Haas v. Peake [Petition for Rehearing] ( 2008 )

United States Court of Appeals for the Federal Circuit
2007-7037
JONATHAN L. HAAS,
Claimant-Appellee,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellant.
Barton F. Stichman, National Veterans Legal Services Program, of Washington,
DC, argued for claimant-appellee. With him on the brief was Louis J. George.
Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellant. With him on the brief was Jeanne E. Davidson, Director. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel, and Ethan G. Kalett,
Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge William A. Moorman
United States Court of Appeals for the Federal Circuit
2007-7037
JONATHAN L. HAAS,
Claimant-Appellee,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in 04-4091,
Judge William A. Moorman
___________________________
DECIDED: May 8, 2008
___________________________
Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and FOGEL, District Judge. *
Opinion for the court filed by Circuit Judge BRYSON. Dissenting opinion filed by District
Judge FOGEL.
BRYSON, Circuit Judge.
Beginning in 1962, the United States used herbicides such as Agent Orange in
Vietnam for the purpose of “defoliation, crop destruction, and on a smaller scale,
clearing vegetation around U.S. fire bases and other installations, around landing
zones, and along lines of communication.” S. Rep. No. 100-439, at 64-65 (1988).
*
Honorable Jeremy Fogel, District Judge, United States District Court for
the Northern District of California, sitting by designation.
Agent Orange consisted of an equal mixture by weight of two chemicals, 2,4-
dichlorophenoxyacetic acid and 2,4,5-trichlorophenoxyacetic acid. It also contained
trace amounts of 2,3,7,8-tetrachlorodibenzo-para-dioxin, also known as dioxin. Id. at
64. The use of Agent Orange in Vietnam increased substantially between 1967 and
1969. Agent Orange came under scrutiny after a report from the National Institutes of
Health indicated that 2,4,5,-trichlorophenoxyacetic acid was associated with birth
defects in animals, although later research indicated that those birth defects were more
likely caused by dioxin. Id. at 65; see also David A. Butler, Connections: The Early
History of Scientific and Medical Research on “Agent Orange”, 13 J.L. & Policy 527,
545-48 (2005); Inst. Of Med., Veterans and Agent Orange: Health Effects of Herbicides
Used in Vietnam 30 (1994) (“Veterans and Agent Orange”) (discussing later research).
The use of Agent Orange was phased out by 1971. Veterans and Agent Orange at 27.
The impact of Agent Orange on humans has subsequently been the subject of
much research and controversy. Congress has enacted several statutes mandating
that research be conducted regarding the impact of Agent Orange on human health and
providing that veterans be compensated for illnesses resulting from exposure to the
chemical. This case concerns the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat.
11, which provided a special mechanism of disability compensation for veterans
exposed to herbicides such as Agent Orange.
To receive disability compensation, a veteran must establish that the disability
was service connected, which means that it must have been “incurred or
aggravated . . . in the line of duty in the active military, naval, or air service.” 38 U.S.C.
§ 101(16). The Agent Orange Act provided that for certain veterans and certain
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diseases, both exposure and service connection are presumed to be established. 38
U.S.C. § 1116(a)(1).
The statutory list of diseases as to which exposure and service connection are
presumed includes non-Hodgkin's lymphoma, certain soft-tissue sarcomas, chloracne,
Hodgkin’s disease, porphyria cutanea tarda, certain respiratory cancers, multiple
myeloma, and diabetes mellitus (type 2). See 38 U.S.C. § 1116(a)(2). If a veteran can
prove that he or she has one of the listed diseases and “served in the Republic of
Vietnam” between January 9, 1962, and May 7, 1975, the disease will ordinarily “be
considered to have been incurred in or aggravated by such service.” 38 U.S.C.
§ 1116(a)(1)(A). Consequently, proving service “in the Republic of Vietnam” is
important to any veteran who seeks compensation for one of the listed diseases.
This case calls on us to address whether veterans who served on ships off the
coast of Vietnam during the Vietnam War served “in the Republic of Vietnam” and thus
are entitled to the presumption of service connection if they suffer from one of the listed
diseases. The government argues that the phrase “served in the Republic of Vietnam”
requires that a servicemember have at some point set foot within the land borders of
Vietnam. Mr. Haas contends that the phrase extends to those who served on board
ships in the waters off the Vietnamese coast but never went ashore.
By regulation, the Department of Veterans Affairs (“DVA”) has interpreted the
phrase “served in the Republic of Vietnam” to mean that the veteran’s service must
have involved “duty or visitation” in the Republic of Vietnam in order for the veteran to
be entitled to the statutory presumption of service connection. See 38 C.F.R.
§ 3.307(a)(6)(iii). That regulation, as interpreted by the DVA, made the statutory
2007-7037 3
presumption of service connection unavailable to veterans such as appellant Jonathan
Haas, who served on a naval vessel that traveled in the waters near Vietnam but who
never went ashore. The Court of Appeals for Veterans Claims (“the Veterans Court”)
set aside the DVA’s interpretation as unduly restrictive. Haas v. Nicholson, 20 Vet. App.
257 (2006). We hold that the agency’s requirement that a claimant have been present
within the land borders of Vietnam at some point in the course of his duty constitutes a
permissible interpretation of the statute and its implementing regulation, and we
therefore reverse the judgment of the Veterans Court.
I
In August 2001, Mr. Haas applied to the Phoenix, Arizona, regional office of the
DVA seeking disability compensation for type 2 diabetes, peripheral neuropathy, and
loss of eyesight. He claimed that he had been exposed to herbicides while serving in
Vietnam and that based on that exposure he was entitled to a finding of service
connection for his conditions.
Mr. Haas served on active duty in the United States Navy from September 1959
to September 1960 and subsequently from May 1963 to June 1970. Service records
indicate that from August 1967 to April 1969, Mr. Haas served on the U.S.S. Mount
Katmai, which he described as an ammunition supply ship that operated in the West
Pacific off the coast of Vietnam. It is undisputed that that Mr. Haas never went ashore,
and thus never set foot on the physical landmass of the Republic of Vietnam. Mr. Haas
explained that his ship did not visit any ports because it carried highly explosive
ammunition and would have posed a threat if docked in a port. Mr. Haas subsequently
left active duty and was transferred to the Retired Reserves on July 1, 1982.
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Mr. Haas’s claim to service connection for his condition is based on his naval
service and the presumptive service connection afforded for type 2 diabetes based
upon a showing that the veteran “served in the Republic of Vietnam.” See 38 U.S.C.
§§ 1116(a)(1)(A), (a)(2)(H); 38 C.F.R. § 3.307(a)(6)(iii). In denying his claim, the
regional office explained that in order to qualify for a presumption of service connection,
Mr. Haas must have “physically served or visited in the Republic of Vietnam.” For a
sailor serving in the waters offshore, the regional office explained that “the ship must
have come to port in the [Republic of Vietnam] and you disembarked.” Mr. Haas
disagreed with the regional office and contended that “service in the Republic of
Vietnam,” as defined by 38 C.F.R. § 3.307(a)(6)(iii), should be interpreted to include
service in the offshore waters regardless of whether the servicemember’s ship came to
port and the servicemember disembarked.
On appeal, the Board of Veterans’ Appeals affirmed the regional office’s decision
denying Mr. Haas the presumption of service connection. The Board applied the DVA’s
regulation, as interpreted by the agency, and ruled that Mr. Haas was not entitled to the
statutory presumption for those who served “in the Republic of Vietnam” because he
had never “set foot on land in the Republic of Vietnam.” As for Mr. Haas’s contention
that he was actually exposed to herbicides while his ship operated near the coast of
Vietnam, the Board rejected his claim on the ground that his allegation was
“unsupported by any evidence demonstrating that his ship was located in waters
sprayed by herbicides.”
Mr. Haas then appealed to the Veterans Court. A three-judge panel of that court
reversed the Board’s decision. The court first found the phrase “served in the Republic
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of Vietnam” in 38 U.S.C. § 1116 to be ambiguous. The court explained that “[t]here are
many ways in which to interpret the boundaries of a sovereign nation such as the former
Republic of Vietnam” and that the “legislative history of the 1991 act . . . is silent
concerning what constitutes ‘service in the Republic of Vietnam.’” 20 Vet. App. at 263,
268. Turning to the DVA’s interpretation of the statutory language, the court first
examined the pertinent regulation, 38 C.F.R. § 3.307(a)(6)(iii). That regulation defines
“service in the Republic of Vietnam” as including “service in the waters offshore and
service in other locations if the conditions of service involved duty or visitation in the
Republic of Vietnam.” The court determined that the regulation “do[es] not clearly
preclude application of the presumption [of service connection] to a member of the
Armed Forces who served aboard a ship in close proximity to the landmass of the
Republic of Vietnam.” 20 Vet. App. at 259.
Finding that the regulation “merely has replaced statutory ambiguity with
regulatory ambiguity,” the Veterans Court then analyzed the DVA’s interpretation of the
regulation and concluded that the agency’s current interpretation of its regulation
conflicts with the agency’s earlier interpretation of the same regulation. The court noted
that the agency’s original instructions to its adjudicators in the Adjudication Manual of
the Veterans Benefits Administration, M21-1 (“Manual M21-1”), called for awarding
presumptive service connection for specified diseases if the veteran had received the
Vietnam Service Medal “in the absence of contradictory evidence,” and that those
provisions were not altered following the issuance of two precedential DVA General
Counsel opinions on related topics. See DVA Op. Gen. Counsel Prec. 27-97 (1997)
(finding that service on a deepwater vessel off the shore of Vietnam did not constitute
2007-7037 6
service “in the Republic of Vietnam” under 38 U.S.C. § 101(29)(A)); DVA Op. Gen.
Counsel Prec. 7-93 (1993) (finding that service in high altitude planes flying over
Vietnam without any other contact with Vietnam did not constitute “service in Vietnam”
under 38 C.F.R. § 3.313). Consequently, the court found that when the DVA adopted
the “foot-on-land” test, it was reversing its previously established course. 20 Vet. App.
at 270-72.
The Veterans Court further concluded that the agency’s new interpretation was
not a reasonable one. In so ruling, the Veterans Court noted that under the DVA’s
current interpretation of the regulation, the DVA “would afford the presumption of
exposure to Agent Orange to a Vietnam-era veteran who served only in the inland
waterways of the Republic of Vietnam and never set foot on land; yet, in order for a
Vietnam-era veteran serving in the waters surrounding Vietnam to be entitled to the
presumption, he or she must have set foot on land, without consideration as to either
the length of time spent patrolling in the waters offshore, or the risks of windblown
exposure to Agent Orange sprayed along Vietnam’s coastline.” 20 Vet. App. at 275.
The court explained that
given the spraying of Agent Orange along the coastline and the wind
borne effects of such spraying, it appears that these veterans serving on
vessels in close proximity to land would have the same risk of exposure to
the herbicide Agent Orange as veterans serving on adjacent land, or an
even greater risk than that borne by those veterans who may have visited
and set foot on the land of the Republic of Vietnam only briefly.
Id. at 273. Based on that reasoning, the court concluded that the DVA’s interpretation
of section 3.307(a)(6)(iii) was “plainly erroneous” and that the regulation “must be read
to include at least service of the nature described by the appellant, that is, service in the
waters near the shore of Vietnam.” Id.
