Zach: Good afternoon from Providence, Rhode Island.
This is Zach Stolz with Chisholm, Chisholm & Kilpatrick.
I am here today with two of my colleagues, Brad Hennings and Courtney.
We are here to talk today a little bit about the Procopio case that just came down from
the Federal Circuit.
It's a little bit of short notice because the case just came down today.
It is a huge case in the world of Veterans Law.
What it essentially found is that the entire Federal Circuit, the en banc Court, which
means all the judges on that court aside from two of them who were recused for some - for
one reason or another, decided the case.
They overruled their previous precedent and found in favor that Blue Water Navy Veterans
are now going to be eligible for the presumption of exposure to Agent Orange and other herbicides
and toxins during the Vietnam War era.
So, let's talk a little bit about the case with Courtney and Brad today.
So, who are the Blue Water Navy Veterans and where did they serve, Brad?
Brad: So, the Blue Water Navy Veterans are veterans who served out in the ocean off of
Vietnam.
Typically, we refer to Brown Water Veterans as those who served in rivers or inland waterways
within the actual landmass of Vietnam or obviously the veterans who served on the landmass itself
of Vietnam.
So, these are folks - these are veterans who served in the ocean typically on ships.
Zach: Right, and so we get the word, Blue Water versus Brown Water, basically just because
that's how the water looks.
The blue water is the deeper water in the gulf area and in the ocean off of the landmass
of the Republic of Vietnam.
Brown water is - refers to the inland river waterways, because in that particular part
of the world, those waters, if you look at them from a satellite image, are brown and
so, it is just that simple and the short hand that we use kind of in the veteran's law arena.
So, Courtney, what about the Vietnam Agent Orange presumption and why does this matter
so much for Blue Water Navy veterans, and why was this such a big day for them?
Courtney: Yeah, so until now, the presumption would apply to veterans who were boots on
the ground in Vietnam, which means they served on the actual landmass of the country, or
veterans who were considered Brown Water veterans, so the veterans that served on the rivers
or the inland waterways, or in other cases, if you served on a ship that docked in Vietnam.
You were entitled to the presumption if you later developed one of the conditions the
VA has identified, which basically means VA will presume your exposure to Agent Orange
and presume that that condition was related to that exposure.
And this is so important because until this case, it didn't apply to Blue Water veterans
and now, with Procopio, this presumption will apply to those that served in what's considered
as the Blue Water as we just detailed.
Zach: So, how did the court kind of start coming to this decision?
What was actually an issue in Mr. Procopio's case, Brad?
Brad: So, the issue was, what is service in the Republic of Vietnam according to the underlying
statute that established these presumptions, and, whether the Republic of Vietnam includes
the 12 nautical miles offshore, which are sort of the territorial waters of a country,
in this case, Vietnam.
Zach: And so, as I mentioned when we started today, the court today handed down this major
decision and it had to go en banc, which means they all had to - it was all of the judges
of the court to overrule a previous decision and that previous decision was 10 years ago
now, it was decided by 3 judges on the Federal Circuit and it became the precedent that dealt
with Blue Water Navy veterans, Brown Water veterans, people who served on the landmass
of Vietnam, and it was called, "Haas".
Could you explain, Courtney, a little bit about what happened in that case 10 years
ago now?
Courtney: Sure.
So, in Haas, the court essentially said that the presumption did not apply to Blue Water
Veterans, so they found that the presumption only applied again, to veterans that were
boost on the ground in Vietnam or were Brown Water veterans.
Zach: And essentially, what they did, and I have - I am referring to the case that just
came down today, and we are still digesting it, to be perfectly honest.
It is a very - it was a decision that had a large majority of judges that agreed that
Haas should be overturned and that in fact, the Federal Circuit wrongly decided that case
10 years ago, and what that case really dealt with - the legalese of it is, in Haas, they
interpreted 38 United States Code 1116, and allowed the Department of Veterans Affairs
to define Republic of Vietnam as only the landmass of Vietnam, and then the brown water
that we talked about earlier that's within that land mass.
And VA was able to exclude veterans that served on ships in the Blue Water or offshore of
Vietnam.
That has been the law for lo these past 10 years, and today, Judge Moore wrote the majority
opinion.
She was joined by several of her colleagues.
There were two concurring opinions, which means the two judges agreed with the result
but would have reasoned differently to reach it, and then there was a dissent by two of
the judges who were in the minority of this particular case, and so they dissented, they
will not - their dissent will have no force of law as of right now.
They're interesting - they had some interesting reasons for why they dissented and I'm sure
that we can all get into that at another time when we're more prepared, but because this
just came down a couple of hours ago, we're just kind of trying to hit the highlights
of this.
So, like I say, the en banc decision overruled what the court had previously done.
This is a very rare thing.
In fact, one of the dissents that I talked about, Judge - or the dissent which was signed
by Judge Dyk and Judge Chen from the court, made particular note of this - that this is
a big deal and that the Federal Circuit should not be in the position of overruling its previous
precedent, because it is very important, you know, once they announce with the law is that
they don't really change their minds.
Nevertheless, the majority of their colleagues did not agree with them, decided that it was
imperative that the 38 United States Code 1116 was interpreted differently, and this
time interpreted and read in a way that favored a large class of veterans who had very important
service in Vietnam.
So, what is the VA kind of going to have to do now, Brad, now that the law has changed,
Blue Water Navy veterans are recognized as being presumed exposed to herbicides in service,
now what?
Brad: So, that's a really excellent question.
We're not entirely sure what the VA is going to do, how they're going to handle these cases.
