Petition for Writ of Certiorari — Haas v. Peake, 129 S. Ct. 1002 (2009) (No. 08-525)

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Supreme Court, U.S.

FILED

or |

No. 087 08 - 525001 1 7 2008

ERK

IN THE

Supreme Court of the United States

JONATHAN L. HAAS,

Petitioner,

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

BARTON F. STICHMAN STEPHEN B. KINNAIRD

LOUIS J. GEORGE Counsel of Record

RICHARD V. SPATARO, JR. SEAN D. UNGER

NATIONAL VETERANS LEGAL ELIZABETH A. STEVENS

SERVICES PROGRAM PAUL, HASTINGS, JANOFSKY

1600 K Street, N.W. & WALKER LLP

Suite 500 875 15th Street, N.W.

Washington, DC 20005 Washington, DC 20005

(202) 265-8305 (202) 551-1700

Attorneys for Petitioner

_ AER RNS aE SETI MOLL DDEP PAI NEC TE MER

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20002

QUESTION PRESENTED FOR REVIEW

Veterans are entitled to benefits for disabilities

connected with their military service. The Agent

Orange Act of 1991, as amended, requires a finding of

service connection for specified diseases “manifest . . .

in a veteran who, during active military, naval, or air

service, served in the Republic of Vietnam during the

period beginning on January 9, 1962 and ending on

May 7, 1975.” 38 U.S.C. § 1116(a)(1)(A) (emphasis

added).

Does this statute exclude veterans who performed

naval service in the territorial seas of the Republic of

Vietnam?

(1)

PARTIES TO THE PROCEEDING

There are no parties other than those listed in the

caption.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .........

PARTIES TO THE PROCEEDING ...........0..0.0..

yy i Fat gtd yy -, yy. Seen errr

STATUTORY PROVISIONS INVOLVED...........

STATEMENT OF THE CASE. ........sscevccessseseeseess

A. Vietnam War Background ......................4.

B. Legislative and Regulatory Background...

DS sicher ns

2. The Agent Orange Act of 1991..............

C. Procoedatite GMO O «a iicccccciccscccsecesscenvsessesass

REASONS FOR GRANTING THE PETITION...

I. THIS COURT SHOULD GRANT RE-

VIEW TO DETERMINE THE MEAN-

ING OF A CRITICAL VETERANS

PRUE EE CE 6 vnc cesessccnsscerseceias cosas

A. The Term “The Republic Of Vietnam”

Refers To The Sovereign Nation

Whose Boundaries Include The

POUT, BR iaeivciceiier akin

B. The Panel’s Failure To Apply The

Pro-Veteran Canon Conflicts With

This Court’s Precedent...............0....0068

(11)

NN NN =

rn w Ww

TABLE OF CONTENTS—Continued

Page

C. The Federal Circuit Improperly

Granted Chevron Deference To The

Department’s Unreasonable Inter-

II so cniccrnccsiasd iniemarniabinnetisataenbens 30

Il. IMMEDIATE REVIEW IS NECESSARY

TO AVOID PREJUDICE TO

TABLE OF AUTHORITIES

CASES Page

Anhydrides & Chemicals, Inc. v. United

States, 130 F.3d 1481 (Fed. Cir. 1997)..... 26, 27

Asgrow Seed Co. v. Winterboer, 513 U.S.

i aiiectecniceiccemnncthnnusbcapiibeicinaesaatates 22

Auer v. Robbins, 519 U.S. 452 (1997) .......... 30

Boyer v. West, 210 F.3d 1351 (Fed. Cir.

RE EO, OPTI ROME ARE ne RA AN 28

Brown v. Gardner, 513 U.S. 115 (1994)......passim

Chevron, U.S.A., Inc. v. NRDC, 467 U.S.

I I E iidaitciticsicatceneudavsdi gue liddesbesiusenimmbcn passim

Disabled Am. Veterans v. Gober, 234 F.3d

gt Ee | | | eee 28

Fishgold v. Sullivan Drydock & Repair

Corp. S28 US. BIG CTI) sos nccseccencscen. 28

Gonzales v. Oregon, 546 U.S. 243 (2006)..... 30

INS v. Cardoza-Fonseca, 480 U.S. 421

PO tics sis seis ps ltacusd bonis casaceca anmmmne manson 25

Jordan v. Nicholson, 401 F.3d 1296 (Fed.

