Previously, I had blogged about an April 23, 2015 decision from the Court of Appeals for Veterans Claim (CAVC) in Gray v. McDonald. In Gray, the CAVC had remanded because the Department of Veterans Affairs’ (VA) interpretation of “inland waterways” for the purposes of the presumption of exposure to Agent Orange (TCDD) was found arbitrary. Link to that blog post (to include a recent District Court of Columbia decision on a similar issue) can be found at:
As the following ProPublica article discusses, the VA has reassessed the definition of “inland waterways” and published a fact sheet for Blue Water veterans. I have uploaded the VA Fact Sheet on Blue Water Navy. Essentially, the VA maintained their analysis of blue water versus brown water, though Qui Nhon Bay and Ganh Rai Bay are no longer considered inland waterways. Similarly, DaNang Harbor, Nha Trang Harbor, and Cam Ranh Bay are not considered inland waterways.
VA now defines “inland waterways” as such: “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 water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway is determined by drawing a straight line ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers.”
Whether this satisfies the CAVC’s concerns regarding arbitrary designations remains to be seen. Whether the VA simply modifies the M21-1 (the VA Adjudication Manual) or — to resolve any issues regarding the Administrative Procedure Act’s (APA) notice-and- comment requirement — proposes a regulatory amendment also remains to be seen.
The APA issue interests me greatly because of a Supreme Court decision last year in Perez v. Mortgage Bankers Assoc.,135 S. Ct. 1199 (2015). In Perez, the Supreme Court held that the Administrative Procedure Act (APA) does not require a federal agency to adhere to the APA’s notice-and-comment rulemaking when it issues a rule interpreting own of its own regulations. While the decision garnered little attention, it has the potential to have a significant impact on how federal agencies operate. To date, the CAVC/Fed. Cir. have yet to address the impact of Perez on Title 38 issues.
If you have questions regarding the presumption of exposure to Agent Orange, please don’t hesitate to contact me at sdirector@FRE-L.com or via telephone at (732) 382-6070.