Early yesterday the U.S. Court of Appeals for the Federal Circuit struck down the VA’s policy of denying disability benefits to Vietnam-era blue-water Navy veterans for exposure to Agent Orangeand other herbicides on a presumptive basis. In a case called Procopio v. Wilkie the court decided that veterans who served within the “territorial waters” of Vietnam are now entitled to presumptive service connection for diseases caused by Agent Orange exposure.
Most people have heard of someone “pleading the 5th” in connection with a criminal investigation. This right arises under the 5th Amendment, which prohibits someone for being prosecuted twice for the same alleged criminal activity. However, many people are not as familiar with the Separate Sovereigns Doctrine, which permits the same alleged criminal activity to be prosecuted by both a state court and a federal court.
On December 21, 2018, Congress failed to pass appropriation bills for some federal programs, resulting in a partial government shut down. While some government operations will be affected, the Secretary of the Department of Veterans Affairs, Robert Wilkie, released the following statement:
“Thanks to the leadership of President Trump and Congress, VA is fully funded for fiscal year 2019, and in the event of a partial government shutdown, all VA operations will continue unimpeded.”
Veterans of the wars in Iraq and Afghanistan are becoming increasingly concerned that exposure to toxins produced by burn pits during deployments will parallel the experiences with VA suffered by the Vietnam generation’s Agent Orange. In an effort to help address these concerns, earlier this year Congress passed the Helping Veterans Exposed to Burn Pits Act. This Act marks the first major step by Congress to research how burn pits affected veterans who served in Iraq and Afghanistan. However, while this legislation is another step forward in helping veterans suffering from exposure to burn pits, a true solution for burn pit exposure is most likely still years away.
On December 7, 2018, the US Court of Appeals for the Federal Circuit is scheduled to hear oral arguments in a case called Procopio v. Wilke. Although this case has quietly made its way through the courts, it has the potential to dramatically change the manner in which the US Department of Veterans Affairs addresses service-connected disability benefits claims associated with exposure to Agent Orange.