In applying for disability compensation with the Veterans Affairs, veterans of the Vietnam War are entitled to various “presumptions.” A presumption in this context simply means that the veteran need not present evidence showing certain required elements of a claim. Those elements are already presumed proven.
Four elements for succeeding on a VA claim
Generally, in order to succeed on a VA disability-compensation claim, the veteran is required to prove three elements to the level of “at least as likely as not”: (1) service occurrence, (2) a current disability, and (3) a connection or “nexus” between the two. For example, a veteran suffering from Post Traumatic Stress Disorder (PTSD) must show that he or she incurred the disability during service – from an event such as a firefight or other trauma; then, the veteran must show that he or she currently suffers from PTSD – usually through a diagnosis from a qualified mental-health or medical expert; finally, the veteran must show that the in-service event and the current diagnosis are related.
Vietnam Veteran have a presumption on two elements
However, if the veteran set foot in the Republic of Vietnam during January 9, 1962, and May 7, 1975, the veteran doesn’t need to prove the first and third elements for claims involving certain disabilities related to Agent-Orange exposure1. For example, a Vietnam veteran currently suffering from throat cancer (related to cell damage caused by the inhalation of Agent Orange) need only show that he or she indeed served in Vietnam (a DD-214, orders, a campaign badge, and other easily-obtainable documents will suffice) and that the veteran has throat cancer (a diagnosis from your doctor will do – it doesn’t have to be a V.A. doctor, either).
Blue Water Veterans
But what about Vietnam veterans who served on ships miles off the coast of Vietnam during the war, who never actually set foot in the Republic of Vietnam? Those “blue water” sailors were also exposed to Agent Orange – through contaminated off-shore water sucked up into ships’ ballast tanks, through contaminated off-shore water distilled in ships’ water-treatment systems, and even through air exposure from spray drift. Why does the VA grant presumption to “boots on the ground” and “brown water” (riverboat) Vietnam veterans and not “blue water” Vietnam veterans, when all were exposed to dangerous toxins shown to cause a wide variety of diseases and adverse medical conditions? The answer: very soon, it won’t matter. After implementation of H.R. 299, also called the “Blue Water Navy Vietnam Veterans Act of 2019,” blue water Vietnam veterans will be entitled to those presumptions, too.
Back payment available
In fact, if you are a blue water Vietnam veteran, and you have previously filed a claim and were denied for an Agent-Orange-related condition, you can receive back-payment from the date of your original filing. For example, if you filed a claim ten years ago and were denied, you can reopen your claim and be compensated from the original effective date. Also, if you have a current claim or appeal involving a condition related to Agent Orange, the V.A. can “stay” or pause deciding your claim until the V.A. issues guidance on how it should handle your claim under the new law, to make sure it gets it right.
If you are a blue-water Vietnam veteran and were denied in the past, consider contacting legal counsel at Whitcomb, Selinsky, McAuliffe, P.C. for assistance with your appeal. Our attorneys have been successful in helping a number of clients successfully handle these kinds of matters. Call our Denver office at (303) 534-1958 or complete our online form today.