from the Retiree Assistance Office
reprinted in The Texas Vietnam Veterans News
A bill in Congress provides a seemingly straightforward answer to a question that has vexed tens of thousands of Americans who served in the U.S. military. Who is a Vietnam veteran? The answer is vitally important to Navy personnel who served in
Vietnam’s territorial waters. For now, the Department of Veterans Affairs’ definition of a Vietnam veteran does not include these men and women. Legislation
introduced in the House would change that, clearing the way for Navy veterans to get disability payments and free health care for ailments linked to the herbicide
Agent Orange, from Type II diabetes to a variety of cancers. At stake: $3 billion in benefits. The VA says the pool of veterans who would become eligible for benefits under the bill is 800,000, a number critics accuse the VA of exaggerating to inflate costs that may scare Congress. Before 2002, sailors with the Vietnam Service Medal – given to those who served in the theater of war on land or sea – automatically got benefits, whether they were ground troops or in the Navy. But the VA, which did not return repeated calls for comment,changed its policy in 2002, saying common sense dictated that Agent Orange was used on land alone and therefore couldn’t harm Navy personnel.
Bart Stitchman, co-director of the National Veterans Legal Services Program, said the VA simply changed its definition of who was eligible without notice. The VA is
required to advertise any rule change impacting benefits in the Federal Register, allowing a period of public comment before making a change. The VA, Stitchman said,
violated federal law by ignoring that requirement. In a 2005 article in the Journal of Law and Policy, Dr. Mark Brown, director of Environmental Agents Service at the
VA, made a surprising admission: Science did not back up the VA’s policy on the Navy. Calling Navy veterans “non-Vietnam veterans,” reflecting the VA’s policy that
sailors don’t qualify, he wrote, “There is no obvious scientific or public health basis for excluding these non-Vietnam War veterans” from the presumption that their illnesses are caused by Agent Orange. To address that “apparent inequity,” Brown wrote, the VA paid benefits to those Navy veterans who could prove they were exposed to Agent Orange, which ground troops need not do. But proving exposure 40 years after the fact is often an impossible hurdle, Navy veterans say.
In 2004, a Navy veteran appealed the VA’s denial of his Agent Orange claim in a veterans court set up to handle appeals of VA cases. The case became a precedent-setter.
In 2006, that court ruled in favor of the veteran, saying the VA’s exclusion of Navy veterans was too restrictive.
But last year, the VA won the case on appeal to a higher court, which decided its rules on Agent Orange were reasonable. The VA then changed its rules one more time, closing another avenue for Navy veterans seeking benefits. After long holding that Navy veterans who served on inland waterways, like harbors and rivers, could get benefits, the VA decided a harbor did not qualify. The VA has argued it was not the intent of Congress to include the Navy when it adopted a law in 1991 providing compensation for Agent Orange.
Rep. Bob Filner (D-CA), chairman of the House Committee on Veterans Affairs, has introduced the Agent Orange Equity Act of 2009 (H.R.2254) to include Navy
veterans. He has more than 40 co-sponsors. “These guys have suffered long enough,” Filner said. “It’s going to cost money. But that’s the cost of going to war. We’re
spending trillions bailing out everybody else. Let’s bail out Vietnam veterans.” The chances for passage are uncertain. Filner said lawmakers may be reluctant to add costs to the federal budget in an economic crisis. A similar bill introduced last year failed.
In the interim on 30 MAY the Texas House and Senate passed the Restore Agent Orange Presumptive Diseases to “Blue Water” Navy Veterans [SCR 38] memorializing Congress to restore the presumption of a service connection for Agent Orange exposure to veterans who served on the inland waterways, territorial waters, and in the airspace of the Republic of Vietnam.
This is not a law as such. The Texas Legislature is telling the U.S. Congress that Texas wants the U.S. Congress to force the VA to recognize Agent Orange as a medically causal chemical for Navy personnel who were in the theater of Vietnam.
H.R.2254 : The Agent Orange Equity Act to amend title 38, United States Code, to clarify presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam.
Sponsor: Rep Filner, Bob [CA-51] (introduced 5/5/2009) Cosponsors (29)
Committees: House Veterans' Affairs
Latest Major Action: 5/8/2009 Referred to House subcommittee. Status: Referred to the Subcommittee on Disability Assistance and Memorial Affairs.
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