Per 38 U.S.C. § 1116(a)(1)(A), if a veteran who has certain diseases can prove service “in the Republic of Vietnam” between January 9, 1962, and May 7, 1975, the disease will ordinarily “be considered to have been incurred in or aggravated by such service.”
The clear intent of the statute is to treat medical problems from exposure to AO in the line of duty. However, the English language is always subject to interpretation. The VA argues that personnel on board shipveterans who had served in the waters off Vietnam ( generally known as “blue water” veterans, in distinction to "brown water" veterans who sailed up rivers) , even if operating close enough to the coastline to be exposed to AO on the wind or in the water, did not incur service "in" Vietnam.
This idiotic notion was rejected by the Veterans Court. Mr. Haas, a bluewater veteran who had served on an ammunition ship off Vietnam, sought disability compensation for type 2 diabetes and other problems within 38 U.S.C. § 1116. While the VA's regional office and its Board of Veterans’ Appeals denied the claim, on appel the Veterans' Court reasoned 38 C.F.R. § 3.307(a)(6)(iii) defined “service in the Republic of Vietnam” as including “service in the waters offshore, and that the DVA regulation ruling otherwise was unreasonable:
"...given the spraying of Agent Orange along the coastline and the wind borne effects of such spraying, it appears that these veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly...."However, the VA appealed this ruling and succeeded in having it overturned, in Haas vs. Peake.
Haas appealed to the United States Court of Appeals for the Federal Circuit for a rehearing, but on October 9, 2008 a panel upheld the VA 2-1.
There are two reasons for hope. First, Judge Fogel on the panel recommended that the full court grant rehearing en banc. Second, Bob Filner, Chairman of the House Committee on Veterans’ Affairs, introduced the Agent Orange Equity Act (HR 6562) to overturn the VA's position.