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VA blue water claims taking the fight to the courts

The effort to get the VA to acknowledge those who served on ships off the coast of Vietnam were also exposed to Agent Orange has been one of the longest battles in the history of veterans' benefits. Unfortunately, for every small win achieved by veterans, other roadblocks appeared. This week, MOAA and other organizations challenged one of those roadblocks in court. An estimated 90,000 Vietnam veterans served off the coast of Vietnam. Though they never set foot on the landmass, they might have nonetheless been exposed to Agent Orange. It is unknown precisely how many of them were in the bays and harbors of Vietnam, such as Da Nang Harbor or Nha Trang Harbor, but based on ship logs, military weapons, and logistics technology at the time, a majority likely were in the harbors at some point to support the war effort.

The VA refuses to recognize service on ships in bays and harbors as service within the territory of Vietnam for the purposes of presuming exposure by Agent Orange, despite scientific evidence of aerial spraying and the presence of Agent Orange in the water. In 2015 the U.S. Court of Appeals for Veterans Claims, in a case named Gray v. McDonald, determined the VA's exclusion of the bays and harbors was an unsupported legal fiction, saying it was "devoid of any indication that VA made a fact-based assessment of the probability of exposure." It ordered the VA to go back and reevaluate their definition of inland waterways as it applied to bays and harbors. The VA did so and decided they still would exclude bays and harbors. It revised its internal manual directing VA claims adjudicators to exclude service in bays and harbors from the Agent Orange presumption.

The case went back to court, this time with a challenge to the VA's internal manual instructions. The VA argued that because this was merely an internal manual provision the courts had no authority to review it. In 2017, the U.S. Court of Appeals for the Federal Circuit agreed with the VA and refused to review their internal manual provisions. This left 90,000 Vietnam veterans with little to no recourse to challenge the VA's determination, which was no less "devoid of indication that VA made a fact-based assessment of the probability of exposure" in 2017 than it was in 2015, just this time shielded from judicial review through the VA's own actions.

MOAA joined other veterans advocacy groups in asking the court to reconsider that decision, pointing out the "VA, in adopting this new approach of ensconcing massive substantive policy changes in the manual, thereby steering the adjudication process into the shadows, for the sake of its own convenience, is both anti-veteran and menacing to the productivity of the system." MOAA asked for immediate action by the court because "a number of these veterans will die appealing the VA's flawed policy." The case is Gray v. Secretary of Veterans Affairs, No. 16-1782, in the U.S. Court of Appeals for the Federal Circuit. It's uncertain how long the court will take to decide whether a rehearing is warranted, but MOAA will keep you updated of any developments. If you have ideas or questions about this topic, email them to legisMOAA Legislative Update Jan. 12, 2018]

As always please see your local County Veterans Service Officer if you have any questions. You can contact your local VSO at (218) 631-7617 or by email at david.anderson@co.wadena.mn.us and as always have a great week.

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