We believe that this is now the law of the land and so, any veterans who had this kind
of Blue Water service within the 12 nautical miles of Vietnam during the Vietnam era, should
get the presumption, but how VA is going to interpret that, whether they're going to include
anything in their regulations to further refine their process for handling this, if they're
going to revisit cases, we just don't know yet.
Zach: But, if you served in this class of people - if you served offshore, if you served
within - and the definition now is within 12 nautical miles of the landmass of Vietnam,
and you served from what 1960?
Courtney: 1962 to 1975.
Zach: 1962 to 1975.
It would be a good idea if you don't have a claim already going, if you have something
- if you are sick or have a disease that is presumed due to exposure to Agent Orange or
other herbicides - it'd be a great idea to start filing a claim today, because this is
the law of the land, at least for now.
Brad: And - Zach: Go ahead.
Brad: - just one thing to add to that.
This will include the various harbors that existed many large ships never actually docked
on the landmass of Vietnam, but they did put down anchor in the harbors or not far offshore,
so this really should include a tremendous number of additional veterans who are eligible.
Zach: Go ahead, Courtney.
Courtney: And that - I would just add to that, the VA actually has a resource that you can
use online, to see if you could place your ship within those 12 nautical miles, or at
one of the harbors as Brad had mentioned.
There's Navy deck logs that VA posts on their website that list all of the ships and
where they were stationed and during the- at what time periods they were stationed
where.
Zach: And, for those of you who have watched some of our Facebook Lives before or have
spent some time on our website, you know that Thailand Veterans are a big part of what CCK
does and one of the last times we came to you from Providence on Facebook Live, we talked
about the Hudick decision, which affects Thailand veterans. Anything today on Procopio that's going
to affect a class of veterans that really is not, you know, the specific Blue Water
Navy?
Courtney: No, this won't apply to Thailand veterans.
For now, this is specific to the Blue Water veterans serving off the coast of Vietnam.
Zach: But it is important that VA and that the courts are starting to understand that
this is a complicated issue and that herbicides had a wide-ranging affect that maybe has not
been really recognized until now, and so at least everything is trending in more - in
a more positive direction for our nation's veterans.We can end on a little bit of prognostication,
what's going to happen with the case.
This is from the Federal Circuit and so, those of you who may not be too familiar with the
way Veteran's Law works, in veteran's compensation claims, you file a claim at the regional office,
you have a right of appeal to the Board of Veterans Appeals in Washington, DC.
From there, you can go to the Court of Appeals for Veterans Claims.
From there, you can go to the Court of Appeals for the Federal Circuit.
From there, you can get them to hear you en banc, so have all of the judges, I think it
was 12 of them, come in and hear your case, which is their choice to do, and then you
can appeal to the United States Supreme Court.
So, the government lost, the Department of Veterans Affairs lost in Procopio.
Procopio - the Department of Veterans Affairs took the position that Blue Water Navy veterans
are not entitled to the presumption of exposure to herbicides and so now, the Department of
Veterans Affairs can appeal it.
They have about 90 days, maybe a little less to file a petition for a Writ of Certiorari
at the Supreme Court.
We don't know if they're going to do that.
Brad?
Brad: There's 2 schools of thought on that.
One is that because this could potentially cost VA and taxpayers a significant amount
of money to pay out this disability compensation, that VA will appeal this to the Supreme Court.
Now, that being said, even if they do appeal it, the Supreme Court's not obligated to take
the case, because they get to choose their cases.
The other side of the coin is that they will not appeal it, because they don't want to
be perceived as seeming anti-Blue Water Navy veterans, or they just feel that it's not
worth their time.
So, we'll have to wait and see.
Zach: This has been an evolving issue as well, because while Procopio was winding its way
through the Federal Court system, there was in fact, a bill introduced to Congress.
It passed the House last Congress, so before the change in January it passed the House,
went over to the Senate and never saw the light of day, is our understanding, I think
my understanding at least, of what happened over there.
Leader McConnell, I don't believe, ever brought to the floor for a vote and so, while Congress
was working to maybe start compensating Blue Water veterans, as well as some Thailand veterans
and others, while they were doing that, this case kind of beat the bill and made it through
the system a little bit faster, and now the courts have awarded relief for the - for these
Blue Water veterans.
Courtney, can you remind everybody who the class of veterans affected by this?
Courtney: Yeah, yeah.
So, they are Blue Water veterans, so veterans that served within the 12 nautical miles off
the shore of Vietnam and if they served during the time period between 1962 and 1975.
Zach: And, this has no effect on people who were previously afforded the presumption,
which are people who served on the land mass and the brown water.
It just adds this class of veterans to the presumptive conditions, so that in a nutshell
is what happened today.
It was one of the biggest decisions in probably the past 20 years of Veterans law.
It's a huge decision - there's a lot of complicated legal concepts that are at play in it.
We have a ton of information about it on cck-law.com.
We have a blog up about it, we'll have a link to the opinion so that people can do their
own research and learn a little bit about it on their own.
So, closing thoughts Brad?
Brad: One final thing, and that is, any time you're dealing with exposure cases or presumption
cases, whether it's to Agent Orange or anything else, you really want to get some assistance
with your claim, so please consult with a Veterans Service Organization like our colleagues at DAV
or a VA accredited agent, VA accredited attorney, someone who's knowledgeable about the area, who can help
you with your claim in making sure that it's filed correctly, and you've got all your T's
crossed and your I's dotted.
Zach: Very good thought.
Courtney?
Closing thoughts?
Courtney: I do not.
I think that's a good way to end.
Zach: Alright, for Courtney, Brad.
I'm Zach.
Thank you very much for watching today.
We will talk with you very soon as the law develops in this area.
Thanks so much.