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March 2019 Legal Report

By: Milan Rada, Esq. with John Hewson, Esq. and Ken Beskin, Esq.

Fusco, Brandenstein & Rada, PC, is a full-service disability law firm, and so there are many benefits beyond simply Workers’ Compensation, Social Security disability, and Disability Pensions that our experienced and hard-working attorneys assist clients to obtain.  One of the more expansive systems that exist but little is spoken about is Veterans Disability benefits.  Our office handles Veterans’ Disability claims as well, and our team of experts in this area works hard to stay on top of the latest developments in Veterans law.  Recently, a case involving a certain class of Vietnam veterans was handed down which greatly improves the chances of Vietnam vets being approved for the benefits to which they are deeply deserving.

In 1991 Congress passed the Agent Orange Act, granting a presumption of service connection for certain diseases to veterans who “served in the Republic of Vietnam” between January 9,1962 and May 7, 1975.  The covered diseases are limited to those specified in the act including AL amyloidosis, chronic B-cell leukemia, chloracne, diabetes mellitus type 2, Hodgkin’s disease, ischemic heart disease, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft tissue sarcomas. The effect of the Act is that any veteran who served in Vietnam and develops any of these diseases at any time during their lifetime will be automatically covered without the need to provide actual medical evidence of service connection.  The Act has been seen by most observers to fall way short since it does not cover diseases such as bladder cancer, esophageal cancer, kidney cancer, non-cancerous respiratory diseases and many others which would seem to be similarly related to Agent Orange exposure.  In those cases, it is necessary to provide a medical opinion as to service connection, and the VA has denied almost all cases that do not fall under the presumptions.

The other issue relating to the Agent Orange Act is that the VA has interpreted the phrase “served in the Republic of Vietnam” as meaning either actual boots on the ground in Vietnam or service on ships that entered the inland waterways around Vietnam.  Veterans who served on open sea ships off the shore of Vietnam became known as Blue Water veterans.  The VA has always maintained that they were not intended to be covered by the act and therefore not entitled to the presumptions.  They have been required to show on a factual basis that they were actually exposed to herbicides and then produce medical evidence giving service connection.

The problem is that the Blue Water veterans have been filing claims due to herbicide exposure since they have been developing the same diseases covered by the Act.  For example, some of the planes that came back from Vietnam and landed on the Blue Water aircraft carriers were covered with Agent Orange.  The VA, however, has been denying all of these claims and there is an estimated 50,000 claims pending.

Many efforts have been made to try and have Blue Water veterans covered by the Act.   A recent bill in Congress that would have accomplished this passed the House 298 to 0 and had broad bipartisan support in the Senate.  The VA testified at the Senate hearings against it, however, and it is now stalled indefinitely.  The VA is claiming that the science does not support including Blue Water veterans but the real issue is clearly where they would find the billions of dollars need to pay for all of the past and new claims.  The Circuit Court of Appeals, however, has now ruled in the case of Procopio v. Wilkie, decided January 29, 2019, that Congress has always intended to cover Blue Water veterans in the Act and that they are entitled to all of the benefits.    This hopefully will resolve pending claims and encourage more Blue Water veterans to file claims.  Our firm has several such cases, one of which is pending in the Court of Appeals for Veterans claims.

The VA could still appeal to the U.S. Supreme Court but they have hopefully learned their lesson since the Procopio decision in the U.S. Court of Appeals for the Federal Circuit was very persuasive with a 9 to 2 majority and the Congress and Senate have shown their intent to pass legislation confirming The Blue Water veterans’ rights to the benefits.  There is now a redoubled effort to have the Senate finally pass the bill that was overwhelmingly passed in the House.

Now, this specific case and its issues likely do not relate to many active members at this time, but there certainly are benefits available to those members that are veterans that have suffered service-connected injuries.  We are happy to assess any and all claims that might be related to your service-related injuries.  Simply because the Veterans Administration comes to a ruling or decision on the matter does not mean that they are correct.  Obviously there are appeals available and we can help you,  your friends or family navigate these treacherous waters (no pun intended).

As we say every month, if you have any questions or issues regarding your claims and injuries, we are available anytime at 516-941-4403.  We are honored to represent any and all law enforcement members and their friends and families.  So, if the issue of Veterans’ benefits does not apply to you, but it does relate to your cousin or your brother or sister or your aunt or uncle, we are always happy to help.  Of course, any questions on any disability or injury-related issues can be sent to mrada@fbrlaw.com or call for a free consultation.  We wish you good health and the best always, but if you need us, we are always here to help.

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