Procopio: Bluewater Veterans and Agent Orange Exposure

Procopio v. Wilkie, Opinion Number 2017-1821, decided January 29, 2019 is a decision of the Court of Appeals for the Federal Circuit which explicitly rejects the VA’s foot on the ground with regard to Vietnam.  It holds that veterans who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to the Agent Orange presumption.

This has been a long fought battle between the advocates, Congress, and the VA.  The VA has long argued that a veteran was not entitled to a presumption of herbicide exposure if they had not set foot in Vietnam whereas advocates had argued the presumption should extend to bluewater veterans.  In fact, the Federal Circuit had considered this argument 10 years prior in Haas v. Peake, 525 F.3d 1168

(Fed. Cir. 2008) and accepted the VA’s position.

However, in this case, the Federal Circuit sat en banc (meaning all members of the Court heard the case rather than a three person panel) and explicitly overturned Haas and rejected the VA’s argument.

The VA had long sought to argue the law as to the presumption was ambiguous in terms of whether it applied to bluewater veterans and thus the courts should defer to their interpretation under a series of cases calling for deference to an agencies interpretation of law and regulations. 

The majority opinion sidestepped the question of agency deference by focusing on the term Republic of Vietnam and determined that based on international law, the term Republic of Vietnam should include the territorial waters of the country.

A concurring opinion by Judge Lourie argued the question should not be controlled by the international law concept of territorial waters, but determined the term “served in the Republic of Vietnam” is ambiguous.  It then determined the agency’s interpretation is not owed deference because the plain meaning of the regulation includes “service in the waters offshore” and “service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.”  “Thus, a veteran who served in the “waters offshore” is included within the meaning of “service in the Republic of Vietnam” and

entitled to presumptive service connection.”

Another concurring opinion by Judge O’Malley agreed with the reading of “Republic of Vietnam” as unambiguously encompassing territorial waters.  However, she wrote separately to further to state she believes the pro-veteran canon of construction adds further support for that conclusion.  “Specifically, I write to explain that: (1) the pro-veteran canon, like every other canon of statutory construction, can and should apply at step one of Chevron to help determine whether a statutory ambiguity exists;

and, (2) even when a statute remains irresolvably ambiguous, when a choice between deferring to an agency interpretation of that statute—or particularly where that

interpretation is itself ambiguous—and resolving any ambiguity by application of the pro-veteran canon come to a head, traditional notions of agency deference must give

way.”  What follows is an exceptionally well-reasoned attacked against Auer deference, which will likely serve as assistance in the expected Supreme Court decision in Kisor.

Judge Chen wrote a dissent joined in by Judge Dyk which argued the statute was ambiguous.  However, it refused to reach a conclusion saying that information on bluewater veterans was in such a state of flux.

This case is powerful and will assist many Bluewater Vietnam veterans in obtaining service connection and earlier effective dates.  While the Secretary will likely seek review by the Supreme Court, I would expect for the writ to be denied as the Court has already agreed to hear another high profile case (Kisor v. Wilkie) and only has so much appetite and time for veterans law cases.

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