The U.S. Department of Veterans Affairs (VA) identified 60,942 denied benefit claims that it must review for retroactive benefits for Agent Orange exposure. The claims were filed by so-called Blue Water Navy Vietnam veterans, service members who were stationed on ships in deep waters off the coast of Vietnam during the war.
The move comes after a California District Court decided in November 2020 that the VA must reevaluate previous claims that were denied on the basis that the veteran did not set foot on land in Vietnam or serve in its inland waterways.
It was first estimated that the decision could impact 2,000 to 15,000 veterans and their survivors, who could receive an average of $28,000 in benefits. However, an unknown number of the 60,000 veterans identified will not receive additional benefits because they likely filed a claim after the Blue Water Navy Vietnam Veterans Act of 2019 and would have already received their retroactive benefits, according to the National Veterans Legal Services Program (NVLSP), a nonprofit that filed the motion.
The VA asked for an extension to determine the amount of retroactive compensation, if any, a veteran or a survivor is entitled to, provided that the veteran served in the territorial waters of Vietnam during the war. Its previous deadline was July 3, 2021, but will likely be extended to a date in 2022.
During this period, the VA is required to review each of the 60,492 cases and determine:
- If the veteran served in the territorial waters of Vietnam during the Vietnam War
- If so, the amount of retroactive compensation the veteran or survivor is entitled to for Agent Orange-related diseases
- Provide NVLSP with a copy of all the decisions that it issues
NVLSP executive director Bart Stichman said that the compensation amount a veteran may receive is based on his or her disability rating. The amount of money that would go to a surviving spouse is determined by a separate statute.
The VA confirmed to AARP that it identified the 60,942 cases to be reevaluated but said it does not have additional comments at this time.
Legal fight over Blue Water benefits spans decades
An estimated 90,000 Blue Water veterans were ineligible for Agent Orange-related benefits until January 2020, after the Blue Water Navy Vietnam Veterans Act of 2019 was signed into law. Previously, only Vietnam War veterans who served on the ground or within inland waterways were eligible to receive disability compensation based on a presumption of exposure to the chemical defoliant.
The court's recent ruling determined that a consent decree from a 1991 decision in Nehmer v. U.S. Department of Veterans Affairs should have applied to decisions made by the VA regarding benefit claims related to Agent Orange filed by Blue Water veterans.
"The objective and reasonable intent of the consent decree was to require automatic readjudications for all persons entitled to benefits under the Acts,” U.S. District Judge William Alsup said in the ruling. “The Acts extended benefits to all those military personnel who had served within ‘the Republic of Vietnam.’ ”
Between 1991 and 2002, the VA retroactively gave benefits to Blue Water veterans under the consent decree using a Vietnam War service medal as the basis for assuming Agent Orange exposure.
In 2002, the VA changed its policy to provide benefits only to service members who had served on land or on inland waterways.
"We applaud the Court's recognition that Blue Water Navy Vietnam veterans and their survivors have been wrongly denied retroactive disability and death benefits ever since 2002, when VA reversed its prior position and denied the presumption of Agent Orange exposure to veterans who served in the territorial seas of Vietnam,” said the NVLSP's Stichman in a press statement after the November 2020 ruling. “These veterans and their surviving family members have already been waiting years for benefits to which they are entitled under the Consent Decree simply because they did not set foot in the land mass of Vietnam."
If you believe you were wrongly denied a benefit claim related to Agent Orange, contact the NVLSP at AgentOrange@nvlsp.org or call its Nehmer hotline at 855-333-0677.
Editor’s note: The article, originally published Nov. 17, 2020, has been updated with information on the cases VA will review.
Aaron Kassraie writes about issues important to military veterans and their families for AARP. He also serves as a general assignment reporter. Kassraie previously covered U.S. foreign policy as a correspondent for the Kuwait News Agency’s Washington bureau and worked in news gathering for USA Today and Al Jazeera English.