Rs, SI clicscaishoc ici esaaenadinalaainta amon 33

King v. St. Vincent’s Hosp., 502 U.S. 215

DR cca ataccaaleatie asaanmeeee saiadeedttens ok 27, 28

Lebron v. Nat'l R.R. Passenger Corp., 513

a ia 30

Leng May Ma v. Barber, 357 U.S. 185

IS Sa cleanse aan cea 21

Louisiana v. Mississippi, 202 U.S. 1(1906) 18-19

Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Dabit, 547 U.S. 71 (2006) .............. 23

Nehmer v. U.S. Veterans Admin., 712 F.

Supp. 1404 1423 (N.D. Cal. 1990)............ 10

Ribaudo v. Nicholson, 21 Vet. App. 137

ERIN It osasscicsssstdisdeanichianglialagncicunsrenespaaeecamonamintbene saat 18

TABLE OF AUTHORITIES—Continued

Page

Sears v. Principi, 349 F.3d 1326 (Fed. Cir.

RIERA eaten ane eer CR or mee Cua r oem I 28

Terry v. Principi, 340 F.3d 1378 (Fed. Cir.

aaa ciel a ee re deci assala unbrabebadiles 28

Transamerica Ins. Co. v. South, 125 F.3d

ee UI, BOUT vicsdecassvinssosteinintpactencensecs 28

U.S. Natl Bank of Oregon v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439 (1993).. 26

United States v. Mead Corp., 533 U.S. 218

Ee enn nea TORT nT MeeTy 30

United States v. Speers, 382 U.S. 266

ici: ca snvndceeisabusisesinnsahaeianintnieiaatcestbiiees 29

Yang v. Mauqans, 68 F.3d 1540 (3d Cir.

RRR Esty ese NANT er ee Eee 21

Yee v. Escondido, 503 U.S. 519 (1992)......... 29

Zhang v. Slattery, 55 F.3d 732 (2d Cir.

NGL ales cause ceiauneecsanseassaebiaxeuiecacteaubeseue 21

STATUTES

Be Ra II aie sieawacdavnrcecanatekeuscbeasvieuss ai

a Mo sen soa enna snndioarebosmouseens 22

Be BD ceenici sins cocisevescenesenessineneacaes 2

Be Ee es, © BI ovens sceiscscsscssssccessesenectass 2

ae PE oe ccessnnvevesesareseancvesenceeses 22

ey i, 0 OD vcs veccnssnsessovncscenassvencones 13, 24

ee acs catesdivsencvsnincrsssiveairewsucevenets passim

ee NE a vrcnscesie tesa guevasiessncensanoeven 10

Be rs © OE I Boe csniscccsdvssescessnasasennees 10

ae RA, © LATER EMA)....0..<ccccccscceosss: i, 2, 16,20

ee BI idicsivsscascxcavesveessienenesanss 13

BE WI EAS. © ELTON C)...n<.00cserrsescscersrevecsess 23

Be Es . | LL TARGRAAD).....20..10secccsoensscsanenses 23

gk Bi St eer 11

Vii

TABLE OF AUTHORITIES—Continued

Page

BO UA... DTT EOR ITA) os vcccsessviocsscicocseseeseess 33

RT Re yp: 2

REGULATIONS

38 C.F.R. § 3.307(a)(6)( 2008) ...............00..000. 14

38 C.F.R. § 3.307(a)(6)(ii1)(2008).............00... 17, 26

38 C.F.R. § 3.307(a)(6)(iii) (1994)..20 ee. 13, 20

Se ee ca Oe I cick eticidecnccitcdesevercccetsenscens 13

Be A tie EE CRE) cccevccnsvecsccresesscvesscces passim

38 C.F.R. § 3.311la(a)(1) (1986) .................... 8

30 C.F. § S.ST LACK) CEGS1 ).06..ccccccenccs.... 10

BE ELT Be. BOAO LAGGED se essccccecsvsdecincssscseesee passim

ee EE ha eiccccecteccesncsarevetonseses 33

Adjuication of Claims Based on Exposure

to Dioxin or Ionizing Radiation 50 Fed.

