Robert E. Crews v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 21-0226

ROBERT E. CREWS, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued August 16, 2022 Decided April 17, 2023)

Bryan Andersen, with whom Glenn R. Bergmann and Kelsey L. Binder were on the brief,

all of Bethesda, Maryland, for the appellant.

Brandon A. Jonas, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn,

Chief Counsel; Carolyn F. Washington, Deputy Chief Counsel; and Timothy A. Campbell,

Appellate Attorney, all of Washington, D.C., were on the brief for the appellee.

Before MEREDITH, FALVEY, and JAQUITH, Judges.

MEREDITH, Judge, filed the opinion of the Court. JAQUITH, Judge, filed a concurring

opinion. FALVEY, Judge, filed a dissenting opinion.

MEREDITH, Judge: The appellant, Robert E. Crews, through counsel appeals a

November 16, 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to an

effective date prior to September 5, 2018, for the award of disability benefits for coronary artery

disease (CAD), status post myocardial infarction and bypass graft. Record (R.) at 5-14. This appeal

is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C.

§§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to consider whether the

Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act), Pub. L. No. 116-23, 133 Stat.

966 (codified in relevant part at 38 U.S.C. § 1116A), precludes a veteran from receiving a

retroactive effective date1 for an award of benefits under that Act for an herbicide-related condition

1

Pursuant to 38 U.S.C. § 5110(a), the effective date for an award of benefits generally may be no earlier than

the date of the claim leading to that award. See Lalonde v. West, 12 Vet.App. 377, 382 (1999). However, section

1116A permits an effective date based on a "prior claim" if certain requirements are satisfied, including that the prior

claim "was denied by reason of the claim not establishing that the disease was incurred or aggravated by the service

of the veteran." 38 U.S.C. § 1116A(c)(2)(B)(i).

if his or her claim was previously denied in part due to the lack of evidence of a current disability.

For the reasons that follow, the Court holds that the Act does not, and therefore the Court will

vacate the Board's decision and remand the matter for further proceedings consistent with this

decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Coast Guard from July 1963 to July 1983.2

R. at 2490, 2632, 2672, 2716, 3338. He filed a claim for benefits for ischemic heart disease (IHD)

in September 2013, asserting that the condition began in January 1991 and was caused by

in-service exposure to Agent Orange. R. at 3241-46. A VA regional office (RO) denied the claim

in July 2014. R. at 2346-51. In that decision, under the heading "Evidence," the RO listed

"[m]ilitary [s]ervice [p]ersonnel [r]ecords showing confirmed [Republic of Vietnam] service," and

"no response . . . received" for private treatment records from a Dr. Cook at the Sanger Clinic.

R. at 2347. In denying the claim, the RO found that "[t]he evidence does not show an event,

disease[,] or injury in service"; service treatment records did not reflect complaints, treatment, or

diagnoses of the condition; and the condition did not develop to a compensable degree within the

presumptive period following discharge from service.3 R. at 2348. The RO then noted that, under

the Agent Orange Act of 1991, presumptive service connection based on herbicide exposure is

warranted for specified conditions, including IHD, R. at 2348, but the RO denied "[s]ervice

connection based on a relationship to herbicide exposure" because "the evidence does not show a

diagnosis of a condition for which VA has found a positive association to herbicide exposure,"

R. at 2349. The RO further noted that IHD "did not happen in military service, nor was it

aggravated or caused by service." Id. It is undisputed that the appellant did not file a Notice of

Disagreement with that decision.

In August 2019, the appellant again sought benefits for IHD, stating that he had served

"directly off the coast of Vietnam, sometimes . . . actually going ashore," and that he had seen

2

Although the parties, in their initial briefs, referred to the appellant as having blue water service during the

Vietnam War era, the Secretary later clarified, and the appellant conceded, that he also had brown water service.

Secretary's Supplemental (Supp.) Memorandum (Memo.) at 2; Appellant's Supp. Memo. at 15. "Brown water refers

to the inland waters of the landmass of Vietnam and blue water refers to the offshore waters." Constantine v.

McDonough, 35 Vet.App. 81, 84 n.3 (2022).

3

Certain chronic conditions are presumed to be related to service if the condition manifests to a specified

degree of severity within a prescribed period of time following service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2022).

2

"clouds of Agent Orange coming across the water after [it was] dropped in the trees." R. at 2322;

see R. at 2240-41, 2291-95. The evidence developed as a result of this supplemental claim revealed

that, in October 1991, the appellant underwent a coronary artery bypass graft, performed by

Dr. Cook, to treat CAD. R. at 1535-36, 1547-48.

The record contains a March 2020 VA memorandum indicating that the appellant's

herbicide exposure was conceded based on both "[his] duty on the Republic of Vietnam's inland

waterways" and "[his] nautical service in the offshore eligible waters as defined in the [Blue Water

Act]." R. at 964. The following month, the RO granted benefits for CAD, claimed as IHD

associated with herbicide exposure, and assigned a 60% rating, effective September 5, 2019, the

date of the supplemental claim. R. at 950-53, 957-58. The RO explained that service connection

was "granted on the basis of presumption due to Agent Orange exposure," R. at 951, but given that

the appellant's "original claim for [IHD] was denied because there was no evidence of a

diagnosis[,] . . . an[] earlier effective date under the [Blue Water Act] cannot be applied to this

claim," R. at 952.

The appellant sought review of the assigned effective date, asserting that his 2013 claim

had been denied "only due to the fact that Agent Orange exposure at that time was interpreted to

mean 'on land/inland waterway exposure'" and arguing that his effective date should be retroactive

to the date of that claim. R. at 931; see R. at 933-34. Thereafter, the RO granted an earlier effective

date of September 5, 2018, based on its finding that VA had committed a clear and unmistakable

error. R. at 542-46. In that regard, the RO found that the record reflected "a compensable diagnosis

of [CAD] . . . as early as 1991" and reasoned that, because CAD had been added to the list of

presumed herbicide-related conditions on August 31, 2010, VA should have awarded an effective

date 1 year prior to the receipt of his 2019 supplemental claim. R. at 543. The RO also denied the

appellant's request for an effective date as early as the date of his 2013 claim, explaining as follows:

To allow entitlement to an earlier effective date based on a previously denied claim,

the [Blue Water Act] requires that you were denied because a diagnosed

presumptive disability was of record[ but] exposure to herbicide was not conceded.

As you were denied because there was no evidence of a diagnosed presumptive

disability, not because herbicide exposure was[ not] conceded, entitlement to an

earlier effective date prior to September 5, 2018[,] is denied.

3

R. at 544. The appellant sought direct review of that decision by the Board, averring that his 2013

claim had been denied "due to the regulations regarding herbicide exposure at that time." R. at

523; see R. at 525.

In the November 2020 decision on appeal, the Board denied entitlement to an effective

date prior to September 5, 2018, for the award of benefits for CAD. R. at 5. The Board determined

that the Blue Water Act's exception to the general rules for effective dates did not apply because

the appellant's original claim had been denied "not on the basis that he did not have confirmed

service in Vietnam, but on the basis that the evidence of record did not show that he had a current

disability," and because the "denial was not based on a prior more restrictive definition of service

in the Republic of Vietnam, . . . the general effective date rules apply." R. at 8-9. The Board also

acknowledged that the record shows that the appellant had CAD "as early as 1991," but the Board

found that the private treatment records showing that disability were not associated with the claims

file until after the appellant filed his supplemental claim in September 2019. R. at 11. This appeal

followed.

II. ANALYSIS

A. Legal Landscape

The history of herbicide use during the Vietnam War era and the decades of litigation that

followed, including the Nehmer4 line of cases, have been well documented. See, e.g., Euzebio v.

McDonough, 989 F.3d 1305, 1309-14 (Fed. Cir. 2021); Procopio v. Wilkie, 913 F.3d 1371,

1373-74 (Fed. Cir. 2019) (en banc); Constantine, 35 Vet.App. at 83-85. Thus, the Court here will

note only significant developments that may provide context for the current dispute.

To begin, in February 1991, Congress passed the Agent Orange Act of 1991, which

afforded veterans who served "in the Republic of Vietnam during the Vietnam era" a

4

Nehmer is a class action in which Vietnam veterans and their survivors alleged that, in promulgating 1985

regulations governing compensation for diseases attributed to Agent Orange, VA failed to comply with the Dioxin

and Radiation Exposure Compensation Standards Act. Nehmer v. U.S. Veterans' Admin., 712 F. Supp. 1404 (N.D.

Cal. 1989); see Nehmer v. U.S. Veterans' Admin., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. U.S. Veterans' Admin.,

32 F. Supp. 2d 1175 (N.D. Cal. 1999). In 1991, the parties entered into a stipulation and order setting forth VA's

ongoing responsibilities for further rulemaking and disability payments to class members. See Nehmer, 32 F. Supp. 2d

at 1177. One of the results of Nehmer is that certain Vietnam veterans may be eligible to receive effective dates for

compensation earlier than the effective dates of regulatory changes that add a disease to the list of diseases presumed

to be caused by exposure to Agent Orange. See 38 C.F.R. § 3.816 (2022).

4

"[p]resumption[] of service connection" if they developed certain diseases specified in that Act or

identified by VA thereafter as having a "positive association with exposure to an herbicide agent."

Pub. L. No. 102-4, § 2(a), 105 Stat. 11 (now codified at 38 U.S.C. § 1116).5 Although the Agent

Orange Act "did not provide for readjudication of previously denied claims," the Nehmer class and

VA subsequently entered into a consent decree "that detailed VA's ongoing responsibilities for

further rulemaking and retroactive disability payments to class members." Constantine,

35 Vet.App. at 83. Since then, VA has continued to add to the list of conditions subject to

presumptive service connection pursuant to section 1116, including adding IHD6 in 2010, 75 Fed.

Reg. 53,202, 53,216 (Aug. 31, 2010), and there has been ongoing litigation regarding where,

geographically relative to Vietnam, a veteran must have served to qualify for that presumption.

In that regard, at the time that the appellant filed his 2013 claim, VA interpreted service

"in the Republic of Vietnam," 38 U.S.C. § 1116(a)(1)(A) (2012), as including service on the

landmass of Vietnam and the inland waterways, see 38 C.F.R. § 3.307(a)(6)(iii) (effective Sept. 6,

2013, to June 18, 2015); 66 Fed. Reg. 23,166, 23,166 (May 8, 2001), and the United States Court

of Appeals for the Federal Circuit (Federal Circuit) had upheld the Secretary's interpretation that

the section 1116 presumption did not extend to "servicemembers who never set foot within the

land borders of Vietnam," Haas v. Peake, 525 F.3d 1168, 1193 (Fed. Cir. 2008), overruled by

Procopio, 913 F.3d 1371; see Haas, 525 F.3d at 1195. However, the Federal Circuit, sitting en

banc in Procopio, overruled Haas in January 2019, holding that, "when the Agent Orange Act was

passed in 1991, the 'Republic of Vietnam' included both its landmass and its 12 nautical mile

territorial sea." Procopio, 913 F.3d at 1376; see id. at 1380. The Federal Circuit thus concluded

that Mr. Procopio, who served "in the waters offshore the landmass of the Republic of Vietnam,"

was "entitled to a presumption of service connection" for conditions listed in section 1116 and

38 C.F.R. § 3.309(e). Id. at 1374, 1381.

5

This presumption of service connection was initially codified at 38 U.S.C. § 316 and was later renumbered

section 1116. See Department of Veterans Affairs Codification Act, Pub. L. No. 102-83, § 5(a), (c)(1), 105 Stat. 378,

406 (Aug. 6, 1991).

