In a recent decision, the U.S. Court of Appeals for the Federal Circuit ruled that the presumption of service-connection for certain diseases suffered by Vietnam War era veterans applied to so-called “blue water” veterans – those who served on ships in seas off the coast of Vietnam, but did not set foot on land.  Procopio v. Secretary of Veterans Affairs, Opinion.1-29-2019, 2017-1821 (January 29, 2019).

Alfred Procopio, Jr. served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid was deployed in the territorial sea off the shores of the Republic of Vietnam. Mr. Procopio sought entitlement to service-connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007 but was denied service- connection for both. The Board of Veterans’ Appeals likewise denied him service-connection, finding “[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange.” The Veterans Court affirmed. Mr. Procopio then appealed to the U.S. Court of Appeals for the Federal Circuit.                                                                                                                                                                                                                                                            To decide the case, the appellate court examined the history of the applicable statute. In that regard, the Court found that Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, in 1991. The Agent Orange Act granted a presumption of service connection for certain diseases to veterans who “served in the Republic of Vietnam”

In 1993, the VA issued regulations pursuant to the Agent Orange Act that stated “‘Service in the Republic of Vietnam’ includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regulation 307”). In 1997,  the government interpreted Regulation 307 as limiting service “in the Republic of Vietnam” to service in waters offshore the landmass of the Republic of Vietnam only if the service involved duty or visitation on the landmass, including the inland waterways of the Republic of Vietnam, (“foot-on-land” requirement).

Section 1116 extended the presumption of service-connection to veterans who “served in the Republic of Vietnam” during a specified period if they came down with certain diseases. At issue here in this case was whether Mr. Procopio, who served in the territorial sea of the “Republic of Vietnam” during the specified period, “served in the Republic of Vietnam” under § 1116.

The Court determined that Congress had answered the question of whether Mr. Procopio, who served in the territorial sea of the “Republic of Vietnam,” “served in the Republic of Vietnam” in the affirmative. The reason was that Congress chose to use the formal name of the country and invoked a notion of territorial boundaries by stating that “service in the Republic of Vietnam” is included. The intent of Congress was held to be  clear from its use of the term “in the Republic of Vietnam,” which all available international law unambiguously confirmed includes its territorial sea. The Court held that it must “give effect to the unambiguously expressed intent of Congress.”

The Court also held that international law uniformly confirmed that the “Republic of Vietnam,” like all sovereign nations, included its territorial sea. This was true in 1955 when the “Republic of Vietnam” was created. Geneva Accords at art. 4 (extending the provisional military demarcation line into the “territorial waters”). And this was true in 1991 when Congress adopted the Agent Orange Act. In 1958, the United States entered into the Convention on the Territorial Sea and the Contiguous Zone (“1958 Convention”), agreeing that “[t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.” 1958 Convention, art. 1(1)

As a result, the U.S. Court of Appeals for the Federal Circuit reversed the decisions of the lower courts, holding that Mr. Procopio is entitled to a presumption of service-connection for his prostate cancer and diabetes mellitus.

The case is attached here – Procopio v. Secretary of Veterans Affairs



Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.

Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don represented the plaintiff in a pivotal special needs trust case decided by the New Jersey Supreme Court entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014). He also represented the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004). Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.

When he’s not working, Don spends his time with his wife, Marion, and his three children, Julianne, Evan and Alex.


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