Navy Veteran Who Remained Within 12 Nautical Miles of Vietnam’s Territorial Limits Entitled to Presumption of Service-Connection for Diseases Related to Agent Orange Exposure (Fed. Cir.)

February 27, 2019

Courtesy of NAELA News:

Congress created a presumption of service-connection for certain diseases affecting veterans who “served in the Republic of Vietnam” and were exposed to an herbicide agent commonly known as “Agent Orange” (see 38 U.S.C. Stat. 1116). Alfred Procopio, Jr. sought entitlement to service-connection for prostate cancer and diabetes mellitus based on his Navy service aboard the U.S.S. Intrepid from 1964-1967. Both diseases are included within the purview of section 1116. Procopio, however, was never deployed on land and remained in the territorial waters offshore. The Department of Veterans Affairs denied Procopio’s application. The Board of Veterans’ Appeals further denied Procopio service-connection. The United States Court of Appeals for Veterans Claims affirmed the denial, concluding that Procopio could not meet the “foot-on-land” requirement of the statute, subsequent interpreting regulations, and controlling precedent.

Procopio appealed. The Court of Appeals for the Federal Circuit reversed. The court held that the unambiguous language of Stat. 1116 and corresponding regulation includes the 12 nautical miles of offshore waters within the legally recognized territorial limits of the Republic of Vietnam, entitling Procopio to a presumption of service-connection for his diseases.

Procopio v. Wilkie, 2019 WL 347202 (Fed. Cir. Jan. 29, 2019)