6

Under VA regulations, "[i]schemic heart disease . . . . includ[es] [CAD] . . . and coronary bypass surgery."

38 C.F.R. § 3.309(e).

5

Following Procopio, Congress enacted the Blue Water Act in June 2019, which, in

pertinent part, added the following provision to title 38 of the U.S. Code:

§ 1116A. Presumptions of service connection for veterans who served offshore of

the Republic of Vietnam

(a) Service Connection.—For the purposes of [38 U.S.C. §] 1110 . . . , and subject

to [38 U.S.C. §] 1113 . . . , a disease covered by [38 U.S.C. §] 1116 . . . becoming

manifest as specified in that section in a veteran who, during active military, naval,

or air service, served offshore of the Republic of Vietnam during the period

beginning on January 9, 1962, and ending on May 7, 1975, shall be considered to

have been incurred in or aggravated by such service, notwithstanding that there is

no record of evidence of such disease during the period of such service.

(b) Exposure.—A veteran who, during active military, naval, or air service, served

offshore of the Republic of Vietnam during the period beginning on January 9,

1962, and ending on May 7, 1975, shall be presumed to have been exposed during

such service to an herbicide agent unless there is affirmative evidence to establish

that the veteran was not exposed to any such agent during that service.

(c) Effective date of award.—(1) Except as provided by paragraph (2), the effective

date of an award under this section shall be determined in accordance with

[38 U.S.C. §] 5110 . . . .

(2)(A) Notwithstanding [38 U.S.C. § 5110(g)], the Secretary shall determine the

effective date of an award based on a claim under this section for an individual

described in subparagraph (B) by treating the date on which the individual filed the

prior claim specified in clause (i) of such subparagraph as the date on which the

individual filed the claim so awarded under this section.

(B) An individual described in this subparagraph is a veteran, or a survivor of a

veteran, who meets the following criteria:

(i) The veteran or survivor submitted a claim for disability compensation on

or after September 25, 1985, and before January 1, 2020, for a disease

covered by this section, and the claim was denied by reason of the claim not

establishing that the disease was incurred or aggravated by the service of

the veteran.

(ii) The veteran or survivor submits a claim for disability compensation on

or after January 1, 2020, for the same condition covered by the prior claim

under clause (i), and the claim is approved pursuant to this section.

Pub. L. No. 116-23, § 2(a), 133 Stat. at 966-67. The statutory changes in the Blue Water Act took

effect "on January 1, 2020." Pub. L. No. 116-23, § 2(g), 133 Stat. at 969.

6

More recently, in November 2020, the U.S. District Court for the Northern District of

California addressed a motion for enforcement of the Nehmer consent decree and concluded that

"VA was wrongfully interpreting the phrase 'Republic of Vietnam' in section 1116 as only

including veterans who had boots on the ground in Vietnam and brown water Navy veterans,

thereby impermissibly not affording blue water Navy veterans relief under the terms of the consent

decree." Constantine, 35 Vet.App. at 84 (citing Nehmer v. U.S. Dep't of Veterans Affs.,

No. CV-86-06160, 2020 WL 6508529, at *5-6 (N.D. Cal. Nov. 5, 2020) (order)). As a result of

that action, blue water veterans are now eligible for "automatic readjudications" of certain prior

claims and potentially eligible for retroactive compensation based on those earlier claims. Nehmer,

2020 WL 6508529, at *5-6.

B. Board Decision

In the November 2020 decision on appeal, the Board denied entitlement to an effective

date prior to September 5, 2018, for the award of benefits for CAD. R. at 5-12. Initially, the Board

outlined the procedural history of the appellant's claims, acknowledging that he had filed a claim

in September 2013 seeking disability compensation for IHD as a result of herbicide exposure. R. at

6-7. The Board explained that the RO in July 2014 had denied that claim because it found that

(1) the appellant's service medical records did not reflect symptoms of or treatment for IHD,

(2) there was no evidence that the condition developed to a compensable degree within the

presumptive period after service, (3) "the evidence did not show a currently diagnosed disability,"

and (4) the appellant did not have "a diagnosed condition for which VA had found a positive

association to herbicide exposure." R. at 7.

After the July 2014 RO decision, the Board continued, the appellant filed a claim in

September 2019, which the RO granted in April 2020. Id. Specifically, the RO, "[t]hrough

application of the [Blue Water Act], . . . found that the [appellant] was presumed to have been

exposed to herbicide agents, and [he] had a diagnosis of [CAD]." Id. The Board further explained

that the RO had ultimately assigned an effective date 1 year prior to the date of the appellant's 2019

claim because he "had a compensable diagnosis of [CAD] as early as 1991, and [CAD] became

a[n] herbicide-related presumptive disability on August 31, 2010." R. at 7-8; see 38 C.F.R.

§ 3.114(a)(2) (2019).

The Board then summarized Haas, Procopio, the general effective date provisions, and the

Blue Water Act's exception to the general effective date rules. R. at 8-9. In assessing the

7

appropriate effective date, the Board initially concluded that "the exception to the general effective

date rules provided for by the [Blue Water] Act do[es] not apply" because the appellant's 2013

original claim was denied "not on the basis that he did not have confirmed service in Vietnam, but

on the basis that the evidence of record did not show that he had a current disability," and thus the

2014 "denial was not based on a prior more restrictive definition of service in the Republic of

Vietnam." Id.

The Board next concluded that an earlier effective date was not warranted pursuant to

38 C.F.R. § 3.816, which "implement[s] a stipulation and various court orders in the [Nehmer]

class action litigation." R. at 9. The Board reasoned that VA had not denied a claim for IHD during

the period from September 1985 to May 1989 and that, because the appellant's 2013 claim was

received after 2010, when VA began recognizing IHD as a presumptive condition, the appellant

"received the full presumptive evaluation of all currently applicable laws." R. at 10-11. Finally,

the Board applied "the general effective date rules," R. at 9, and found that the appellant did not

appeal the 2014 denial of his claim and did not seek to reopen that claim until September 2019,

R. at 11. Although the Board acknowledged that the record showed that the appellant had "a heart

disability as early as 1991," the Board determined that the private treatment records reflecting that

disability were not associated with the claims file until after the appellant filed his supplemental

claim in September 2019. Id. Accordingly, the Board found that the appellant was entitled to an

effective date 1 year prior to the date of his claim, which is his currently assigned effective date,

but no earlier. R. at 11-12.

C. Parties' Arguments

1. Initial Briefing

The appellant argues that the Board clearly erred in denying an effective date earlier than

September 5, 2018, for the award of benefits for CAD based on herbicide exposure. Appellant's

Brief (Br.) at 6-14. Specifically, he asserts that, in determining that the retroactive effective date

provision in the Blue Water Act did not apply, the Board overlooked that the RO in July 2014

denied his claim "for multiple reasons, and not only because of a lack of a current disability." Id.

at 9. As support, he highlights those parts of the RO decision in which it found that the evidence

did not show an event, injury, or disease in service and that his heart condition was not incurred in

or aggravated by service. Id. at 9-10. He contends that this reflects three bases for the RO's denial—

the absence of an in-service event, a current disability, and nexus to service. Id. at 10. The appellant

8

argues that this is favorable evidence that the Board did not address and that it "patently

undermines the Board's reasons or bases for finding that the effective date exceptions" in the Blue

Water Act do not apply here. Id.

Next, the appellant asserts that, by finding that the original denial must have been based on

a prior, more restrictive definition of service in the Republic of Vietnam, the Board imposed a

higher burden than required by the Blue Water Act for a retroactive effective date. Id. at 10-11.

More specifically, he explains that "the plain language of the statute makes clear that for the

effective date exception to apply, the only requirement for the prior denial is that 'the claim was

denied by reason of the claim not establishing that the disease was incurred or aggravated by the

service of the veteran.'" Id. at 12 (quoting 38 U.S.C. § 1116A(c)(2)(B)(i)). The appellant posits

that he satisfies the Blue Water Act's effective date exception because the RO denied his claim in

July 2014 in part on the basis that his condition was not incurred in or aggravated by service. Id.

at 13. He also avers that he could satisfy even the more restrictive test relied on by the Board

because the RO in 2014 denied his claim partly on the ground that there was no in-service event.

Id. The appellant seeks reversal of the Board's decision and a remand for the Board to grant an

effective date as of the date of his original claim. Id. at 14. Alternatively, he argues that the Board

provided inadequate reasons or bases for denying an earlier effective date, warranting a remand.

Id. at 15.

The Secretary counters that the Board did not need to address the full text of the July 2014

RO decision because the Board correctly determined that the RO had denied the appellant's

original claim based on the lack of a current disability. Secretary's Br. at 8-9. This is significant,

he maintains, because "there must be a current disability" to have a valid claim. Id. He contends

that the appellant's argument overlooks the RO's finding of no current disability and is ultimately

a disagreement with the Board's weighing of the evidence. Id. at 9.

Regarding the Blue Water Act, the Secretary asserts that "a plain reading . . . shows that

the exception to the general effective date rules only applies when the only reason for the prior

denial was that there [was] no evidence 'establishing that the disease was incurred or aggravated

by the service of the veteran.'" Id. at 9-10 (quoting 38 U.S.C. § 1116A(c)(2)(B)(i)). Further, the

Secretary argues, "Congress excluded from the exception claims where the prior denial was for

reasons besides not establishing that the disease was incurred or aggravated by service," id. at 11,

including a denial based on the lack of a current disability, id. at 12. He contends that this exclusion

9

was intentional and is supported by the legislative history, which reflects that the purpose of the

Blue Water Act "was to expand the presumption for diseases caused by herbicide exposure to those

who served offshore of the Republic of Vietnam, whose claims were previously denied because

claimants could not show actual exposure to herbicides." Id. at 13. Importantly, the Secretary

explains, "'this is a scheme whereby a default rule is subject to an exception,'" and therefore the

Court must be "'guided by the interpretive principle that exceptions to a general proposition should

be construed narrowly.'" Id. at 14 (quoting In re Woods, 743 F.3d 689, 699 (10th Cir. 2014)). As

for the appellant's assertion that the Board imposed too high a standard in requiring the prior denial

to have been based on a more restrictive definition of service in Vietnam, the Secretary maintains

that "the Board's statement [was] in line with the purpose of the [Blue Water] Act," and even if it

constitutes error, the error was not prejudicial. Id. at 16; see id. at 16-18. Finally, the Secretary

argues that, should the Court find that the Board misinterpreted the Blue Water Act, vacatur, rather

than reversal, is the appropriate remedy. Id. at 19-20.

In his reply brief, the appellant reiterates that the Board did not discuss "the full contents"

of the July 2014 RO decision and that the Secretary cannot make up for that deficiency in his brief.