Reg. 34454 (Aug. 26, 1985)to be codified

OE BG. A. BO. FG onc ciscicsccssccsssicesse- 8

Claims Based on Exposure to Herbicides

Containing Dioxin Soft Tissue

Sarcomas, 56 Fed. Reg. 51,651 (Oct. 15,

i991)( to be codified at 38 C.F.R. pts 3

SD oki ioapacceuaiadenbgsacaduaitnitaeemebamanatie 9, 10, 27

Claims Based on Service in Vietnam, 55

Fed. Reg. 43,123 (Oct. 26, 1990) (to be

codified at 38 C.F.R. pts 3 & 4) ....... ee. 9, 27

Definition of Service in the Republic of

Vietnam 69 Fed. Reg. 44,614 (July 27,

2004) (to be codified at 38 C.F.R. pts 3 &

i icine densvesasociienans en tniamisaeulen si tcaiiaedatan Altabnes 15

Disease Associated With Exposure to

Certain Herbicide Agents: Type 2

Diabetes 66 Fed. Reg. 23, 166 (May 8,

2001 ( to be codified at 38 C.F.R. pt. 3).... 13-14

Vill

TABLE OF AUTHORITiES—Continued

Page

Exec. Order 11216, Designation of

Vietnam and Waters Adjacent Thereto

as a Combat Zone for the Purposes of

Section 112 of the Internal Revenue

Code of 1954 30 Fed. Reg. 5817 (April

24, 1965) (to be codified at 38 C.F.R. pt

DD vissssessersicirasticsinonenenaa eae 22

Presumptions of Service Connection for

Certain Disabilites and Related Matters

69 Fed. Reg. 44,620 (July 27, 2004) (to

be codified at 38 C.F.R. pt. 3) ..............c006 14

Presidential Proclamation 5928 54 Red.

Reg. 777 (Dec. 27, 1988) ........... ievssviaonlntn 19

LEGISLATIVE MATERIALS

Agent Orange Act, Pub. L. No. 102-4, 105

tet. 15 (cece passim

Report to the Secretary of Veterans Affairs

on the Association Between Adverse

health Effects and Exposure to Agent

Orange, reprinted in Links Between

Agent Orange, Herbicides, and Rare

Diseases: Hearing before the Human

Resources and Intergovernmental

Relations Subcomm. Of the Comm. On

Gov’t Operations 101st Cong., 2d

Sonekets CHS) sasncscsssvecnnaneceae passim

S. Rep. No. 104-371, reprintecd in 1996

USGL AAS 4S cccicusicsiintinieeineee 24

Statement of President George Bush Upon

Signing H.R. 556 (Feb 6, 1991) reprinted

in 1601 TU B.A) BE ciccccccraneee 11

TABLE OF AUTHORITIES—Continued

Page

Veterans’ dioxin and Radiation Exposure

Compensation Standards Act of 1984,

Pub. L. No. 98-542, 98 Stat. 2728 ........... 7, 8,10

Veterans’ Benefits Improvement Act of

1996 , Pub. L. No. 104-275 §505(b), 110

SY Ss coscnnsnescpusesnssessosesvvsveceeeses 11

137 Cong. Rec. E203-01 (daily ed. January

17, 1991) (statement of Rep. Mont-

Tale Aik ccukcienghsbisnscdiesdasisveistensssencess 11

137 Cong. Rec. H719-01 (January 29,

1991) (statement of Rep. Stump) ............. 11

137 Cong. Rec. E390 (daily ed. Jan. 29,

1991) (statement of Rep. Burton)............. 11

OTHER AUTHORITIES

Bd. of Veteran Affaris Decision Docket No.

95-30437 (July 23, 2002) available at

http:// www.va.gov.vetapp02/files02

III cin ccsndetacesthesechenesnrsvacendenedainaite 14

Bd.of Veteran Appeals Decision, Docket

No. 02-22 228 (Feb.2, 2004) available at

http://www.va.gov/vetapp04/files/040292

SUT shili thick puliabn venue das naereneesauntnidabiewbeeniouens 14

CIA World Factbook (definitions), avail-

able at https://www.cia.gov/library

/publications/the-world-factbook/docs

PIII. SURIIEED sccisessseuscecevensstscseovsiease 21

CIA World Factbook (definitions), auail-

able at https://www.cia.gov/library

/publications/the-world-factbook/geos

| Te erat eae Seas 21

TABLE OF AUTHORITIES—Continued

Page

Centers for Disease Control, Final Report

of the Association of Selected Cancers

with Service in the U.S. Military in

Vista ST TSewt. LGD) oncccssesscecscosesessenes. 9

Dep’t of Def. Manual of Military Decora-

tion and Awards, { C6.6 (September

ED <iiinscivnidiniacinta peels 13

Dep't. of Veterans Affairs, Op. Gen

Counsel Prec. 27-97 (1997) ...........s...eese0es 14

II Edward J. Marolda & Oscar P.

