Blue water veterans have long battled for recognition that they were exposed to Agent Orange. Unfortunately, VA has long refused to extend the presumption that veterans who were on land, or on inland waterways in Vietnam, were exposed to Agent Orange to veterans who served on ships in the offshore waterways. To justify this position, VA has relied on a finding that Agent Orange was sprayed on land and not in the water. But a new decision from the U.S. Court of Appeals for Veterans Claims means that VA has to reevaluate this position.
Gray v. McDonald
In Gray v. McDonald, a veteran who served in a ship that docked in Da Nang Harbor claimed that VA should recognize that he was exposed to Agent Orange even though he never went on land. The Court recognized that VA only presumed Agent Orange exposure for service members who (1) set foot on land, (2) served on inland waterways, and (3) served on a ship with decklogs that reference “anchoring or entering the ‘mouth’ of” the Cua Viet River, Saigon River, Mekong River Delta, Ganh Rai Bay, and the Rung Sat Special Zone. The Court noted that VA excluded service members who served aboard ships that docked in deep-water harbors, including Da Nang Harbor.
In Court, the attorneys for VA stressed that VA’s policy was based on the probability of exposure based on where Agent Orange was actually sprayed. In other words, they seemed to assert that the evidence showed that Agent Orange wasn’t sprayed in deep water harbors. But the Court found little in the way of hard evidence to support that Agent Orange wasn’t used just off the shore of Vietnam, in “waterways open to the ocean and the brown water mixes with the blue.” After reviewing relevant documentation, the Court concluded that VA’s policy was not actually based on the probability of herbicide use in Da Nang Harbor.
The Court ultimately ordered VA to reevaluate its policy concerning Agent Orange exposure and veterans who served aboard ships that were in deep-water harbors. This case certainly represents a major victory for veterans.
Were You Exposed to Agent Orange?
Are you suffering from a disability due to exposure to Agent Orange? Learn more here about Agent Orange related conditions. Or contact our veterans disability attorneys for more information and assistance proving your claim on appeal.