Veterans organizations from the Hudson Valley and beyond celebrated a decision by the U.S. Court of Appeals reversing the policy of denying disability benefits to a group of 90,000 Vietnam veterans who say they were exposed to a deadly toxin by the military.
The federal Veteran’s Administration (VA) began giving disability benefits under the Agent Orange Act of 1991 to Vietnam vets afflicted with a litany of cancers and other diseases linked to Agent Orange, the herbicide used to deny enemy forces the cover of jungle during the war.
However, the VA began denying these benefits to Navy personnel unless they could prove they had been on land during the conflict, arguing they were never exposed. The ‘Blue Water Navy’ vets argue the toxin drifted over Navy ships resupplying ground troops, and the toxin was present in their drinking water, which was sucked into their ships offshore.
In the decision, the court argued the Agent Orange Act of 1991, which states benefits should be given to anyone who “served in the Republic of Vietnam,” was meant to apply to any vet who was on land or within 12 nautical miles (13.8 miles) of shore, using the internationally recognized definition of a country’s territory.
Carlos Fuentes, director of national legislative service for the Veterans of Foreign Wars (VFW) said the decision was “surprising,” because courts generally give deference to past decisions, but called it “a huge win for veterans.”
The VFW was not yet able to fully analyze the decision, Fuentes said, but added it might be difficult in some cases to prove a Navy vet had gotten within 12 nautical miles of Vietnam’s shores, as opposed to serving on a ship farther away.
Hudson Valley Congressman Antonio Delgado, who co-sponsored a bill earlier this year seeking to give Blue Water Navy Vets benefits, released a statement calling it “great news for the Vietnam veterans in Upstate New York and across the country.”
“They deserve these benefits and this ruling brings them one step closer to receiving them. I look forward to continuing to work with my colleagues on both sides of the aisle to ensure the men and women who have sacrificed so much for our country get the benefits they deserve,” the statement continued.
Carol Olszanecki, part of the Blue Water Navy Vietnam Veterans Association’s Board of Directors and a Hudson Valley resident, said she was “very excited” about the decision.
“It’s a good win…especially for our guys, because that gives them some hope,” she said. “When you’re as sick as a lot of them are, that hope means a lot.”
However, Olszanecki, whose husband was denied benefits by the VA after contracting an Agent Orange-related disease and later died, said they had won the battle, but not the war.
The VA has 90 days to decide if they will appeal.
The VA released a statement stating it “is reviewing this decision and will determine an appropriate response.”
The VA Undersecretary for Benefits Dr. Paul Lawrence stated before the Senate in August 2018 the VA maintained its opposition to giving Blue Water Navy Vets benefits, arguing there was “insufficient scientific evidence” the vets were exposed.
Giving the vets benefits would set a precedent and open the VA to a flurry of unsupported claims, he said.
Opponents have also cited the cost. Covering Blue Water Navy Vets would cost $900 million over 5 years, according to the Congressional Budget Office.
Columbia County Director of Veteran’s Services Gary Flaherty said he believed the VA would appeal, citing Lawrence’s comments and the VA’s history with the Blue Water Navy Vets.
Flaherty served in the Army in Vietnam, and said it was obvious sailors were exposed to Agent Orange as it drifted offshore after it was sprayed from planes.
“The VA’s claiming it’s going to cost too much money,” he said. “I think the VA’s against it because it’s going to cause too much work for them.”
“The VA’s kind of lazy,” he added.
There were 40-50 Blue Water Navy Vets in Columbia County, Flaherty said, though many have died of cancers.
On Wednesday, the day after the decision was handed down, several vets with Agent Orange files made appointments with his office, he added.
Olszanecki said the VA might successfully appeal the decision, and the decision could be overturned sometime in the future, so the only way to ensure vets get their benefits is to pass a law.
A bill is being considered by the House of Representatives that would give the Blue Water Navy Vets disability benefits.
Scores of representatives support the bill from both parties – Delgado was one of the first co-sponsors – but similar bills have failed before.
In 2016, former Republican Hudson Valley Congressman Chris Gibson authored a bill extending benefits to Blue Water Vets that was passed in the House of Representatives, then stalled in the Senate because of a contemporaneous rule requiring any new spending to be matched by cuts.
Last year, a bill extending benefits passed the House unanimously, then was brought to the floor of the Senate by New York Sen. Kirsten Gillibrand under “unanimous consent,” which fast-tracks a bill into law, but can be stopped by a single senator objecting.
That senator was Republican Mike Enzi of Wyoming, who cited the bill’s cost and “operational pressures that would happen at the VA,” according to Stars and Stripes.
Olszanecki’s organization had been hitting the halls of Congress for the last week to get more representatives to sign on, she said. The bill had 171 sponsors – almost a full third of the House – as of Thursday morning.
“I don’t know what’s going to happen…in the meantime we’re going to work behind the scenes and do what we have to do,” she added.
Agent Orange was widely used in Vietnam until 1971, when spraying was stopped after studies found it could cause birth defects in lab rats.
The VA has been progressively adding to the list of diseases Agent Orange can cause, which includes Leukemia, Hodgkin’s Lymphoma, Parkinson’s Disease and Diabetes.
Afterword: Delgado’s Learning Curve
In my first article about the Blue Water Navy, I was given a few minutes on the phone with Rep. Antonio Delgado to discuss the bill he was co-sponsoring to give the vets disability benefits, as well as a second vets bill he signed onto.