ROBERT H. GRAY, Petitioner
SECRETARY OF VETERANS AFFAIRS, Respondent BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, Petitioner
SECRETARY OF VETERANS AFFAIRS, Respondent
for review pursuant to 38 U.S.C. § 502.
Michael E. Wildhaber, Veterans Law Office of Michael E.
Wildhaber, Washington, DC, argued for petitioner in 16-1782.
Also represented by Shannon Lynne Brewer, Hill & Ponton,
P.A., Deland, FL.
B. Wells, Law Office of John B. Wells, Slidell, LA, argued
for petitioner in 16-1793.
Peter Bruskin, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Benjamin C. Mizer, Robert
E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian D. Griffin,
Martin James Sendek, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Prost, Chief Judge, Dyk, and O'Malley, Circuit Judges.
O'MALLEY, CIRCUIT JUDGE
H. Gray ("Gray") and Blue Water Navy Vietnam
Veterans Association ("Blue Water") (collectively,
"Petitioners") petition this court under 38 U.S.C.
§ 502 to review certain revisions the Department of
Veterans Affairs ("VA") made to its Adjudication
Procedures Manual M21-1 ("M21-1 Manual") in
February 2016. These revisions pertain to the VA's
interpretation of provisions of the Agent Orange Act of 1991
(the "Agent Orange Act"), Pub. L. No. 102-4, 105
Stat. 11, codified as amended at 38 U.S.C. § 1116, as
implemented via regulations at 38 C.F.R. §§
3.307(a)(6), 3.309(e). Because the VA's revisions are not
agency actions reviewable under § 502, we dismiss for
lack of jurisdiction.
Agent Orange Act
receive disability compensation based on service, a veteran
must demonstrate that his or her disability was
service-connected, meaning that it was "incurred or
aggravated . . . in line of duty in the active military,
naval, or air service." 38 U.S.C. § 101(16).
Establishing service connection generally requires three
elements: "'(1) the existence of a present
disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a causal relationship between the
present disability and the disease or injury incurred or
aggravated during service'- the so-called 'nexus'
requirement." Holton v. Shinseki, 557 F.3d
1362, 1366 (Fed. Cir. 2009) (quoting Shedden v.
Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The
claimant has the responsibility to support a claim for
service connection. 38 U.S.C. § 5107(a).
has enacted presumptive service connection laws to protect
certain veterans who faced exposure to chemical toxins during
service, but would find it difficult or impossible to satisfy
the obligation to prove a "nexus" between their
exposure to toxins and their disease or injury. Among these
laws is the Agent Orange Act, which established a framework
for the adjudication of disability compensation claims for
Vietnam War veterans with diseases medically linked to
herbicide exposure in the Republic of Vietnam during the
Vietnam War. Under the Agent Orange Act, any veteran who
"served in the Republic of Vietnam" during the
Vietnam era and who suffers from any of certain designated
diseases "shall be presumed to have been exposed during
such service" to herbicides "unless there is
affirmative evidence to establish that the veteran was not
exposed." Id. § 1116(f). The Agent Orange
Act also established several statutory presumptions and a
methodology for the VA to create additional regulatory
presumptions that certain diseases were "incurred in or
aggravated by" a veteran's service in Vietnam.
Id. § 1116(a). The VA then proceeded to
determine which diseases would qualify for presumptive
service connection and to define what service "in the
Republic of Vietnam" encompasses.
1993, the VA issued regulations establishing presumptive
service connection for certain diseases associated with
exposure to herbicides in Vietnam. The relevant regulation
conditions application of the presumption on the claimant
having "served in the Republic of Vietnam, "
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."
38 C.F.R. § 3.307(a)(6)(iii) (1993) (emphasis added);
see Diseases Associated with Service in the Republic
of Vietnam, 58 Fed. Reg. 29, 107, 29, 109 (May 19, 1993).
Absent on-land service, the VA concluded that the statute and
regulation do not authorize presumptive service connection
for those veterans serving in the open waters surrounding
Vietnam-known as "Blue Water" veterans. We
considered the VA's position in Haas v. Peake,
525 F.3d 1168 (Fed. Cir. 2008), and concluded that it was
neither an unreasonable interpretation of the congressionally
mandated presumption nor of the VA's own regulations
relating thereto. Id. at 1190-95.
dispute now before us arises from the VA's decision not
just to exclude open water service from the definition of
service in the "Republic of Vietnam, " but to also
exclude those veterans who served in bays, harbors, and ports
of Vietnam from presumptive service connection. In other
words, absent documented service on the land mass of Vietnam
or in its "inland waterways"- defined as rivers and
streams ending at the mouth of the river or stream, and
excluding any larger bodies of water into which those inland
waters flow-the VA has concluded that no presumptive service
connection is to be applied. The VA did not implement this
additional restriction by way of notice and comment
regulation as it did its open waters restriction, and it has
not published its view on this issue in the Federal Register.
Instead, the VA has incorporated this new restriction into
the M21-1 Manual, which directs VA adjudicators regarding the
proper handling of disability claims from Vietnam-era
veterans. It is this Manual revision which Gray challenges
and asks us to declare invalid.
M21-1 Manual and the 2016 Revision
explained recently, "[t]he VA consolidates its
[internal] policy and procedures into one resource known as
the M21-1 Manual." Disabled Am. Veterans v.
Sec'y of Veterans Affairs, 859 F.3d 1072, 1074 (Fed.
