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Dear Doug Collins

Alfred Procopio Jr.: The Sailor Who Never Set Foot in Vietnam — and Moved Its Legal Shoreline Twelve Miles Out to Sea

His case is a study in how a boundary gets drawn. For more than two decades, the Department of Veterans Affairs treated the coastline of Vietnam as a legal wall: a veteran who served on the land, or on the brown rivers inside it, was presumed exposed to Agent Orange; a veteran who served twelve miles offshore — close enough to watch the war, close enough to be sprayed by the same wind off the same coast — was presumed nothing at all, and had to prove the unprovable or go without. Alfred Procopio Jr. was one of the offshore men. What he did, over thirteen years of denials, was refuse to accept that the line was law. When a federal appeals court finally read the statute Congress had actually written, it found no wall there — and his name is now the citation a generation of sailors' claims stand on.

The service and the promise

Alfred Procopio Jr. enlisted in the Navy in Boston at eighteen, in 1963 — a volunteer, not a draftee, as his appellate filing records. He served from September 1963 to August 1967 and was honorably discharged as an Electrician’s Mate Second Class, holding the National Defense Service Medal and the Vietnam Service Medal with two bronze stars. From November 1964 to July 1967 he was assigned aboard the aircraft carrier USS Intrepid. In July 1966, the Intrepid was deployed in the waters offshore the Republic of Vietnam — including, the Board of Veterans’ Appeals would later find as an undisputed fact, within Vietnam’s territorial sea. He never set foot on the landmass of Vietnam and never served on its inland waterways. That fact, undisputed by everyone, is the whole case.

The promise made to his generation was the presumption. Agent Orange and the other herbicides sprayed over Vietnam left diseases that surface decades later — cancers, diabetes, heart disease — long after any individual exposure could be proved by records. So Congress, in the Agent Orange Act of 1991, built a shortcut into 38 U.S.C. § 1116: a veteran who served in the Republic of Vietnam in the war years and later developed a listed disease was presumed exposed and presumed service-connected, without having to reconstruct where the wind blew on a given day in 1966. The question that consumed the next quarter-century was where “the Republic of Vietnam” ended — at the waterline, as the VA insisted, or at the edge of its territorial sea, as the law of nations has always measured a sovereign state’s reach.

What happened

The VA’s answer came first, and it came from inside the agency rather than from Congress. In a 1997 General Counsel precedent opinion, the VA took the position that service “in Vietnam” meant service on the landmass or inland waters — the “foot-on-land” rule. The position was carried into rulemaking in the early 2000s, and in 2008 the U.S. Court of Appeals for the Federal Circuit upheld it in Haas v. Peake, finding the statute ambiguous and deferring to the agency. From then on, the line held: offshore sailors’ claims were denied as a class, whatever their diseases, however close to shore their ships had steamed.

Procopio’s own claims entered that machinery in the ordinary way. He sought service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007 — both diseases on the presumptive list, both tied by Congress to herbicide exposure. The VA denied both claims in April 2009, not because his diseases were in doubt and not because his service was in doubt, but because he had served in the wrong water. The Board of Veterans’ Appeals denied him again in March 2011 and again in July 2015, each time on the stated ground that he “was [not] present on the landmass or the inland waters of Vietnam during service.” The Court of Appeals for Veterans Claims affirmed, holding itself bound by Haas. Thirteen years after he first filed, the only question left was the one Haas had answered the other way: what the statute meant.

A Federal Circuit panel heard his appeal in May 2018. Then the court did something rare: on August 16, 2018, it ordered the case heard en banc — by the full court — on its own motion, and heard argument on December 7, 2018. The case was carried by John B. Wells, a retired Navy commander and the executive director of Military-Veterans Advocacy, who had represented Procopio below; at the en banc stage Wells brought in Melanie L. Bostwick of Orrick, Herrington & Sutcliffe to argue. Behind them stood amicus briefs from the National Veterans Legal Services Program, the VFW, The American Legion, Disabled American Veterans, and the Blue Water Navy Vietnam Veterans Association.

On January 29, 2019, the full court ruled, in Procopio v. Wilkie, 913 F.3d 1371. Judge Kimberly A. Moore’s opinion for the court held, at the first step of the Chevron analysis, that no deference was owed because Congress had spoken unambiguously: by using the formal sovereign name “Republic of Vietnam,” the statute referred — as international law uniformly measures a coastal state, from the 1958 Convention on the Territorial Sea to the Law of the Sea Convention — to the landmass and its territorial sea, extending twelve nautical miles. The foot-on-land distinction, the court noted, had been invented by the government in 1997, six years after the statute; the court would not read an ambiguity into the law that rested on a line the agency drew after the fact. The conclusion is one sentence long in its operative part: “Mr. Procopio is entitled to a presumption of service connection for his prostate cancer and diabetes mellitus. Accordingly, we reverse.” And the precedent that had sustained a decade of denials was disposed of in three words: “Haas is overruled.” Eight judges joined the majority opinion; a ninth, Judge Lourie, concurred in the judgment on different reasoning; two dissented — and the majority took care to record that no judge on the court had concluded that this veteran should be denied benefits. The judgment was nine to two.

