In the Gray v. McDonald case, heard by the CAVC, the Court threw out all the rules that the VA has previously been using to deny Blue Water Navy claims for inland water exposure and other issues. But it did NOT tell the VA what any new rules should be. And they did NOT tell the VA how soon they needed to submit those new rules.
The 120 day appeal period has passed, and the VA has not yet submitted new rules. The old rules regarding the status of inland waterways and harbors as well as river mouths were declared by the Court to be "arbitrary and capricious." No R/O nor the Board of Appeals can deny an inland water claim by saying the veteran is not eligible for presumption of exposure because they were not present IN VIETNAM; that they did not have "boots-on-ground." That was thrown out as an invalid and inconsistently used criterion.
The Court indicated there was a probability that the harbor locations were indeed areas of potential exposure. But right now there ARE NO RULES to guide adjudication. This is an "open time of creativity" when a veteran should make the most logical and reasonable argument to support his contention for either presumptive or direct exposure while in or near harbors or river mouths. The adjudicators are barred from saying the veteran "was not IN Vietnam" like they have for the past 13 years! If they do, they violate the Court order, and the claim is a Clear and Unmistakable Error (CUE).
We believe that by the end of September or early October, we will know more regarding what the VA will be doing in this matter, and also what the fate of our legislation HR-969 and S-681 will be. The legislation has strong momentum and good support in both the House and Senate. So the status of Blue Water Navy claims is still in flux. No one knows for sure how this will all end up.
Our suggestion is to wait out the next 3 or 4 weeks, when we can get a feel for what future decisions might be for handling Blue Water Navy disability claims.
We believe that the rules *may* eventually be that you no longer have to have your ship on the Inland Water Service List to be validly ruled to have been on inland water by being in any harbor, or possibly for being along the shore or in the vicinity of a river mouth. There could have been opportunities for you or your entire ships to have been contaminated by herbicide through a number of possible pathways. But those are not the Rules yet!
Here are a few reminders about what the current situation is and how the CAVC Ruling might be interpreted:
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