2007-7037 7
Finally, the Veterans Court ruled that the pertinent provisions of the DVA’s
Manual M21-1 were “substantive rules” and that the DVA’s amendment of those
provisions in February 2002 to incorporate the “foot-on-land” requirement was invalid
because the DVA had failed to make that change pursuant to the notice-and-comment
requirements of 5 U.S.C. § 553. 20 Vet. App. at 277. Alternatively, the court ruled that
the February 2002 changes could not be applied retroactively to Mr. Haas’s claim,
which had been filed in August 2001, because the effect of the rule change was to
narrow the scope of Mr. Haas’s substantive rights. Id. at 277-78. The court therefore
reversed the Board’s denial of Mr. Haas’s claim to service connection for diabetes and
held that in Mr. Haas’s case, the Manual M21-1 provision “allowing for the application of
the presumption of exposure to herbicides based on the receipt of the [Vietnam Service
Medal] controls.” Id. at 279.
II
This court ordinarily will not hear appeals from the Veterans Court in cases that
the Veterans Court remands to the Board of Veterans’ Appeals. See Adams v. Principi,
250 F.3d 1318, 1320 (Fed. Cir. 2001). Nonetheless, we have held that it is appropriate
for us to review such cases in certain circumstances, under the principles set forth in
Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002). This appeal addresses the purely
legal question of the proper interpretation of a statute and its implementing regulations,
a question that will not be affected by the proceedings on remand. Moreover,
postponing review until after completion of the proceedings on remand could deprive
the government of its right to review of the legal issue in this case, because the
Secretary of Veterans Affairs has no right to seek review of a Board decision in favor of
2007-7037 8
the veteran under 38 U.S.C. § 7252(a). We therefore conclude that this appeal is ripe
for review even though the Veterans Court remanded the case for further proceedings
before the Board. See Williams, 275 F.3d at 1364.
III
On the merits, the parties disagree about the proper resolution of virtually every
issue in this case: whether the phrase “served in the Republic of Vietnam” in the Agent
Orange Act of 1991 is ambiguous; whether the DVA’s regulation that interprets that
phrase is itself ambiguous; whether the agency’s interpretation of that regulation is
entitled to deference, or instead is unreasonable and inconsistent with the agency’s
previous, longstanding interpretation of the regulation; and whether the DVA’s 2002
modification to Manual M21-1 constituted a substantive regulatory change that could not
be given effect without notice-and-comment rulemaking.
A
In order to make sense of the statutory and regulatory arguments made by the
parties, it is necessary to review the history of the legislative and regulatory measures
directed to the issue of herbicide exposure in Vietnam. That history, both prior to and
after the enactment of the Agent Orange Act of 1991, is complex.
Beginning in the late 1970s, Congress responded to widespread expressions of
concern by veterans’ groups regarding the health effects on Vietnam veterans of
exposure to Agent Orange and other herbicides used in the conflict there. In 1979,
Congress enacted a provision requiring the Veterans Administration (“VA”), as the
agency was then known, to conduct an epidemiological study of persons who, while
serving in the armed forces during the war in Vietnam, were exposed to dioxins
2007-7037 9
produced during the manufacture of various herbicides, including Agent Orange, to
determine if there might be long-term adverse health effects from such exposure. Pub.
L. No. 96-151, § 307, 93 Stat. 1092, 1097-98 (1979). The responsibility for conducting
that study was subsequently reassigned to the Centers for Disease Control (“CDC”).
See H.R. Rep. No. 98-592, at 5 (1984), as reprinted in 1984 U.S.C.C.A.N. 4449, 4451.
Congress directed the VA to publish a description of the actions that it planned to take
in response to those reports. Pub. L. No. 97-72, § 401, 95 Stat. 1047, 1061-62 (1981).
In 1984, Congress enacted the Veterans’ Dioxin and Radiation Exposure
Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984). Section 5 of
that Act directed the VA to prescribe regulations establishing guidelines and standards
for resolving claims for benefits based on exposure during service “in the Republic of
Vietnam during the Vietnam era to a herbicide containing dioxin.” In particular, the
statute called the VA’s attention to evidence that three diseases—chloracne, porphyria
cutanea tarda, and soft tissue sarcoma—are associated with exposure to certain levels
of dioxin and directed the VA to determine whether service connection should be
granted in individual cases involving each of those diseases. Id. §§ 2(5), 5(b)(2)(A)(i),
5(b)(2)(B).
In response, the VA promulgated a regulation that presumed exposure to a
herbicide containing dioxin for any veteran who served “in the Republic of Vietnam”
during the Vietnam era. The regulation concluded that the development of chloracne
manifested within three months of exposure would be presumed to be service-
connected, but that porphyria cutanea tarda and soft tissue sarcomas were not
sufficiently associated with dioxin exposure to warrant similar treatment. 38 C.F.R.
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§ 3.311a (1986); see 50 Fed. Reg. 34,452 (Aug. 26, 1985). The regulation defined
“Service in the Republic of Vietnam” to include “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. § 3.311a(a)(1) (1986). The VA explained that the
regulation was adopting the VA’s “longstanding policy of presuming dioxin exposure in
the cases of veterans who served in the Republic of Vietnam during the Vietnam era.”
50 Fed. Reg. at 34,454-55. That policy was “based on the many uncertainties
associated with herbicide spraying during that period which are further confounded by
lack of precise data on troop movements at the time.” Id. at 34,455. “While it may be
possible to approximate areas where herbicides were sprayed,” the agency wrote, “it
would be extremely difficult to determine with an acceptable degree of precision
whether an individual veteran was exposed to dioxin.” Id. Accordingly, the agency
adhered to its prior policy of presuming exposure for servicemembers who had served
in Vietnam. In addition, the agency provided that because some military personnel who
were stationed elsewhere “may have been present in the Republic of Vietnam, ‘service
in the Republic of Vietnam’ will encompass service elsewhere if the person concerned
actually was in the Republic of Vietnam, however briefly.” 50 Fed. Reg. 15,848, 15,849)
(Apr. 22, 1985) (proposed rule). The VA added that “[i]n view of shifting personnel
deployments, absence of on-site measurement of dioxin contamination and other
factors the Agency has adhered to a policy of presuming exposure if the veterans
served in Vietnam during the relevant period. This section formalizes that existing
policy.” Id. at 15,849; see also 50 Fed. Reg. 34,452 (Aug. 26, 1985) (adopting
proposed rule unamended).
2007-7037 11
Meanwhile, congressional committees continued to hold hearings to assess the
epidemiological studies of Agent Orange that had been mandated in 1979. Those
studies were designed to determine whether any component of Agent Orange—not just
dioxin—affected human health, although given its notoriety dioxin often figured
prominently in the research and analysis. See Veterans and Agent Orange at x; see
also id. at 28-36 (discussing history of research on Agent Orange). The success of
those studies depended on determining which veterans had been exposed to Agent
Orange and the extent of their exposure, so that health problems among veterans who
had been highly exposed could be compared to those of a control group. See id. at 58.
The VA and the CDC ran into a series of problems in attempting to make that
determination. Initially, it was believed that exposure could be deduced from studying
ground troop movements in conjunction with records of aerial spraying of Agent Orange.
See id. That approach proved unworkable, as a representative of the Centers for
Disease Control explained in testimony before a subcommittee of the House Committee
on Veteran’s Affairs:
When CDC got into this, it was assumed there would be records
that could determine exactly where an individual was on a given day, and
that could be correlated with known [herbicide] use. I think with the finest
use of existing records, you cannot separate between exposed and
unexposed. You can get some . . . approximations, but it would be a
disservice to veterans and to everyone to proceed with an expensive
study of this nature if you can’t clearly differentiate between who’s been
exposed and who’s not exposed. Without that, you have no basis to
proceed with doing a study.
Agent Orange Studies: Hearing Before the Subcomm. on Hospitals and Health Care of
the H. Comm. on Veterans’ Affairs, 99th Cong. 15 (1986) (“1986 House Hearing”)
(statement of James O. Mason, CDC Director); see also Veterans and Agent Orange at
58.
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In light of those difficulties, the CDC attempted to derive an exposure index
through other means. Initially, an attempt was made to develop an index by measuring
the amount of dioxin present in fat samples from veterans. 1986 House Hearing at 81-
83 (statement of James O. Mason, CDC Director). Although the objective was to study
Agent Orange, it was expected that determining dioxin levels would indicate the degree
of exposure to Agent Orange. See Veterans and Agent Orange at 259-62 (describing
use of dioxin as a “biomarker”). That procedure, however, did not bear fruit because of
the practical difficulties of obtaining fatty tissue samples. Id. at 82-83. Subsequent
research based on blood tests did not reveal any difference in the blood levels of dioxin
between a group of veterans stationed in Vietnam and a control group of veterans
stationed outside of Vietnam. The CDC ultimately concluded that it had no validated
scientific method of identifying a group of veterans who were highly exposed to Agent
Orange. Agent Orange Legislation and Oversight: Hearing on S. 1692, the Proposed
“Agent Orange Disabilities Benefits Act of 1987”; S. 1787, the proposed “Veterans’
Agent Orange Disabilities Act of 1987”; and Agent Orange Oversight Issues Before the
S. Comm. on Veterans’ Affairs, 100th Cong. 165-66 (1988) (statement of Thomas E.
Harvey, Deputy Administrator of the VA). The CDC explained that “the Agent Orange
Exposure Study . . . cannot be done . . . . The difficulty is and has always been the
inability to discriminate between exposed and unexposed ground troops.” Id. at 165
(discussing the inability to derive an exposure index from military records, self-reporting,
and direct measurements of dioxin from tissue samples).
Although the CDC was unable to conduct the Agent Orange exposure study as it
was originally conceived by Congress in 1979 due to the inability to identify with
2007-7037 13
scientific certainty which Vietnam veterans had been highly exposed to Agent Orange,
there remained other sources of scientific information on the health effects of Agent
Orange and dioxin in humans. One ongoing study focused on the group of Vietnam
veterans who had been involved in the aerial spraying of Agent Orange, known as the
“Ranch Hand study” after the name of the mission responsible for conducting the
spraying operation. See Veterans and Agent Orange at 53. Further data has also been
available, for example, from populations that were exposed to chemical accidents
involving dioxin, workers at factories manufacturing herbicides, and agricultural or
forestry workers who were exposed to herbicides similar to Agent Orange or herbicides
containing dioxin before their use was largely banned in the United States. See id. at
36-45.
Against the backdrop of the ongoing scientific investigations, the VA declined to
change its regulations after 1985 to provide a presumption of in-service exposure for
any diseases other than chloracne, on the ground that the scientific evidence did not
show a statistically probable association between Agent Orange exposure and any
other disease. In litigation initiated by veterans’ advocacy groups, however, a federal
district court ruled that the agency, by then renamed the Department of Veterans
Affairs, had applied too stringent a standard for determining which diseases to include in
its regulations promulgated under the 1984 Dioxin Act. See Nehmer v. U.S. Veterans
Admin., 712 F. Supp. 1404, 1420 (N.D. Cal. 1990). The DVA subsequently amended its
regulation, 38 C.F.R. § 3.311a, to include soft tissue sarcomas. See 56 Fed. Reg. 7632(Feb. 25, 1991) (proposed rule); 56 Fed. Reg. 51,651 (Oct. 15, 1991) (final rule).
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In October 1990, the DVA promulgated a separate regulation providing that
“Service in Vietnam during the Vietnam Era,” together with subsequent development of
non-Hodgkin’s lymphoma, “is sufficient to establish service connection for that disease.”