Reply Br. at 1-2; see id. at 1-3. He also disputes the Secretary's interpretation of the effective date

exception in the Blue Water Act as applying exclusively where the only reason for the prior denial

was the lack of in-service incurrence or aggravation, arguing that the language of the statute does

not support such a reading. Id. at 4-6. In that regard, the appellant suggests that interpreting the

Blue Water Act as prohibiting an earlier effective date when the prior denial was based on a lack

of in-service incurrence or aggravation and a lack of a nexus would lead to absurd results. Id. at 8.

2. Supplemental Briefing

On May 16, 2022, the panel sought supplemental briefing from the parties addressing how

specific language in the Blue Water Act should be interpreted. Crews v. McDonough, U.S. Vet.

App. No. 21-0226 (May 16, 2022) (per curiam) (unpublished order). In his response, the appellant

first explains that the effective date portion of the Blue Water Act requires "the prior denial to be

based, in part[,] but not necessarily exclusively[,] on[] the second element of service[]connection,"

i.e., the lack of an in-service event. Appellant's Supp. Memo. at 1. As support, he avers that the

terms "a disease," "incurred or aggravated," and "by the service" in subsection 1116A(c)(2)(B)(i)

"must be read together as a complete sentence," and the words must be given their commonly

understood definitions. Id. at 2 (emphasis omitted). And, when read in that way, the appellant

10

contends, "the text dictates that all elements of service[]connection are encompassed by the phrase

'the disease was incurred or aggravated by the service of the veteran.'" Id. at 3 (quoting 38 U.S.C.

§ 1116A(c)(2)(B)(i)). For that notion, the appellant relies on Shedden v. Principi, 381 F.3d 1163,

1166-67 (Fed. Cir. 2004), which confirmed that "service connection" encompasses three

elements—a current disability, in-service incurrence or aggravation of a disease or injury, and a

nexus between the current disability and the in-service event. Appellant's Supp. Memo. at 4.

Additionally, the appellant asserts, because subsection 1116A(c)(2)(B)(i) refers three times to a

"claim," which indicates an intent to apply for benefits, it cannot be read as requiring that any

elements of service connection have been previously established. Id. at 5-7. Instead, the statute

"speaks to the fact that the veteran was not previously able to satisfy his burden and substantiate

his claimed request for service[]connection in its totality" and "says nothing about a requirement

that the first element of service[]connection in particular must have been previously satisfied." Id.

at 6.

The appellant further contends that, although the prior denial must have been based, at least

in part, on the lack of an in-service event, nothing in the statute indicates that this must have been

the only reason for the prior denial. Id. at 7-8. Rather, Congress knows how to create such a

restriction and did not do so. Id. at 8-9. Moreover, he continues, "Congress has already accounted

for the fact that a disease may not be established at the filing of the claim and has already provided

. . . a solution to that scenario" in 38 U.S.C. § 5110, which provides that an effective date will be

either the date of the claim or the date entitlement arose, whichever is later. Id. at 9. In other words,

"Congress has accounted for the situation where a prior denial was also based on a lack of a current

disability by assigning the effective date of that claim to instead be the date entitlement arose." Id.

at 10 (emphasis omitted). In the appellant's view, reading a requirement into subsection

1116A(c)(2)(B)(i) that the current disability requirement must have been satisfied at the time of

the prior denial would nullify portions of section 5110 and would be contrary to Congress's intent

"to provide retroactive compensation for all [b]lue [w]ater [n]avy veterans who were affected by

the lack of a presumption of exposure." Id. at 11; see id. at 10-11.

The appellant continues that any interpretation of section 1116A that requires a prior denial

to be based solely on the second element of service connection would lead to absurd results—

namely, that "[i]f the claimant was not able to satisfy the second element, then he or she by default

would also not be able to satisfy the third element of service[]connection." Id. at 12. That means

11

such a claim "would never be eligible for the effective date relief because the denial [wa]s not

solely based on lack of in-service exposure," but also necessarily on the lack of nexus. Id.

Moreover, under such a restricted interpretation, some cases would turn on the language used by

the RO, and "Congress could not have meant the effective dates in these cases to turn on an

arbitrary choice of words in previous denial notices." Id. at 12-13.

As for the appropriate remedy, the appellant maintains that remand is warranted because

the Board failed to adequately explain "whether the prior denial was based on the failure to meet

elements of service connection other than a current disability" and the Court cannot make that

finding in the first instance. Id. at 15. The appellant, however, acknowledges that, if the fact that

the July 2014 RO decision was based in part on the lack of a current disability "is alone fatal to

the applicability of the effective date exception, then additional findings of fact are not necessary,

and the matter is no longer open to reasonable debate." Id.

For his part, the Secretary maintains that the appellant is not eligible for an earlier effective

date under the Blue Water Act because (1) VA denied his prior claim for the lack of a current

disability and (2) he is a brown water veteran, "which would have already entitled him to the Agent

Orange presumption at the time of the prior claim if he had been able to establish a current

disability." Secretary's Supp. Memo. at 1-2. As to his first contention, the Secretary explains that

assigning a retroactive effective date under the circumstances here would be inconsistent with the

purpose of the Blue Water Act, which was to treat blue water veterans comparably to brown water

veterans if the blue water veterans' claims were previously denied because they served only

offshore. Id. at 5-6. Consistent with that purpose, he avers that the Blue Water Act should allow

the effective date of an award of benefits to be "based on a prior denied claim only if the current

disability had been established" at the time of the denial. Id. at 5.

The Secretary maintains that the text and structure of the statute also support this reading,

first pointing out that the second element of service connection—an in-service event—and the

third element—nexus—"are satisfied together, when establishing a claim based on presumed

Agent Orange exposure under 38 U.S.C. § 1116." Id. at 7. Because the language of subsection

1116A(c)(2)(B)(i)—that the prior claim was denied because the claimant did not establish that the

condition "was incurred or aggravated by the service of the veteran"—mirrors the language of the

Agent Orange presumption in section 1116, the Secretary avers that section 1116A should have

the same meaning. Id. at 8. Specifically, because a veteran may establish that a disease was

12

presumptively "incurred in or aggravated by service" under section 1116 by showing (1) a current

diagnosis of a presumptive condition and (2) qualifying Vietnam service, the Secretary posits that

a veteran must have established a current disability to qualify for the retroactive effective date

under section 1116A. Id. He adds that section 1116A cross-references section 1116, which lends

support to the argument that these phrases should be read the same way. Id. at 9.

As for the language "submitted a claim," the Secretary contends that, in context, it requires

that the first element of service connection must have been satisfied at the time of the prior denial.

Id. at 9-10. In that regard, because there are only two elements of service connection when the

presumption of exposure operates and the statute refers only to the second element, the canon of

expressio unius est exclusio alterius (the express inclusion of one thing necessarily means the

exclusion of all other things) requires a reading that the claim was not previously denied by reason

of the first element. Id. at 9-10 (quoting 38 U.S.C. § 1116A(c)(2)(B)(i)). Similarly, if Congress

intended any previously denied claim based on herbicide exposure in the offshore waters to benefit

from the effective date exception, Congress would have ended the sentence before the phrase "and

the claim was denied by reason of the claim not establishing that the disease was incurred or

aggravated by the service of the veteran." 38 U.S.C. § 1116A(c)(2)(B)(i); see Secretary's Supp.

Memo. at 10.

Regarding the appellant's assertion in his reply brief that the Secretary's interpretation

would lead to absurd results, the Secretary contends that a claim under the Agent Orange statutory

scheme could never be denied on the basis of a lack of nexus because the presumption encompasses

both the second and third elements of service connection. Id. at 11. He avers that it, instead, would

be an absurd result to allow a retroactive award of benefits for a period during which "the [v]eteran

had no disability."7 Id.

Further, the Secretary maintains that the Board was legally and factually correct in

concluding that the effective date exception in section 1116A did not apply because the July 2014

denial was not based solely on the appellant's failure to establish exposure to herbicides. Id. at

11-12. He explains that the RO in 2014 found that the evidence did not show "'a current diagnosed

disability'"; listed the conditions to which the presumption of service connection based on

herbicides applied, including the appellant's claimed condition; and reiterated its conclusion that

7

In this case, it is undisputed that the appellant suffered from CAD at the time of the July 2014 denial, but

VA had not obtained private medical records reflecting that diagnosis. See R. at 7, 11.

13

"'the evidence does not show a diagnosis of a condition for which VA has found a positive

association to herbicide exposure.'" Id. at 12 (first quoting R. at 2348; and then quoting R. at 2349).

The Secretary deems it important that the RO did not discuss whether the appellant's service met

the requirements for presumed herbicide exposure. Id.

Moreover, the Secretary notes, VA has conceded the appellant's exposure to herbicides in

service based on both brown and blue water service, as the March 2020 VA memorandum reflects.

Id. at 12-13 (citing R. at 964). According to the Secretary, then, at the time of the July 2014 RO

decision, the appellant was already entitled to the presumption of herbicide exposure based on

Haas. Id. at 13. The Secretary therefore concludes that, "[b]ecause [the a]ppellant was entitled to

the Agent Orange presumption under the old interpretation of service in the Republic of Vietnam,"

the appellant "not only fails to meet the special effective date requirement about the prior denial,

but he also fails to meet the requirement that the new 'claim is approved pursuant to this section.'"

Id. (quoting 38 U.S.C. § 1116A(c)(2)(B)(ii)). In other words, the Secretary argues that "[t]he Court

can, and should, deny the appeal on the basis that [the a]ppellant had brown water service [and]

would have been entitled to the Agent Orange presumption at the time of the prior decision if he

had gotten over the initial hurdle of establishing a current disability." Id. at 15.

D. Discussion

The parties' arguments raise a number of legal questions in addition to the panel issue

outlined above.8 However, the Board's rejection of a retroactive effective date turned primarily on

its conclusion that the appellant's prior claim was denied "on the basis that the evidence of record

did not show that he had a current disability" and, secondarily, on its determination that the prior

denial was not based on a more restrictive definition of service in Vietnam. R. at 8-9. The Court's

analysis will thus focus on whether the retroactive effective date provision in subsection

1116A(c)(2)(B) contains such limitations.

1. Preliminary Matter

As reflected above, the Secretary belatedly argues that the appellant is barred as a matter

of law from receiving a retroactive effective date under the Blue Water Act because he had both

brown and blue water service. Secretary's Supp. Memo. at 12-14. Specifically, the Secretary

8

For example, if the prior claim was denied based on multiple theories (e.g., direct service connection,

presumptive service connection for herbicide-related conditions, and presumptive service connection for chronic

conditions), must the "incurred or aggravated by . . . service" requirement be lacking for all such theories?

14

maintains that "the special effective date is only available when[,] but for Congress's enactment of

the [Blue Water] Act, the claim would not have been approved."9 Id. at 13. In that regard, the Blue

Water Act provides that a retroactive effective date may be available for an award of benefits

"under" or "pursuant to" that Act. 38 U.S.C. § 1116A(c)(1), (c)(2)(A), (c)(2)(B)(ii).

