Blue Water Vets Win Presumption of Service Connection

The U.S. Court of Appeals for the Federal Circuit has ruled that the presumption of service connection for certain diseases for veterans who served in Vietnam applies to so-called "blue water" veterans - those who served on ships in waterways off the coast of Vietnam, but did not set foot on land.  

In 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in the Republic of Vietnam.  Under § 1116(f), such a veteran “shall be presumed to have been exposed during such service to [the] herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.”

In 1993, the Department of Veterans Affairs issued regulations pursuant to § 1116 that stated “‘Service in the Republic of Vietnam’ includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regulation 307”). In 1997 in a General Counsel opinion about a different regulation, the government interpreted Regulation 307 as limiting service “in the Republic of Vietnam,"to service in waters offshore the landmass of the Republic of Vietnam only if the service involved duty or visitation on the landmass, including the inland waterways of the Republic of Vietnam, (“foot-on-land” requirement). Gen. Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63,603, 63,604 (Dec. 1, 1997).  

Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid  was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea.  Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007, but was denied service connection for both in April 2009 because he could not meet the government’s foot-on-land requirement. 

Diabetes mellitus is listed in the statute under paragraph (2) of § 1116(a), and prostate cancer is listed in the pertinent regulation, 38 C.F.R. § 3.309(e). The Board of Veterans’ Appeals likewise denied him service connection in March 2011 and again in July 2015, finding “[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange,” under § 1116. The Veterans Court affirmed.

The U.S. Court of Appeals for the Federal Circuit, however, reversed the lower decisions, ruling in favor of Mr. Procopio:

"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 § 1116’s presumption if they meet the section’s other requirements. They are. Because “the intent of Congress is clear, that is the end of the matter.” [citation omitted]. Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus. Accordingly, we reverse." 

The case is Procopio v. Wilkie, 2017-1821 (Fed. Cir. 2019).

Steven Berenson, wrote an article about this decision on his Veterans Law Prof Blog.  He notes that the National  Law School Veterans Clinics Consortium (NLSVCC) filed an amicus brief in support of the Mr. Procopio's position.