38 C.F.R. § 3.313. That regulation was based on information in a CDC study that had
been released earlier that year. See 55 Fed. Reg. 25,339 (June 21, 1990) (proposed
rule). The CDC study found a statistically significantly elevated level of non-Hodgkin’s
lymphoma among Vietnam veterans by comparing veterans who served in Vietnam and
those who served in other locations during the Vietnam era. For purposes of the
analysis, the study treated veterans who were stationed off the coast of Vietnam as
Vietnam veterans. See The Association of Selected Cancers with Service in the U.S.
Military in Vietnam, as reprinted in Centers for Disease Control Selected Cancers Study
and Scientific Reviews of the Study: Hearing before the H. Comm. On Veterans’ Affairs,
101st Cong. 2d Sess. 106 (1990) (“1990 CDC Study”). The study concluded that there
was no evidence that the increased risk of non-Hodgkin’s lymphoma among Vietnam
veterans was related to exposure to Agent Orange in Vietnam. Id. at 81, 125.
In the 1990 regulation, the DVA defined “Service in Vietnam” to include “service
in the waters offshore, or service in other locations if the conditions of service involved
duty or visitation in Vietnam.” 38 C.F.R. § 3.313 (1991). That language was similar to
the language previously used to define “service in the Republic of Vietnam,” but it
differed in two subtle, but important respects. First, the 1990 regulation referred to
“Service in Vietnam” rather than using the statutory phrase “service in the Republic of
Vietnam.” Second, the placement of the comma before the word “or” in the definition of
“service in Vietnam” in the 1990 regulation, section 3.313, suggested that the
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requirement of visitation or duty in Vietnam applied to “service in other locations,” but
not to “service in the waters offshore.” Section 3.311a used the word “and” rather than
“or” and did not have a comma separating the reference to “service in the waters
offshore” and “service in other locations,” which suggested that the requirement of
visitation or duty in the Republic of Vietnam applied to both of those forms of extra-
territorial service.
The government does not dispute that the 1990 non-Hodgkin’s lymphoma
regulation, which is still in effect, applies to veterans who served “offshore” and never
visited the landmass of Vietnam, as those veterans were among those found to have an
elevated risk of non-Hodgkin’s lymphoma in the 1990 CDC study. In fact, in 1993 the
DVA issued a General Counsel opinion in which the agency explicitly stated that the
non-Hodgkin’s lymphoma regulation covers servicemembers who served in the waters
off the shore of Vietnam, although the opinion concluded that the regulation does not
cover servicemembers whose involvement in the Vietnam theater was limited to high-
altitude missions in Vietnamese airspace. DVA Op. Gen. Counsel Prec. 7-93 (Aug. 12,
1993).
By contrast, the government asserts that under the more general 1985 dioxin
exposure regulation, section 3.311a, a veteran who served offshore must have set foot
on the landmass of Vietnam in order to satisfy the regulatory definition of having served
“in the Republic of Vietnam.” The punctuation of the earlier definition in the 1985
regulation, section 3.311a, supports the government’s position, as it suggests that the
requirement of visitation or duty in the Republic of Vietnam applies to both “service in
other locations” and “service in the waters offshore.”
2007-7037 16
In 1991, Congress enacted the Agent Orange Act, Pub. L. No. 102-4, 105 Stat.
11, which established a more comprehensive statutory framework for herbicide-based
claims. As enacted, the Agent Orange Act specified three diseases—non-Hodgkin’s
lymphoma, certain soft tissue sarcomas, and chloracne—and provided that when one of
those diseases became manifest “in a veteran who, during active military, naval, or air
service, served in the Republic of Vietnam during the Vietnam era,” the disease would
be considered to have been incurred in or aggravated by such service. 1 Pub. L. No.
102-4, § 2(a), 105 Stat. 11, 12 (1991) (now codified, as amended, at 38 U.S.C.
§ 1116(a)(1)). In addition, the Act directed the DVA to identify other diseases
associated with herbicide exposure. The Act provided that any veteran who “served in
the Republic of Vietnam during the Vietnam era” and has a disease designated by the
Secretary “shall be presumed to have been exposed during such service to an herbicide
agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to
have been exposed during such service to any other chemical compound in an
herbicide agent, unless there is affirmative evidence to establish that the veteran was
not exposed to any such agent during that service.” Pub. L. No. 102-4, § 2(a), 105 Stat.
at 12 (now codified, as amended, at 38 U.S.C. § 1116(f)).
1
Congress included non-Hodgkin’s lymphoma on the list of diseases
specifically identified in the Agent Orange Act based on evidence that, contrary to the
conclusion of the 1990 CDC study, non-Hodgkin’s lymphoma was in fact associated
with exposure to Agent Orange. See Report to the Secretary of Veterans Affairs on the
Association Between Adverse Health Effects and Exposure to Agent Orange, reprinted
in Links Between Agent Orange, Herbicides, and Rare Diseases: Hearing before the
Human Resources and Intergovernmental Relations Subcomm. of the Comm. on Gov’t
Relations, 101st Cong., 2d Sess. 22, 41 (1990).
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The legislative history of the Agent Orange Act indicates that Congress sought to
strike a balance between waiting for the results of scientific research regarding the
effects of Agent Orange and providing benefits for Vietnam veterans with current health
problems. The Chairman of the House Committee on Veterans’ Affairs stated:
The question of whether compensation should be paid for
disabilities allegedly related to exposure to herbicides has gone on for
much too long. . . . It has received an inordinate amount of attention and
energy. It is time to move on and, in doing so, to leave in place a
mechanism for continuing scientific scrutiny which, if allowed to work, can
assuage the remaining concerns of affected veterans.
137 Cong. Rec. 2348 (1991) (statement of Rep. Montgomery). The Act therefore
codified the presumption of service connection for the three diseases already covered
by DVA regulations, mandated independent scientific review through the National
Academy of Sciences, and instructed the Secretary of the DVA to consider designating
additional diseases as service-connected when recommended by the National Academy
of Sciences. Importantly for present purposes, the focus of Congress’s attention was on
the scientific evidence as to what diseases were linked to Agent Orange exposure;
there was no indication during the legislative process that Congress focused on the
precise scope that should be attached to the statutory phrase “served in the Republic of
Vietnam.”
When the DVA drafted regulations for the Agent Orange Act, it incorporated the
definition of the phrase “service in the Republic of Vietnam” from the 1985 general
dioxin exposure regulation, 38 C.F.R. § 3.311a. See 58 Fed. Reg. 50,528, 50,529
(Sept. 28, 1993) (adopting amended section 3.307(a)(6)). Thus, the DVA defined
“service in the Republic of Vietnam” to mean “service in the waters offshore and service
in other locations if the conditions of service involved duty or visitation in the Republic of
2007-7037 18
Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii) (1994). The DVA explained that in light of the
enactment of the Agent Orange Act it was no longer necessary to retain the general
dioxin exposure regulation, 38 C.F.R. § 3.311a. However, the DVA noted that the
definition of the phrase “service in the Republic of Vietnam” in the new regulation would
be incorporated directly from the definition in section 3.311a. 58 Fed. Reg. 50,528,
50,529 (Sept. 28, 1993) (proposed rule).
The following year, the DVA issued another set of regulations in which it added
Hodgkin’s disease and porphyria cutanea tarda to the list of diseases for which the
agency would presume exposure and service connection based on presence in Vietnam
during the Vietnam era. See 59 Fed. Reg. 5106 (Feb. 3, 1994). The new regulation
retained the language from the general dioxin exposure regulation of 1985 and
continued to define “service in the Republic of Vietnam” to include “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)(iii) (1995).
The question whether the phrase “service in the Republic of Vietnam” included
servicemembers whose service was limited to ships that had traveled in waters off the
shore of Vietnam came into sharp focus in 1997. First, in a precedential General
Counsel opinion issued that year, the DVA construed the phrase “served in the Republic
of Vietnam” in 38 U.S.C. § 101(29)(A) not to apply to servicemembers whose service
was on ships and who did not serve within the borders of the Republic of Vietnam
during a portion of the “Vietnam era.” The opinion stated that the definition of the
phrase “service in the Republic of Vietnam” in the Agent Orange regulation, 38 C.F.R. §
3.307(a)(6)(iii), “requires that an individual actually have been present within the
2007-7037 19
boundaries of the Republic to be considered to have served there,” and that for
purposes of both the Agent Orange regulation and section 101(29)(A), service “in the
Republic of Vietnam” does not include service on ships that traversed the waters
offshore of Vietnam absent the servicemember’s presence at some point on the
landmass of Vietnam. DVA Op. Gen. Counsel Prec. 27-97 (1997).
Later that same year, in a proposed regulation addressing incidents of spina
bifida among the children of servicemembers who had served in Vietnam, the DVA
proposed to use the same regulatory definition for “service in the Republic of Vietnam”
that it had used in the 1985 regulation and the Agent Orange regulation. See 62 Fed.
Reg. 23,724, 23,725 (May 1, 1997) (proposed rule). A commenter objected to the
definitional language and urged that the phrase “if the conditions of service involved
duty or visitation in the Republic of Vietnam” be eliminated from the regulation. See 62
Fed. 51,274, 51,274-75 (Sept. 30, 1997) (final rule). The DVA declined to make that
change. It explained the reason for not making the suggested change as follows:
Because herbicides were not applied in waters off the shore of Vietnam,
limiting the scope of the term service in the Republic of Vietnam to
persons whose service involved duty or visitation in the Republic of
Vietnam limits the focus of the presumption of exposure to persons who
may have been in areas where herbicides could have been encountered.
62 Fed. Reg. at 51,274.
In 2001, the DVA issued a proposed regulation to include type 2 diabetes among
the illnesses for which presumptive service connection would be recognized based on
herbicide exposure. See 66 Fed. Reg. 2376 (Jan. 22, 2001) (proposed rule). The
proposed regulation would presume herbicide exposure based on “service in the
Republic of Vietnam,” which would continue to be defined to cover service in waters
2007-7037 20
offshore of Vietnam “if the conditions of service involved duty or visitation in the
Republic of Vietnam.” The DVA subsequently adopted the proposed rule including type
2 diabetes among those diseases as to which presumptive service connection would be
recognized. 66 Fed. Reg. 23,166 (May 8, 2001) (final rule).
In the course of the rulemaking proceeding, a comment was made urging the
DVA to use that proceeding to make clear that “service in the Republic of Vietnam”
includes “service in Vietnam’s inland waterways or its territorial waters.” The comment
was based on the assertion that U.S. military personnel had been exposed to herbicides
while serving in those locations. In its final rulemaking order, the DVA responded that it
is “commonly recognized” that the statutory term “in the Republic of Vietnam” includes
the inland waterways. 66 Fed. Reg. at 23,166. With respect to service in the offshore
waters, however, the DVA explained that even before the enactment of the Agent
Orange Act, the agency had taken the position that service offshore required some duty
or visitation within the Republic of Vietnam to qualify for the presumptions of herbicide
exposure and service connection, and that service on a deepwater vessel offshore did
not constitute such service. The DVA added that the commenter had cited “no authority
for concluding that individuals who served in the waters offshore of the Republic of
Vietnam were subject to the same risk of herbicide exposure as those who served
within the geographical boundaries of the Republic of Vietnam, or for concluding that
offshore service is within the meaning of the statutory phrase ‘Service in the Republic of
Vietnam.’” Id. Accordingly, the agency declined to make the suggested change. Later
that year, Congress followed the DVA’s lead by adding type 2 diabetes to the list of
2007-7037 21
diseases included in section 1116(a)(2). See Veterans Education and Benefits
Expansion Act of 2001, Pub. L. No. 107-103, § 201(b), 115 Stat. 967.
