Robert H. Gray v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 13-3339

ROBERT H. GRAY, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued February 25, 2015 Decided April 23, 2015)

Michael E. Wildhaber, of Washington, D.C., with whom Matthew D. Hill, of Daytona

Beach, Florida, was on the brief for the appellant.

Sarah Fusina, with whom Tammy L. Kennedy, Acting General Counsel; Mary Ann Flynn,

Assistant General Counsel; and Penny C. Kahn, Senior Appellate Attorney, all of Washington, D.C.,

were on the brief for the appellee.

John B. Wells, of Slidell, Louisiana, was on the brief for Blue Water Navy Vietnam Veterans

Association and for Military-Veterans Advocacy, Inc., as amici curiae.

Before HAGEL, DAVIS, and SCHOELEN, Judges.

SCHOELEN, Judge: The appellant, Robert H. Gray, appeals through counsel a November

6, 2013, Board of Veterans' Appeals (Board or BVA) decision that denied disability compensation

for (1) diabetes mellitus (diabetes), (2) neuropathy of the left and right lower extremities, (3)

ischemic heart disease, and (4) hypertension – all to include as due to herbicide exposure – and (5)

erectile dysfunction, to include as due to herbicide exposure, secondary to diabetes, or both. Record

of Proceedings (R.) at 3-11. This appeal is timely, and the Court has jurisdiction to review the

Board's November 2013 decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was

referred to a panel of the Court, with oral argument, to address Mr. Gray's argument that VA's

interpretation of 38 C.F.R. § 3.307(a)(6)(iii) designating Da Nang Harbor as an offshore, rather than

inland, waterway is arbitrary and capricious. For the reasons discussed below, the Court holds that

VA's interpretation is inconsistent with the purpose of the regulation and does not reflect the

Agency's fair and considered judgment. Upon review of the parties' arguments, the Court will affirm

in part and vacate in part the Board's November 6, 2013, decision.1 The vacated matters will be

remanded for proceedings consistent with this decision.

I. BACKGROUND

Mr. Gray served on active duty in the U.S. Navy from September 1971 to February 1975.

R. at 547. He served aboard the U.S.S. Roark from March 1972 through September 1974. Id. The

deck logs reflect that the U.S.S. Roark anchored in Da Nang Harbor multiple times in 1972. R. at

611-17. The deck logs also reflect that the ship operated "off the Cua Viet River mouth" and

engaged the enemy in the vicinity of the Cua Viet River. R. at 617.

In June 2007, Mr. Gray applied for disability compensation for several conditions including

"diabetes – type 2," bilateral neuropathy of the lower limbs, and "heart attack/heart damage."

R. at 942. VA outpatient records reflect diagnoses for all three conditions. R. at 678, 763.

Recognizing that Mr. Gray's diabetes claim may be affected by the then-pending action in Haas v.

Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 102 (Jan. 21, 2009), the regional

office (RO) deferred that claim until Haas was resolved.2 R. at 780-82. A May 2008 rating decision

1

The November 2013 Board decision denied five claims. Mr. Gray does not distinguish

between his claims, thus they are all on appeal. The Court notes that the Board denied the

hypertension claim because it found that even if Mr. Gray were entitled to the presumption of

herbicide exposure, this claim would fail because hypertension is not on the list of diseases

qualifying for presumptive service connection based on exposure. R. at 20. Mr. Gray does not

challenge this determination. Accordingly, the Court will affirm that portion of the Board's decision

denying the hypertension claim. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (declining to

remand when there is no benefit flowing to the veteran).

2

After this Court's decision in Haas v. Nicholson, 20 Vet.App. 257 (2006), VA requested,

and the Court granted, leave to stay cases related to Haas pending the appeal to the U.S. Court of

Appeals for the Federal Circuit. Ribaudo v. Nicholson, 21 Vet.App. 137 (2007) (en banc order).

Compare Ribaudo v. Nicholson, 20 Vet.App. 552, 561 (2007) (en banc) (holding that the Secretary

may stay cases pending an appeal of a Court opinion to the Federal Circuit with leave of this Court),

with Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (holding that VA is bound by decisions of this

2

denied Mr. Gray's neuropathy and heart disability claims. R. at 618-27. That same month, the U.S.

Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Haas.3

In August 2008, Mr. Gray submitted an additional claim for "sexual dysfunction due to Type

2 diabetes." R. at 609. In October 2008, the appellant submitted a Notice of Disagreement as to the

May 2008 rating decision. R. at 596-97. A February 2009 rating decision denied service connection

for diabetes and for erectile dysfunction (ED). R. at 410-17. The RO noted that presumptive service

connection for diabetes based on herbicide exposure was not warranted because the evidence did not

show that Mr. Gray served "on the ground" in Vietnam. R. at 416.