Fitzgerald, The U.S. Navy and _ the

Vietnam Conflict (1986)...............2.00ceeee ee 3,4, 27

Jeanne Mager Stellman et al. A

Geographic Page Information System for

Characterizing Exposure to Agent

Orange and Other Herbicides in

Vietnam, 111 Env’t Health Perspectives

GI aia kcicchnediatessantnglesvdini cctvapawiatnteenansreaieanss 5

Marilyn Young, The Vietnam Wars 1945 to

Se Se rikcncsstheniniiciceiicanadeientes 3,9

National Historical Center FAQs, www.

history.navy.mil/faq73-1.htm (last

accessed at Oct. 14, 2008)................cccceceee 34

Nat'l Research Ctr. for Envtl. Toxicology,

Queensland Health Scientific Servs.,

Examination of the Potential Exposure of

Royal Australian Navy (RAN) Personnel

to Polychlorinated Dibenzodioxins and

Polychlorinated Dibenzofurans via

Drinking Water (Dec. 12, 2002)................ 7

Restatement (Second) of Foreign Relations

SN FF Ce tnccnsetiarinscdoaninndlciepibeinceds 20

Restatement (Second) of Foreign Relations

ES De CR itictniamipionenienes 18

TABLE OF AUTHORITIES—Continued

Page

United Nations Convention on the Law of

Ce TOM, FNS FE CED evccscvncstsccesccserctsecsees 19

VA Adjudication Procedures Manual M21-

1 J 4.08(k)(1) (November 8, 1991)............ 12

xill

TABLE OF APPENDICIES

Page

Appendix A

Haas v. Peake, Opinion No. 2007-7037 U.S.

Court of Appeals, Federal Circuit, May 8,

ie alte oo clas co dencedlcunauebaonpenscunnmiies la

Appendix B

Haas v. Peake, On Petition for Rehearing No.

2007-7037, U.S. Court of Appeals Federal

a ee) ee 63a

Appendix C

Haas v. Nicholson, Opinion, No. 04-0491, Us.

Court of Appeals for Veterans Claims,

SE I ID sare cxvincickevekesteaieretassesernedtibinexesbe 71a

Appendix D

In the Appeal of Jonathan L. Haas, Decision,

DocketNo. 03-05 049, Board of Veterans’

Appeals, February 20, 2004...............ccccccescssees 1l4a

Appendix E

Rating Decision ( regarding Jonathan L.

Haas), V.A. File No. 24 699 165 is of

Veteran Affairs, May 8, 2002 ...............cccseeeeees 127a

Appedix F

Haas v. Peake,. Order Denying Rehearing,

No. 2007-7037 U.S. Court of Appeals,

Federal Circuit, October 9, 2008..................... 136a

Appendix G

Agent Orange Act of 1991 Pub.L. No. 102-4

102nd Congress, Ist Sessio, February 6,

Tee aio icsachouaelwehsipeniialendnebdeweettine 138a

Appendix H

I OO vn sijannnerinvdevievnsscunsxavessvvevesessexeess 16la

Appendix I \

co sie scclanesdesntenehsvnckustiscieisnvevecwees 166a

Appendix J

Se I WI OI iainvcsacesmicassnceicesseveiinavsscusvevacees 172a

X11l

TABLE OF APPENDICIES

Continued

Appendix K

Oe rs GPE vic vcsccnncvcwecevsccsecovevyeesvavcevaves ..... 186a

Appendix L.

38 U.S.C § 3.313......... scaeeuineKpruntes a pucvesuied anil 196a

IN THE

Supreme Court of the Anited States

No. 08-___

JONATHAN L. HAAS,

Petitioner,

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS AND ORDERS BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit is reported at 525 F.3d 1168

(Fed. Cir. 2008) and reproduced in Petitioner’s

Appendix (“App.”) at la. The supplemental opinion of

the court of appeals is designated for publication,

although not yet published, and is reproduced at App.

63a. The decision of the United States Court of

Appeals for Veterans Claims is reported at 20 Vet.

App. 257 and reproduced at App. 7la. The decisions

of the Board of Veterans’ Appeals and the Regional

Office of the Department of Veterans Affairs

(“Department” or “DVA”) are reproduced at App.

114a and 127a respectively.

JURISDICTION

The judgment of the Federal Circuit issued on

May 8, 2008 and the order denying petition for

rehearing issued on October 9, 2008. This petition is

timely filed within 90 days of the Federal Circuit’s

denial of rehearing. This Court has jurisdiction

under 28 U.S.C. § 1254(1). The courts below had

jurisdiction pursuant to 38U.S.C. § 7292(c) and

28 U.S.C. § 1295(a)(3).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the original and

amended Agent Orange Act of 1991, codified (as

amended) at 38 U.S.C. § 1116, are reproduced at App.

138a and 16la. The relevant regulations of the

Department of Veterans Affairs are reproduced at

App. 166a, 172a, 186a, 196a.

STATEMENT OF THE CASE

This case presents a question within the Federal

Circuit’s exclusive jurisdiction that has extraordinary

importance for Navy veterans. In the Agent Orange

Act of 1991, as amended, Congress required a finding

of service connection for specified diseases “manifest .

