Nave Blue Water Veterans

Good morning —

I hope that all of you had a wonderful Independence Day celebration. 

Many of you have asked me how quickly the VA will begin processing disability compensation claims for Blue Water Navy Veterans, now that the Blue Water Navy Act has been signed into law. 

Attached is a new memorandum from VA Secretary Robert Wilkie. In this memo, Secretary Wilkie orders the adjudication of claims that are impacted by the Blue Water Navy Act to be “stayed” (postponed) until January 1, 2020. 

We know from the Blue Water Navy Act that the VA has 120 days to provide a report of their “go forward plan” to Congress. We now also know from this memo that the VA is not going to start processing claims under this new law until at least January 2020 (and, if the VA has not finished promulgating its new Blue Water Navy regulations by that point, perhaps even later). 

The one remaining question is whether the VA’s postponement of processing these claims is valid under the Federal Circuit’s decision in Procopio v. Wilkie. The Procopio decision arguably did not grant the VA any latitude to delay adjudication of these cases for several months. 

Instead, Procopio simply stated that Veterans who served aboard ships on the offshore waterways should receive the same presumption of herbicide exposure as any other in-country Vietnam War Veteran. The majority opinion in this case does not provide any clear authority for the VA to treat a claim from a Blue Water Navy Veteran differently than a claim from any other in-country Vietnam Veteran. 

I have heard, but cannot yet confirm, that the Blue Water Navy Association is considering a legal challenge to the VA’s stay by presenting the case that this delay violates the Procopio decision. I will keep you posted as I learn more. 

In the meantime, if you are still seeking to immediately pursue a Blue Water Navy Veteran’s case, I recommend that you cite the Procopio decision, and not the Blue Water Navy Act, as your rationale in pursuing the claim. This could have effective date implications if the Blue Water Navy Association (or anyone else) is successful in challenging the validity of the stay. This is sort of a “Hail Mary pass” at this point, but it seems like the best option in light of Secretary Wilkie’s memo. 

I will keep you updated if more details arise. Thank you, as always, for all that you do. 

Respectfully, 

Benjamin Pomerance 

Deputy Director for Program Development 

New York State Division of Veterans’ Services 

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