Mr. Gray perfected his appeal of the neuropathy and heart disease claims in July 2009 and

the diabetes and ED claims in September 2009. R. at 336-37, 377-78. In January 2010, Mr. Gray

sought to reopen a claim for ischemic heart disease and submitted supporting documents including

Internet articles discussing VA's effort to compile a list of "Blue Water Navy ships," an excerpt from

"Veterans and Agent Orange: Update 2008," and a copy of a November 2009 Board decision from

another veteran's appeal. R. at 302, 308-10, 312-20. The November 2009 Board decision stated that

in the instant case, the [v]eteran's service was conducted on a ship that frequently

anchored in a harbor within the territorial borders of Vietnam. The evidence of

record clearly shows that Da Nang Harbor is well sheltered and surrounded on three

sides by the shoreline of Vietnam. The harbor is nearly totally surrounded by land

and . . . the entire harbor is located within the territorial boundaries of Vietnam. As

such, given the location of the harbor as being surrounded by the land on three sides,

and the evidence that the harbor is within the territory of Vietnam, and resolving all

doubt in the [v]eteran's favor, the Board finds that Da Nang Harbor is an inland

waterway for purposes of the regulation.

R. at 320. The Board granted presumptive service connection for the veteran in that case stating that

there was "credible evidence that the [v]eteran set foot on land in Vietnam during the Vietnam Era,

and he now has diabetes mellitus." Id. (emphasis added).

Court, unless or until that decision is overturned by this Court en banc, the U.S. Court of Appeals

for the Federal Circuit, or the U.S. Supreme Court).

3

The Federal Circuit affirmed VA's interpretation of § 3.307 requiring "the servicemember's

presence at some point on the landmass or the inland waters of Vietnam." Haas v. Peake, 525 F.3d.

at 1193.

3

In a June 2010 diabetes compensation and pension (C&P) examination, the examiner noted

Mr. Gray's service on the U.S.S. Roark and his statement "that he was never on land." R. at 264. The

examiner found that Mr. Gray's ED and peripheral neuropathy were "as likely as not" secondary to

his diabetes. R. at 267. An August 2010 Supplemental Statement of the Case (SSOC) denied the

claims for diabetes, ED, peripheral neuropathy, and heart attack and heart damage. R. at 257-63.

Regarding Mr. Gray's ischemic heart disease claim, in April 2011, the RO issued a formal

finding of a lack of information for corroborating exposure to Agent Orange, noting that a March

2011 response from the Joint Services Records Research Center did not reflect that the ship transited

inland waters or docked or that personnel set foot in Vietnam. R. at 202-03. In May 2011, the RO

denied disability compensation for the heart attack and heart damage claim, also claimed as ischemic

heart disease, for purposes of entitlement to retroactive benefits as a result of exposure to herbicides.

R. at 193-201.

In January 2012, Mr. Gray, through counsel, submitted additional argument asserting that

although the Federal Circuit upheld VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) requiring

actual presence on the landmass or inland waters of Vietnam, "[t]he issue is whether service aboard

[the U.S.S. Roark] while it is anchored in [Da Nang Harbor] in Vietnam constitutes service in the

inland waters of Vietnam." R. at 153. A July 2012 SSOC denied all Mr. Gray's pending claims.

R. at 124-29.

In the November 2013 decision on appeal, the Board rejected Mr. Gray's argument that Da

Nang Harbor is an inland waterway of Vietnam because it contradicted "VA's official position on

this matter." Id. For support, the Board cited a December 2008 VA Compensation & Pension Service

Bulletin (December 2008 C&P Bulletin) that "specifically stated that Da Nang Harbor and all other

harbors along the Vietnam coastline" were considered blue water and not brown water.4 R. at 17. The

Board also relied on a September 2010 Veterans Benefit Administration Training Letter (Training

Letter 10-06) for the same point. Id. The Board then stated that "[t]he rationale for concluding Da

4

VA distinguishes the "brown water" Navy-smaller vessels that "operated on the muddy,

brown-colored inland waterways of Vietnam" from the "blue water" Navy-larger "gun line ships and

aircraft carriers . . . operat[ing] on the blue-colored waters of the open ocean." Veterans Benefits

Administration Compensation and Pension Training Letter 10-06, at 3 (Sept. 9, 2010).

4

Nang Harbor was an open waterway, as opposed to inland waters of Vietnam, is discussed in the

December 2008 C&P Bulletin, Training Letter 10-06, and [VA Adjudication Procedures Manual

Rewrite (M21-1MR)] provisions. For the sake of brevity, this rationale will not be reiterated in this

decision." Id.

The Board also rejected Mr. Gray's argument that denying him the presumption of herbicide

exposure when the November 2009 Board decision had granted it to a different veteran violated the

Equal Protection Clause. R. at 18-19. The Board emphasized that under 38 C.F.R. § 20.1303, the

November 2009 Board decision did not have precedential value in Mr. Gray's case. R. at 18. The

Board noted that it did not have the specific facts of the other case before it, and even if the facts

were before it, the Board could not ignore VA's stated policy that excludes Da Nang Harbor from

inland waters of Vietnam. Id. Finding that the evidence did not indicate that Mr. Gray had in-

country service or documented visitation in the Republic of Vietnam, the Board concluded that he

was not entitled to a grant of service connection on a presumptive basis. R. at 20. This appeal

followed.

II. THE PARTIES' ARGUMENTS

Mr. Gray argues that the Board made three errors. First, he asserts, the Board's finding that

anchoring in Da Nang Harbor does not constitute service on the inland waters of the Republic of

Vietnam is arbitrary and capricious. Appellant's Brief (Br.) at 12-13. Mr. Gray asserts that there is

no legal authority or rationale supporting VA's bare policy statement that Da Nang Harbor is "blue

water." Id. at 13-14. Mr. Gray notes that the only justification for classifying Da Nang Harbor as

blue water is an opinion that "'Da Nang Harbor is easy to enter due to being open to the sea.'" Id.;

Appendix at 47.