In early 2002, the DVA amended the language of its Adjudication Manual M21-1
to specifically incorporate the agency’s “foot-on-land” interpretation of the Agent Orange
regulations. Before the amendment, the Manual provided that in determining whether a
veteran had “service in Vietnam,” it would ordinarily be sufficient that the veteran had
received the Vietnam Service Medal, but that it might be necessary in some cases to
determine if the veteran’s ship had been in the vicinity of Vietnam for some significant
period of time. The amended version of Manual M21-1, published in February 2002,
stated that, under section 3.307(a)(6) of the regulations, a veteran “must have actually
served on land within the Republic of Vietnam (RVN) to qualify for the presumption of
exposure to herbicides.” M21-1, part III, paragraph 4.24(e)(1) (Feb. 27, 2002). It added
that the fact that a veteran has been awarded the Vietnam Service Medal “does not
prove that he or she was ‘in country,’” because servicemembers “who were stationed on
ships off shore, or who flew missions over Vietnam, but never set foot in-country, were
sometimes awarded the Vietnam Service Medal.” Id.In 2004, the DVA published a proposed rule, as part of a proposed wholesale
revision of the DVA’s regulations, in which it once again articulated its position with
respect to offshore service. Citing the diabetes regulation, the DVA explained that
veterans who served on the inland waterways of Vietnam “may have been exposed to
herbicides” and that service on the inland waterways “constitutes service in the Republic
of Vietnam” within the meaning of 38 U.S.C. § 1116. However, the agency restated that
it was
2007-7037 22
not aware of any valid scientific evidence showing that individuals who
served in the waters offshore of the Republic of Vietnam or in other
locations were subject to the same risk of herbicide exposure as those
who served within the geographic land boundaries of the Republic of
Vietnam. Furthermore, we are not aware of any legislative history
suggesting that offshore service or service in other locations are within the
meaning of the statutory phrase, “Service in the Republic of Vietnam.”
69 Fed. Reg. 44,614, 44,620 (July 27, 2004) (proposed rule). Accordingly, the DVA
proposed to revise its regulation “to make it clear that veterans who served in waters
offshore but did not enter Vietnam, either on its land mass or in its inland waterways
cannot benefit from this presumption.” Id.The new benefits regulations, including the proposed rule regarding offshore
service, have not yet been finally adopted. However, while this appeal was pending the
DVA initiated a rulemaking proceeding that would amend section 3.307(a)(6)(iii) to
incorporate the DVA’s interpretation of the regulation as part of the regulatory text. The
amended version of the regulation would define “service in the Republic of Vietnam” for
purposes of section 3.307 to include “only service on land, or on an inland waterway, in
the Republic of Vietnam during the period beginning on January 9, 1962, and ending on
May 7, 1975.” 73 Fed. Reg. 20,566, 20,571 (Apr. 16, 2008). In explaining the reason
for the amendment, the agency referred to the litigation in this case and then stated that
in its view the statutory reference to service in the Republic of Vietnam “is most
reasonably interpreted to refer to service within the land borders of the Republic of
Vietnam.” Id. at 20,568. The agency explained its position as follows:
It is both intuitively obvious and well established that herbicides were
commonly deployed in foliated land areas and would have been released
seldom, if at all, over the open waters off the coast of Vietnam. The
legislative and regulatory history indicates that the purpose of the
presumption of exposure was to provide a remedy for persons who may
have been exposed to herbicides because they were stationed in areas
2007-7037 23
where herbicides were used, but whose exposure could not actually be
documented due to inadequate records concerning the movement of
ground troops.
Because it is known that herbicides were used extensively on the
ground in the Republic of Vietnam, and because there are inadequate
records of ground-based troop movements, it is reasonable to presume
that any veteran who served within the land borders of Vietnam was
potentially exposed to herbicides, unless affirmative evidence establishes
otherwise. There is no similar reason to presume that veterans who
served solely in the waters offshore incurred a significant risk of herbicide
exposure.
Id. Although the DVA conceded that it was “conceivable that some veterans of offshore
service incurred exposure under some circumstances due, for example, to airborne drift,
groundwater runoff, and the proximity of individual boats to the Vietnam coast,” it stated
that for purposes of the presumption of exposure, “there is no apparent basis for
concluding that any such risk was similar in kind or degree to the risk attending service
within the land borders of the Republic of Vietnam.” Id. Moreover, observing that
offshore service “encompasses a wide range of service remote from land and thus from
areas of actual herbicide use,” the DVA concluded that “there is no reason to believe
that any risk of herbicide exposure would be similarly pervasive among veterans of
offshore service as among veterans of service within the land borders of Vietnam.” Id.B
We first address the government’s argument that the pertinent language of 38
U.S.C. § 1116 is ambiguous and that the DVA’s regulation issued pursuant to that
statute, 38 C.F.R. § 3.307(a)(6)(iii), is entitled to deference as a permissible
interpretation of the statute. Under the Chevron doctrine, “when an agency invokes its
authority to issue regulations, which then interpret ambiguous statutory terms, the
courts defer to its reasonable interpretations.” Fed. Express Corp. v. Holowecki, 128 S.
2007-7037 24
Ct. 1147, 1154 (2008); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984) (a court will defer to an agency’s regulatory interpretation of a
statute if the statute is ambiguous or contains a gap that Congress has left for the
agency to fill through regulation). “Step one” of the Chevron analysis considers whether
“Congress has directly spoken to the precise question at issue,” a question that we
analyze using the traditional tools of statutory interpretation. Chevron, 467 U.S. at 842-
43; Cathedral Candle Co. v. Int’l Trade Comm’n, 400 F.3d 1352, 1362 (Fed. Cir. 2005).
The relevant portion of section 1116(a)(1)(A) provides that for a veteran who
suffers from one of several specified diseases, including type 2 diabetes, and who
“during active military, naval, or air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7, 1975,” the disease “shall be
considered to have been incurred in or aggravated by such service.” As applied to
veterans who served in waters offshore of Vietnam but not on the landmass of Vietnam,
the Veterans Court concluded that the statutory phrase “served in the Republic of
Vietnam” is ambiguous. 2
2
In its brief, the government mistakenly refers to section 1116(f) as the
provision at issue in this case. Because Mr. Haas’s disease is one of those listed in
section 1116(a)(2), it is section 1116(a)(1), not section 1116(f), that governs his claim.
Section 1116(f) was originally enacted as subsection (a)(3) of the first section of the
Agent Orange Act, and it applied to diseases referred to in subsection (a)(1)(B). When
the Act was amended in 2001, subsection (a)(3) became section 1116(f), and it was
modified to apply to diseases other than those referred to in subsections (a)(1) or (a)(2).
The legislative history of the 2001 amendment makes it quite plain that the new section
1116(f) was designed to make the Act applicable to new diseases, not to affect the
preexisting scope of subsection (a)(1). S. Rep. No. 107-86, at 10-12 (2001). The
erroneous reference makes no difference to the analysis in this case, however, as the
pertinent phrase “served in the Republic of Vietnam” appears in both sections
1116(a)(1) and 1116(f).
2007-7037 25
The court first noted that “[t]here are many ways in which to interpret the
boundaries of a sovereign nation such as the former Republic of Vietnam.” 20 Vet. App.
at 263. The court then surveyed different sources that define sovereign nations in
different ways, ranging from including only the nation’s landmass to including the
nation’s “exclusive economic zone,” which can extend up to 200 miles from the
coastline. Id. at 263-64. The government agrees with the Veterans Court that section
1116 is ambiguous in this respect. Mr. Haas, however, argues that the statute has a
plain meaning that covers servicemembers in his position.
Addressing the phrase “served in the Republic of Vietnam,” Mr. Haas asserts that
“[a]ll relevant definitions of the sovereign nation of the Republic of Vietnam include the
territorial waters off the landmass of Vietnam.” To support that assertion, Mr. Haas cites
to two definitions identified by the Veterans Court, Presidential Proclamation 5928
(1989) and the United Nations Convention on the Law of the Sea (“UNCLOS”). Both
definitions include the nation’s “territorial sea,” which is generally defined as extending
12 nautical miles from a nation’s coast. Yet Mr. Haas does not explain why other
definitions, such as the contrary ones cited by the Veterans Court, are not “relevant.”
Neither the language of the statute nor its legislative history indicates that Congress
intended to designate one of the competing methods of defining the reaches of a
sovereign nation. We therefore agree with the Veterans Court that the statutory phrase
“served in the Republic of Vietnam” is ambiguous as applied to service in the waters
adjoining the landmass of Vietnam.
Based on a textual analysis of section 1116, Mr. Haas asserts that Congress
made its intention clear that active duty personnel who served on ships offshore of
2007-7037 26
Vietnam should be considered to have “served in the Republic of Vietnam” within the
meaning of 38 U.S.C. § 1116(a)(1)(A). His argument is that if a veteran “served in the
Republic of Vietnam” and has one of the diseases listed in section 1116(a)(2), such as
diabetes, the veteran does not need to provide evidence that he or she was actually
exposed to herbicides. By contrast, under section 1116(a)(1)(B), service connection is
presumed only if the veteran “served in the Republic of Vietnam” and “while so serving
was exposed to” an herbicide. Because proof of actual exposure is not required under
section 1116(a)(1)(A), Mr. Haas argues that there is no reason to require proof of actual
presence on the landmass of Vietnam. He contends that the government’s asserted
justification for the “foot-on-land” approach—that herbicides are only sprayed on land—
is not relevant under section 1116(a)(1)(A), which by its terms does not require direct
herbicide exposure.
Contrary to Mr. Haas’s contention, the statutory provision that obviates the need
to prove herbicide exposure for certain diseases neither says nor implies anything about
the meaning of the phrase “served in the Republic of Vietnam.” Congress simply
concluded that for those who served in Vietnam, it was too difficult to determine who
was exposed and who was not. But in so concluding, Congress did not indicate that
service “in” the Republic of Vietnam included service on the waters offshore or in any
other location nearby. Nor did Congress suggest that exposure was not important to
the determination of service connection. The entire predicate for the Agent Orange Act
and its regulations was exposure to herbicides in general and Agent Orange in
particular. The fact that Congress presumed exposure for veterans who served in
Vietnam does not by any means suggest that exposure was considered unimportant
2007-7037 27
and that veterans in other areas therefore do not have to prove exposure. Thus, there
is no force to Mr. Haas’s argument based on the difference between section
1116(a)(1)(A) and section 1116(a)(1)(B).
Mr. Haas next contends that the legislative history of the Agent Orange Act
demonstrates that Congress intended to give those who served only in offshore waters
the benefit of section 1116(a). His argument is based on statements in the legislative
history of the Agent Orange Act that Congress intended to codify the DVA’s then-
existing regulations on diseases meriting a presumption of service connection for
Vietnam veterans. See, e.g., 137 Cong. Rec. 2345 (1991) (statement of Rep.
Montgomery) (“This compromise would codify administrative decisions of the Secretary
of Veterans Affairs in deeming three conditions service-connected for compensation
purposes.”); id. at 2352 (statement of Rep. Stump) (“H.R. 556 codifies current VA policy
regarding agent orange compensation by establishing in statute a presumption of
service-connection for non-Hodgkin’s lymphoma, soft-tissue sarcoma, and chloracne.”).
