The entire June 2008 edition of this newsletter was devoted to the plight of the Vietnam Blue Water Navy and its efforts to secure compensation benefits under the Agent Orange Act.  Entitled Lost at Sea, the article explained how veterans of the Blue Water navy had lost the benefit  of a presumption under the Agent Orange Act that allowed veterans to recover benefits for certain diseases without specifically demonstrating that the disease was connected to Agent Orange exposure. Under an earlier interpretation of "service in Vietnam" all a veteran had to demonstrate was that he served in the operational theater of operations.  In most cases the award of a Vietnam Service Medal satisfied the burden of showing service in Vietnam sufficient to invoke the presumption that certain diseases were caused by Agent Orange.

In 2001 the Veterans Administration (VA) changed the definition of service in Vietnam to require "boot on land." This new definition required showing that one had actually served in country.  It immediately excluded men who served in U.S. Navy vessels offshore and made the securing of benefits difficult, if not impossible.  Members of the Brown Water Navy, those who served in rivers and inland waterways, satisfied the boot on land requirement.  When the June 2008 edition of Legal Alert was published, the D.C. Court of Appeals had just handed down its decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), upholding the VA's requirement of showing actual physical presence in Vietnam.  Court of Appeals decisions are normally rendered by three-member panels, and after the Haas decision, the veterans petitioned for an en banc review, requesting that the entire nine-member court review the holding.  That petition was denied, and Haas appealed to the United States Supreme Court.  In January 2009 the Supreme Court denied the writ of certiorari refusing to hear the case and effectively killing Haas' efforts to change the law.  

In July of 2008, already frustrated by their efforts to get relief in the courts, the Blue Water Navy veterans took their fight to Congress and succeeded in getting the support of Representative Bob Filner.  Filner, a Republican from California, sponsored H.R. 6562, The Agent Orange Equity Act of 2008. The Act would expand the coverage of the Agent Orange Act by allowing the presumption to apply not only to those who served in country, but to Blue Water navy personnel and those who served in Thailand, Laos, and Cambodia.  The determinative evidentiary factor would be the receipt of the Vietnam Service Medal or the Armed Forces Expeditionary Medal. While the bill seemed to have some momentum in great part due to the efforts of a number of the veterans themselves, the Congressional session ended before the bill made it out of committee and to the floor of the House of Representatives.  Despite the setback, Filner pledged to re-introduce the bill in 2009.

As this edition of Legal Alert goes to publication, the Blue Water navy veterans remain adrift.  H.R. 6562 has not been re-introduced, although there are signs it may be in April of this year.  However, the economic crisis that gripped the nation and the world in late 2008 has continued into 2009 and overshadowed virtually everything else.  With judicial efforts seemingly exhausted and Congress consumed by the problems of economic stimulus and unemployment, Blue Water Navy veterans face the prospect of having their claims rejected based upon the new interpretation of service in Vietnam. Claims that had been frozen while Haas made its way through the court system are now active again, and veterans are being asked to provide whatever documentation they have to support their claims for benefits.

As frustrating as the process has become without the benefit of the presumption afforded to those who fought in country, those seeking benefits must nevertheless provide as much support as possible.  The Australian/New Zealand study and report of indirect exposure through ship water distillation systems used by those countries to support paying the Agent Orange claims of their Blue Water Navy veterans needs to be used.  In addition, any ship's logs, newspaper reports, and operational/combat reports that place a ship along the coast and in the realm of possible direct exposure should be provided. In a legal setting where one must prove a connection, veterans need to use the data on Agent Orange that demonstrates its toxicity and then, if possible, demonstrate that the disease for which they seek compensation does not run in their family or their community.  

Those who have some access to national legislators need to make the effort to push the issue of Agent Orange Equity.  These men served their country and they are rapidly running out of time.  Vietnam veterans are dying and many are so from the conditions they contracted because of their service.  In most cases their claims for benefits die with them.  It would be a national tragedy to allow these men and their families to go uncompensated for diseases related to Agent Orange exposure.