Although the Board here did not discuss whether the appellant had brown water service,

the Board specifically noted that the RO in April 2020, "[t]hrough application of the [Blue Water

Act,] . . . found that the [appellant] was presumed to have been exposed to herbicide agents" and

"granted service connection for [CAD]," which "became a[n] herbicide-related presumptive

disability on August 31, 2010." R. at 7-8; see R. at 951-52 (April 2020 RO decision in which the

RO granted service connection "on the basis of presumption due to Agent Orange exposure" but

found that an "earlier effective date under the new law cannot be applied to this claim"). The Board

then analyzed whether the appellant was eligible for a retroactive effective date under the

"significant exception to the general effective date rules" created by that Act. R. at 8. In other

words, the Board found that the appellant was awarded presumptive service connection based on

exposure to herbicides during his blue water service, and the Board considered whether the

effective date could be retroactive under the Blue Water Act. Because the Board found favorably

that the appellant had been awarded benefits under the Blue Water Act, the Court need not, and

indeed must not, revisit the propriety of that finding. See Medrano v. Nicholson, 21 Vet.App. 165,

170 (2007), aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625

(Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) ("This

Court's jurisdiction is confined to the review of final Board . . . decisions which are adverse to a

claimant."). The Court therefore turns to the meaning of subsection 1116A(c)(2)(B).

2. Requirements for Retroactive Effective Date

"When a statute is at issue, we begin with the statutory language." McGee v. Peake,

511 F.3d 1352, 1356 (Fed. Cir. 2008); see Williams v. Taylor, 529 U.S. 420, 431 (2000). "The

9

Although, as explained below, the Court need not resolve today the extent to which brown water veterans

may benefit from the favorable effective date provision in the Blue Water Act, the Court finds puzzling the Secretary's

suggestion that a retroactive effective date is warranted only if the new claim "would not have been approved" under

"the section that already existed before [enactment of the Blue Water Act]." Secretary's Supp. Memo. at 13 (emphasis

added). In that regard, prior to enactment of the Blue Water Act, both blue and brown water veterans were eligible for

presumptive service connection under section 1116, see Procopio, 913 F.3d at 1376, and the retroactive effective date

provision applies to claims filed before section 1116 and its predecessor were enacted, see Pub. L. No. 102-4, § 2(a),

105 Stat. at 11.

15

statute's plain meaning is derived from its text and its structure." McGee, 511 F.3d at 1356; see

Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning

requires examining the specific language at issue and the overall structure of the statute."), aff'd

sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). The "plain

meaning must be given effect unless a 'literal application of [the] statute will produce a result

demonstrably at odds with the intention of its drafters.'" Gardner, 1 Vet.App. at 586-87 (quoting

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see Roper v. Nicholson,

20 Vet.App. 173, 180 (2006), aff'd, 240 F. App'x 422 (Fed. Cir. 2007). In assessing the language

of a statute, courts review the overall statutory scheme "'so that effect is given to all its provisions,

so that no part will be inoperative or superfluous, void or insignificant, and so that one section will

not destroy another unless the provision is the result of obvious mistake or error.'" Roper,

20 Vet.App. at 178 (quoting 2A NORMAN J. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION,

§ 46:06 (6th ed. 2000)).

The first question in statutory interpretation is always "whether Congress has directly

spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984). "If the intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."

Id. at 842-43. However, 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 interpretation of a statute is a question of law that the Court reviews de

novo, without deference to the Board's interpretation. See Butts v. Brown, 5 Vet.App. 532, 539

(1993) (en banc).

a. Criteria

As reflected above, the Blue Water Act permits the effective date for an award of benefits

under that Act to be based on "the date on which [an] individual filed [a] prior claim" if, as pertinent

here, the individual "is a veteran . . . who meets the following criteria":

(i) The veteran . . . submitted a claim for disability compensation on or after

September 25, 1985, and before January 1, 2020, for a disease covered by this

section, and the claim was denied by reason of the claim not establishing that the

disease was incurred or aggravated by the service of the veteran.

16

(ii) The veteran . . . submits a claim for disability compensation on or after

January 1, 2020, for the same condition covered by the prior claim under clause (i),

and the claim is approved pursuant to this section.

38 U.S.C. § 1116A(c)(2)(B). In identifying these as "the . . . criteria" for obtaining a retroactive

effective date, 38 U.S.C. § 1116A(c)(2)(B) (emphasis added), Congress did not use any language

that would indicate that the criteria are not exclusive (e.g., "including," "such as," or "for

example"), see Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1197 (2021) (explaining that a

"list of factors [was] not exhaustive" when it was introduced by words like "'include' and

'including'"); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002) ("The . . . term 'such as'

demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list,

but rather are to serve as examples of the type and degree of the symptoms, or their effects, that

would justify a particular rating."). Without such non-exclusive wording, it is therefore reasonable

to conclude that these are the only requirements for obtaining a retroactive effective date: (1) a

veteran filed "a claim for disability compensation" between September 1985 and January 2020;

(2) the claim was "for a disease covered by" section 1116A; (3) VA denied the claim "by reason

of the claim not establishing that the disease was incurred or aggravated by the service of the

veteran"; (4) the veteran, on or after January 1, 2020,10 "submit[ted] a claim . . . for the same

condition"; and (5) VA granted "the [new] claim . . . pursuant to [section 1116A]." 38 U.S.C.

§ 1116A(c)(2)(B)(i), (ii). See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) ("'[T]he' is 'a function

word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously

specified by context.'"); see also CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/

us/dictionary/english/the (last visited Apr. 14, 2023) (explaining that "the" may be "used before

noun phrases in which the range of meaning of the noun in limited in some way"). These criteria

outline a series of chronological actions that must have been taken by the veteran and VA, and the

Court will address each in turn.

10

The Board did not find, and the Secretary does not contend, that the appellant would be precluded from

receiving a retroactive effective date because his claim was filed prior to January 2020, see VA Gen. Couns.

Prec. 3-2019, at 4 n.3 (Dec. 13, 2019) ("[T]he Secretary of Veterans Affairs exercised his discretion under the [Blue

Water Act] to stay decisions on pending claims until the statutory amendments [went] into effect on January 1, 2020.");

the Court need not address that matter.

17

b. Prior Claim

To begin, the veteran must have filed a claim during the specified time period—

September 25, 1985, to January 1, 2020. Those dates coincide with VA's initial promulgation of

the regulation governing herbicide exposure that was invalidated in the Nehmer litigation and the

effective date of the Blue Water Act. See Pub. L. No. 116-23, § 2(g), 133 Stat. at 969; Adjudication

of Claims Based on Exposure to Dioxin or Ionizing Radiation, 50 Fed. Reg. 34,452, 34,458

(Aug. 26, 1985) (effective Sept. 25, 1985). Notably, that time period begins prior to the enactment

of section 316 (the predecessor to section 1116) and continues after the Federal Circuit determined

in Procopio that blue water veterans were eligible for presumptive service connection pursuant to

section 1116.

The next requirement is that the prior claim was for a specified condition—"a disease

covered" by section 1116A. That section identifies "a disease covered by section 1116" as those

potentially eligible for presumptive service connection under the Blue Water Act. 38 U.S.C.

§ 1116A(a). Section 1116, in turn, provides that presumptive service connection based on

"exposure to certain herbicide agents" may apply both to a list of specific conditions contained

within that statutory section and to "additional disease[s]" that VA determines by regulation

warrant such a presumption. 38 U.S.C. § 1116(a)(1)(A), (B); see 38 C.F.R. § 3.309(e) (listing

conditions, including IHD, that may be presumptively service connected). Accordingly, in the

prior claim, the claimant must have been seeking benefits for a condition that is now specifically

listed either in section 1116 or in the VA regulation establishing additional diseases eligible for

presumptive service connection based on herbicide exposure. That means, after identifying when

the prior claim was filed, the singular focus is the condition for which the claimant sought benefits.

Importantly, for purposes of the arguments before the Court, nothing in subsection

1116A(c)(2)(B)(i) mandates that the prior claim for benefits must have been based on a particular

theory, such as direct or presumptive service connection, nor does it require that the veteran have

alleged herbicide exposure in the prior claim.

c. Prior Denial: "By Reason Of"

Next, section 1116A outlines the actions VA must have taken on that prior claim.

Specifically, that VA denied the claim and the denial was "by reason of the claim not establishing

that the disease was incurred or aggravated by the service of the veteran." 38 U.S.C.

§ 1116A(c)(2)(B)(i). In ascertaining the plain meaning of this language, the first question is what

18

the term "by reason of" connotes. The ordinary meaning of that phrase is "because of." CAMBRIDGE

DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/reason?q=by+reason+of (last

visited Apr. 14, 2023). The U.S. Supreme Court has explained that, although this phrase "denotes

some form of causation," it does not necessarily mean "sole" cause. Husted v. A. Philip Randolph

Inst., 138 S. Ct. 1833, 1842 (2018). Rather, when, as here, the statute itself does not define the

type of causation required, discerning the meaning requires examining the context. See id. (citing

Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 265-68 (1992)).

That context here includes the phrase that immediately follows "by reason of"—"the claim

not establishing." For VA purposes, a claim is defined as "a written or electronic communication

requesting a determination of entitlement or evidencing a belief in entitlement to, a specific

benefit." 38 C.F.R. § 3.1(p) (2022). Further, although VA has duties to notify and assist a claimant,

it otherwise remains the claimant's "responsibility to present and support a claim for benefits."

38 U.S.C. § 5107(a); see Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) ("It is the

veteran's 'general evidentiary burden' to establish all elements of his [or her] claim." (quoting

Holton v. Shinseki, 557 F.3d 1362, 1368 (Fed. Cir. 2009))). In other words, it is the claimant who

files a claim, and it is the claimant who bears the burden of establishing entitlement to the benefit

he or she seeks. Thus, the phrase "the claim not establishing" reasonably describes a situation in

which the claimant failed to support his or her claim with sufficient evidence to permit VA to grant

the specific benefit sought.

The next phrase, "the disease was incurred or aggravated by the service of the veteran,"

describes what VA found lacking in the prior claim. Putting aside for now which theory or theories

of entitlement or specific elements of service connection are conveyed by that portion of the

statute, the question is whether Congress's use of the phrase "by reason of" indicates that the lack

of such element or elements was the sole cause for the prior denial, a necessary part of that denial,

or something else. See Husted, 138 S. Ct. at 1842. To shed light on what Congress intended in that

regard, it is instructive to first examine what elements a veteran would have needed to establish to

prevail in a service connection claim prior to Procopio and the Blue Water Act. See id. at 1843

(relying on the "process of elimination" to discern what type of causation Congress intended).

