By Lt. Col. Aniela Szymanski, USMCR

Last year, Congress got as close as ever to passing legislation that would grant the presumption of exposure to tens of thousands of Blue Water Navy veterans who served offshore during Vietnam. Unfortunately, in the last days of the Congressional session, two senators objected to the funding mechanism to give these men and women health care and disability benefits. MOAA and other veteran service organizations made every effort to break the stalemate, even writing to the president. Those efforts were ultimately unsuccessful. We are redoubling efforts and plan to end this 22-year fight to give these men and women the benefits they deserve.

Back in 1997, the Department of Veterans Affairs' general counsel narrowed the VA's interpretation of “service in Vietnam,” excluding Blue Water Navy veterans from presumed exposure to Agent Orange. The term “Blue water Navy veterans” has been used to describe sailors who served on ships within the territorial waters of Vietnam, legally defined as 12 nautical miles from the shore, but who never set foot on the ground.

According to government data, there are about 90,000 Blue Water Navy veterans remaining of the estimated 6.2 million surviving veterans of the Vietnam era. VA's estimated rate of death for Vietnam-era veterans is 2-3 percent each year, meaning that in 2018, about 2,700 Blue Water Navy veterans passed away waiting for Congress and the VA to acknowledge their exposure and grant them the associated health care and benefits. By the end of this congressional term (2021), an estimated 81,600 Blue Water Navy veterans will remain. Given these grim statistics, this is clearly a matter of exceptional urgency.

VA continues to state that there is no “science” that supports a presumption of exposure. But the real problem comes in relying on the Defense Department's shoddy records to prove who had or had not been exposed. If DoD's recordkeeping had been adequate, a presumption would not be necessary, because the records would be present to directly prove an exposure. Absent such records, it must be a policy decision by the government to enact a presumption of exposure.

[Related: Battle for Blue Water Navy Benefits Will Begin Again in 2019]

There are currently two bills that would do just that, both introduced in the first few days of the new Congress. Both bills are identical and mirror the legislation from last Congressional term, the only difference is that one was introduced by the former chairman of the House Veterans Affairs Committee, Rep. Phil Roe, (R-Tenn.), and the other by the current chairman of that committee, Rep. Mark Takano (D-Calif.).

The judicial branch also has entered the battle. The Supreme Court scheduled oral arguments for Feb. 25 in a Blue Water Navy case called Gray v. Wilkie. In that case, the Supreme Court will be deciding whether the VA's rule excluding Blue Water Navy veterans from the Agent Orange exposure presumption can be reviewed by courts, or whether courts must defer to the VA's interpretation.

The U.S. Court of Appeals for the Federal Circuit also is expected to issue a decision in the case of Procopio v. Wilkie at any moment. In the case, the court is deciding whether the phrase “served in the Republic of Vietnam,” as enacted by Congress, includes the territorial waters of Vietnam. If the courts decide either of these cases against VA, the legislation that veteran service organizations have been advocating for Congress to pass may become a moot point because the courts will have already decided the issue.

MOAA will continue to advocate for Congress to act and will keep you updated about the status of the pending court cases, as well. Please contact MOAA with your thoughts and questions in the meantime at legis@moaa.org or (800) 234-6622.