. in a veteran who, during active military, naval, or

air service, served in the Republic of Vietnam during

the period beginning on January 9, 1962 and ending

on May 7, 1975.” 38 U.S.C. § 1116(a)(1)(A) (emphasis

added). The Federal Circuit, siding with the Depart-

ment of Veterans Affairs, has interpreted Section

1116 contrary to its plain language to apply not to all

naval service in the Republic of Vietnam, but only to

service on land or in the inland waterways. The

Federal Circuit has imputed to Congress an intent to

deny statutory protection to more than 800,000 “blue-

water” Navy veterans who served in the Republic’s

territorial seas and coastal waters, even though such

veterans had the highest incidence of the covered

disease non-Hodgkins lymphoma (NHL), and even

though the Act’s sponsors declared that it would

codify an existing NHL regulation that protected

such veterans. Finally, in conflict with Brown v.

Gardner, 513 U.S. 115, 118 (1994), the Federal Cir-

cuit improperly awarded deference under Chevron,

U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), to the

Department before applying the canon that interpre-

tive ambiguity in the statute must be resolved in the

veteran’s favor. This Court’s review is imperative.

A. Vietnam War Background

1. The Formation of the Republic of Vietnam. In

May, 1954, the communist Viet Minh nationalist

niovement routed French forces and effectively ended

French colonial rule of Vietnam. The major powers

brokered a solution that reflected Cold War divisions.

The Geneva Convention of 1954 partitioned Vietnam

into two countries at the 17th parallel: the Republic

of Vietnam tw the south (colloquially known as South

Vietnam), and the Democratic Republic of Vietnam in

the north (colloquially known as North Vietnam).

App. 8lan.3. The ceasefire limited the Viet Minh to

North Vietnam. Marilyn Young, The Vietnam Wars

1945 to 1990 41 (1991).

2. American Military Involvement in Vietnam. The

newly partitioned Vietnam quickly became a front in

the Cold War. The U.S.-backed government in the

Republic of Vietnam soon faced extensive communist

insurgencies. The U.S. began committing military

forces to Victnam in 1961 in what is known as the

Vietnam “advisory” period.

The U.S. Navy focused much of its effort on coastal

sea patrol to prevent communist infiltration. The

Republic of Vietnam had a very long coastline,

extending approximately 1200 miles from the 17th

parallel to the Cambodian border. II Edward J.

Marolda & Oscar P. Fitzgerald, The U.S. Navy and

the Vietnam Conflict 155 (1986). This long coastline,

with its many inlets, shallow shores, natural harbors

and large number of islands, created a logistical

nightmare for patrolling and counterinsurgency efforts

during the 1960s. Id. at 154-56, 340. By May 1961,

U.S. Naval forces begin patrolling the coast waters

from the Cambodian border to the mouth of the

Mekong River Delta. By the end of 1961, the

U.S. Navy was conducting significant coastal patrols

along and below the 17th parallel while air patrol

monitored the waters east of this coastal sea patrol.

The U.S. Navy increased its steaming miles per

month from 10,000 in May 1961 to 37,000 in

May 1962 and extended sea patrol to the Mekong

Delta and the Cambodian border in an effort to

counter the Communist infiltration threat from

Cambodia. /d. at 172-73, 76. Naval forces in the

coastal seas were known as the “blue-water” Navy, in

contrast to the “brown-water” Navy that operated in

Vietnam’s inland waters.

The U.S. Navy’s engagement in Vietnam only

intensified after war was declared in Vietnam in

1964 and escalated thereafter. The blue-water Navy

continued to provide extensive coastal patrols as well

as full scale combat and combat-support operations

throughout the war. Z/d. at 315, 325, 355-56, 452.

U.S. Naval forces providing close gunfire support to

army and marines on the beach, performing supply

functions, or interdicting enemy boats would com-

monly come within a few thousand yards of shore.

Id. at 288-89, 311, 315, 355-56, 463.

3. Agent Orange. Because of its warm, rainy

climate, Vietnam is covered by dense forests in both

inland and coastal areas. The foliage created mili-

tary havoc by obscuring insurgent movements. Start-

ing in 1962, the U.S. armed forces began spraying an

herbicide containing the chemical dioxin. Report to

the Secretary of Veterans Affairs on the Association

Between Adverse Health Effects and Exposure to

Agent Orange, reprinted in Links Between Agent

Orange, Herbicides, and Rare Diseases: Hearing

before the Human Resources and Intergovernmental

Relations Subcomm. of the Comm. on Gov’t Opera-

tions, 101st Cong., 2d Sess., 23-24 (1990) (“Zumwalt

Report”). Troops called this herbicide “Agent

Orange” because of its orange packaging. The U.S.

sprayed Agent Orange in its undiluted form, six to

twenty-five times the manufacturer’s suggested rate,

and sprayed at a rate of three gallons per acre. /d.

at 24.