Mr. Gray urges the Court to adopt an alternative definition for "inland waters" espoused in

the United Nations Convention on the Territorial Sea and the Contiguous Zone (Convention), Apr.

29, 1958, 15 U.S.T. 1606, T.I.A.S. No. 5639 (entered into force for the United States June 10, 1964)

and applied by the U.S. Supreme Court in United States v. Louisiana, 394 U.S. 11, 22-23 (1968)

(applying the treaty definition to a Submerged Lands Act issue). He asserts that under this

5

alternative definition, Da Nang Harbor would be classified as an inland waterway, and he would be

entitled to the presumption of herbicide exposure. Appellant's Br. at 16.

Alternatively, Mr. Gray argues that the Board committed a second error by violating the

Equal Protection Clause of the Fifth Amendment of the U.S. Constitution because a November 2009

Board decision had applied the presumption to a similarly situated veteran. Id. at 18-19. He asserts

that the Board improperly rejected his argument "out of hand" and ignored the Board's policy to

"'strive for consistency.'" Id. at 19. Finally, Mr. Gray contends that, should the Court uphold VA's

classification of Da Nang Harbor as blue water, remand is still appropriate because the Board

provided inadequate reasons or bases for its decision. Id. at 23-24.

The Secretary argues that the Court should affirm the Board decision because Mr. Gray's

arguments for reversal were considered and rejected by the Federal Circuit in Haas v. Peake.

Secretary's Br. at 10. The Secretary asserts that in Haas, the Federal Circuit deferred to VA's

interpretation of "service in the Republic of Vietnam" as including service on inland waterways and

excluding service only in the blue water Navy from presumptive herbicide exposure. Id. at 11. The

Secretary further maintains that the VA's Adjudication Procedures Manual Rewrite (M21-1MR)

clearly states that anchoring in Da Nang Harbor does not constitute inland waterway service. Id. at

12. He argues that it is "manifestly clear that VA does not view offshore service in Da Nang Harbor"

as brown water service and its interpretation is entitled to substantial deference. Id. at 14-20. The

Secretary contends that Mr. Gray's reliance on United States v. Louisiana is misplaced because in

Louisiana, the Supreme Court was interpreting only the Submerged Lands Act and chose to apply

the Convention definition in that specific context, and therefore, the language of the Convention as

applied in Louisiana is not binding on VA or this Court. Id. at 13.

As to Mr. Gray's remaining arguments, the Secretary argues that his Equal Protection

argument must fail. First, under the rational basis test, he asserts that the Federal Circuit in Haas

has already found that VA has a rational basis for its interpretation of 38 C.F.R. § 3.307(a)(6)(iii).

Secretary's Br. at 21. Second, the Secretary maintains that Mr. Gray ignores that this Court has

previously declined to consider other veterans' Board decisions. Id. at 23. The Secretary asserts that

the November 2009 Board decision may not serve as a basis for an Equal Protection challenge and

that Mr. Gray has not demonstrated that VA lacks a rational basis for its interpretation of inland

6

waterways as excluding Da Nang Harbor. Id. at 25-26. Finally, the Secretary argues that the Board

provided adequate reasons and bases for its decision. Id. at 26-27.

In the interest of narrowing the issues, the Court takes note of the following concessions

made at oral argument. First, Mr. Gray concedes that the U.S.S. Roark's mooring to the U.S.S.

Samuel Gompers while it was docked to a pier in Da Nang Harbor is irrelevant: he bases his

argument solely on his ship's presence within the harbor itself. Oral Argument (Arg.) at 02:45 (Feb.

25, 2015). Second, Mr. Gray concedes that he never physically set foot on land in the Republic of

Vietnam. Id. Finally, with the exception of hypertension, Mr. Gray's claimed disabilities are on the

list of diseases entitled to presumptive service connection as a result of herbicide exposure.

Therefore, as both parties agreed at oral argument, if the Court were to find that Da Nang Harbor is

an inland waterway, Mr. Gray would prevail on his claims for disability compensation. Oral

Arg. at 49:25.

III. ANALYSIS

A. Overarching Legal Framework: Haas v. Peake

Under 38 C.F.R. § 1116(a) a veteran who "served in the Republic of Vietnam" between

January 6, 1962, and May 7, 1975, is presumed service connected for certain conditions likely caused

by exposure to Agent Orange, including type II diabetes mellitus, even if he cannot prove he was

ever actually exposed to qualifying herbicide. 38 U.S.C. § 1116(a). "'Service in the Republic of

Vietnam' includes service in the waters offshore and service in other locations if the conditions of

service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii) (2014).

In reviewing "an agency's construction of the statute which it administers," a court must apply

the doctrine set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and

determine whether the statute speaks to the precise issue or is ambiguous. 467 U.S. 837, 842 (1984).