Because, as discussed above, the retroactive effective date provision of the Blue Water Act

does not require the veteran's prior claim to have set forth a particular theory of entitlement, the

19

Court will start by examining presumptive service connection11 based on herbicide exposure at the

time of the appellant's September 2013 claim. That theory required (1) service under conditions

other than dishonorable, (2) duty in the Republic of Vietnam during a specified time period, and

(3) development of the specified severity and in the specified timeframe of a covered disease that

is not the result of willful misconduct or an intercurrent disease or injury. 38 U.S.C. § 1116(a)(1)

(2012) (incorporating the requirements of 38 U.S.C. §§ 1110, 1113). If the statutory requirements

were satisfied, the "disease . . . [would] be considered to have been incurred in or aggravated by"

the veteran's service, and presumptive service connection would have been warranted. Id.; see

Winters v. West, 12 Vet.App. 203, 209 (1999) (en banc) ("Service connection will be awarded

automatically on a presumptive basis where the veteran served in Vietnam and has one of the

enumerated diseases."), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed.

Cir. 2000); see also Stefl v. Nicholson, 21 Vet.App. 120, 122 (2007) ("Service connection [pursuant

to section 1116] is available for [listed] conditions without a claimant's showing a nexus between

service and the condition."). That means a claimant need not have "establish[ed]," 38 U.S.C.

§ 1116A(c)(2)(B)(i), by direct evidence, that a condition was "incurred in or aggravated by . . .

service," 38 U.S.C. § 1116(a)(1). Instead, whether a disease was incurred in or aggravated by

service would have been VA's ultimate conclusion, which in turn would have depended on whether

the claimant met the criteria listed above.12 With that understanding of what was necessary for

presumptive service connection, it is clear that Congress, in the Blue Water Act, could not have

intended failure to establish that "the disease was incurred or aggravated by . . . service" to be the

sole cause for the prior denial.

Moreover, establishing direct service connection in September 2013, as now, generally

would have required evidence of (1) a current disability, (2) incurrence or aggravation of a disease

or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current

disability. Shedden, 381 F.3d at 1166-67; see Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)

11

The Court notes that the retroactive effective date provision in the Blue Water Act is potentially applicable

when a veteran filed a prior claim between September 1985 and January 2020, which includes the 6-year period before

the Agent Orange Act—which created a general presumption of service connection based on herbicide exposure—

was enacted. See Pub. L. No. 102-4, § 2(a), 105 Stat. at 11. However, the claim at issue here was not filed during that

window.

12

Similarly, for chronic conditions subject to presumptive service connection, "incurred or aggravated by . . .

service" is not directly what the claimant must establish; it is a VA adjudicative determination that flows from VA

finding that a chronic condition arose during a presumptive period and that the veteran has present manifestations of

the same disease. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b) (2022).

20

("Interpretation of a word or phrase depends upon reading the whole statutory text, considering

the purpose and context of the statute, and consulting any precedents or authorities that inform the

analysis."). Because each element must be present to establish direct service connection, see

Fagan, 573 F.3d at 1287, it follows that a denial could have been predicated on the absence of one,

two, or three elements.

If Congress had intended the pivotal phrase here—"the disease was incurred or aggravated

by . . . service"—to refer to the second Shedden element (the in-service event), it is not reasonable

to conclude that Congress intended that to be the sole cause for the prior denial because, in the

absence of an in-service event, a veteran also could not satisfy the third element of Shedden, a

nexus between the current disability and an in-service event. See, e.g., Reonal v. Brown, 5 Vet.App.

458, 461 (1993) (holding that "[a]n opinion based upon an inaccurate factual premise"—for

example, that there was an in-service event—"has no probative value"); West v. Brown, 7 Vet.App.

70, 77-78 (1994) (holding that an examination that relies on an inaccurate history is inadequate for

rating purposes); see also Appellant's Supp. Memo. at 12. Indeed, it would be nonsensical to

require that a prior denial be based solely on the lack of one factor if another factor would also

necessarily be lacking.

If, on the other hand, Congress intended to refer to both Shedden elements two and three,

or even to all three elements, see Appellant's Supp. Memo. at 3-4, it is similarly unreasonable to

conclude that Congress meant "by reason of" to convey "sole cause," because that would require

reading section 1116A as specifying that the lack of two or three elements must have been the

"sole" cause for the prior denial. Such an unnatural reading is untenable. See Wilson v.

McDonough, 35 Vet.App. 75, 78 (2021) (interpreting a phrase according to the "most natural

reading").

In sum, the best reading of "by reason of" is that it does not signal the only cause for the

prior denial.13 Taking all this into account, the language thus far indicates that the veteran must

have previously sought benefits for a condition that is now considered presumptively related to

13

The Court is compelled to point out that, even though Congress explicitly conditioned an earlier effective

date on the grounds for a prior denial, regional offices prior to 1990 had no obligation to specify the reasons for

decisions. See Crippen v. Brown, 9 Vet.App. 412, 420 (1996) (noting that RO decisions "rendered before February 1,

1990, when 38 U.S.C. § 5104(b) was added to require RO decisions to specify the evidence considered and the reasons

for the disposition[,] . . . routinely lacked such specificity" (citations omitted)). However, because the prior decision

here postdates 1990 and the parties concede that the RO in 2014 provided reasons for its decision, the Court will not

today address how the law could be applied when no such reasons were provided.

21

herbicide exposure, and VA must have denied the claim, at a minimum, because the claimant did

"not establish[]" that "the disease was incurred or aggravated by . . . service." 38 U.S.C.

§ 1116A(c)(2)(B)(i).

d. Prior Denial: Not Incurred or Aggravated by Service

The next question is what Congress meant by the phrase "the disease was [not] incurred or

aggravated by . . . service." We need not definitively answer that question today, however, because

the principal dispute here is whether the prior denial could not have been based in part on the lack

of a current disability and, secondarily, whether it must have been affirmatively based on a more

narrow definition of service in Vietnam.14 Thus, we examine only whether the statute answers

those questions. See Teva Pharms. USA, Inc. v. Novartis Pharms. Corp., 482 F.3d 1330, 1337-38

(Fed. Cir. 2007) (explaining that, under the doctrine prohibiting advisory opinions, "federal courts

are to decide only 'actual controversies by judgment which can be carried into effect, and not to

give opinions upon moot questions or abstract propositions, or to declare principles or rules of law

which cannot affect the matter in the case before it'" (quoting Local No. 8-6, Oil, Chem. & Atomic

Workers Int'l Union v. Missouri, 361 U.S. 363, 367 (1960))); Norvell v. Peake, 22 Vet.App. 194,

200 (2008).

In that regard, the Secretary avers that, because the language "incurred or aggravated by . . .

service" largely mirrors the wording in section 1116(a) regarding presumptive service connection

based on herbicide exposure, the phrases have the same meaning.15 Secretary's Supp. Memo. at 7-

8. Specifically, he avers that, under section 1116, the second and third Shedden elements, in-

service event and nexus, are "satisfied together" by operation of law when a claimant has a current

diagnosis of a presumptive condition and qualifying Vietnam service. Id. Accordingly, he

maintains, the same language in section 1116A must indicate that the current disability was

previously established in that a current disability would have been necessary to trigger possible

presumptive service connection. Id. at 8. However, to the extent that the Secretary suggests that

the prior adjudication must have addressed only a theory of presumptive service connection, the

14

Indeed, the Board in the decision on appeal did not acknowledge or seek to apply the "incurred or

aggravated by . . . service" requirement of the Blue Water Act; it instead characterized the Act as requiring that a prior

denial be "based on the more restrictive definition of service in the Republic of Vietnam." R. at 8.

15

The Court notes that the language "incurred or aggravated by . . . service" in section 1116A also closely

mirrors the language in 38 U.S.C. § 1112(a)(1), establishing a presumption of service connection for certain chronic

conditions.

22

Court notes that the retroactive effective date provision encompasses claims filed before section

1116 and its predecessor had been enacted. See 38 U.S.C. § 1116A(c)(2)(B)(i) (conditioning

eligibility for an earlier effective date in part on the veteran having filed a prior claim "on or after

September 25, 1985, and before January 1, 2020"); see also Pub. L. No. 102-4, § 2(a), 105 Stat. at

11 (creating the section 316 presumption of service connection); Nehmer, 2020 WL 6508529, at

*2-3 (explaining that, prior to enactment of the Agent Orange Act in 1991, VA by regulation had

provided that only one disease, chloracne, should be deemed related to herbicide exposure).

More importantly, as explained above, section 1116A does not require the veteran to have

previously sought presumptive service connection or even to have alleged herbicide exposure;

rather, the only requirement is that the veteran sought benefits for a condition that is now

considered presumptively related to herbicide exposure. It follows, then, that in specifying the

reason that VA denied the claim, Congress did not set forth grounds applicable to only presumptive

service connection—a theory that, even if in existence, may or may not have been raised. See

Atencio v. O'Rourke, 30 Vet.App. 74, 83 (2018) (citing United States v. Wilson, 503 U.S. 329, 334

(1992) ("[A]bsurd results are to be avoided.")). And, even if the language encompasses previous

denials on a presumptive basis, it does not identify which of the factors discussed above—

including service in the Republic of Vietnam and development of a disease in the requisite

timeframe—were either established or lacking, nor does it specifically exclude denials based on

insufficient evidence of a current disability. See Bates v. United States, 522 U.S. 23, 29 (1997)

(holding that a court must resist reading words into a statute that do not appear on its face). The

Secretary's contentions in this regard are thus unavailing.

Moreover, the phrase "the disease was incurred or aggravated by . . . service" cannot

otherwise be read as specifying either that the first Shedden element—a current disability—must

have been affirmatively established at the time of the prior denial or that a lack of evidence of a

current disability could not have been one basis for the denial. Importantly, because subsection

1116A(c)(2)(B)(i) describes what was "not establish[ed]" previously, it would be contrary to the

natural reading to conclude that it specifies what was established. See Wilson, 35 Vet.App. at 78.

Additionally, the only words that potentially invoke the first Shedden element are "the disease,"

cf. Shedden, 381 F.3d at 1166-67 (explaining that service connection encompasses three elements,

including a current disability), and the Court is not persuaded that, by using "the," Congress was

conveying that the claimant must have previously established the existence of a current disability.

23

See Oral Argument at 12:54-17:08, 32:52-33:41, 50:46-51:16, www.uscourts.cavc.gov/

oral_arguments_audio.php (argued Aug. 16, 2022). Rather, subsection 1116(c)(2)(B)(i) first refers

to "a claim . . . for a disease covered by this section" and then 14 words later refers to "the disease."

As noted above, "grammar and usage establish that 'the' is 'a function word . . . indicat[ing] that a

following noun or noun equivalent is definite or has been previously specified by context.'" Preap,

139 S. Ct. at 966 (emphasis added). Thus, "the disease" is reasonably understood to refer to the

"disease" mentioned earlier in the sentence, which in turn simply refers to the conditions identified

as presumptive in section 1116(a) or § 3.309(e), see supra at 12-13. Further, as discussed above,

although subsection (B)(i) identifies at least one required reason for the prior denial, it does not

identify the sole cause and thus leaves open the possibility that other grounds were present. In sum,

the specific criteria that Congress enumerated for a retroactive effective date simply do not include

a prohibition on the prior denial having been based in part on the lack of evidence of a current

disability.

e. Prior Denial: Definition of Vietnam

Aside from whether the lack of a current disability at the time of the prior claim is fatal to

obtaining a retroactive effective date, the Secretary contends that it is consistent with the purpose

of section 1116A to require the prior denial to have been based generally on the lack of confirmed

service in Vietnam or, specifically, on a more narrow definition of service in the Republic of

Vietnam, i.e., one that excluded blue water service. See Secretary's Br. at 16 n.2; Secretary's Supp.

