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Federal Appeals Court Finds that VA’s Definition of “Brown Water” Veterans to Exclude Service in the Harbors of Vietnam is Too Limited

Alex August 24, 2015

By: Todd M. Wesche

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VA affords veterans who served in the Republic of Vietnam on the inland waterways a presumption of being exposed to herbicides, such as Agent Orange. These veterans are known as “Brown Water” veterans. However, VA does not afford that same presumption to veterans who served offshore. These veterans are known as “Blue Water” veterans.
VA determined veterans with service on some bodies of water, such as Da Nang Harbor, qualify as a Blue Water veterans while veterans with service on other bodies of water, such as Quy Nhon Bay and Ganh Rai Bay, qualify as Brown Water veterans. This distinction was challenged in federal court.
On April 23, 2015, the U.S. Court of Appeals for Veterans Clams held in Gray v. McDonald that VA’s definitions of which bodies of water qualify veterans for Blue Water or Brown Water status was arbitrary and unlawful. The Court struck down the distinction. VA did not appeal, and the Court’s decision is the law of the land.
Does this mean that any service in the waters surrounding Vietnam now qualifies the veteran as a Brown Water veteran? No, not necessarily. VA must now create new rules for whether veterans with service on the offshore waters of Vietnam will be afforded the presumption of herbicide exposure as Brown Water veterans. Until then, it is unknown what decisions VA will make or how they could apply to any individual veteran’s claims.

 

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