If the statute is silent or ambiguous with respect to the specific issue, the question becomes whether

the agency's interpretation is based on a permissible construction of the statute. Id. at 843. The

agency's interpretation will not be set aside unless it is "arbitrary, capricious, an abuse of discretion

or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A); Breniser v. Shinseki,

25 Vet.App. 64, 72 (2011).

7

Here the Court is not working with a blank canvas: the Federal Circuit engaged in a thorough

and extensive application of the Chevron doctrine in Haas v. Peake, supra. Reviewing the language

and legislative history of 38 U.S.C. § 1116(a), the Federal Circuit found that the statutory phrase

"served in the Republic of Vietnam" was ambiguous as applied to veterans who served offshore in

ocean-going vessels. R. at 1183-84. The Federal Circuit then determined that the implementing

regulation, 38 C.F.R. § 3.307(a)(6)(iii), reasonably interpreted the statute to "require some presence

in Vietnam, even if the veteran's service largely occurred elsewhere."5 Id. at 1186. However, the

Federal Circuit also concluded that the phrases "duty or visitation in the Republic of Vietnam" and

"waters offshore" were "sufficiently ambiguous" to require a review of VA's interpretation of its own

regulation. Id.

In Haas v. Peake, VA argued that it reasonably interpreted its regulation to limit the

presumption of exposure to veterans who served on or visited the Vietnamese landmass or its inland

waterways and excluded veterans – such as Mr. Haas – who served exclusively offshore in ocean-

going ships.6 Id. at 1182-83. In Haas, VA noted that it drew this line because "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." Id. at 1192. The Federal Circuit found this

explanation reasonable and concluded that absent evidence that VA's line was irrational, it would

not impose a different line. Id. at 1192-93.

Essentially, Haas v. Peake laid the foundation for the blue-versus-brown-water distinction.

The Federal Circuit recognized that "[t]he entire predicate for the Agent Orange Act and its

regulations was exposure to herbicides in general and Agent Orange in particular." Id. at 1185.

Thus, VA's interpretation of § 3.307(a)(6)(iii) – "as excluding service members who never set foot

5

Although Mr. Gray asserted that 38 C.F.R. § 3.307(a)(6)(iii) merely parrotted the statute and

was therefore not entitled to deference, in Haas v. Peake, the Federal Circuit observed that the VA's

regulation "elaborate[d] 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."' 525 F.3d at 1187. The Federal Circuit clearly stated that

this language "qualifies as interpretation rather than reiteration." Id.

6

Mr. Haas never entered a harbor or port because his ship carried explosive materials. Haas

v. Peake, 525 F. 3d at 1173. Thus, he served exclusively on the open ocean. Id.

8

within the land borders of Vietnam" because there was a low probability that offshore veterans, such

as Mr. Haas, were exposed to herbicides – was not unreasonable, "'plainly erroneous, or inconsistent

with the regulation.'" Id. at 1193 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945)). The Court will not reexamine the validity of VA's interpretation limiting the presumption

to brown water or inland waterways – Haas affirmed that it was reasonable for VA to distinguish

between offshore and inland waterways.

Yet, contrary to the Secretary's brief, Haas v. Peake – which dealt with a veteran who only

served miles off shore – did not decide the specific question before the Court. As noted above, Haas

v. Peake made it clear that VA may draw a line between blue and brown water while leaving the

specific line drawing to VA discretion. As the parties agreed at oral argument, this case asks the

Court to examine how VA exercised that discretion and, more specifically, whether VA's definition

of inland waterways – which does not include Da Nang Harbor – is entitled to deference: a question

not addressed by Haas v. Peake.

B. Whether VA's interpretation is entitled to deference

An agency's interpretation of its own regulations is entitled to substantial deference by the

Court. See United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001); Auer v. Robbins,

519 U.S. 452, 461-62 (1997). This high degree of deference applies even when that interpretation

is first advanced during litigation. Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009)

(citing Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)).

Where, as here, the plain language is ambiguous, the Court must consider the reasonableness of the

Secretary's regulatory interpretation. Mason v. Shinseki, 26 Vet.App. 1, 6 (2012). "[C]ourts should

defer to an agency's interpretation of its own ambiguous regulation so long as that interpretation is

not inconsistent with the language of the regulation or otherwise plainly erroneous and represents

the agency's considered view on the matter." Mulder v. Gibson, 27 Vet.App. 10, 16 (2014) (citing

Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006) (citing Auer v. Robbins, 519 U.S. 452,

461-62 (1997))). In determining whether VA's interpretation of its regulation is "reasonable," the

Court will consider, among other things, the "timing and consistency of the agency's interpretation,"

Batterton v. Francis, 432 U.S. 416, 425-26 n.9 (1977); the "thoroughness evident in its

consideration, [and] the validity of its reasoning," Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

9

("[R]ulings, interpretations, and opinions . . . while not controlling upon the courts by reason of their

authority, do constitute a body of experience and informed judgment . . . properly resort[ed] [to] for

guidance. The weight of such a judgment . . . will depend upon the thoroughness evident in its

consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and

all those factors which give it power to persuade.").

1.The Secretary's Policy

In the wake of Haas v. Peake, VA exercised its discretion to specifically delineate the scope

of qualifying service "within the land borders of Vietnam." VA applies the presumption of herbicide

exposure to service members that (1) set foot (however briefly) on land in Vietnam; (2) served on

inland waterways; and (3) served on a ship with decklogs that reference "anchoring or entering the

'mouth' of" the Cua Viet River, Saigon River, Mekong River Delta, Ganh Rai Bay, and the Rung Sat

Special Zone. M21-1MR, pt. IV, subpt. ii., ch. 1, sect. H; Training Letter 10-06. VA defines inland

waterways as "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." Letter from the

Director of VA C&P Service, February 2009; December 2008 C&P Service Bulletin; Training Letter

10-06 (explaining that open deep-water harbors are "are not similar to the rivers, canals, and

estuaries that make up the inland waterway system"). VA's policy expressly excludes open deep-

water harbors including Cam Ranh Bay, Vung Tau Harbor, and Da Nang Harbor. Id.; see also

December 2008 C&P Service Bulletin. Mr. Gray argues that VA's policy is flawed and maintains

that his service aboard the U.S.S. Roark constitutes service on an inland waterway. Appellant's Br.

at 13-14.

