Expansion of Benefits to Blue Water Navy Vietnam Veterans

Expansion of Benefits to Blue Water Navy Vietnam Veterans

link to page 2

November 20, 2019
Expansion of Benefits to Blue Water Navy Vietnam Veterans
Legislative History
who served on U.S. Navy or Coast Guard vessels off the
The Blue Water Navy Vietnam Veterans Act of 2019 (P.L.
coast of Vietnam.
116-23) is the most recent action taken by Congress to grant
disability compensation benefits to veterans exposed to
Overview of P.L. 116-23
Agent Orange, a combination of tactical herbicides used by
P.L. 116-23 amends chapters 11, 17, 18, and 37 of Title 38
the U.S. military in Vietnam. Earlier legislation directed the
of the U.S. Code, expanding the Agent Orange presumption
Department of Veterans Affairs (VA) to provide some
to veterans who served on U.S. Navy or Coast Guard
veterans with VA benefits for specific disabilities without
vessels offshore the Republic of Vietnam; to certain
requiring proof of actual exposure to Agent Orange.
veterans who served in or near the Korean Demilitarized
Zone (DMZ); and to certain veterans who served in
In 1991, the Agent Orange Act (P.L. 102-4) established a
Thailand whose children were born with spina bifida. In
presumption of service connection—that is, a presumption
addition, the law amends multiple provisions related to the
that a disability is related to a veteran’s service, entitling
VA Home Loan Program. All changes to the U.S. Code
that veteran to VA disability compensation—for diseases
made by P.L. 116-23 will take effect on January 1, 2020. In
associated with herbicide exposure contracted by veterans
a July 5, 2019, press release, VA estimated that as many as
who “served in the Republic of Vietnam” between January
560,000 Vietnam-era veterans may be recognized as Blue
9, 1962, and May 7, 1975. VA interpreted “served in the
Water Navy (BWN) veterans.
Republic of Vietnam” to apply to veterans who set foot in
Provisions Expanding the Agent Orange
Vietnam or served on its inland waterways. For veterans to
Presumption
be eligible for VA disability benefits under these
The provisions that expand the Agent Orange presumption
provisions, they must have at least one of the illnesses or
appear in Sections 2, 3, and 4 of P.L. 116-23.
diseases listed in 38 C.F.R. §3.309(e). These include, but
are not limited to, type II diabetes, chloracne, non-Hodgkin
Vietnam Blue Water Navy Veterans
lymphoma, respiratory cancers, and certain types of soft-
Section 2 of P.L. 116-23 extends the presumption of
tissue sarcoma. A veteran without a presumptive condition
herbicide exposure to veterans who served on a U.S. Navy
who was exposed to Agent Orange may be eligible for
or Coast Guard vessel offshore the Republic of Vietnam
benefits by providing sufficient medical evidence linking
between January 9, 1962, and May 7, 1975. These vessels
their condition to this exposure.
must have operated “not more than 12 nautical miles
seaward of a line commencing on the southwestern
On January 25, 2011, VA issued regulations expanding the
demarcation line of the waters of Vietnam and Cambodia.”
scope of the presumption of herbicide exposure to veterans
That line roughly connects Vietnam’s islands located within
who served in or near the Korean Demilitarized Zone
their territorial waters. Figure 1 shows the entire region
(DMZ) between September 1, 1967, and August 31, 1971.
associated with Agent Orange exposure, including the
These regulations took effect on February 24, 2011.
newly added territorial waters and the corresponding 12-
nautical-mile expansion seaward.
On January 29, 2019, the U.S. Court of Appeals for the
Veterans near the DMZ in Korea
Federal Circuit, in Procopio v. Wilkie, invalidated VA’s
interpretation of “Republic of Vietnam” and held that the
Section 3 of P.L. 116-23 codifies the 2011 regulatory
term’s meaning included the country’s 12 nautical miles of
presumption that veterans who served in the Korean DMZ
territorial sea. The court reasoned that, for the purpose of
between September 1, 1967, and August 31, 1971, were
VA benefits, all veterans who served on U.S. vessels within
exposed to herbicides.
the 12-nautical-mile region were eligible for the Agent
Children of Certain Thailand Veterans
Orange presumption.
Section 4 of P.L. 116-23 extends eligibility for health care,
vocational training and rehabilitation, and monetary
As Procopio unfolded, Congress also legislated an
allowances for children born with spina bifida to certain
expansion of the Agent Orange presumption. On January 8,
veterans who served in Thailand between January 9, 1962,
2019, H.R. 299 was introduced to expand the presumption
and May 7, 1975, in the same manner as these benefits are
of herbicide exposure for veterans who served offshore the
available to children of Vietnam veterans exposed to Agent
Republic of Vietnam on U.S. vessels. Following House and
Orange. The veteran must have served in an area of
Senate passage, President Donald J. Trump signed into law
Thailand where the Secretary of Veterans Affairs, in
the Blue Water Navy Vietnam Veterans Act of 2019 (P.L.
consultation with the Secretary of Defense, identified
116-23) on June 25, 2019. The act requires VA to grant the
herbicides used during this time period. This section applies
presumption of exposure to herbicide agents to veterans
to children conceived after the date of the veteran’s service
https://crsreports.congress.gov