The problem with that argument is that the references to the regulatory
presumptions in the legislative history did not distinguish between the broader definition
of “service in Vietnam” provided in the non-Hodgkin’s lymphoma regulation (section
3.313) and the narrower definition of “service in the Republic of Vietnam” found in the
chloracne/soft tissue sarcoma regulation (section 3.311a). In the absence of any
clearer statement in the legislative record, which Mr. Haas has not identified, the
remarks about the existing regulations do not support the construction of the statutory
phrase “served in the Republic of Vietnam” that he advocates. If anything, the different
circumstances that prompted the issuance of the two regulations and the fact that only
2007-7037 28
the chloracne/soft tissue sarcoma regulation used the precise phrase that was later
incorporated into the statute—“service in the Republic of Vietnam” (section 3.311a)
rather than “service in Vietnam” (section 3.313)—suggest the contrary conclusion. The
chloracne/soft tissue sarcoma regulation was based on scientific evidence linking those
diseases to dioxin exposure. The Agent Orange Act was similarly designed to provide
compensation for exposure to Agent Orange. The non-Hodgkin’s lymphoma regulation,
by contrast, was not predicated on exposure, but instead was based on evidence of an
association between non-Hodgkin’s lymphoma and service in the Vietnam theater,
including service aboard ships. Thus, the Agent Orange Act closely tracked the
narrower chloracne/soft tissue sarcoma regulation, which defined “service in the
Republic of Vietnam” to apply to those who served in the waters offshore only if their
service included “duty or visitation in the Republic of Vietnam.”
C
Having concluded that the phrase “served in the Republic of Vietnam” in section
1116 is ambiguous, we next turn to “step two” of the Chevron analysis, which requires a
court to defer to an agency’s authorized interpretation of the statute in question if “the
agency’s answer is based on a permissible construction of the statute.” Chevron, 467
U.S. at 843. We therefore address the DVA regulation that defines the phrase “service
in the Republic of Vietnam” to mean “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)(iii).
First, we note that Congress has given the DVA authority to interpret the statute,
both under its general rulemaking authority, 38 U.S.C. § 501, and in the Agent Orange
2007-7037 29
Act itself, 38 U.S.C. § 1116(a)(1)(B). Second, we agree with the Veterans Court that
the regulation reflects a reasonable interpretation of the statute in that it requires some
presence in Vietnam, even if the veteran’s service largely occurred elsewhere.
The government contends that the regulation makes clear that service
connection is presumed only for veterans who were at some point present on the
landmass of Vietnam. We believe that is probably the most natural reading of the
language of the regulation that refers to “duty or visitation in the Republic of Vietnam.”
That is, we agree with the government that “duty or visitation” in the Republic of
Vietnam seems to contemplate actual presence on the landmass of the country.
However, the question as to the meaning of the phrase “duty or visitation in the
Republic of Vietnam” is not free from doubt, as “duty” or “visitation” could be understood
to refer to “duty” or “visitation” within the broader area encompassed, for example, by
the territorial waters of the Republic. Thus, both the phrase “duty or visitation in the
Republic of Vietnam” and the phrase “waters offshore” are sufficiently ambiguous that
the language of the regulation cannot be said to resolve the issue with certainty.
D
For that reason, we must look to the DVA’s interpretation of its own regulation
and determine whether that interpretation resolves the legal issue before us. Generally,
“an agency’s interpretation of its own regulations is controlling unless plainly erroneous
or inconsistent with the regulations being interpreted.” Long Island Care at Home, Ltd.
v. Coke, 127 S. Ct. 2339, 2346 (2007) (internal quotations omitted); see also Auer v.
Robbins, 519 U.S. 452, 461-63 (1997). An agency’s interpretation of its regulations is
entitled to “substantial deference,” requiring a court to defer to the agency’s
2007-7037 30
interpretation “unless an alternative reading is compelled by the regulation’s plain
language or by other indications of the [agency’s] intent at the time of the regulation’s
promulgation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994), quoting
Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).
That rule does not apply if a particular regulation merely “parrots” statutory
language, because if it did, an agency could bypass meaningful rule-making procedures
by simply adopting an informal “interpretation” of regulatory language taken directly from
the statute in question. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006);
Christensen v. Harris County, 529 U.S. 576, 588 (2000) (an agency cannot “under the
guise of interpreting a regulation . . . create de facto a new regulation”). In this case,
however, we are satisfied that the DVA regulation does more than merely parrot section
1116. The Supreme Court in Gonzales v. Oregon characterized the regulation in that
case as a parroting regulation because it “just repeats two statutory phrases and
attempts to summarize the others.” 546 U.S. at 257. The Court added that the
regulation “gives little or no instruction on a central issue.” Id. By contrast, the
regulation at issue in this case, 38 C.F.R. § 3.307(a)(6)(iii), elaborates on the statutory
phrase “served in the Republic of Vietnam” by construing it to include service offshore
and service in other locations as long as the service “involved duty or visitation in the
Republic of Vietnam.” That language qualifies as interpretation rather than reiteration.
The fact that the regulation is itself subject to competing interpretations,
depending on whether it is read to require duty or visitation on land, as opposed to duty
or visitation within Vietnam’s territorial waters, does not mean that the regulation merely
parrots the statute. It is not unusual for an interpretive regulation to be itself ambiguous;
2007-7037 31
that happens, in fact, whenever a court is required to look to an agency’s interpretation
of a regulation that in turn interprets a statute. See, e.g., Auer, 519 U.S. at 461-63;
Cathedral Candle Co., 400 F.3d at 1352, 1363-64. In such cases, courts do not
disregard the regulation and its interpretation as long as the regulation reflects the
agency’s exercise of its interpretive authority and does not simply “restate the terms of
the statute itself.” Gonzales, 546 U.S. at 257; see id. at 256 (deference was accorded
to the agency’s interpretation in Auer because “the underlying regulations gave
specificity to a statutory scheme the [agency] was charged with enforcing and reflected
the considerable experience and expertise the [agency] had acquired over time. . . .”).
For these reasons, it is appropriate to defer to the DVA’s asserted interpretation unless
it is plainly erroneous or inconsistent with the regulations.
The Veterans Court concluded that it did not need to grant deference to the
DVA’s interpretation of section 3.307(a)(6)(iii) for several reasons: because the DVA’s
interpretation of the regulation has been inconsistent; because the DVA’s interpretation
was based on what the court considered plainly erroneous statutory analysis in a
precedential opinion of the DVA’s General Counsel; and because the court regarded the
DVA’s interpretation as unreasonable in that the agency has interpreted service in
Vietnam differently under two different regulations and has failed to point to scientific
evidence supporting its interpretation. We address each issue in turn.
1. The Veterans Court first decided that the DVA’s current interpretation of
section 3.307(a)(6)(iii) conflicts with the agency’s prior interpretation of the regulation,
and that the agency’s current interpretation therefore merits less deference than it might
otherwise deserve. We agree with the Veterans Court that there has been some
2007-7037 32
inconsistency in the DVA’s application of section 3.307(a)(6)(iii), but we do not agree
that the DVA’s inconsistency deprives the agency’s interpretation of entitlement to
deference, particularly in light of the fact that the agency has interpreted its regulation
consistently for some years, going back to a time well before Mr. Haas filed the
application for benefits that is at issue in this case.
For several years after the enactment of the Agent Orange Act and the
corresponding regulations, the DVA did not formally interpret the regulatory reference to
service “in the Republic of Vietnam.” During that period the agency did not give any
explanation of the meaning of the proviso requiring “duty or visitation in the Republic of
Vietnam” in cases involving servicemembers whose principal service was in the waters
offshore of Vietnam.
During that period, DVA adjudicators relied on the DVA’s Adjudication Manual
M21-1, which instructed DVA adjudicators on how to determine whether claimants had
served “in the Republic of Vietnam.” That 1991 version of Manual M21-1 provided as
follows in pertinent part:
(1) It may be necessary to determine if a veteran had “service in Vietnam”
in connection with claims for service connection for non-Hodgkin’s
lymphoma, soft-tissue sarcoma and chloracne . . . . In the absence of
contradictory evidence, “service in Vietnam” will be conceded if the
records shows [sic] that the veteran received the Vietnam Service Medal.
(2) If a veteran who did not receive the Vietnam Service Medal claims
service connection for non-Hodgkin’s lymphoma, soft tissue sarcoma or
chloracne and alleges service on a ship in the waters offshore Vietnam,
review the record for evidence that the ship was in the vicinity of Vietnam
for some significant period of time (i.e., more than just in transit through
the area). If the veteran cannot produce evidence that the ship was in the
waters offshore Vietnam, contact the Compensation and Pension Service
Projects Staff. Be prepared to furnish the name of the ship, the number of
the ship, and the dates that it is alleged to have been in the waters
offshore Vietnam.
2007-7037 33
M21-1, part III, paragraph 4.08(k). The government contends on appeal, as it did in the
Veterans Court, that the “contradictory evidence” mentioned in paragraph (1) has
always included evidence that a veteran did not set foot in Vietnam. The Veterans
Court concluded, however, that the second paragraph addressing the special case of
veterans on board ships, which never mentions a foot-on-land requirement, would not
have been necessary if the first paragraph had already implicitly contained a
requirement that the veteran set foot on land in order to have “served in the Republic of
Vietnam.” 20 Vet. App. at 276.
We agree with the Veterans Court’s analysis of the Manual M21-1 provision. The
government’s argument that the Manual provision incorporates the requirements of
section 3.307(a)(6)(iii) simply reads too much into the “contradictory evidence” provision
of Manual M21-1. In particular, the government’s contention that M21-1 has always
contained a “foot-on-land” requirement is unconvincing given that the Vietnam Service
Medal was awarded to a broader class of service members than those who served on
the landmass of Vietnam. See Exec. Order No. 11231 (July 8, 1965) (establishing
award of the Vietnam Service Medal “to members of the armed forces who serve[d] in
Vietnam or contiguous waters or air space”).
Moreover, paragraph (2) of the Manual M21-1 provision, which refers to the
possible need to review evidence that a veteran’s ship was in the vicinity of Vietnam for
some period of time, suggests that the Adjudication Manual did not exclude the
possibility of benefits being granted to a veteran who never set foot in Vietnam. We
therefore reject the government’s suggestion that the DVA’s current interpretation of the
2007-7037 34
“service in the Republic of Vietnam” language in section 3.307(a)(6)(iii) could be
discerned from the outset in Manual M21-1.
Even though the 1991 version of the Manual and later versions issued on several
occasions during the 1990s do not reflect the DVA’s present interpretation of section
3.307(a)(6)(iii), the Veterans Court was nonetheless mistaken to conclude that the
inconsistency between the early versions of the Manual and the agency’s current
interpretation of the regulation deprives the DVA’s current interpretation of the right to
judicial deference. As noted above, the DVA adopted its current interpretation of
section 3.307(a)(6)(iii) in 1997. Since that time, it has reiterated its interpretation on
numerous occasions, including by amending Manual 21-1 in 2002 to expressly
incorporate the “foot-on-land” interpretation of the Agent Orange regulations and then
formally rescinding the Manual provision in 2008. See 73 Fed. Reg. 20,363 (Apr. 15,
2008). Thus, any lack of clarity or inconsistency in the DVA’s interpretation of the Agent
Orange regulations has long since been resolved, and the “foot-on-land” policy is now
firmly in place.