As Haas v. Peake observed, the presumption did not apply to Mr. Haas's service miles

offshore because spray flight paths did not cross the open ocean. 525 F.3d at 1192 (quoting 73 Fed.

Reg. 20,566, 20,568 (Apr. 16, 2008)). Haas concluded that VA's distinction between inland and

offshore waters based on spraying was reasonably related to the primary predicate of both 38 U.S.C.

§ 1116(a) and 38 C.F.R. § 3.307(a)(6)(iii): exposure. Id. at 1192-93. The Secretary asserts that

defining inland waterways to exclude Da Nang Harbor is likewise premised on the probability of

exposure based on where Agent Orange was actually sprayed. Oral Arg. at 46:00. However, as will

be discussed below, although the Court recognizes VA's authority to distinguish between inland and

10

offshore waterways, the Court finds that, with respect to Da Nang Harbor, the manner in which VA

defines inland waterways is both inconsistent with the regulatory purpose and irrational. Therefore,

the Court cannot find VA's definition reasonable or worthy of deference.

2. VA's interpretation is inconsistent with the regulation.

As the Board clearly stated in the decision on appeal, VA's policy designates Da Nang Harbor

as blue water and, therefore, anchoring in the harbor is insufficient to establish entitlement to the

presumption. R. at 16-17. The Secretary contends that, as in Haas v. Peake, VA's interpretation is

entitled to deference because it reasonably interprets the regulation and has been consistently

expressed in VA documents since at least 2008. However, unlike Haas, the rationale underlying the

designation of Da Nang Harbor here is inconsistent with the identified purpose of the statute and

regulation: providing compensation to veterans based on the likelihood of exposure to herbicides.

Haas, 525 F.3d at 1183, 1185.

Although the Secretary asserts that the exclusion of Da Nang Harbor from inland waterway

designation was explained in statements in the Federal Register, these documents do not reveal any

insights specifically pertaining to the likelihood of exposure in Da Nang Harbor. Oral Arg. at 58:00.

They all reiterate VA's basic premise that herbicides were sprayed on land and not in the open waters

"off the shore of Vietnam." Monetary Allowance Under 38 U.S.C. § 1805 for a Child Suffering

From Spina Bifida Who is a Child of a Vietnam Veteran, 62 Fed. Reg. 51,274 (Sept. 30, 1997); see

also Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported,

77 Fed. Reg. 76,170 (Dec. 26, 2012); Notice of Proposed Rulemaking on Definition of Service in

the Republic of Vietnam, 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008). But they shed no light on

11

the murky area where inland waterways open to the ocean and the brown water mixes with the blue.7

Id. Da Nang Harbor is one such area.

The Secretary seeks to support the definition of inland waterways through three primary

sources: (1) The M21-1MR; (2) December 2008 C&P Service Bulletin; and (3) Training Letter 10-

06. These documents all clearly state that VA does not consider Da Nang Harbor an inland

waterway. Yet, contrary to the Secretary's assertions, they do not explain how VA's designation of

Da Nang Harbor relates to the probability of exposure based on herbicide use. In explaining that VA

considers open water ports such as Da Nang to be extensions of ocean waters rather than inland

waterways, Training Letter 10-06 observes that "[the distinction] is illustrated by a quote from the

1967 ship's history of the U.S.S. Cleveland (LPD-7), which states: 'Da Nang Harbor is easy to enter

due to being open to the sea.'" Training Letter 10-06, at 5. There is no discussion in the manual,

letter, or bulletin of the likelihood of herbicide exposure based on spraying. Rather, it appears that

VA designated Da Nang Harbor as blue water because it is an open deep-water harbor that is easy

to sail into. At oral argument, the Secretary was asked to clarify this reasoning by comparing VA's

determination that Quy Nhon Bay was an inland waterway but Da Nang Harbor was considered

7

At oral argument, the Secretary referred to an Institute of Medicine (IOM) study that

"confirmed" that there was no likelihood of exposure to herbicides in Da Nang Harbor. Oral Arg.

at 41:40, 69:00. The Court notes that this study was not in the record before the Board but will take

judicial notice of the document to the extent the Secretary relies on it to support his definition of

inland waterways as excluding Da Nang Harbor. See Smith v. Derwinski, 1 Vet.App. 235, 238

(1991); see also Tagupa v. Shinseki, 27 Vet.App. 95, 100 (2014). The Secretary has clearly

expressed that the definition of inland waterways is based on the likelihood of exposure evidenced

by spraying. Id. at 38:00, 41:25, 44:00. In assessing the likelihood of exposure to herbicides, the

Committee on Blue Water Navy Vietnam Veterans and Agent Orange Exposure found that "the

opportunity for Blue Water Navy personnel to have experienced inhalation exposure cannot be

entirely discounted but would have been limited to instances when vessels were operating close to

(within a few kilometers of) shore in locations where and at times when spraying occurred." INST.