Expansion of Benefits to Blue Water Navy Vietnam Veterans
in Thailand and to all forms of spina bifida except for the
the Secretary the authority to place a stay on claims until
mildest form, spina bifida occulta.
January 1, 2020, delaying decisions on pending claims.
Figure 1. Vietnam
Ship Logs
On August 9, 2019, VA signed an agreement with the
National Archives and Records Administration allowing
VA to take the deck logs of U.S. Navy and Coast Guard
ships from the Vietnam era (1956-1978) offsite and digitize
them. VA anticipates all deck logs will be scanned by
January 1, 2020, in time for P.L. 116-23’s implementation.
The deck logs include the ships’ movements, locations,
activities, and, sometimes, personnel issues. By scanning
these logs and using documented coordinates, VA can
create tools to identify whether a veteran was within the 12-
nautical-mile region. This will assist BWN veterans in their
claims, as a veteran will only need to provide a ship name
and dates of service on the ship, not specific coordinates.
Outreach to Veterans
P.L. 116-23 requires VA to implement an outreach program
to inform veterans who qualify under the new law that they
have the opportunity to submit a disability compensation
claim. This outreach includes publishing the information on
the VA website and sending written notification to veterans
and veteran service organizations (VSOs) of the submission
or resubmission process.
Processing Veterans’ Claims

New Claims
Source: Created by CRS. Information from P.L. 116-23 Section 2(d).
Veterans who believe they may qualify for benefits under
P.L. 116-23 can file a disability compensation claim using
Required Reporting
the process explained on VA’s website. For BWN veterans,
P.L. 116-23 requires the Secretary of Veterans Affairs to
applications should note that the claim is for an Agent
submit three reports related to the BWN provisions to the
Orange-related condition and any evidence of service
House and Senate Committees on Veterans’ Affairs. These
offshore Vietnam, such as a ship name and service dates, as
reports’ subjects and due dates are as follows:
well as medical evidence showing a diagnosis of a
presumptive condition.
 when and where herbicide agents were used in Thailand
Previously Denied Claims
during the Vietnam era, including any military
BWN veterans who previously filed, and were denied, a
installations possibly affected, due within 120 days
claim for an Agent Orange-related disability are eligible to
following the law’s effective date;
refile their claim. The veteran must have received VA’s
 how VA plans to respond to veterans’ inquiries
denial for benefits between September 25, 1985 (the date
regarding the BWN presumption, due within 180 days
retroactive benefits could be granted to Vietnam veterans
following the law’s effective date; and
under Nehmer v. U.S. Department of Veterans Affairs) and

January 1, 2020. If VA finds the veteran is eligible for
the number of claims filed by BWN veterans for
benefits under P.L. 116-23, VA will grant retroactive
compensation, including the number of those claims
benefits to when the veteran first filed a claim. Korea and
granted and denied, due no later than January 1, 2021.
Thailand veterans with previously denied claims can file a
new claim to receive benefits, but the effective date cannot
In addition, the Secretary must report on the current status
be earlier than January 1, 2020.
of the Follow-Up Study of the National Cohort Gulf War
and Gulf Era Veterans within 180 days of the law’s
Ongoing Concerns
effective date.
The House Committee on Veterans’ Affairs Subcommittee
for Disability Assistance and Memorial Affairs’ hearings
VA Implementation
raised concerns regarding P.L. 116-23’s implementation.
After President Trump signed P.L. 116-23, VA began
These concerns included VA’s launch of a new database;
preparing to adjudicate BWN claims. In particular, VA has
VA’s staff training on how to use that new database;
placed a hold on pending BWN veterans’ claims and
outreach efforts to veterans whose contact information may
created a database to identify eligible veterans.
have changed since their initial claims; and VA’s updates to
VSO counterparts on BWN claims processing.
A Stay of Claims
On July 1, 2019, Secretary of Veterans Affairs Robert L.
Heather M. Salazar, Analyst in Veterans Policy
Wilkie placed a stay, or hold, on all pending claims affected
by P.L. 116-23. Sections 2(c)(3), 3(c)(3), and 4(d)(3) grant
IF11368
https://crsreports.congress.gov

Expansion of Benefits to Blue Water Navy Vietnam Veterans

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF11368 · VERSION 1 · NEW