Appeals court rules for Vietnam veterans in disability benefit dispute with VA

by Bamidele Ogunberu Posted on January 31st, 2019

The US Court of Appeals for the Federal Circuit on Wednesday ruled that the Department of Veterans Affairs (VA) must pay disability benefits to blue water navy Vietnam veterans who were exposed to Agent Orange.

Alfred Procopio, Jr. served aboard the USS Intrepid during the Vietnam War but never set foot on land. Procopio twice sought disability benefits from the VA under the Agent Orange Act, 38 USC § 1116, once for diabetes mellitus and once for prostate cancer. Both claims were denied by the Board of Veterans’ Appeals and the Veterans Court.

When Procopio appealed the decision, the Court of Appeals for the Federal Circuit sua sponte ordered that the case address two issues:

Does the phrase “served in the Republic of Vietnam” in … § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?

What role, if any does the pro-claimant canon play in this analysis?

The Veterans Court’s decision hinged on precedent that had determined “served in the Republic of Vietnam” was ambiguous and that the VA’s regulation was a reasonable interpretation. The Court of Appeals for the Federal Circuit disagreed.

Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to § 1116’s presumption if they meet the section’s other requirements. They are.

In determining that the statute was unambiguous, the court did not have to consider if the VA’s regulation was reasonable. Instead, the VA did not receive judicial deference.

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