OF MED. OF THE NAT'L ACADS., BLUE WATER NAVY VIETNAM VETERANS AND AGENT ORANGE

EXPOSURE 37 (2011). The committee acknowledged that instances of this kind of exposure might

be rare, but may not be discounted "without further, labor-intensive efforts to coordinate Ranch Hand

mission flight paths with Blue Water Navy ship locations." Id. at 95. To the extent the Secretary

relied on this report at oral argument, the general and inconclusive nature of the report falls short of

the Secretary's assertion that the report specifically "confirmed" that there was no likelihood of

exposure to herbicides in Da Nang Harbor.

12

offshore waters.8 Oral Arg. at 44:58. The Secretary emphasized that open deep-water harbors were

not inland waterways and proffered that VA may have determined that Quy Nhon was shallower or

more narrow than Da Nang Harbor. Id. The Secretary did not offer any evidence that depth or ease

of entry was significant to the likelihood of spraying or that the distinction between the two bodies

of water was made based on an assessment of herbicide use in and around them. Thus, the Court

is left to conclude that VA did indeed designate Da Nang as blue water based on ease of entry despite

a lack of discernable relationship between ease of entry or depth and the probability of exposure

based on herbicide use. Absent a connection to the probability of exposure based on spraying, the

Court finds the rationale supporting VA's designation of Da Nang Harbor is inconsistent with the

regulation's purpose of compensation based on the probability of exposure. See Martin v.

Occupational Safety and Health Review Commission, 499 U.S. 144, 150-51 (1991) ( holding that

an agency interpretation is reasonable "so long as the interpretation 'sensibly conforms to the purpose

and the wording of the regulations'" (quoting Ehlert v. United States, 402 U.S. 99, 105 (1991))).

3. VA's interpretation is irrational.

The Court is mindful of the challenges VA faces in defining the scope of the presumption

with regard to waterways that open to the ocean. However, although the presumption is purportedly

applied where there is evidence of spraying, the documents the Secretary relies upon are devoid of

any indication that VA made a fact-based assessment of the probability of exposure in Da Nang

Harbor from aerial spraying. Instead Training Letter 10-06, the M21-1MR, and the December C&P

Bulletin reflect that VA based its designation of Da Nang Harbor on geographical characteristics –

depth and ease of entry – and not on spraying. After a review of VA's line-drawing related to

waterways that open to the ocean, the Court is unpersuaded that VA's definition of inland waterways

reflects the Agency's fair and considered judgment.

8

A "bay" is defined as "an inlet of the sea or other body of water usually smaller than a gulf"

or "a small body of water set off from the main body." MERRIAM-WEBSTER'S COLLEGIATE

DICTIONARY 98 (10th ed.) (1993). A "harbor" is defined as "a part of a body of water protected and

deep enough to furnish anchorage; especially one with port facilities." Id. at 529. The Court finds

no meaningful difference between the geographic terms bay and harbor that would distinguish VA's

designation of Quy Nhon and Ganh Rai Bays as brown water and Da Nang Harbor as blue.

13

First, the Secretary asserts that each designation was based on where Agent Orange was

sprayed but fails to identify any specific indicia, criteria, or evidence that VA relies on to classify

bodies of water. The December 2008 C&P Bulletin declares that "Da Nang harbor and all other

harbors along the Vietnam Coastline" are blue water, but in contradiction to the policy advanced by

the Secretary, VA designates both Quy Nhon Bay and Ganh Rai Bay as inland waterways. The only

"parameters" the Secretary offered were that open deep-water harbors are not inland because they

are offshore. Oral Arg. at 44:45. Thus, Quy Nhon was an inland waterway because it was "perhaps

more narrow or more shallow" than Da Nang. The Court notes that the Secretary stated that

"perhaps" Quy Nhon Bay was brown water because it was more narrow or more shallow than Da

Nang Harbor without identifying any specific evidence or document for support, further suggesting

that VA's policy is like a ship without an anchor: aimless and adrift from the regulation. Oral Arg.

at 45:00. The Secretary did not provide any evidence or documentation related to spraying or other

avenues of herbicide contamination that distinguished Quy Nhon or Ganh Rai from Da Nang.

Reviewing maps of each of these bodies of water,9 the Court cannot discern any rhyme or reason in

VA's determination that Quy Nhon Bay and Ganh Rai Bay are brown water but Vung Tau Harbor

– which appears to be inside Ganh Rai Bay – Da Nang Harbor, and Cam Ranh Bay are blue water.10

Second, VA's rigid line-drawing in Da Nang Harbor contrasts markedly with the approach

VA takes to mouths of rivers. Training Letter 10-06 notes that "it is not practical to draw a line

between the mouth of a river and the South China Sea." VA Training Letter 10-06, at 8. Thus, a

9

Pursuant to a Court order prior to oral argument, the parties jointly submitted maps of

waterways relevant to this appeal and stipulated that the maps have copyright references to the

National Oceanic and Atmospheric Administration and the U.S. Navy and thus, the Court may take

judicial notice of them. Joint Response at 1; Oral Arg. at 10:57; see Smith, 1 Vet.App. at 238

("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R. EVID.

201(b))).

