I have been asked to put some thoughts together regarding how Blue Water Navy claims should be handled at this point in time. To be quite honest, whatever I come up with at this point in time is going to need to be adjusted once the VA has provided the Court of Appeals for Veteran Claims (CAVC) with their new version of rules which the court demanded. In the Gray v. McDonald ruling, the court threw out the rules which the VA had been using to determine what were inland waterways, the definitions of in-land waters and harbors, and a few other definitions such as the mouth of a river.
Essentially, the CAVC negated all of the directives that adjudicators were using to define the Blue Water Navy and to ensure that they were excluded from presumptive exposure. Under those previous rules, individuals literally had to have their boots on the ground or be located geographically within the boundaries of the country of Vietnam in order to be given the presumption of exposure to herbicides. In those instances, veterans in those categories fall under the existing regulations that apply to Vietnam veterans who served on land and into the budget that already exists for dealing with Vietnam veterans who were presumptively exposed to herbicide.
Additionally, the VA had used the IOM’s 2011 Study on The Blue Water Navy and Agent Orange to justify their contention that Blue Water Navy personnel were not exposed to herbicide. The court found that the IOM Study did not support the conclusions of the VA. Because of that, the VA’s broader concept that denied the Seventh Fleet as not being exposed to herbicide was also negated. My interpretation is that it is no longer valid for the VA to deny Blue Water Navy claims because the individual did not have his boots on the ground. There must be additional justification for the denial. I believe that all claim denials which state that the veteran had no record of being in Vietnam and therefore was ineligible for presumption of exposure were also invalidated by the court ruling.
The question of " What should I do now as a Blue Water veteran filing a claim for herbicide exposure? " cannot truly be answered right now because whatever we decide to do at this point will be overridden by whatever new definitions the VA submits to the CAVC and are ultimately approved by the court. The court did not state a specific time when the VA must have their rules submitted, nor did it state that they could have more than one attempt to write rules that the court would agree with. The entire question of what the VA is going to do now is a complete unknown.
My first inclination is to say: At this time, we need to wait and see what happens when the VA submits new rules to the CAVC. However, many Blue Water sailors have contacted me wanting some direction for them to act immediately. If that is what the veteran wants to do, I offer the following ideas as a very temporary solution on how to file a claim at this moment in time.
I believe the most prudent thing to do is for the veteran to submit an Intent to File claim (VA Form 21-0966). if they have not filed for herbicide exposure at any time in the past. The new Intent to File form (21-0966) will save that date of submission and provide the veteran with one year in which to perfect and submit their claim. I believe that the VA will respond to the CAVC within the next month or two at the very most, and the Intent to File submission will allow time for the veteran to write a claim that conforms to whatever rules the court accepts.
For those who have been denied based on lack of boots on ground and for failing to fall under the VA’s adjusted definition of a "Vietnam veteran, " (someone who had boots on ground or was on an inland waterway), I would suggest that they file to reopen their claim with the following bits of information:
Anyone following these suggested guidelines must keep in mind the caveat that even though their claim is submitted based on the above logic and reasoning, the VA will submit new rules to the CAVC that will attempt to limit the potential exposure to the greatest degree which they can. Hopefully the CAVC will reject anything submitted by the VA that defies the laws of nature and physics (as the previous rules did) and adheres to various comments made by the court in their final ruling. I suggest using an accredited Veteran Service Officer (VSO) to assist in writing and submitting the claim. If a VSO is not available, the veteran can locate and submit the proper claim forms himself.
Watch for updates to these ideas. If some are off-base, I am sure someone will let me know.