Cir. 2017) ("DAV"). The M21-1 Manual
"is an internal manual used to convey guidance to VA
adjudicators." VA Adjudications Manual, M21-1;
Rescission of Manual M21-1 Provisions Related To Exposure to
Herbicides Based on Receipt of the Vietnam Service Medal, 72
Fed. Reg. 66, 218, 66, 219 (Nov. 27, 2007) [hereinafter 2007
M21-1 Manual Revisions]. "The M21-1 Manual provides
guidance to Veterans Benefits Administration ('VBA')
employees and stakeholders to allow the VBA to process claims
benefits quicker and with higher accuracy."
DAV, 859 F.3d at 1074 (internal quotation marks
omitted). The M21-1 Manual is available to the public through
the KnowVA website. See
The M21-1 Manual provisions are not binding on anyone other
than the VBA employees, however; notably, the Board of
Veterans' Appeals ("Board") is not bound by any
directives in the M21-1 Manual and need not defer to any
administrator's adherence to those guidelines.
See 38 C.F.R. § 19.5.
2007, Gray filed a claim for disability compensation for a
number of medical conditions allegedly arising out of his
naval service in Da Nang Harbor. Gray v. McDonald,
27 Vet.App. 313, 316 (2015). At the time, the M21-1 Manual
defined "service in the Republic of Vietnam (RVN)"
as "service in the RVN or its inland waterways."
M21-1 Manual, part IV, ch. 1, ¶ H.28.a (2005). In a
February 2009 letter, the VA further explained that it
interpreted "inland waterways" to mean
"rivers, estuaries, canals, and delta areas inside the
country, but . . . not . . . open deep-water coastal ports
and harbors where there is no evidence of herbicide
use." Gray, 27 Vet.App. at 321-22 (alterations
in original) (quoting Letter from the Director of VA C &
P Service, February 2009, and December 2008 C & P Service
the VA denied Gray's claim under this interpretation, he
appealed to the U.S. Court of Appeals for Veterans Claims
("the Veterans Court"). Id. at 318. The
Veterans Court concluded that the VA's definition of
"inland waterway" was "both inconsistent with
the regulatory purpose and irrational, " in part because
the VA had offered no meaningful explanation for why it
classified some bays as inland waterways but not others.
Id. at 322-25. The Veterans Court remanded the
matter to the VA with instructions to reevaluate its
definition of "inland waterway" to be consistent
with § 3.307(a)(6)(iii). Id. at 326-27.
the remand, the VA surveyed the available scientific
evidence, including documents submitted in July 2015 by
counsel for Blue Water, an organization representing a number
of Blue Water veterans. In a draft document it issued on
January 15, 2016, the VA acknowledged that it had failed to
"clearly explain the basis" for its previous
classifications. J.A. 203. The VA concluded that, because
"Agent Orange was not sprayed over Vietnam's
offshore waters, " the VA did "not have medical or
scientific evidence to support a presumption of exposure for
service on the offshore open waters, " which it defined
as "the high seas and any coastal or other water
feature, such as a bay, inlet, or harbor, containing salty or
brackish water and subject to regular tidal influence."
in February 2016, the VA published a "Memorandum of
Changes" announcing a change in policy and an
accompanying revision of the M21-1 Manual. J.A. 207. The
revised M21-1 Manual defines "inland waterways" as
Inland waterways are fresh water rivers, streams,
and canals, and similar waterways. Because these waterways
are distinct from ocean waters and related coastal features,
service in these waterways is service in the [Republic of
Vietnam]. VA considers inland waterways to end at their mouth
or junction to other offshore water features, as described
below. For rivers and other waterways ending on the
coastline, the end of the inland waterway will be determined
by drawing straight lines across the opening in the landmass
leading to the open ocean or other offshore feature, such as
a bay or inlet. For the Mekong and other rivers with
prominent deltas, the end of the inland waterways will be
determined by drawing a line across each opening in the
landmass leading to the open ocean.
Note: Inland waterway service is also referred to as
brown-water Navy service.
M21-1 Manual, part IV, subpart ii, ch. 1, ¶ H.2.a (2016)
(emphasis in original). By virtue of this manual change, the
VA instructed all claims processors in its 56 regional
offices to exclude all Navy personnel who served outside the
now-defined "inland waterways" of Vietnam-i.e., in
its ports, harbors, and open waters-from presumptive service
connection for diseases or illnesses connected with exposure
to Agent Orange. Thus, the VA instructed its adjudicators to
exclude all service in ports, harbors, and bays from
presumptive service connection, rather than service in only
some of those waterways. Petitioners seek review of this
revision pursuant to 38 U.S.C. § 502.
party seeking the exercise of jurisdiction in its favor has
the burden of establishing that such jurisdiction
exists." DAV, 859 F.3d at 1075 (quoting
Rocovich v. United States, 933 F.2d 991, 993 (Fed.
Cir. 1991)). Under 38 U.S.C. § 502, we have jurisdiction
to review only those agency actions that are subject to 5
U.S.C. §§ 552(a)(1) and 553. We do not
have jurisdiction to review actions that fall under §
552(a)(2). "Section 553 refers to agency rulemaking that
must comply with notice-and-comment procedures under the
Administrative Procedure Act." DAV, 859 F.3d at
1075. The parties agree that § 553 is not at issue in
this proceeding. The parties instead focus on § 552;
their debate is whether the manual ...