Memo. at 11-12. However, he points to no language in the statute itself specifying that either must

have been the reason for the denial, and the Court discerns no such requirement. See Bates,

522 U.S. at 29. In that regard, subsection (B)(i) does not mention the "Republic of Vietnam" or

"offshore" service, even though those terms are used elsewhere in the Act. See, e.g., 38 U.S.C.

§ 1116A(a), (b); see also O'Brien v. Wilkie, 30 Vet.App. 21, 27-28 (2018) (concluding that use of

a different definition of "child" for Social Security Administration purposes reflected that

"Congress knows how to include children such as the appellant's grandson in the definition of

'child' but has not done so for VA purposes"), aff'd, 948 F.3d 1339 (Fed. Cir. 2020).

Further, to the extent that the phrase "incurred or aggravated by . . . service" in subsection

1116A(c)(2)(B)(i) bears a resemblance to the in-service event element of Shedden, there are no

contextual indicators that Congress intended a specific reason why the in-service prong was not

previously satisfied. Similarly, to the extent that the phrase may refer to denial on a presumptive

24

basis, the statute does not list any of the criteria that would underlie a determination that a

presumptive condition was not, under section 1116(a)(1), "incurred in or aggravated by" service,16

much less specify which element must have been established or lacking at the time of the prior

adjudication. All of this supports the conclusion that a retroactive effective date is not conditioned

on the prior claim having been rejected on the grounds that service in the Republic of Vietnam was

not confirmed.

f. New Claim

After outlining the criteria related to the filing and denial of the prior claim, subsection

1116A(c)(2)(B) then sets forth the next chronological steps: The veteran must file a new claim

"for the same condition" as the prior claim, and VA must grant "the [new] claim . . . pursuant to

[section 1116A]." Because there is no dispute in the current case that the previous and new claims

were for the same condition, see Teva Pharms. USA, Inc., 482 F.3d at 1337-38, and because, as

indicated above, the Board favorably found that the appellant had been awarded benefits under the

Blue Water Act, see Medrano, 21 Vet.App. at 170, the Court need not address these requirements

at this time.

g. Summary

Based on the foregoing, the Court concludes that the plain language of the Blue Water Act

reflects that Congress established five exclusive criteria for a veteran to receive a retroactive

effective date for an award of benefits under that Act. As pertinent here, the veteran must have

previously filed a claim for a condition that is now considered presumptively related to herbicide

exposure, and VA must have denied that claim, at a minimum, because the appellant did not

establish that the claimed disease was "incurred or aggravated by . . . service." However, those

criteria do not prohibit a retroactive effective date when the prior denial was based in part on the

lack of evidence of a current disability, and they do not include a requirement that the denial was

predicated on the pre-Procopio understanding of service in the Republic of Vietnam.17

16

As discussed above, those factors include (1) service under conditions other than dishonorable, (2) duty in

the Republic of Vietnam during a specified time period, and (3) development in the specified severity and timeframe

of a covered disease that is not the result of willful misconduct or an intercurrent disease or injury.

17

To provide a final check on our statutory interpretation, the Court notes that nothing in the purpose or

legislative history of the Blue Water Act suggests that Congress intended to create these specific hurdles for obtaining

a retroactive effective date. See Casey v. Wilkie, 31 Vet.App. 260, 265 (2019) (citing Hughes v. United States,

138 S. Ct. 1765, 1774 (2018), for the proposition that considering the purposes behind a statutory scheme is a useful

check on a court's interpretation of a specific statutory provision). In that regard, Congress explained that the Act was

25

E. Application

Before applying the law as outlined above to the appellant's case, the Court will briefly

reiterate the Board's findings. The Board determined that the appellant's original September 2013

claim was denied "not on the basis that he did not have confirmed service in Vietnam, but on the

basis that the evidence of record did not show that he had a current disability," and therefore the

July 2014 "denial was not based on a prior more restrictive definition of service in the Republic of

Vietnam." R. at 8-9. Accordingly, the Board concluded that "the exception to the general effective

date rules provided for by the [Blue Water] Act do[es] not apply" in the appellant's case. R. at 8.

Because subsection (c)(2)(B)(i) does not address generally what definition of "Republic of

Vietnam" VA must have relied on in adjudicating the prior claim, nor does it specifically address

whether such a claim must have been denied based on a more restrictive definition of service in

Vietnam, the Court concludes that the Board erred in inserting that requirement into the statute.

Although the Secretary contends that this error was harmless, Secretary's Br. at 16-18, his

argument rests on the assertion that "the Board still would have found that the [Blue Water] Act's

[effective date] exception did not apply because the prior denial was because there was a lack [of]

evidence establishing a current disability," id. at 18. The Court, however, held above that the

statute does not prohibit a retroactive effective date if a prior claim was denied based in part on

the lack of a current disability. Thus, to the extent that the Board found that the retroactive effective

date provision was inapplicable in this case because the appellant's original claim was denied based

in part on the lack of evidence of a current disability, the Board erred. And, that erroneous Board

finding thus cannot support VA's assertion of harmless error.

Moreover, although the Board set forth at least some of the grounds on which the RO

denied the appellant's claim in 2014—including that the appellant's service medical records did

not reflect symptoms of or treatment for IHD and that there was no evidence that IHD developed

intended to "codify" the Federal Circuit's Procopio decision and define the term territorial seas. H.R. Rep. No. 116-58,

at 11-12 (2019). More specifically, Congress explained as follows:

[B]ecause [blue water] veterans have generally been unable to successfully apply for benefits for

conditions that may have been caused by service in Vietnam due to the lack of a presumption of

exposure, [the Blue Water Act] would provide retroactive benefits for veterans who were denied

benefits between September 1, 1985, and January 1, 2020, if the individual veteran . . . re-files a

claim for benefits.

Id.

26

to a compensable degree within the presumptive period after service, R. at 7—the Board did not

address the full scope of the RO's earlier findings. See, e.g., R. at 2349 (finding that IHD "did not

happen in military service, nor was it aggravated or caused by service"). The Board also did not

make any findings as to which theories of service connection the RO rejected in July 2014; which,

if any, of those theories should be considered for purposes of subsection 1116A(c)(2)(B)(i); and,

for any relevant theories, whether the RO in July 2014 determined that the claimed disease was

not "incurred or aggravated by the service of the veteran." 38 U.S.C. § 1116A(c)(2)(B)(i).

Because factual questions remain, reversal—the remedy the appellant initially sought, see

Appellant's Br. at 6—is not warranted. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004)

("[R]eversal is the appropriate remedy when the only permissible view of the evidence is contrary

to the Board's decision." (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); Pond v. West,

12 Vet.App. 341, 346 (1999) (holding that remand is the appropriate remedy when the Board failed

to ensure proper development of the claim or the record is inadequate for adjudication purposes);

Tucker v. West, 11 Vet.App. 369, 374 (1998) ("[W]here the Board has incorrectly applied the law,

failed to provide an adequate statement of reasons or bases for its determinations, or where the

record is otherwise inadequate, a remand is the appropriate remedy."). Instead, remand is required

for the Board to address these matters in the first instance. See Hensley v. West, 212 F.3d 1255,

1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding.").

Given this disposition, the Court will not now address the remaining arguments and issues

raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) ("[T]he Court will not

ordinarily consider additional allegations of error that have been rendered moot by the Court's

opinion or that would require the Court to issue an advisory opinion."); Best v. Principi,

15 Vet.App. 18, 20 (2001) (per curiam order). The Court reminds the Board that "[a] remand is

meant to entail a critical examination of the justification for the decision," Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance with

38 U.S.C. § 7112.

III. CONCLUSION

After consideration of the parties' pleadings, a review of the record, and oral argument, the

Board's November 16, 2020, decision is VACATED, and the matter is REMANDED for further

proceedings consistent with this opinion.

27

JAQUITH, Judge, concurring: I concur with all of the Court's thorough and well-written

opinion. I write separately to emphasize that the facts and circumstances of this case demonstrate

that the Board's misleading characterization of VA's decision on the veteran's original claim and

the Board's failure to meaningfully address 38 U.S.C. § 1116A(c)(2)(B)(i) as written require that

the Board's decision be vacated and the case remanded for readjudication.

To start with the law, statutory construction is limited to construing the words Congress

used; it does not involve actually constructing the statute by adding words. In the United States'

tripartite government, the legislative branch writes the law, the executive branch executes it, and

courts such as this one provide independent judicial review. See, e.g., Mistretta v. United States,

488 U.S. 361, 371 (1989) ("[T]he principle of separation of powers . . . underlies our tripartite

system of Government."); see also In re Triton Chem. Corp., 46 F. Supp. 326, 330 (D. Del. 1942)

("In view of the 'trinitarian categories' of our government, it is too late now to talk about the lack

of authority in courts to indulge in efforts to effect judicial legislation."); Prewitt v. McDonough,

36 Vet.App. 1, 17-30 (2022) (order) (Jaquith, J., concurring) (describing the creation, structure,

and function of this Court). Our judicial function is "to apply statutes on the basis of what Congress

has written, not what Congress might have written." United States v. Great N. Ry. Co., 343 U.S.

562, 575 (1952). And "[i]t is a fundamental principle of statutory interpretation that 'absent

provision[s] cannot be supplied by the courts.'" Rotkiske v. Klemm, 140 S. Ct. 355, 360–61 (2019)

(quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 94 (2012)).

The dissent embraces these principles but gets the math wrong, accusing the Court of

revising the statute by subtracting the entire salient clause of 38 U.S.C. § 1116A(c)(2)(B)(i): "by

reason of the claim not establishing that the disease was incurred or aggravated by the service of

the veteran." Post at 34. That accusation is baseless, for there is no subtraction; Judge Meredith's

exhaustive analysis of section 1116A(c)(2)(B)(i) gives effect to every word. The Secretary and the

dissent depend on the addition of a word—"only."18 The Secretary argues that "[a] plain reading

of the [Blue Water Navy] Act shows that the only reason for the prior denial must be that the 'claim

18

It is true, of course, that Judge Falvey does not expressly inject the word "only" into section

1116A(c)(2)(B)(i), as the Secretary does. See post at 36 n.25. But that construction is implicit in his determination that

the RO's statement that "[t]he evidence does not show a current diagnosed disability," R. at 2348, renders the RO's

invocation of the service connection elements covered by section 1116A(c)(2)(B)(i) inoperative. In other words, the

distinction between Judge Falvey's position and the Secretary's is one without meaningful difference.

28

was denied by the reason of the claim not establishing that the disease was incurred or aggravated

by the service of the veteran.'" Secretary's Br. at 10-11, 14 (quoting 38 U.S.C.

§ 1116A(c)(2)(B)(i)). But that is obviously not true. The condition precedent to a retroactive

effective date spelled out in section 1116A(c)(2)(B)(i) is that a prior claim for disability

compensation for a covered disease "was denied by reason of the claim not establishing that the

disease was incurred or aggravated by the service of the veteran." 38 U.S.C. § 1116A(c)(2)(B)(i).

