Although the Vietnam War ended nearly a half-century ago, many veterans who served in that conflict continue to suffer from the effects. For example, many veterans are still dealing with their exposure to the toxic herbicide known as Agent Orange. In 1991, Congress adopted the Agent Orange Act, which created a legal presumption of a “service connection” for veterans who developed certain diseases while serving in Vietnam. In plain English, the law assumes that if a Vietnam veteran later developed a listed disease, it was assumed to be the result of Agent Orange exposure, unless there was “affirmative evidence” to the contrary.
The Agent Orange Act specifically covers military personnel who “served in the Republic of Vietnam” between January 1962 and May 1975. The “Republic of Vietnam” refers to what was formerly called South Vietnam. According to a recent decision by a federal appeals court, the Republic of Vietnam included not just the land territory and internal waters of former South Vietnam, but also its offshore waters.
More to the point, the Court determined the Agent Orange Act covers veterans who served aboard ships but who never physically set foot in Vietnam. The plaintiff, in this case, Procopio v. Wilkie, served aboard the U.S.S. Intrepid from 1964 to 1967 while a member of the U.S. Navy. In the summer of 1966, the Navy deployed the Intrepid to the offshore waters of the Republic of Vietnam.
Nearly 30 years later, the plaintiff developed diabetes mellitus and prostate cancer, both of which are known conditions related to Agent Orange exposure. The plaintiff sought benefits under the Agent Orange Act. The VA denied the plaintiff’s request, however, on the grounds that was never present “on the landmass or the inland waters of Vietnam during service.”
The plaintiff appealed the VA’s decision to the U.S. Court of Appeals for the Federal Circuit in Washington, DC. On January 29, 2019, the Court held by a vote of 9-2 that the VA’s reading of the law was incorrect. There was no dispute the law covered veterans who “served in the Republic of Vietnam.” Contrary to the VA’s position, the “Republic of Vietnam” also included its offshore territorial waters.
This is not exactly a surprise to anyone who understands the basics of international law. Under a 1982 United Nations convention, the “territorial waters” of a given sovereign state extends up to 12 nautical miles (roughly 13.8 miles) from the low-water mark of the country’s shoreline. Anything within this 12-nautical mile zone is therefore considered part of the country’s territory, the same as any landmass or internal waters (such as rivers).
Given this, the Court here concluded that service onboard a naval vessel parked within the Republic of Vietnam’s territorial waters was, for all intents and purposes, “in the Republic of Vietnam.” The plaintiff was therefore “entitled to a presumption of service connection for his prostate cancer and diabetes mellitus.”
The Federal Circuit’s decision is welcome news for a number of “blue water” veterans who served on offshore vessels during the Vietnam War and developed Agent Orange-related complications as a result. If you need assistance from a qualified veterans benefits lawyer in pursuing a claim related to Agent Orange, contact The Comerford Law Office, LLC today to schedule a free consultation.
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