Blue Water Update

Good evening —

I hope that you are all having a nice weekend. 

A few updates tonight: 

(1) I’ve received several emails asking whether Secretary Wilkie’s stay of Blue Water Navy claims until January 1, 2020, means that Blue Water Navy Veterans “should not bother filing or re-opening a claim” until that date arrives. 

The answer to that question is a resounding NO! 

Please do not delay in pursuing these claims. If you wait to file until January 1, 2020, then you will wind up losing several months of payments if the claim is granted. File now and preserve the earliest possible effective date for the claim. 

(2) The VA issued a press release late in the afternoon yesterday concerning claims filed under the Blue Water Navy Act. 

This press release confirms that when the VA does begin processing claims filed under the Blue Water Navy Act, two categories of claimants will receive priority in claims processing: Veterans over the age of 85 and Veterans who have a “life-threatening illness.” 

Here is a link to the press release: 

https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5280

(3) Many of you have asked how the VA will calculate the effective date for Blue Water Navy Veterans whose original claims were denied. 

The VA just released a “Fact Sheet” regarding Blue Water claims. Of particular interest is the following language: 

“Presumptive Agent Orange conditions granted for Blue Water Navy Veterans may be retroactive to the date VA received your original claim. If you had a previously denied claim and you resubmit your claim, the effective date will be determined on a case-by-case basis.”

With this language, the VA appears to be opening the door to granting at least some re-opened Blue Water cases back to the original date of claim. 

We do not yet know what rationale the VA will use to grant or not grant these retroactive payments. This language is from a VA-issued fact sheet, not from a law or regulation. However, it at least keeps the door ajar for at least some of these cases to be granted back to the effective date of the original claim. 

(4) Lastly, please remember that under 38 C.F.R. 3.156(c), if a claim is re-opened with military records that the VA did not consider when adjudicating the original claim, the effective date of that re-opened claim is always the original date of claim. 

The Blue Water Navy Act has no effect on this regulation. Therefore, if you can provide relevant military records that the VA failed to consider when deciding the original claim, and you are successful in winning the re-opened claim, then the VA should establish the original date of claim as the effective date, regardless of whether this re-opened claim is for a Blue Water Navy Veteran. 

Please let me know if you have any questions. I will continue to provide more updates as new information becomes available. 

Thank you, as always, for everything that you do. 

Respectfully, 

Benjamin Pomerance 

Deputy Director for Program Development 

New York State Division of Veterans’ Services 

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