The statute does not require that the prior claim was denied "only by reason of" or "solely

by reason of," just "by reason of." Congress knows how to say "only by reason of" or "solely by

reason of" when that is what it means—in title 38 and otherwise. See 38 U.S.C. § 3202(1)(D)(ii)

("only by reason of"); 38 U.S.C. §§ 1505, 1720J(f)(4), 1965(9), 2408(i)(1) ("solely by reason of");

see also, e.g., 10 U.S.C. §§ 850a, 876b(b)(1), 1370(b)(6), 1370a(c)(3)(D) and (d)(4), and 26 U.S.C.

§ 134(b)(6) ("only by reason of"); see also 10 U.S.C. § 1145(d)(3), 8024(c); 37 U.S.C. § 403(n)(1);

42 U.S.C. § 417(f)(1), and 50 U.S.C. §§ 4025, 4104(h), 4329(a)(2)(D) ("solely by reason of").19

Congress used explicit language in these statutes, specifying when it intends to limit the

applicability of a provision to action taken only or solely by reason of a certain condition precedent;

this weighs against inferring such a limitation when it is unstated. See Cooper v. McDonough,

33 Vet.App. 341, 351 (2021), aff'd, 57 F.4th 1366 (Fed. Cir. 2023).

The Secretary argues that "Congress could not have intended for a [v]eteran . . . to be paid

retroactive benefits to cover a period . . . when the Veteran had no disability." Secretary's Supp.

Memo. at 11. And the dissent discusses what would or should happen if the statute worked as

Congress must have intended. Post at 33-36. But "'[i]t is not for us to rewrite the statute so that it

covers only what we think is necessary to achieve what we think Congress really intended,'" or for

us to supplant the text to address policy concerns. Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania, 140 S. Ct. 2367, 2381 (2020) (quoting Lewis v. Chicago, 560 U.S. 205,

215 (2010)). At most, such woulda-coulda-shoulda analysis is indicative of interpretative doubt or

ambiguity that brings the pro-veteran canon to bear, necessitating statutory construction in the

veteran's favor. See Henderson v. Shinseki, 562 U.S. 428, 441-42 (2011) (holding that the "most

telling indicators of Congress's intent are the singular characteristics of the review scheme that

19

The cited statutes involve veterans or military service. Congress demonstrated its ability to specify when

it means "only by reason of" or "solely by reason of" in many other U.S. Code provisions. VA has demonstrated the

same ability in promulgating regulations. See 38 C.F.R. §§ 17.96(a)(2), 21.5926(c)(4)(ii) (2022) ("solely by reason

of").

29

Congress created for the adjudication of veterans' benefits claims," which include "'the canon that

provisions for benefits to members of the Armed Services are to be construed in the beneficiaries'

favor'" (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 220–21 n.9 (1991))); see also Brown v.

Gardner, 513 U.S. 115, 118-21 (1994) (looking to the pro-veteran canon—"the rule that

interpretive doubt is to be resolved in the veteran's favor"—in assessing a statute's "text and

reasonable inferences from it").

In addition, the Secretary's suggestion that the veteran might receive retroactive benefits

for a time when he had no disability is misplaced. The veteran acknowledges that section

1116A(c)(2)(A) must be read with 38 U.S.C. § 5110, so the effective date is set by the later of the

date of the prior denied claim or the date the facts show that entitlement arose. Appellant's Supp.

Memo. at 9-10; see 38 U.S.C. § 5110(a) (providing that the effective date of an award of disability

compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the

date of receipt of application therefor"); 38 C.F.R. § 3.400 (2022) (providing that the effective date

"will be the date of receipt of the claim or the date entitlement arose, whichever is later").

Moreover, we are deciding a real case based on what actually happened, not what would,

could, or should have happened. And we don't have to deploy any special skills to discern or

deduce why VA denied the veteran's original claim in July 2014. The RO was very explicit that it

denied the veteran's claim because the claim did not establish that his IHD was incurred or

aggravated by his Navy service, just as section 1116A(c)(2)(B)(i) requires. R. at 2348. The RO

highlighted that "[t]he evidence does not show an event, disease or injury in service" as the RO's

first, most prominent reason for denying service connection.20 Id. Then the RO elaborated that the

veteran's "service treatment records do not contain complaints, treatment, or diagnosis for [his

IHD]." Id. Then the RO elaborated further that the evidence did not show that the veteran's IHD

"developed to a compensable degree within the specified time period after release from service to

qualify for the presumption of service connection." Id. That's three consecutive sentences

explaining that the veteran's claim was denied "by reason of the claim not establishing that the

disease was incurred or aggravated by the service of the veteran." 38 U.S.C. § 1116A(c)(2)(B)(i).

20

To establish service connection for a claimed disability, a veteran must show "(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." Shedden v. Principi, 381 F.3d 1163,

1166–67 (Fed. Cir. 2004).

30

Only after that, in the fourth sentence, did the RO note that "[t]he evidence does not show a current

diagnosed disability." R. at 2348.

Next, the RO devoted a paragraph to describing the conditions that VA presumes are

service connected based on exposure to herbicides used in Vietnam, including IHD. R. at 2348-

49. Then the RO repeated, quite clearly, that it found no basis for service connection for the

veteran’s IHD because "[t]his condition did not happen in military service, nor was it aggravated

or caused by service"—again invoking language aligned with section 1116A(c)(2)(B)(i). R. at

2349.

The curious list of the evidence the RO considered in reaching that decision, R. at 2343,

2347, may hint at why the RO buried what VA now says is the lead—that the veteran had no

disability.21 The 2014 rating decision lists the evidence as including the following:

"● Examination, VA Medical Center (VAMC), Richmond, VA, dated

● Private treatment reports, The Sanger Clinic, Dr. Cook ( no response was received)."

R. at 2343, 2347. Dr. Cook was the attending surgeon for the veteran’s 1991 coronary artery bypass

graft, necessitated by the veteran's "severe coronary artery disease" at age 46. R. at 1547. The

veteran's open heart surgery required cutting through his sternum and then closing it with wire and

closing his skin with "35 wide surgical staples." R. at 1547-48.

In his September 2013 claim, the veteran described his heart disease as dating from 1991.

R. at 3241. Though the record before the Court is sparse—and what evidence the RO had and

considered is not addressed beyond the evidence listing—the RO obviously knew when it denied

his claim that the veteran had been treated by Dr. Cook and examined at Richmond’s VA Medical

Center. R. at 2343, 2347. The veteran later wrote that he had included the Sanger Clinic medical

records with his September 2013 claim. R. at 523. The veteran also said, "I received a

C[ompensation] and P[ension] exam at the Richmond, VA VAMC and the exam would

DEFINITELY have revealed my heart condition and the huge scar that remains from my surgery."

R. at 523. And it is undisputed that the veteran has had his heart disability from at least 1991. R. at

21

The dissent offers that the structure of the RO's adjudication may reflect its "propensity towards

boilerplate." Post at 37 n.26. Any such propensity fails claimants, each of whom is entitled to fair, individualized

assessment of her or his case. Moreover, whether the structure of its rating decision is thoughtless or strategic, the RO

is accountable for what it said, and how. In this case, the RO addressed the service connection elements in

1116A(c)(2)(B)(i) first and the evidence of the veteran's disability last—the reverse of their order in Shedden. See

Shedden, 381 F.3d at 1166–67. As described below, an RO and the Board later reimagined what the July 2014 RO

did. The Court cannot follow suit.

31

7-8, 11, 90-91, 523, 543, 1535-48. Whatever the 2014 state of VA's fulfillment of its duty to assist

(in getting the Richmond VA records and Dr. Cook's records), it is understandable that the RO

would lead with the basis for denying service connection in which it was most confident, the lack

of an in-service incurrence, rather than the one it had reason to think might be wrong, the absence

of a current disability. R. at 2344-45.

What is not understandable is the revisionist history that followed the veteran's August

2019 claim for disability compensation for his IHD.22 R. at 2291-322. In an April 2020 rating

decision granting service connection and a 60% disability rating for the veteran's heart condition,

effective in September 2019, an unnamed RO said: "[Y]our original claim for ischemic heart

disease was denied because there was no evidence of a diagnosis of ischemic heart disease."23 R. at

952. That was a misleading half-truth that failed to mention that the RO's July 2014 rating decision

also said that it denied service connection because "[t]he evidence does not show an event, disease

or injury in service" and the veteran's claimed heart disease condition "did not happen in military

service, nor was it aggravated or caused by service." R. at 2348-49.

The veteran sought review of the April 2020 rating decision, and in May 2020, an unnamed

RO determined that the April 2020 decision was "clearly and unmistakably erroneous in not

granting a separate compensable evaluation for supraventricular arrhythmia with cardiac

pacemaker," and the May 2020 RO established an effective date in September 2018 for the

veteran's heart disabilities. R. at 555-62.

Unfortunately, the November 2020 Board decision rests on the misleading half-truth in the

April 2020 RO decision's characterization of the July 2014 RO decision, rather than the July 2014

decision itself. The Board said:

The Veteran’s original September 2013 service connection claim for ischemic heart

disease was denied in a July 2014 AOJ[24] rating decision not on the basis that he

22

The veteran signed his claim in July 2019, and VA refers to it as his reopened September 2019 claim, but

the record reflects that it was received by VA in August 2019. R. at 957, 2291-322. The veteran submitted a statement

about his Coast Guard service directly off the coast of Vietnam, saying: "we would watch clouds of Agent Orange

coming across the water after they dropped it in the trees. Many times, we would actually be running the motor life

boats and be completely immersed in it." R. at 2322.

23

The April 2020 rating decision does not identify the RO that made it, R. at 950-53, so it is unclear whether

it was the same RO that decided the veteran's original claim. The July 2014 rating decision was made by the Jackson,

Mississippi, RO. R. at 2346-51.

"AOJ" is an initialism for the agency of original jurisdiction. An AOJ "makes the initial decision on a claim

24

for VA benefits. An AOJ is typically one of VA's 57 regional offices in the case of benefits administered by the

32

did not have confirmed service in Vietnam, but on the basis that the evidence of

record did not show that he had a current disability.

R. at 8-9. The Board's characterization of the July 2014 RO decision dismissed without even

discussing what the rating decision actually said—that it denied service connection because "[t]he

evidence does not show an event, disease or injury in service" and because the veteran's claimed

heart disease condition "did not happen in military service, nor was it aggravated or caused by

service." R. at 2348-49. In so doing, the Board took out of context the July 2014 RO's statement

that "[t]he evidence does not show a current diagnosed disability." R. at 2348.