The DVA made its interpretation clear first in DVA General Counsel Opinion 27-
97, the 1997 General Counsel opinion that ruled that sailors on deepwater vessels who
did not set foot on land in Vietnam were not “in the Republic of Vietnam” within the
meaning of 38 U.S.C. § 101(29)(A). In the course of analyzing section 101(29)(A), the
opinion noted that the regulatory definition in 38 C.F.R. § 3.307(a)(6)(iii) “requires that
an individual actually have been present within the boundaries of the Republic to be
considered to have served there.” The opinion concluded that the definition of “service
in the Republic of Vietnam” in the regulation was consistent with the definition of the
2007-7037 35
same phrase in section 101(29)(A), which the General Counsel interpreted to require
physical presence on the landmass of Vietnam.
During the same year, the DVA set forth its interpretation of the regulatory
language again in its response to comments on the spina bifida regulation. See 62 Fed.
Reg. 51,274 (Sept. 30, 1997). The DVA explained that “[b]ecause herbicides were not
applied in waters off the shore of Vietnam, limiting the scope of the term service in the
Republic of Vietnam to persons whose service involved duty or visitation in the Republic
of Vietnam limits the focus of the presumption of exposure to persons who may have
been in areas where herbicides could have been encountered.” More significantly for
purposes of this case, in the very regulation that made type 2 diabetes the subject of
presumed service connection (and thus provided the basis for Mr. Haas’s claim), the
DVA noted that service offshore does not constitute “service in the Republic of
Vietnam.” 66 Fed. Reg. 23,166, 23,166 (May 8, 2001).
To be sure, during the 1990s the DVA was not entirely consistent in its
adjudications of claims arising under the Agent Orange Act. Mr. Haas cites four Board
of Veterans’ Appeals decisions that he contends support his position that a
servicemember is entitled to presumptions of exposure to herbicides and service
connection based on service offshore of Vietnam. The two earliest Board decisions
support his argument, but the other two are at best unclear as to their interpretation of
section 3.307(a)(6)(iii). For its part, the government cites a number of other decisions in
which the Board applied the regulation as urged by the government, i.e., requiring proof
of some duty or visitation onshore in Vietnam. The dates of the decisions cited by the
2007-7037 36
government range from 1998 to 2005; both of the Board decisions that support Mr.
Haas’s position are from 1997.
While it is true that “[a]s a general matter . . . the case for judicial deference is
less compelling with respect to agency positions that are inconsistent with previously
held views,” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1991) (citing Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988)), the DVA never formally
adopted the position urged by Mr. Haas either in General Counsel opinions or in the
rulemaking process. And even though the agency’s current interpretation of its
regulations differs from the position it took in some previous adjudications and seemed
to take in its Adjudication Manual, that inconsistency does not mean that its current
interpretation does not deserve deference. The Supreme Court made that point clear in
its recent decision in Long Island Care at Home, 127 S. Ct. at 2349:
[W]e concede that the Department may have interpreted these regulations
differently at different times in their history. . . . But as long as interpretive
changes create no unfair surprise—and the Department’s recourse to
notice-and-comment rulemaking in an attempt to codify its new
interpretation . . . makes any such surprise unlikely here—the change in
interpretation alone presents no separate ground for disregarding the
Department’s present interpretation.
See also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) (change
under the Chevron doctrine is “not invalidating, since the whole point of Chevron is to
leave the discretion provided by the ambiguities of a statute with the implementing
agency”).
In this instance, the agency’s position has been consistent for more than a
decade, and there is “no reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter in question.” Auer, 519 U.S. at2007-7037 37
462. Moreover, because the agency adopted its current interpretation long before Mr.
Haas filed his claim, and long before the statute and regulations were amended to
include type 2 diabetes among the diseases entitled to special consideration, there is no
issue of “unfair surprise” here. Accordingly, we conclude that the DVA’s interpretation
of section 3.307(a)(6)(iii) merits deference unless that interpretation is plainly erroneous
or inconsistent with the language of the regulation.
2. The Veterans Court concluded that the DVA’s interpretation of section
3.307(a)(6)(iii) is “plainly erroneous” in part because it is based on what the court
regarded as flawed legal analysis in DVA General Counsel Opinion 27-97. As noted,
that General Counsel opinion construes 38 U.S.C. § 101(29), a related statute that
defines the term “Vietnam era” for purposes of title 38 and in the course of the
discussion sets forth the DVA’s interpretation of section 3.307(a)(6)(iii). We find nothing
in the opinion’s analysis that renders the DVA’s interpretation plainly erroneous.
The General Counsel opinion examines the question whether veterans who
served on deepwater Navy vessels in the vicinity of Vietnam between 1961 and 1975
are considered to have served “during the Vietnam era,” as that phrase is used in 38
U.S.C. § 101(29). That question arose because the Veterans’ Benefits Improvements
Act of 1996 enlarged the statutory period of the “Vietnam era” to the period beginning
on February 28, 1961, to May 7, 1975, “in the case of a veteran who served in the
Republic of Vietnam during that period.” Pub. L. No. 104-275, § 505, 110 Stat. 3322,
3342 (1996). The General Counsel opinion addresses whether service on an aircraft
carrier would constitute service in the Vietnam era for purposes of section 101(29)
during the period between February 28, 1961, and August 5, 1964, the period for which
2007-7037 38
service “in the Republic of Vietnam” was required. DVA Op. Gen. Counsel Prec. 27-97
(1997). Focusing on legislative history that emphasized Congress’s concern with
ground troops who had been present on the landmass of Vietnam before August 1964,
the General Counsel determined that service offshore was not included within the
meaning of service “in the Republic of Vietnam.”
Although the General Counsel opinion does not directly support the DVA’s
interpretation of section 3.307(a)(6)(iii), it makes clear that the agency viewed the
regulatory definition of “service in the Republic of Vietnam” in section 3.307(a)(6)(iii) as
closely parallel to the definition of that term in 38 U.S.C. § 101(29)(A). Having
interpreted section 101(29)(A) as requiring actual service “within the borders of the
Republic of Vietnam” during the pertinent period, i.e., on the landmass of Vietnam, the
opinion noted that section 3.307(a)(6)(iii) also requires that individuals “not actually
stationed within the borders of the Republic of Vietnam” have been “present within the
boundaries of the Republic to be considered to have served there.”
We do not agree with the Veterans Court that the General Counsel opinion was
legally flawed. While it is true that the amendment to section 101(29)(A) was meant to
encompass veterans who may have been at risk for exposure to herbicides prior to
1964, as the Veterans Court stated, the General Counsel opinion merely pointed out
that in addressing soldiers who may have been exposed to herbicides during that time
period, Congress’s express focus was on ground troops. The opinion correctly noted
that there was no indication in the legislative history that Congress intended for the
definition of section 101(29)(A) to include service on a deep-water vessel off the shores
of Vietnam within the scope of the phrase “served in the Republic of Vietnam.”
2007-7037 39
What is particularly important about the General Counsel opinion is that it made
clear at least as early as 1997 that the agency interpreted section 3.307(a)(6)(iii) to
require presence on the landmass of Vietnam. We see nothing in the General Counsel
opinion that renders that interpretation of section 3.307(a)(6)(iii) plainly erroneous.
3. The Veterans Court then found the DVA’s interpretation of “service in the
Republic of Vietnam” in 38 C.F.R. § 3.307(a)(6)(iii) to be unreasonable because it was
not the product of “valid or thorough reasoning.” 20 Vet. App. at 273.
First, the court criticized the DVA’s interpretation of the phrase “service in the
Republic of Vietnam” in section 3.307(a)(6)(iii) because it differs from the DVA’s
interpretation of the phrase “service in Vietnam” in the non-Hodgkin’s lymphoma
regulation, 38 C.F.R. § 3.313. 20 Vet. App. at 274. The court’s criticism of that
inconsistency, however, fails to account for the differences in language, scientific basis,
and legal authorization between the two regulations. Section 3.307 (formerly section
3.311a) was the regulatory predecessor of the Agent Orange Act; it was based on the
Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, and it included
diseases that had been found to be linked to herbicide exposure. Section 3.313,
however, was based on the agency’s more general authority to adopt regulations “with
respect to the nature and extent of proofs and evidence . . . in order to establish the
right to benefits.” 38 U.S.C. § 210(c) (1982). It was not based on herbicide exposure,
but on a CDC study of the occurrence of non-Hodgkin’s lymphoma in different groups of
veterans, which was specifically found not to be related to herbicide exposure. See 55
Fed. Reg. 25,339 (June 21, 1990) (proposing section 3.313); 1990 CDC Study at 81,
125. Because the CDC study included veterans who served exclusively aboard ships
2007-7037 40
that traveled off the coast of Vietnam among the tested group of Vietnam veterans, it
made sense for section 3.313 to include those veterans as beneficiaries of the
regulation. Under these circumstances, it was not unreasonable for the agency to
interpret the two regulations differently. 3
Second, the Veterans Court also found the DVA’s interpretation of section
3.307(a)(6)(iii) unreasonable based on the agency’s failure to offer scientific evidence in
support of the line it drew at the Vietnamese coast and the seeming arbitrariness of
some results produced by that line. 20 Vet. App. at 274-75.
Due in part to problems of testing for herbicide exposure and in part to the
difficulties in tracking troop movements, it has proved difficult to determine which groups
of veterans were exposed to herbicides and to what extent. Congress and the DVA
have therefore resorted to a line-drawing process that concededly does not closely track
levels of actual exposure. Thus, Congress has determined that for certain diseases, all
veterans who served for any period of time in Vietnam will be presumed to have
established service connection, even if there is no showing that they were exposed to
herbicides or were in areas of herbicide use. The DVA, required to draw a line where
Congress’s intention was unclear, has construed the statute not to extend presumed
service connection to those who were in the Vietnam theater but who served only
offshore or in other locations. The DVA has explained the rationale for its line-drawing,
3
Mr. Haas argues that the non-Hodgkin’s lymphoma regulation, section 3.313,
not the general dioxin exposure regulation, section 3.311a, was the true predecessor to
section 3.307(a)(6)(iii). That contention is plainly wrong. When proposing section
3.307(a)(6)(iii), the Secretary of Veterans Affairs specifically stated that the definition of
“service in the Republic of Vietnam” was taken from section 3.311a, see 58 Fed. Reg.
50,528, 50,529 (Sept. 28, 1993), and the text of the two regulations is virtually identical
(and significantly different from the text of section 3.313).
2007-7037 41
which is that Agent Orange was sprayed only on land, and therefore the best proxy for
exposure is whether a veteran was present within the land borders of the Republic of
Vietnam. In a statement accompanying its recent proposed amendment to section
3.307(a)(6)(iii), the DVA explained:
As a factual matter, our legislative interpretation accords with what
is known about the use of herbicides during Vietnam. Although exposure
data is largely absent, review of military records demonstrate[s] that
virtually all herbicide spraying in Vietnam, which was for the purpose of
eliminating plant cover for the enemy, took place overland. . . . Regarding
inland waterways, Navy riverine patrols reported to have routinely used
herbicides for clearance of inland waterways. . . . Blue water Navy service
members and other personnel who operated off shore were away from
herbicide spray flight paths, and therefore were not likely to have incurred
a risk of exposure to herbicide agents comparable to those who served in
foliated areas where herbicides were applied.
73 Fed. Reg. at 20,568. In light of that explanation, which accords with the position
taken by the DVA for the past decade, and in the absence of evidence that the line
drawn by the DVA is irrational, we are not prepared to substitute our judgment for that of
the agency and impose a different line.