10

Even if the Court were to accept ease of entry as a valid rationale, it does not appear that

VA has consistently followed this rationale. For example, Ganh Rai Bay has a much larger entrance

than Da Nang Harbor and Cam Ranh Bay, yet Ganh Rai Bay is considered brown water while Da

Nang and Cam Ranh are blue water. The entrances to a number of rivers seem likewise wide enough

to allow for easy entry, particularly in the Mekong Delta. Thus, even if VA's entry rationale held

water, it does not appear to be applied consistently.

14

veteran may qualify for brown water service if the ship's deck logs reference anchoring or entering

the "'mouth'" of the "'Cua Viet River,' 'Saigon River,' 'Mekong River Delta,' and 'Ganh Rai Bay' or

'Rung Sat Special Zone.'" VA Training Letter 10-06, at 7-8 (explaining that applying the benefit of

the doubt doctrine, "evidence of the vessel's presence in a river's mouth is sufficient to establish the

presumption of exposure for [v]eterans aboard that ship"). The Secretary concedes that VA does not

have a specific definition for "mouth" of a river; instead, counsel for the Secretary stated that VA

"would rely on the deck records to indicate . . . anchorage or entrance into the mouth of the river in

order to establish presence in the mouth of the river." Oral Arg. at 51:53. Depending on the deck

log's use of the word "mouth," the "borders" of Vietnam may extend well beyond the physical land

mass around a river mouth.11 VA's varying and inconsistent application of the presumption reflects

a struggle to classify the gray area where brown inland waterways meet blue offshore waters.

Unlike in Haas v. Peake, the seemingly arbitrary and inconsistent results here are not a

tolerable by-product of line-drawing. Haas deferred to VA's line-drawing as a proxy for exposure

and acknowledged that line-drawing necessarily led to over- and under-inclusiveness, which alone

did not render the line unreasonable. However, here, the arbitrary outcomes are not the result of a

clear consistent rule anchored to the regulation. The inconsistent application of the presumption to

waterways that open to the ocean flows from VA's improper reliance on factors unrelated to the

regulation – like ease of entry – to draw the line. The Court appreciates that VA faces a difficult

task. However, VA is not free to label bodies of water by flipping a coin, yet the outcomes here

appear just as arbitrary.

11

Here, the record contains deck logs from the U.S.S. Roark dated April 1972, during Mr.

Gray's period of service, and one entry contains the following notation: "operating off of the Cua

Viet River Mouth. . . . The ship is at general quarters, material condition zebra and condition of the

readiness I are set through out [sic] the ship. The ship is darkened." R. at 617. Moreover, Mr. Gray's

service records also note that the U.S.S. Roark was "firing a night harassment mission in the vicinity

of the Cua Viet River." R. at 781. In light of the Secretary's stated policy to rely on deck records to

determine a ship's location and the Secretary's concession at oral argument that a river mouth does

not have definite boundaries, the Court questions why the Board did not address this reasonably

raised issue which may have qualified Mr. Gray for the presumption. See Training Letter 10-06

(noting that with regard to the presumption, the benefit of the doubt should be applied where deck

logs reflect that a ship anchored in or entered the mouth of the Cua Viet River).

15

Recognizing "[t]hat [a] generous degree of deference is due to an agency interpretation of its

own regulations even when that interpretation is offered in the very litigation in which the argument

in favor of deference is made," Cathedral Candle Co., 400 F.3d at 1364 (citing Auer, 519 U.S. at

461-62), and in light of Haas v. Peake, the Court here considered the Agency's interpretation

carefully. However, unlike in Auer and Cathedral Candle Co., here VA's interpretation of its

regulation is both inconsistent with the regulatory purpose and irrational; thus, the Court has "'reason

to suspect that the interpretation does not reflect the agency's fair and considered judgment on the

matter in question.'" Cathedral Candle Co., 400 F.3d at 1364 (quoting Auer, 519 U.S. at 462).

Therefore, VA's interpretation is "unworthy of deference." Auer, 519 U.S. at 462.

C. Remedy

Mr. Gray argues that the Court should adopt the definition of inland waterways espoused in

the U.N. Convention on the Territorial and Contiguous Zone. Appellant's Br. at 18. He asserts that

under the Convention, Da Nang Harbor is an inland waterway within the borders of the Republic of

Vietnam, and therefore, reversal would be the appropriate remedy. Id. He argues that the Court and

VA are bound by the Convention definition because the U.S. Supreme Court adopted that definition

in Louisiana, supra, and thus, the definition applies to all uses of the term "inland waterways" in

U.S. law. Appellant's Br. at 15-16; Oral Arg. at 05:20. The Court disagrees.

Contrary to Mr. Gray's argument, the Supreme Court adopted the Convention definition for

a specific purpose – not as the definition for "inland waterways" in all applications of the term in

U.S. law. Louisiana, 394 U.S. at 34. Louisiana recognized that, four years earlier, United States

v. California, 381 U.S. 139 (1965), adopted the convention definition "'for purposes of the

Submerged Lands Act.'" In California, the Supreme Court interpreted "inland waterways" as it was

used in the Submerged Lands Act. Id. at 164-66. The Supreme Court determined that Congress

specifically left the definition of "inland waterways" in the Submerged Lands Act to the courts to

define and that the Convention offered the "best and most workable" definition available. Id. at 165.