In this case, the July 2014 RO's denial of service connection because "[t]he evidence does

not show an event, disease or injury in service" and because the veteran’s claimed heart disease

condition "did not happen in military service, nor was it aggravated or caused by service," R. at

2348-49, amounts to a favorable finding that is binding on all subsequent Agency adjudicators and

the Board unless rebutted by evidence of clear and unmistakable error (CUE). 38 C.F.R. § 3.104(c)

(2022). This basis for the July 2014 RO's denial of service connection is favorable insofar as it

corresponds to the terms of 38 U.S.C. § 1116A(c)(2)(B)(i) and thus could affect the effective date

for the veteran's disability rating. And the May 2020 RO's CUE finding addressed only the April

2020 RO decision on a separate rating and the effective date, not the July 2014 decision's stated

reasons for denying service connection. The Board mischaracterized the July 2014 rating decision

by ignoring the RO's favorable finding, and the Board did not meaningfully address section

1116A(c), necessitating remand. See Tucker v. West, 11 Vet.App. 369, 374 (1998).

FALVEY, Judge, dissenting: I agree with much of the Court's panel decision. I'm with the

majority until we get to Section D(2)(c), ante at 18. We part ways because the Court holds that as

long as a veteran previously applied for benefits for a disability that is now presumptively related

to herbicides and was denied, that veteran benefits from the retroactive effective date provision of

the Blue Water Act. The problem is that's not what Congress said.

True, Congress started out by saying that a veteran could obtain an earlier effective date if

he or she "submitted a claim for disability compensation on or after September 25, 1985, and

Veterans Benefits Administration (VBA)." Board of Veterans' Appeals: Clarification of a Notice of Disagreement,

70 Fed. Reg. 37,723, 37,723 (proposed June 30, 2005) (to be codified at 38 C.F.R. pt. 19); see 38 U.S.C. § 5104C

(outlining a claimant's options after the AOJ decides a claim).

33

before January 1, 2020, for a disease covered by this section, and the claim was denied." 38 U.S.C.

§ 1116A(c)(2)(B)(i). But it didn't stop there. Congress went on to require that the denial was "by

reason of the claim not establishing that the disease was incurred or aggravated by the service of

the veteran." Id.

If Congress wanted a veteran to obtain an earlier effective date simply if he or she applied

for a covered disability and was denied, it would have stopped at "denied." But it didn't. And we

should presume that each word Congress used is there for a reason. Martinez v. Wilkie, 31 Vet.App.

170, 176 (2019). Doing just that, I ultimately read the requirement that "the claim was denied by

reason of the claim not establishing that the disease was incurred or aggravated by the service of

the veteran" as excluding those who were denied, at least in part, because they did not have a

disability. As a result, I respectfully dissent.

***

When interpreting a statute, "it is no more the court's function to revise by subtraction than

by addition." SCALIA & GARNER, ante p. 28, at 174. This principle, known as the canon against

surplusage, is strongest when an interpretation would render superfluous another part of the same

statutory scheme." Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013). That is what we have

here.

Congress allowed for retroactive benefits when the "veteran submitted a claim . . . for a

disease covered by this section, and the claim was denied by reason of the claim not establishing

that the disease was incurred or aggravated by the service of the veteran." 38 U.S.C.

§ 1116A(c)(2)(B)(i).

If Congress meant to allow an earlier effective date simply because a veteran applied for a

covered disability and was denied, it presumably would have stopped at "denied" without

specifying a reason for the denial. It didn't. Thus, we must determine what Congress meant by

requiring that the denial be "by reason of the claim not establishing that the disease was incurred

or aggravated by the service of the veteran."

Generally, in order to establish service connection or service-connected aggravation for a

present disability the veteran must show: "(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." Shedden v. Principi,

34

381 F.3d 1163, 1166–67 (Fed. Cir. 2004). So how does VA deny claims if a veteran fails to meet

one of these required elements?

Consider a veteran who applied and had a current covered disability; he or she would have

checked off the first Shedden element. And VA could deny the claim only because either there was

no in-service event or injury or there was nothing connecting that event to the current disability.

In either case, the denial would have been because "the disease was[not] incurred or aggravated

by service." 38 U.S.C. § 1116A(c)(2)(B)(i). No matter if there was no in-service injury or event,

or if there was no link between such an in-service event and the disease, the conclusion would be

same—the disease was not incurred or aggravated by service.

But we can't say the same if the veteran applied for a covered disability and was denied

because he or she didn't have a current disability. In such case, VA would not need to get to whether

that disability was incurred or aggravated in service. You can't really make a finding that

something that does not exist "was incurred or aggravated by service." Put differently, whether a

disability was incurred in or aggravated by service is relevant only when the veteran has

established the first service connection element—a current disability.

And because section 1116A(c)(2)(B)(i) requires that "the claim was denied by reason of

the claim not establishing that the disease was incurred or aggravated by the service of the veteran,"

I do not see how a denial when the veteran had not established a current disease or disability could

qualify for an earlier effective date. Without a current disease or disability to potentially link to

service, the reasoning breaks down. Reading that section to mean that it applies as long as the

veteran was "denied" renders the entire section where Congress specified the reason for denial

superfluous. That is not the result Congress had in mind when it spent time specifying how a claim

must have been denied to fall under the earlier effective date provisions.

True, I am not a fan of "excursions beyond the interpretative terra firma of text and context,

into the swamps of legislative history." Lawson v. FMR LLC, 571 U.S. 429, 459 (2014) (Scalia, J.,

concurring in part and concurring in judgment). After all, "we are governed by what Congress

enacted rather than by what it intended." Id. That said, I don't necessarily disagree with the

majority's understanding of the Act's purpose. Ante at 25 n.17. But if we are to look at legislative

intent, we also must consider that Congress wanted to "ensure[] parity for [Blue Water Navy]

veterans." H.R. REP. No. 116-58, at 12. In other words, Congress wanted to put blue water veterans

35

in the same place as other Vietnam-era veterans whose exposure to herbicides has not been

questioned for decades.

For this reason, it makes sense that Congress meant to exclude those who did not have a

current disability from the earlier effective date provision. If a veteran did not have a current

disability, he or she would not have benefited from the presumptions even if those had extended

to blue water veterans at the time. Without a disability, the veteran would have been just as denied.

If anything, applying the earlier effective date provision to blue water veterans who did not

have a current disability when they applied puts them in a better position than similarly situated

boots-on-the-ground veterans who previously applied but did not have a current disability. Such a

result does not make sense. To avoid this, Congress specified the reasons for why a veteran must

have been previously denied in section 1116A(c)(2)(B)(i) and excluded those veterans whose

claims VA denied, at least in part, because they did not have a disability.25

This isn't to say that Congress wanted to leave veterans at the whim of how VA phrased a

denial many years ago. We know that Congress wanted to put blue water veterans in the same

position they would have been if they could have benefited from presumptions. H.R. REP. No.

116-58, at 12. As the majority points out, VA decisions were particularly light on the reasons for

a denial until 1990. And it would be absurd to think that a denial would only qualify if it was

phrased in the terms used in section 1116A(c)(2)(B)(i). That's not what we want when interpreting

a statute. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). But even though a

VA decision may be confusing, figuring out why a claimant was denied need not be especially

complicated.

If at the time VA knew that a veteran had a disability, then the denial would have been

because that veteran failed to meet the second or third Shedden element. In other words, VA would

have denied the claim because "the disease was [not] incurred or aggravated by service." 38 U.S.C.

§ 1116A(c)(2)(B)(i). And if the veteran did not have a disease, then VA could not reasonably

conclude that "the disease was[not] incurred or aggravated by service." Id. Thus, when the VA

25

In his concurrence, Judge Jaquith states that the dissent, in noting that Congress specified the reason for

the denial in section 1116A(c)(2)(B)(i), relied on the addition of the word "only." Ante at 28-29. Yet, his citations for

this assertion are all to the Secretary's brief. I don't add "only" to the statute. Instead, I read it as excluding those

veterans whose claims VA denied, at least in part, because they did not have a disability. To me, that is the most

reasonable reading of the statute, as it is the only interpretation that makes the words after "denied" do any work.

36

decision is unclear, even a cursory look at the record can tell us whether section 1116A(c)(2)(B)(i)

could come into play.

That is what the Board did here. It turned to the July 2014 decision and the record to

conclude that VA denied benefits because Mr. Crews did not have ischemic heart disease, a

presumptive disability tied to herbicides. R. at 8-11. True, VA later obtained records showing that

Mr. Crews did in fact have a qualifying heart disability, but there is no suggestion VA knew that

when it denied his claim in 2014.26 See R. at 1535-48. Thus, because the Board's factual finding

on why VA denied benefits in 2014 is plausible, I would leave it undisturbed. Gilbert v. Derwinski,

1 Vet.App. 49, 52 (1990).

This isn't to say that the Board decision is free of error. One could fault the Board for not

adequately discussing whether VA denied Mr. Crews's claim in July 2014 separate from the fact

that he did not have a current disability. But even Mr. Crews admits that, if the statute is read to

exclude denials when the veteran was denied because he or she did not have a current disability,

there is nothing for the Board to do on remand. "[T]he matter is no longer open to reasonable

debate." Appellant's Supp. Memo. at 15.

Congress requires that this Court "take due account of the rule of prejudicial error."

38 U.S.C. § 7261(b)(2). This means "looking to the circumstances of the case to see if the alleged

error was harmful." Slaughter v McDonough, 29 F.4th 1351, 1355 (Fed. Cir. 2022). And even with

errors, we may affirm if the result "is not open to debate and the Board on remand could not have

reached any other determination on that issue." See Tadlock v. McDonough, 5 F.4th 1327, 1336

(Fed. Cir. 2021). This means that I would affirm the Board decision.

26

In his concurrence, Judge Jaquith writes that the RO buried the finding that Mr. Crews did not have a

disability because the evidence about this basis for denial was the weakest. Ante at 31. Given their workload and their

propensity towards boilerplate, I doubt adjudicators put this much strategic thought into RO decisions. At a minimum,

Mr. Crews's team of attorneys, with their decades of VA law experience (including within the Agency) have not tried

to spin this theory.

At the same time, I acknowledge that evidence existed at the time of the July 2014 RO decision, showing

that Mr. Crews had a current disability. But this evidence was not before VA at that time. Judge Jaquith notes that

Mr. Crews later wrote that he had included with his September 2013 claim Dr. Cook's private medical records

documenting his heart condition. Ante at 31. Yet the only documents noted as attachments to Mr. Crews's claim was

a Veterans of Foreign Wars power of attorney and the veteran's DD-214. R. at 3246. And the RO's list of evidence in

its July 2014 decision—"Private treatment reports, The Sanger Clinic, Dr. Cook (no response was received)," R. at

2343—suggests that VA tried to obtain those records. But VA did not receive a response from Dr. Cook. Although,

as Judge Jaquith implies, ante at 31, the July 2014 RO decision could have contained some duty-to-assist or duty-to-

notify error, the way to remedy that error would have been to appeal the decision, but, unfortunately, Mr. Crews did

not; nor does it appear that he alleged CUE in that decision.

37

When Mr. Crews sought benefits in 2014, VA did not know that he had a current heart

disease. Thus, under the statute, the denial of his claim was not because "the disease was[not]

incurred or aggravated by service" as required by section 1116A(c)(2)(B)(i). If Congress wanted

a contrary result, it would have simply stopped at writing that section after "denied." Because it

didn't, Mr. Crews can't benefit from the earlier effective date provisions under section

1116A(c)(2)(B)(i), and I respectfully dissent from the Court's holding.

38