The Veterans Court pointed out that service on land could be fleeting and could
occur far from the area where herbicides were used, while service on the water could
include extended service in coastal waters close to areas where herbicides were used.
Under the DVA’s interpretation of its regulation, a servicemember in the first category
would be entitled to a presumption of service connection for one of the designated
diseases, while a servicemember in the second category would not, even though the
second servicemember would seem intuitively more likely to have been exposed to
herbicides than the first. 20 Vet. App. at 273.
2007-7037 42
There are no doubt some instances in which the “foot-on-land” rule will produce
anomalous results. That is not surprising. Line-drawing in general often produces
instances in which a particular line may be overinclusive in some applications and
underinclusive in others. As the Supreme Court has explained, “any line must produce
some harsh and apparently arbitrary consequences.” Mathews v. Diaz, 426 U.S. 67, 83
(1976). But just because some instances of overinclusion or underinclusion may arise
does not mean that the lines drawn are irrational. See Vance v. Bradley, 440 U.S. 93,
108 (1979) (line-drawing is upheld even if the classification “is to some extent both
underinclusive and overinclusive, and hence the line drawn by Congress is imperfect”);
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976) (“Perfection in making the
necessary classifications is neither possible nor necessary.”).
The asserted arbitrariness of the line-drawing done by the agency in this case is
in part the result of Congress’s decision to extend the presumption of service
connection to all persons who served for any period and in any area within the Republic
of Vietnam. Because that blanket rule provides a presumption of service connection to
some persons who were unlikely to be exposed, it makes virtually any line-drawing
effort appear unreasonable as applied to those who were outside of Vietnam but near
enough to have had some chance of exposure.
In our view, it was not arbitrary for the agency to limit the presumptions of
exposure and service connection to servicemembers who had served, for some period
at least, on land. Drawing a line between service on land, where herbicides were used,
and service at sea, where they were not, is prima facie reasonable. Moreover, the line
drawn by the agency does not cut off all rights of sea-going veterans to relief based on
2007-7037 43
claims of herbicide exposure, in that even servicemembers who are not entitled to the
presumption of exposure are nonetheless entitled to show that they were actually
exposed to herbicides, as Mr. Haas has endeavored to do in this case. See 38 C.F.R. §
3.309(e). The DVA’s interpretation of section 3.307(a)(6)(iii) as excluding
servicemembers who never set foot within the land borders of Vietnam thus was not
unreasonable, and it certainly did not rise to the level of being “plainly erroneous or
inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,
414 (1945); see Smith v. Nicholson, 451 F.3d 1344, 1349-51 (Fed. Cir. 2006).
In an effort to demonstrate that the DVA’s interpretation was not only
unsupported by science but was contrary to scientific studies, Mr. Haas argues that
servicemembers serving offshore could have been exposed to Agent Orange through
several mechanisms, such as “runoff” carrying toxic chemicals into the sea, “spray drift”
transporting toxins via the wind, and the shipboard consumption of drinking water
produced by evaporative distillation. As support for the last of those contentions, he
cites to a study conducted for the Australian Department of Veterans Affairs suggesting
that Vietnam veterans of the Royal Australian Navy may have been exposed to
herbicide compounds by drinking water distilled on board their vessels. Nat’l Research
Ctr. for Envtl. Toxicology, Queensland Health Scientific Servs., Examination of the
Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated
Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water (Dec. 12, 2002).
The Australian study and the other cited sources were not part of the record
below and were not considered either by the Veterans Court or by the DVA in its prior
rulemaking proceedings. Judgments as to the validity of such evidence and its
2007-7037 44
application to the particular problem of exposure to herbicides in Vietnam are properly
left to Congress and the DVA in the first instance; this court is not the proper forum for
an initial analysis of such evidence and its implications for the DVA’s policies. We note,
however, that in its most recent rulemaking proceeding the DVA made the following
observations with respect to the Australian study:
VA scientists and experts have noted many problems with the study that
caution against reliance on the study to change our long-held position
regarding veterans who served off shore. First, as the authors of the
Australian study themselves noted, there was substantial uncertainty in
their assumptions regarding the concentration of dioxin that may have
been present in estuarine waters during the Vietnam War. . . . Second,
even with the concentrating effect found in the Australian study, the levels
of exposure estimated in this study are not at all comparable to the
exposures experienced by veterans who served on land where herbicides
were applied. . . . Third, it is not clear that U.S. ships used distilled
drinking water drawn from or near estuarine sources or, if they did,
whether the distillation process was similar to that used by the Australian
Navy.
73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008). Based on that analysis, the DVA stated
that “we do not intend to revise our long-held interpretation of ‘service in Vietnam.’” Id.As to other cited studies, the DVA stated in connection with the publication of the
rescission of the Manual M21-1 provision at issue in this case that none of those studies
“bears significantly on the specific question whether herbicides used, and as
administered, by the U.S. military during the Vietnam Era could have been blown by the
wind into the ocean, or into inland waters that then carried the chemical into the ocean,
to reach a boat offshore and result in any significant risk of herbicide exposure.” 73
Fed. Reg. 20,363, 20,364 (Apr. 15, 2008).
Without reference to evidence, the Veterans Court stated that “it appears that
these veterans serving on vessels in close proximity to land would have the same risk of
2007-7037 45
exposure to the herbicide Agent Orange as veterans serving on adjacent land.” 20 Vet.
App. at 273. The dissenting judge in this court likewise concludes, also without
reference to supporting evidence, that veterans such as Mr. Haas “have asserted a
reasonable claim that they may have been exposed to herbicides.” But focusing on the
facts of Mr. Haas’s claim, including his assertion that his ship was within 100 feet of the
coast of Vietnam, does little to help answer the question of how the statutory phrase
“served in the Republic of Vietnam” should be interpreted. The Veterans Court, for
example, did not suggest what would constitute the proper interpretation of the statute,
but merely concluded that the DVA’s regulation “must be read to include at least service
of the nature described by the appellant, that is, service in the waters near the shore of
Vietnam.” A standard such as “near the shore” is unmanageably vague, not to mention
its lack of mooring in the statutory or regulatory language. By contrast, the DVA’s
interpretation is a plausible construction of the statutory language and it is based on a
simple but undisputed fact—that spraying was done on land, not over the water.
Applying the substantial deference that is due to an agency’s interpretation of its own
regulations, we uphold the DVA’s interpretation of section 3.307(a)(6)(iii).
E
Finally, the Veterans Court concluded that the pertinent provision of the DVA’s
Manual M21-1, although styled as an interpretation of the law, was actually a
substantive rule that could not be changed without compliance with formal notice-and-
comment rulemaking procedures. Accordingly, the Veterans Court concluded that the
2002 change in Manual M21-1, in which the DVA made clear that “service in the
Republic of Vietnam” would not apply to servicemembers who had not visited the
2007-7037 46
landmass of Vietnam, was not valid because the change was not effected through
notice-and-comment rulemaking. 20 Vet. App. at 277. On appeal, the government
contends that the Manual M21-1 provisions are properly viewed as interpretive rules,
and thus could be changed by the agency without formal rule-making procedures. 4
Sections 4 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, requires
agencies to publish proposed rules in the Federal Register for notice and comment.
Although that requirement does not apply by its terms to matters “relating to . . .
benefits,” 5 U.S.C. § 553(a)(2), the “benefits” exception does not apply to rules and
regulations promulgated by the DVA, 38 U.S.C. § 501(d). The DVA’s rules relating to
benefits are therefore subject to the notice and comment requirements of the APA.
Importantly, however, those requirements do not apply to “interpretative rules, general
statements of policy, or rules of agency organization, procedure or practice.” 5 U.S.C.
§ 553(b)(3)(A). Because interpretive rules are not substantive rules having the force
and effect of law, they are not subject to the statutory notice-and-comment
requirements. See Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995); Chrysler
Corp. v. Brown, 441 U.S. 281, 301-02 & n.31 (1979).
While substantive rules are those that effect a change in existing law or policy or
that affect individual rights and obligations, interpretive rules “clarify or explain existing
law or regulation and are exempt from notice and comment under section 553(b)(A).”
Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998); see also
4
As we have noted, while not changing its legal position the DVA has recently
acted to obviate this issue for the future by publishing a formal notice in the Federal
Register rescinding the pertinent provision of Manual M21-1. See 73 Fed. Reg. 20,363(Apr. 15, 2008).
2007-7037 47
Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 927 (Fed. Cir. 1991); Am. Hosp. Ass’n
v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987). An interpretive rule “merely
‘represents the agency’s reading of statutes and rules rather than an attempt to make
new law or modify existing law.’” Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of
Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001), quoting Splane v. West, 216
F.3d 1058, 1063 (Fed. Cir. 2000).
We conclude that the pertinent provision of Manual M21-1 is an interpretive
statement, not a substantive rule. As the DVA has explained, Manual M21-1 “is an
internal manual used to convey guidance to VA adjudicators. It is not intended to
establish substantive rules beyond those contained in statute and regulation.” 72 Fed.
Reg. 66,218, 66,219 (Nov. 27, 2007). The provision at issue in this case did not set
forth a firm legal test for “service in the Republic of Vietnam,” but simply provided
guidance as to how an adjudicator should go about gathering information necessary to
determine whether the regulatory test had been satisfied. As such, the Manual provided
reasonably easily applied guidance for adjudicators in an effort to obtain consistency of
outcome; it did not define the boundaries of the DVA’s legal responsibility with precision.
The 1991 version of Manual M21-1 noted that ordinarily the statutory and
regulatory test would be satisfied by proof of receipt of the Vietnam Service Medal. The
reference to the Vietnam Service Medal did not displace the legal test for service “in the
Republic of Vietnam,” but merely directed adjudicators to perform a simple initial
analysis, which was sufficient to determine compliance with that test in the great
majority of cases. For that reason, we conclude that the pre-2002 version of Manual
M21-1 was not a substantive rule that could be amended only by notice-and-comment
2007-7037 48
rulemaking. 5 Indeed, to treat receipt of the Vietnam Service Medal as a “test” of
eligibility for the statutory presumption would be clearly contrary to the Agent Orange
Act, because it is undisputed that some servicemembers who received the Vietnam
Service Medal were never either in Vietnam or in its territorial waters; accordingly, those
servicemembers could not properly be regarded as having served “in the Republic of
Vietnam” under any definition of that phrase.
Importantly, it was through notice-and-comment rulemaking that the DVA set
forth its position with regard to offshore service in connection with the very regulation
that is at issue in this case. In May 2001, the DVA issued the regulation in which it
made type 2 diabetes a disease subject to the regulatory presumption of service
connection. In so doing, the agency clearly set forth its view as to the status of
servicemembers who had served in the waters off Vietnam and had not set foot on
shore. Those servicemembers, the agency explained, were not within the scope of the
regulatory presumption. See 66 Fed. Reg. 23,166 (May 8, 2001).
That regulation became effective in July 2001, a month before Mr. Haas filed his
claim for service connection for diabetes. The agency had thus formally taken a
position by then that excluded Mr. Haas from the scope of the regulation. The fact that
the DVA did not also subject the amended version of Adjudication Manual M21-1, which
followed the position taken in the 2001 rulemaking proceeding, to notice-and-comment
5
Mr. Haas argues that Fugere v. Derwinski, 972 F.2d 331 (Fed. Cir. 1992),
supports his argument regarding the amendment of Manual M21-1. In that case,
however, the only issue before this court was whether a provision of the Manual
conflicted with a statute. This court did not address whether the Manual provision in
question constituted a substantive rule that could be amended only through notice-and-
comment rulemaking.