Forested coastal lands were heavily contested

areas between the U.S. and the southern guerilla

insurgencies, and were accordingly subject to con-

stant spray missions. Young at 185; Jeanne Mager

Stellman et al., A Geographic Information System for

Characterizing Exposure to Agent Orange and Other

Herbicides in Vietnam, 111 Env’t Health Perspectives

321, 325-26 (Figure 5) (2003). Density maps show

that the U.S. concentrated the spraying of Agent

Orange on the far eastern coastal areas and the

western mountain range border with Laos. Further

south, the II] and IV Corps tactical zones were

heavily sprayed, especially around the coastal inlet

areas and entrances to the Mekong River. Zd.

Concerns regarding the toxicity of Agent Orange to

humans began to surface in 1968, as scientists linked

dioxin to a potential increase in birth defects and

deformities. Zumwalt Report at 26-27. The Depart-

ment of Defense phased out the use of Agent Orange

by 1971. App. 2a.

B. Legislative and Regulatory Background

1. Dioxin Act

In the 1970’s and 1980's, scientific evidence began

to link dioxin to various diseases, including cancer.

Zumwalt Report at 28. As Congress tackled the

question of disability benefits for veterans, it con-

fronted substantial difficulties in defining workable

compensation rules. It was practically impossible to

require Vietnam veterans to prove actual exposure to

dioxin. Records of the location and time of troop

movements and Agent Orange spraying were erratic-

ally created and frequently destroyed or lost. /d. at

70. The Centers for Disease Control (“CDC”), which

had been commissioned by Congress to undertake

a study of the health effects of Agent Orange,

concluded that it was impossible from service records

to determine who had been exposed and who had not

been exposed. App. 13a. The CDC also concluded

that blood and tissue testing could not determine

exposure. App. 14a. Furthermore, the mechanisms

of dioxin exposure were not well understood. In

addition to direct contact at a spray site, there were a

number of plausible pathways of exposure. There

was substantial risk of “surface runoff”

contamination: namely, that dioxin, like all toxic

chemicals sprayed aerially, would leech underground

or be carried by Vietnam’s heavy rainfall and

contaminate the inland and coastal waters of

Vietnam. Dioxin could then enter the food and

drinking-water supply through contaminated lands

and waters. Zumwalt Report at 70.’ Moreover, toxic

chemicals aerially sprayed over land will be carried

by the wind (including coastal spraying that is blown

out to sea). This “wind drift” can lead to chemicals

traveling great distances. Jd. Finally, the dosage of

dioxin exposure appeared to be very small; some

immunologists of the time believed that exposure to

even a single molecule could catalyze disease

processes in some individuals. /d. at 67-68.

1. Dioxin Act. In 1984, Congress passed the Vet-

erans’ Dioxin and Radiation Exposure Compensation

Standards Act, Pub. L. No. 98-542, 98 Stat. 2725,

2729 (1984) (the “Dioxin Act”). Congress declared

that there was emerging “evidence that chloracne,

porphyria cutanea tarda, and soft tissue sarcoma are

associated with exposure to certain levels of dioxin as

found in some herbicides[.]” Jd. § 2(5). Congress

directed the Department (then named the Veterans

Administration) to “establish guidelines and (where

appropriate) standards and criteria for resolution of

claims... where the criteria for eligibility for a bene-

fit include a requirement that a death or disability be

service connected and the claim of service connection

is based on a veteran’s exposure during service... in

A recent study found that Australian blue-water navy

veterans were exposed to concentrated dioxin through distilla-

tion tanks that converted seawater to dnnking water. Nat'l

Research Ctr. for Envtl. Toxicology, Queensland Health Scien-

tific Servs., Examination of the Potential Exposure of Royal

Australian Navy (RAN) Personnel to Polychlorinated Dibenzo-

dioxins and Polychlorinated Dibenzofurans via Drinking Water

(Dec. 12, 2002).

the Republic of Vietnam during the Vietnam era toa

herbicide containing dioxin.” Jd. § 5(1), (1)(A).

2. Regulation 311. Reacting to the congressional

directive, the Department promulgated a regulation

to govern disability awards for chloracne in 1985.

