On April 23, 2015, the Court of Appeals for Veterans Claim (CAVC) remanded, in pertinent part, the Board of Veterans’ Appeals decision denying service connection for conditions related to TCDD (Agent Orange) exposure for Mr. Gray a Vietnam-era veteran. I don’t want to give away the end of the movie, but the question of whether Mr. Gray is a veteran with service in Vietnam under Title 38 is still in dispute.
The operative issue was whether the DVA Secretary’s interpretation of “inland waters of Vietnam” under 38 C.F.R. § 3.307(a)(6)(iii), which excludes harbors such as Na Dang Harbor, was arbitrary and capricious. The CAVC held the VA’s definition of the scope of “inland waterways” was not entitled to deference and remanded as identified below. The decision can be read at Gray v. McDonald (No. 13-3339).
Foremost, the CAVC distinguished the facts of a prior decision, Hass v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 102 (Jan. 21, 2009) (where Mr. Haas’ service was offshore), from Mr. Gray’s service, which included service aboard the U.S.S. Roark in Da Nang Harbor and in the vicinity of the “Cua Viet River mouth.” Frankly, the factual distinction between Haas and Gray was something I did not consider.
Second, the CAVC provided no deference to the DVA’s characterization of “inland waterways” to excluded certain bodies of water (to include Da Nang Harbor). The DVA had previously defined the scope of inland waterways in inter alia VA TL 10-06. The CAVC recognized the difficulties faced by the DVA in assessing likelihood of exposure in particular bodies of water; “however, [the] VA is not free to label bodies of water by flipping a coin, yet the outcomes here appear just as arbitrary.”
Finally, the CAVC did not adopt the appellant’s definition of inland waterways. The CAVC held “[the] VA retains its discretionary authority to define the scope of the [Agent Orange] presumption”; however “remand[ed] the matter for VA to reevaluate its definition of inland waterways — particularly as it applies to Da Nang Harbor — and exercise its fair and considered judgement to define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure.”
As an aside, the Federal District Court of Columbia (D.D.C.) recently dismissed the Blue Water Association’s facial challenge under the APA to the VA’s policies regarding “blue water” veterans on jurisdictional grounds. The memorandum opinion provides a good concise history of issue as further identified by the CAVC in Gray v. McDonald. This separate decision can be accessed at http://dockets.justia.com/docket/district-of-columbia/dcdce/1:2013cv01187/161343.
If you have questions regarding “Blue” versus “Brown” water status, please do not hesitate to contact Fink Rosner Ershow-Levenberg at (732) 382-6070.