Blue Water Navy Veterans rejoice. The Procopio v. Wilkie case was heard at the United States Court of Appeals for the Federal Circuit by a full panel of judges (en banc) and that means it has precedential effect (it can be used as law and binding on future issues). The government can always ask for a certiorari to the US Supreme Court (ask the Court to hear an appeal of this decision). However, the US Supreme Court is not required to hear this case: it can simply say “no.”
So, just what does this case give us? Let’s look at some of the previous laws surrounding the issues of Vietnam service, Brown Water Veterans, and Blue Water Veterans. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit gave analysis that a Veteran who had served off the shores of Vietnam was not eligible for certain benefits because he did not meet the “…foot-on-land requirement.” Procopio v. Wilkie, F.3d at 2 (Fed. Cir. 2019) (citing Haas at 1173). The Court at that time stated that the language in 38 U.S.C. § 1116(a) required the foot-on-land service member to have placed their feet in their boots on the physical land of Vietnam to be eligible for presumptive disease disabilities as service connected. The Procopio case overturned the Haas case.
Before the Procopio case, the inland waterways of Vietnam also allowed a Veteran to get presumptive service connection if they were in ships/boats that went into the inland waterways/inlets. In the present case, the Procopio Court looked back at the Haas decision and decided that the statutory langue that the Haas Court relied upon was not ambiguous, and that the service of one “in Vietnam” should include 12 nautical miles offshore, adjacent to the land mass. The Procopio Court came to this conclusion by citing to International law that was on the books at the time of the adoption of 38 U.S.C. § 1116(a). By doing so, the Court is telling us that Congress knows of the laws on the books and that since numerous laws included “territorial waters” to mean 12 nautical miles offshore of a country. If your merely mentioned a country’s name, like “The Republic of Vietnam,” within that title, the territorial waters are included. It stated that since the country’s law apply to those 12 nautical miles, so should the statutory language.
But, what all does this mean? It means that, for the time, if you served within 12 nautical miles of Vietnam, you are a Blue Water Veteran, and if you served between January 9, 1962 and May 7, 1975, and you have one of the presumed diseases for Agent Orange, you should now be eligible to claim those diseases as service connected. There is still another fight going on right now in Congress that will enable Veterans, if it passes, to get paid retroactively for these conditions. This retroactive pays for these claims will create an effective date of when a claim was first made, even if it was decades ago and the Veteran never filed an appeal to their VA denials. The Bill in its current form and status can be found here. If you want this to become law, contact your representatives and make it happen.
At Berry Law, our attorneys are committed to helping veterans. We assist Veterans appealing their VA decision or applying for a rating decision increase. If you or somebody you know needs assistance appealing a VA decision, we may be able to help. Contact our team of VA appeals attorneys today at (888) 883-2483 to schedule a free, confidential consultation.
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