The regulation presumed service connection if the

veteran served “in the Republic of Vietnam,” defined

to include “service in the waters offshore and service

in other locations, if the conditions of service involved

duty or visitation in the Republic of Vietnam.” 38

C.F.R. § 3.3lla(a)(1) (1986). The Department ex-

plained its rule and its “longstandirg policy of

presuming dioxin exposure in the cases of veterans

who served in the Republic of Vietnam” as being

grounded in “the many uncertainties associated with

herbicide spraying during that period|.j” Adjudica-

tion of Claims Based on Exposure to Dioxin or

Ionizing Radiation, 50 Fed. Reg. 34,454, 34,454-55

(Aug. 26, 1985) (to be codified at 38 C.F.R. pts. 1 & 3).

3. Regulation 313. Shortly thereafter, the Depart-

ment addressed service’ connection for NHL. The

CDC had conducted a study concluding that Vietnam

veterans had a roughly 50% increased risk of devel-

oping NHL 15 to 25 years after military service in

Vietnam as compared to other men in the United

States. Moreover, veterans in the blue-water Navy

had a higher risk of developing NHL than their

counterparts who served in the brown-water Navy,

or on the ground in Vietnam: “[rjelative to other

Vietnam veterans, the risk for NHL tended to be

highest among men who (1) served in I Corps or the

blue-water Navy, (2) were stationed in Vietnam for

1.5 to 1.9 years, and (3) were officers.” Centers for

Disease Control, Final Report of the Association of

Selected Cancers with Service in the U.S. Military in

Vietnam 37 (Sept. 1990). Significantly, the CDC

concluded that NHL was correlated with Vietnam

service but not dioxin exposure, a conclusion that the

Department accepted. See Claims Based on Service

in Vietnam, 55 Fed. Reg. 43,123, 43,124 (Oct. 26,

1990) (to be codified at 38 C.F.R. pts. 3 & 4), 43,124

Claims Based on Exposure to Herbicides Containing

Dioxin Soft Tissue Sarcomas, 56 Fed. Reg. 51,651,

51,651 (Oct. 15, 1991) (to be codified at 38 C.F.R. pts.

3 & 4).

Accordingly, in 1991, the Department promulgated

Regulation 313, which recognized service connection

for NHL for all Vietnam veterans. 38 C.F.R. § 3.313

(1991). That regulation tracked the language of

Regulation 311, with minor variation. It provides:

(a) Service in Vietnam. Service in Vietnam

includes service in waters offshore, or service

in other locations if the conditions of service

involved duty or visitation in Vietnam.

(b) Service connection based on_ service in

Vietnam. Service in Vietnam during the Vietnam

Era together with development of non-Hodgkin’s

lymphoma manifested subsequent to such service

is sufficient to establish service connection for

that disease.

4. Proposed Soft-Tissue Sarcoma Rule. Prior to

Regulation 313, the Department had afforded a

presumption of service connection based on Vietnam

service only for chloracne, as noted above. Veterans

challenged in court the narrow standard that the

Department had applied under the Dioxin Act in

determining what diseases should be afforded a

service-connection presumption of exposure to harm-

ful herbicides. The district court ruled in the veter-

ans’ favor, holding that “[t]he Administrator both

imposed an impermissibiy demanding test for grant-

ing service connection for various diseases and

refused to give veterans the benefit of the doubt in

meeting that demanding standard.” Nehmerv. U.S.

Veterans’ Admin., 712 F. Supp. 1404, 1423 (N.D. Cal.

1989). In response to Nehmer, the Department pro-

posed to modify Regulation 311 to include soft-tissue

sarcomas. 38 C.F.R. § 3.31lla(c)(2) (1991); Claims

Based on Exposure to Herbicides Containing Dioxin

Soft Tissue Sarcomas, 56 Fed. Reg. 51,651, 51,652

(October 15, 1991) (to be codified at 38 C.F.R. pts. 3

& 4).

2. The Agent Orange Act of 1991.

1. Codification of Regulatory Provisions. In the

meantime, Congress had begun to consider a more

comprehensive framework for Vietnam-related dis-

ability claims. In 1991, Congress passed the Agent

Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11,

which relieved the Department of its regulatory dis-

cretion with regard to these three diseases by codify-

ing the presumption of service connection. The Act

specified that when one of the three disease classes —

NHL, soft-tissue sarcomas, and chloracne — mani-

fested “in a veteran who, during active military,

naval, or air service, served in the Republic of

Vietnam during the Vietnam era,” the disease would

be considered to have been incurred in or aggravated

by such service. Pub. L. No. 102-4, § 2(a)(1), 105

Stat. 11 (1991) (codified, as amended, at 38 U.S.C.

§ 1116(a)(1)).’