What the institution did afterward

The government’s first decision was whether to fight on. It declined: on June 4, 2019, the Department of Justice informed the Supreme Court it would not seek review, Secretary Robert Wilkie having publicly recommended that the ruling stand. The denial machinery built on Haas was, at the level of law, finished.

Congress then did what it had been attempting for years and finished the work in statute. The Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, was signed on June 25, 2019 as Public Law 116-23, effective January 1, 2020. It wrote the ruling into a new 38 U.S.C. § 1116A: veterans who served offshore of the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed exposed to herbicides, with “offshore” defined by statute as not more than 12 nautical miles seaward of a demarcation line whose coordinates the law itself lists. The Act ranged wider than the case — it codified the presumption for service in or near the Korean demilitarized zone, extended benefits to children with spina bifida of veterans exposed in Thailand, and rewrote pieces of the VA home-loan program — but its center was Procopio’s holding, made permanent and put beyond agency revision.

Even then, the machinery moved at the machinery’s pace. In July 2019, Secretary Wilkie stayed decisions on Blue Water claims until the Act’s January 1, 2020 effective date, over the advocates’ objection that the veterans were dying in the interval; Procopio and fellow plaintiffs challenged the stay in a second case that reached the Federal Circuit that December. When the gate opened, the claims came in the tens of thousands, and the VA’s own dated accountings trace the unwinding of the denial era: veterans and survivors who filed in January and February 2020 received over $140 million in retroactive benefits; by September 30, 2020, VA had granted 24,328 claims — more than $664 million; by November 30, 2020, it had received 75,205 claims and granted 27,366, paying more than $724 million; by April 30, 2021, it had processed more than 45,000 claims and paid nearly $900 million in retroactive benefits. The VA’s own estimate at enactment was that 420,000 to 560,000 Vietnam-era veterans might be considered Blue Water Navy veterans. Every one of those claims descends from the question of where a country ends — and from one sailor’s refusal to accept the answer his government had invented.

One obligation ran deeper than the Act, and it belongs to another page of this section. Tens of thousands of Blue Water claims had been denied in the Haas years, long before 2020, and a statute ordinarily pays from the new claim, not the old one. The 1991 Nehmer consent decree — the standing court order, described on the Nehmer Class page, under which the VA must find previously denied Agent Orange claims on its own and pay them back to the original filing — was held to reach those denials: on November 5, 2020, Judge William Alsup ordered automatic readjudication of the previously denied Blue Water claims, and the VA began that readjudication in April 2021, without requiring any veteran or widow to file again.

Where it stands now

The rule Alfred Procopio fought for is no longer contested anywhere. It is codified at 38 U.S.C. § 1116A; the presumption he won is the ordinary law applied to every Blue Water claim; Haas is overruled and the foot-on-land test survives only as history. The VA decides offshore Vietnam claims under the statute he forced into being, and the Nehmer machinery stands behind the older denials with its retroactive reach. As a matter of law, the case is closed, and closed his way.

What the public record does not contain is the ending of his own claim. The January 2019 judgment reversed his denials and held him entitled to the presumption for both diseases; the benefits machinery was ordered to run. But no document in the primary record this page is built from states when his own benefits were paid, at what rating, or in what amount — and this page will not invent the receipt. The man whose name is on the case that paid out nearly a billion documented dollars to his shipmates in its first sixteen months is, in the public record, a name on a caption and a holding. The accounting for the class is complete and verifiable. The accounting for Alfred Procopio Jr. himself rests where it began: with the VA, which has not published it.

The ledger

The accounting, in three lines — what the record shows has been done, what it shows has not, and what was sought.

What has been done

What has not been done

What is being sought

The record, on video

The case was fought in briefs, but its two public moments were filmed: the ruling itself, analyzed the day it came down, and the codification fight in Congress that spring — followed by the VA explaining, in its own voice, the benefit the case created. Four films.

The ruling, the day it landed. Attorneys at a veterans law firm walk through the en banc decision in Procopio v. Wilkie on January 29, 2019 — the overruling of Haas, the territorial-sea holding, and what it meant for the sailors whose claims had been denied under the old line. (Chisholm Chisholm & Kilpatrick LTD.)

Congress takes it up. Ranking Member Phil Roe urges passage of H.R. 299, the Blue Water Navy Vietnam Veterans Act, at the May 1, 2019 legislative hearing — the codification fight on the record, three months after the court's ruling. (House Committee on Veterans' Affairs GOP.)

The VA explains the benefit. The Veterans Benefits Administration's own film on the Blue Water Navy Vietnam Veterans Act of 2019 — who qualifies, what the presumption covers, and how to claim it. The institution that defended the foot-on-land line for two decades, describing the benefit that replaced it. (Veterans Benefits Administration.)

The announcement. The VA's public service announcement for the Act — part of the outreach campaign the agency ran to find the offshore veterans it had spent a generation denying. (Veterans Benefits Administration.)

Sources

Part of Betrayed, Not Forgotten — this site's accounting for the service members and veterans their own institutions failed. Videos are embedded from their publishers; nothing here is re-hosted.