The Supreme Court accordingly adopted that definition "for the purposes of the Submerged Lands

Act." Id. The Supreme Court gave no indication in either California or Louisiana that it intended

for the Convention to apply every time the term "inland waterways" was used in U.S. law. Morever,

as the Federal Circuit noted in Haas, there is no indication in the language of section 1116(a) or its

16

legislative history that Congress intended to specifically define the reach of a sovereign nation and

therefore the phrase "served in the Republic of Vietnam" was ambiguous. 525 F.3d at 1184. Unlike

in the Submerged Lands Act, here the discretion to define and interpret the scope of the regulation

was given to the Agency, not the Court. See Haas v. Peake, 525 F.3d at 1180 (noting that "there is

no indication during the legislative process [for the Agent Orange Act] that Congress focused on the

precise scope that should be attached to the statutory phrase 'served in the Republic of Vietnam'").

There is no indication that in using the term "inland waterways" VA intended to adopt the

Convention definition, and the Secretary expressly denied any intent to do so at oral argument.

Although the Court finds VA's definition of inland waterways irrational and not entitled to deference,

VA retains its discretionary authority to define the scope of the presumption. The Court declines to

usurp the Agency's authority and impose its own line. Rather, the Court will vacate the Board

decision on appeal as arbitrary and capricious because the decision was based on VA's flawed

interpretation of 38 C.F.R. § 3.307(a)(6)(iii). The Court will remand 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 judgment to define inland waterways in a manner consistent with the regulation's

emphasis on the probability of exposure.

D. Equal Protection Argument

As stated previously, Mr. Gray argues that reversal is warranted on Equal Protection grounds.

Appellant's Br. at 18-19. Specifically, he contends that VA violated the Equal Protection Clause of

the Fifth Amendment of the U.S. Constitution because a Board decision in another veteran's case

found that Da Nang Harbor was an inland waterway and awarded that veteran the presumption. Id.

The Due Process Clause of the Fifth Amendment provides that "[n]o person shall . . . be

deprived of life, liberty, or property, without due process of law." U.S. CONST. Amend. V. The

Federal Circuit has held that Due Process protections apply to disability compensation proceedings

before the Board. Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). Although the Fifth

Amendment, which applies to the Federal Government, "does not contain an equal protection clause

as does the Fourteenth Amendment[,] which applies only to the states," "discrimination may be so

unjustifiable as to be violative of due process" under the Fifth Amendment. Bolling v. Sharpe,

347 U.S. 497, 499 (1954); see Bowers v. Shinseki, 26 Vet.App. 201, 208 n.11 (2013); Robinson v.

17

Brown, 9 Vet.App. 398, 401 (1996). "[A] party challenging a law on equal protection grounds 'may

make out a prima facie case of purposeful discrimination by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose.'" Reeves v. West, 11 Vet.App. 255, 259

(1998) (quoting Batson v. Kentucky, 476 U.S. 79, 93-94 (1986)). The Equal Protection Clause

"commands that no State shall 'deny to any person within its jurisdiction the equal protection of the

laws,' which is essentially a direction that all persons similarly situated should be treated alike."

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

To demonstrate that he was similarly situated to the other veteran, Mr. Gray submits a

November 2009 Board decision in another veteran's case. Appellant's Br. at 19-20; R. at 3. A

review of that Board decision reflects that in November 2009 the Board found that Da Nang Harbor

was an inland waterway for purposes of the regulation (R. at 320), yet the Board concluded that the

presumption applied because "there is credible evidence that the [v]eteran set foot on land in

Vietnam during the Vietnam Era." (R. at 320 (emphasis added)). The specific facts before the

November 2009 Board decision are not before the Court; and thus, the Court finds that the Board's

indication that the veteran set foot on land ambiguous. The veteran in that case served aboard the

U.S.S. Oklahoma City, which appears on the list of ships with inland waterway service because it

"docked in Saigon during July 21-24, 1964." Agent Orange: Alphabetized Ships List, U.S.

Department of Veterans Affairs, http://www.publichealth.va.gov/ (Accessed Mar. 17, 2015). Thus,

it is unclear from the Board decision whether the "credible evidence" the Board relied on to afford

the veteran the presumption was his ship's anchoring in Da Nang Harbor alone or some other

evidence reflecting that the veteran had qualifying inland service, such as setting foot on land or

presence in other inland waterways. Therefore, the Court cannot determine whether Mr. Gray is

similarly situated to the veteran referenced in the November 2009 Board decision.12 Accordingly,

the November 2009 Board decision cannot form the basis of or provide support for an equal

protection challenge, and Mr. Gray's argument on this point must fail.

12

Even if it were clear that Mr. Gray is similarly situated to the veteran referenced in the

November 2009 Board decision, it is well established that Board decisions are not precedential or

binding on other veterans. See 38 C.F.R. § 20.1303 (2014); see also Lynch v. Gober, 11 Vet.App.

22, 27 (1997), vacated on other grounds sub nom. Lynch v. West, 178 F.3d 1312 (Fed. Cir. 1998);

Hillyard v. Derwinski, 1 Vet.App. 349, 351 (1999).

18

IV. CONCLUSION

Upon consideration of the foregoing, the portion of the November 6, 2013, Board decision

denying Mr. Gray's claim for hypertension is AFFIRMED, and the remaining claims for diabetes,

neuropathy of the left and right lower extremities, ischemic heart disease, and erectile dysfunction

are VACATED and REMANDED for further proceedings consistent with this decision.

19