2007-7037 49
rulemaking did not make the agency’s actions with regard to Mr. Haas’s claim unlawful.
In sum, the agency’s formal position with respect to the requirement of visitation or duty
on land was established well before Mr. Haas’s application for benefits and was
reiterated in the diabetes rulemaking proceeding in May 2001. Contrary to the
suggestion of the Veterans Court, it was not necessary for the agency to conduct a
parallel rulemaking proceeding before incorporating the same rule into its more informal
Adjudication Manual.
Because the DVA properly followed its established interpretation of statutory
section 1116 and regulatory section 3.307(a)(6)(iii) when it rejected Mr. Haas’s claim,
we also disagree with the Veterans Court’s ruling that the DVA’s decision in Mr. Haas’s
case represents an impermissible retroactive application of the 2002 amendment to
Manual 21-1. The agency’s interpretation of the statute and regulation were clear by
2001, before Mr. Haas filed his claim. The fact that the agency waited until early 2002
to amend its internal Adjudication Manual to correspond with that interpretation did not
prejudice Mr. Haas and does not confer any rights on him.
IV
For the foregoing reasons, we reverse the Veterans Court’s ruling rejecting the
DVA’s interpretation of section 3.307(a)(6)(iii) of the agency’s regulations as requiring
the servicemember’s presence at some point on the landmass or the inland waters of
Vietnam. We remand to the Veterans Court for further proceedings consistent with this
opinion. Before the Veterans Court on remand, Mr. Haas is free to pursue his claim that
he was actually exposed to herbicides while on board his ship as it traveled near the
Vietnamese coast. However, he is not entitled to the benefit of the presumptions set
2007-7037 50
forth in 38 U.S.C. § 1116 and the corresponding DVA regulations, which are limited to
those who “served in the Republic of Vietnam.”
Each party shall bear its own costs for this appeal.
REVERSED and REMANDED.
2007-7037 51
United States Court of Appeals for the Federal Circuit
2007-7037
JONATHAN L. HAAS,
Claimant-Appellee,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in 04-4091,
Judge William A. Moorman
FOGEL, District Judge, dissenting.
Although I agree with much of the majority’s thorough analysis of the relevant
legislative and regulatory history, I respectfully disagree with its ultimate holding.
Because I conclude that the VA’s refusal to apply the presumption of 38 U.S.C. §
1116(a) to Haas and others similarly situated is inconsistent with the intent of the statute
and thus is based upon an unreasonable interpretation of the subject regulation, I would
affirm the judgment of the Veterans Court. See Haas v. Nicholson, 20 Vet. App. 245(2006).
While judicial deference to the experience and expertise of administrative
agencies is an important principle of our jurisprudence, the historical context in which
both courts and agencies act also is important. The present case is the latest skirmish
in a decades-long dispute between Vietnam-era veterans and the VA over the health
effects of Agent Orange. In 1984, Congress enacted the Veterans’ Dioxin and
Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725(1984) (“Dioxin Act”), the purpose of which was “to ensure that Veterans’ Administration
disability compensation [was] provided to veterans who were exposed during service in
the Armed Forces in the Republic of Vietnam to a herbicide containing dioxin . . . .” Id.Following its enactment, a group of Vietnam-era veterans and surviving spouses
brought suit against the VA for its alleged failure to comply with the Act’s provisions.
Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989).
Specifically, the veterans challenged the VA’s final rule, 38 U.S.C. § 3.311a(d),
which stated that “‘sound scientific and medical evidence does not establish a cause
and effect relationship between dioxin exposure’ and any other disease but chloracne.”
Nehmer, 712 F. Supp. at 1408. The district court held that the “cause and effect test”
employed by VA in 38 C.F.R. §3.311a(d) to determine the relationship between dioxin
exposure and various diseases was inconsistent both with the VA’s prior practice and
with the purpose of the Act. Nehmer, 712 F. Supp. at 1418. In reaching this
conclusion, the court relied on the statement of one of the Act’s principal supporters,
Senator Alan Simpson, that the “[Dioxin] Act was intended to ensure that veterans ‘have
their exposure claims adjudicated under uniform and consistent regulations that
incorporate rational scientific judgments’, as opposed to the prior system, in which the
claims are ‘committed to the sound judgment of the VA’s adjudication officers’ who
decide them on ‘a case-by-case basis.’” Id. at 1422.
The statute at issue in this case, the Agent Orange Act, Pub. L. No. 102-04, 105
Stat. 11 (1991), was adopted subsequent to and informed by the issues raised in
Nehmer. The Agent Orange Act required that the National Academy of Sciences
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conduct a comprehensive review of “all the available and future evidence on the long-
term health effects of exposure” to herbicides. Haas, 20 Vet. App. at 268. It codified, in
similar form, the 1984 note to 38 U.S.C. § 354, which the Dioxin Act amended, at 38
U.S.C. § 316(a)(3), which provided:
For the purposes of this subsection, a veteran who, during active military,
naval, or air service, served in the Republic of Vietnam during the Vietnam
era and has a disease referred to in paragraph (1)(B) of this subsection
shall be presumed to have been exposed during such service to an
herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and
may be presumed to have been exposed during such service to any other
chemical compound in an herbicide agent, unless there is affirmative
evidence to establish that the veteran was not exposed to any such agent
during that service.
See Haas, 20 Vet. App. at 268.
As the majority points out, the legislative history of the Agent Orange Act is silent
as to what constitutes “service in the Republic of Vietnam.” However, both the
legislative history and the language of the statute itself indicate the intent of Congress
that a fair and independent system be established to determine the relationship
between herbicide exposure and the manifestation of certain diseases. Congress was
seeking to make it easier, not more difficult, for Vietnam veterans to assert claims
arising from exposure to Agent Orange. In this context, it is reasonable to expect that
an administrative interpretation limiting the benefits of the presumption at issue here
would be based on at least some scientific evidence.
I agree with the majority that in the present case the VA’s interpretation of its own
regulation is entitled to controlling weight unless that interpretation is plainly erroneous
or inconsistent with the regulation. Majority Opinion, slip op. at 24. However, an
interpretation is reasonable only if it “‘sensibly conforms to the purpose and wording of
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the regulations.’” Martin v. Occupational Safety & Health Review Comm’n, 499 U.S.
144, 150-51 (1991) (quoting N. Indiana Pub. Serv. Co. v. Porter County Chapter of
Izaak Walton League of Am., Inc., 423 U.S. 12, 15 (1975) (emphasis added)). I agree
with the Veterans Court that in the absence of any scientific evidence in the record that
supports a “foot on land” requirement, the VA’s position is unreasonable.
Congress created the presumption at issue both because exposure to Agent
Orange could not be determined by tracking troop movements and because the VA
could not pinpoint which veterans were deployed at or near locations where Agent
Orange was sprayed, facts which as a practical matter made it very difficult for veterans
to prove their claims. Although the plain purpose of the statute is to ensure that all
veterans who risked exposure have their claims adjudicated in accordance with uniform,
scientifically-based standards, the “foot on land” requirement arbitrarily excludes from
the benefits of the statutory presumption an identifiable group of veterans who the
available evidence suggests risked exposure.
For example, the VA’s interpretation grants the presumption to a veteran who
served on a vessel that traveled on inland waterways but not to a veteran who served
on a vessel in the waters immediately off the coast of Vietnam, even at no greater
distance from land. A veteran whose only contact with Vietnam was a one-hour stop at
an airfield would have the benefit of the presumption, while a veteran who spent months
on a coastal patrol boat would not. Citing to the administrative record, the Veterans
Court noted that “[u]sing VA’s risk-of-exposure test outlined in its June 2001 notice of
final rulemaking, given the spraying of Agent Orange along the coastline and the wind
borne effects of such spraying, it appears that these veterans serving on vessels in
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close proximity to land would have the same risk of exposure to the herbicide Agent
Orange as veterans serving on adjacent land, or an even greater risk than that borne by
those veterans who may have visited and set foot on land of the Republic of Vietnam
only briefly.” Haas, 20 Vet. Appl. at 273. The Veterans Court concluded that “[t]he
Secretary has provided no rational distinction between these types of service and the
Court can divine none.” Id. Appropriately, the Veterans Court held that:
Absent any discussion regarding the scientific studies mandated by
Congress on this subject or any other evidence that contributed to VA’s
decision to limit the definition, the Court can only conclude that VA’s
asserted interpretation of this regulation is not the product of agency
expertise.
Id. at 275.
Perhaps anticipating that this Court might equally be concerned with the absence
of relevant scientific evidence, the VA submitted to the Court during the pendency of
this appeal proposed amendments to the regulation that expressly adopt the "foot on
land" test and explain the agency’s rationale for the amendments. The VA
acknowledges the possibility that some veterans who were deployed immediately
offshore may have been exposed to herbicides but at the same time asserts there is no
evidence that the risk of such exposure was comparable to that faced by veterans who
were deployed on land. The VA reaches this conclusion not on the basis of any
affirmative data but by discounting the findings of the Australian study upon which Haas
and others similarly situated rely. Like the VA’s most recent interpretation of the
regulation, the proposed amendments appear to be based on uncertainty rather than
the careful scientific assessment required by the statute. Thus, despite the clarifying
language, I remain convinced that the VA's interpretation is not entitled to deference.
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The majority concludes that the “foot on land” rule is rational because there
appears to be no clear scientific evidence defining the extent to which different groups
of veterans were exposed, leaving the task of line-drawing to Congress and the VA.
Majority Opinion, slip op. at 41. Indeed, an interpretation that excludes veterans whose
only contact with the Republic of Vietnam was a high-altitude flyover or service in deep
offshore waters would be perfectly sensible, as such individuals would not have had a
potential risk of exposure. See DVA Op. Gen. Counsel Prec. 27-97 (1997) (finding that
service in a deepwater vessel off the shore of Vietnam did not constitute “service in the
Republic of Vietnam” under 38 U.S.C. § 101(29)(A)); DVA Op. Gen. Counsel Prec. 7-93
(1993) (finding that service in high altitude planes flying over Vietnam without any
further contact with Vietnam did not constitute “service in the Republic of Vietnam”
under 38 C.F.R. § 3.313). However, veterans like Haas who have asserted a
reasonable claim that they may have been exposed to herbicides deserve to have such
claims “adjudicated under uniform and consistent regulations that incorporate rational
scientific judgments.” See Nehmer, 712 F. Supp. at 1422. 1 It is the VA’s burden, not
the veterans’, to show that the VA’s line-drawing was both informed by scientific
1
The majority notes that the Veterans Court did not cite any specific record
evidence in support of Haas's position and opines that any interpretation other than the
"foot on land" test would be "unmanageably vague." Majority Opinion, slip op. at 46.
Haas received the Vietnam Service Medal for his service in the Republic of Vietnam.
As the Veterans Court pointed out and as the majority acknowledges, id., slip op. at 33-
34, the VA itself previously applied the presumption in cases in which a veteran
received the Vietnam Service Medal or the veteran 's "ship was in the vicinity of
Vietnam for some significant period of time." See Haas, 20 Vet. App. at 271-272 (citing
M21-1, part III, paragraph 4.08(k)(1)-(2)). I have no reason to doubt that the VA could
develop a manageable and consistent standard that would include veterans such as
Haas.
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evidence and consistent with the remedial purposes of the statute. Because I agree
with the Veterans Court that the VA has not met that burden, I respectfully dissent.
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