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It is a sad day for the Navy, because the VA won its appeal and will now be able to continue to deny benefits to deserving veterans who are suffering the effects of Agent Orange Exposure.

Back in 2006,the Veterans Court had invalidated the VA’s refusal to grant “blue water veterans” the benefit of the presumption of Agent Orange exposure and specifically determined that the VA’s current interpretation of its regulations conflicts with its prior interpretations, and that the VA’s interpretation of its regulation was erroneous and unreasonable.

On May 8th, the United States Court of Appeals for the Federal Circuit, in the case of Haas v. Peake, in a split decision reversed the panel decision of the Veterans Court.

This Federal Circuit decision bent over backwards to support the VA, and gave undue deference to the VA’s interpretation of what Congress meant by the admittedly vague term “Service in the Republic of Vietnam”in 38 U.S.C. § 1116(a)(1), the statute providing for the presumption of exposure the Agent Orange.

Without the support of scientific studies the VA concluded that those serving offshore did not have sufficient exposure to Agent Orange to qualify for the same presumption of exposure which is granted to those who stepped on the soil of Vietnam, regardless of how briefly and regardless of where they were located in Country. Rather the VA decided that Navy veterans must prove that they were exposed.

The dissenting Judge correctly noted the VA’s scheme to attempt to fill in the gap caused by the lack of relevant scientific evidence by doing frantic last minute rule making which was then submitted to the Court to explain the VA’s rationale for rejecting a study conducted for the Australian Department of Veterans Affairs suggesting that Vietnam veterans of the Royal Australian Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels. To the contrary the other two Judges noted with approval the VA unsupported observations that the exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land and it is not clear whether US ships used distilled drinking water drawn from or near estuarine sources or whether the distillation process used on US ships was similar to that used by the Australian Navy.

Although those two Judges fell for this scheme, at least the dissenting Judge noted that the rule making and the interpretation of the regulation which it contains “appear to be based on uncertainty rather than the careful scientific assessment required by the statute”.

Because of the uncertainty whether there will be a successful appeal to the Supreme Court of the United States, Navy veterans who have diseases which may be the result of exposure to Agent Orange should proceed with their claims. Moreover, they should remember that it is not necessary to have the presumption of exposure to win. If some evidence of exposure can be obtained, for example, statements from others supporting the assertion that the odor of herbicides was detected on board, then the claim can proceed to the next step of obtaining a medical opinion that the veteran has a condition which is more likely than not the result of exposure to herbicides in service.