ship the
veteran served on was not listed in the ship logs or the various tools that VA is using to determine
whether they got within the prescribed 12 mile border from Vietnam. It is not from the landmass.
It is approximately twelve miles so if the ship never went that close to Vietnam, then that could
be a reason that the veteran is not receiving presumptive service connection. They are not
being presumed to be exposed to herbicides. Brad: The other reason could be, even if they
were on one of those ships, perhaps they filed a claim for a disability that is not presumptive-
meaning that it is not automatically connected to herbicide agent exposure.
And in that case, the veteran could still potentially win the claim with direct evidence
of a link between the herbicide exposure and the disability. But if it is not presumptive,
that means that the VA will not automatically grant it. And so those are the two big reasons
we see for why they are not granted. Robert: Okay. I think I know the answer
to the next question but if a veteran is dissatisfied with either a partial grant,
an incomplete grant or an outright denial, how long do they have to
appeal to that initial decision from the VA? Brad: So they have a year to appeal. All of these
Blue Water Navy Act claims are being cited in the Appeals Modernization Act,
which is the new version of the VA benefits system- new version of the appeal system
that came into effect in February of 2019. And what that means is you have a year to file one of
your three options. Either to file a supplemental claim with VA with new and relevant evidence,
a higher level review where a more experienced adjudicator takes a look at it,
or an appeal notice of disagreement and appeal to the Board of Veterans' Appeals where a
veteran's law judge will review the case. Robert: Any final thoughts before we sign off
here either Amy or Brad?
Okay. So this is just an update on the Blue Water Navy Veterans, this interesting information about
VA and the percentage of claims they have decided, the numbers they have granted,
and also the potential expansion of benefits for the class members of the Blue Water Navy.
If the court in California finds that they are part of the Nehmer class, that may entitle
certain people to additional benefits under the Blue Water Navy Act.
Robert: So Amy and Brad, thank you both for joining us today. My name is Robert Chisholm,
and please continue to follow us on cck-law.com. If you have any questions,
please reach out to us through social media and we will respond as best we can and
we will continue to update this topic as well as others as we learn new information. Thanks.