The Department of Veterans Affairs has no plans to challenge a court ruling last week ordering it to make retroactive payments to a small class of "Blue Water Navy" Vietnam veterans and their survivors who were wrongly denied benefits for exposure to Agent Orange, the head of the Veterans Benefits Administration (VBA) said Wednesday.
The Justice Department has not indicated whether the Nov. 5 ruling by federal District Judge William Alsup in San Francisco will be appealed, but Paul Lawrence, VA under secretary and VBA chief, said the VA will comply with the decision in the complicated case.
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The VA had prepared for the possibility that Alsup would rule against it, Lawrence said in an interview with Military.com.
"So we tagged certain claims so that we could go back, were that ruling to happen," he explained. "I think we have to go back and find the estates of those who could have potentially filed claims. We have history around this; we are prepared."
The case involves a 1991 consent decree in which the VA agreed to pay death and disability benefits to Blue Water veterans who served off the coast of Vietnam, along with those who served on land, for exposure to Agent Orange, the toxic defoliant used widely during the war.
Then in 2002, the VA excluded the Blue Water veterans from Agent Orange benefits on grounds that it lacked scientific proof to show that those who served off the coast had been exposed to the herbicide.
Following a U.S. Court of Appeals ruling, as well as Congress' passage of the Blue Water Navy Vietnam Veterans Act, signed into law by President Donald Trump in 2019, the VA had to reverse course and extend Agent Orange benefits to Blue Water veterans who file a new claim.
However, that still left old claims by the Blue Water veterans who were included in the 1991 consent decree but had the benefits pulled back in 2002.
In his ruling last week, Alsup said the VA's inclusion of the Blue Water veterans for 11 years after the 1991 consent decree clearly indicated what was intended by the agreement.
"This practical construction of the agreement torpedoes the agency's later change of heart," he wrote.
In a Nov. 6 statement, Bart Stichman, executive director of the National Veterans Legal Services Program, said, "We applaud the Court's recognition that Blue Water Navy Vietnam veterans and their survivors have been wrongly denied retroactive disability and death benefits ever since 2002, when VA reversed its prior position and denied the presumption of Agent Orange exposure to veterans who served in the territorial seas of Vietnam."
NVSLP estimated that the Alsup decision could affect 2,000 to 15,000 veterans and their families, and could lead to each of them receiving an average of $28,000.
On another issue involving the VA and toxic exposure, Lawrence said that no changes are currently under consideration to the department's policy against providing benefits and the presumption of service connection in most cases to veterans exposed to burn pits in Iraq and Afghanistan.
President-elect Joe Biden said on the campaign trail that he would make an overhaul of burn pit policy a priority of his administration. But Lawrence said changes cannot be accomplished administratively and require Congress to pass legislation.
"It's important to emphasize that any veteran can come in at any time and apply for benefits based on their condition," he said. "We have granted benefits to veterans who have conditions related to exposure [to burn pits in isolated cases]."
He explained that the challenge is demonstrating a connection between the illness and the veteran's service.
Studies by the National Academy of Sciences have shown there is "insufficient evidence to establish the linkage," he said.
However, "Congress can pass legislation to say this is covered," Lawrence said. "We administer the benefits Congress passes."
If Congress acts on burn pits, "we will execute because that's what we do," he added.
-- Richard Sisk can be reached at Richard.Sisk@Military.com.
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