* Section 1116(a) was amended in 1996 to require that the

service in the Republic of Vietnam occurred “during the period

beginning on January 9, 1962 and ending on May 7, 1975.”

Addressing the definition of service “in the Repub-

lic of Vietnam,” the sponsor of the bill that became

the Agent Orange Act declared that the Act “would

codify the presumptions of service connection that

have been administratively provided for chlora([cnle,

non-(H)jodgkin’s lymphoma, and _ soft-tissue sar-

comas...” 137 Cong. Rec. E203-01 (daily ed. January

17, 1991) (statement of Rep. Montgomery). Other

legislators and the first President Bush made

statements to the same effect.”

Congress did not intend to limit the presumption of

service connection to these three diseases. The Agent

Orange Act also directed the Department to identify

other diseases for a “positive association” with the

“exposure of humans to a herbicide agent” and to

prescribe regulations “providing that a presumption

of service connection is warranted for that disease[.]”

Pub. L. No. 102-4 at §2(b)(1), 105 Stat. at 12.

(codified, as amended, at 38 U.S.C. § 1116(b)(1)). To

accomplish its compensatory goal, Congress directed

the creation of a tissue-sample archiving system, see

id. at § 7, 105 Stat. at 16-17, so that further studies

on the “health hazards resulting from exposure to

dioxin” and the “health hazards resulting from

exposure to other toxic agents in the herbicides used

Veterans’ Benefits Improvement Act of 1996, Pub. L. No. 104-

275 § 505(b), 110 Stat. 3322, 3342 (1996)

’ See also, 137 Cong. Rec. H719-01, 722 (daily ed. Jan. 29,

1991) (statement of Rep. Stump); 137 Cong. Rec. E390 (daily ed.

Jan. 29, 1991) (statement of Rep. Burton); Statement of Presi

dent George Bush Upon Signing H.R. No. 556 (Feb. 6, 1991),

reprinted in 1991 U.S.C.C.A.N. 11 (stating that the Agent

Orange Act “will codify decisions previously made by my Ad-

ministration with respect to presumptions of _ service

connection”).

in the support of United States and allied military

operations in the Republic of Vietnam” could be

completed and additional diseases and disabilities

identified for coverage. Jd. at § 8, 105 Stat. at 17.

2. The Department’s Regulatory Implementation

of Section 1116. Shortly after the passing of the

Agent Orange Act, the Department interpreted the

“served in the Republic of Vietnam” requirement for

coverage. The Department amended its adjudication

manual to adopt a rule consistent with the broad

phrasing of the statute:

It may be necessary to determine if a veteran

had ‘service in Vietnam’ in connection with

claims for service connection for non-Hodgkins

lymphoma, soft-tissue sarcoma, and chloracne.

In the absence of contradictory evidence, ‘service

in Vietnam’ will be conceded if the records shows

that the veteran received the Vietnam Service

Medal.”

VA Adjudication Procedures Manual M21-1 7 4.08(k)(1)

(November 8, 1991) (internal citation omitted, em-

phasis added). Blue-water Navy veterans were

eligible for (and did receive) the Vietnam Service

Medal. Dep’t of Def. Manual of Military Decoration

and Awards, J C6.6 (September 1996). The Depart-

ment drew no distinctions in applying the “served in

the Republic of Vietnam” test for Regulations 311

and 313.

3. In 1993, the Department promulgated a general

implementing regulation for the Agent Orange Act.

In that regulation, the Department defined service in

the Republic of Vietnam in language that tracked

Regulations 311 and 313, albeit with slightly differ-

ent punctuation: “Service in the Republic of Vietnam’

includes service in the waters offshore and service in

other locations if the conditions of service involved

duty or visitation in the Republic of Vietnam.” 38

C.F.R. § 3.307(a)(6)Gii) (1994). This test applied to

all the covered Section 1116 diseases, including NHL.

38 C.F.R. § 3.309(e). The Department continued to

award disability benefits to blue-water Navy veterans

under this regulation. Ct. App. JA . 708-716 (award-

ing benefits in 1995, 1996, and 1997).

4. In subsequent years, Congress amended the

Agent Orange Act to codify mandatory service

connection for a number of diseases (including type 2

diabetes). There are now eight disease categories

entitled to a mandatory statutory presumption of

service connection. 38 U.S.C. § 1116(a)(2).

As the number of diseases for which service-

connection would be presumed grew (and thus the

costs of coverage grew), the Department began to

suggest a narrower definition of the statutory phrase

“in the Republic of Vietnam.” In a General Counsel

opinion issued in 1997 on pension benefits, the

Department construed the phrase “served in the

“Republic of Vietnam” as used in 38U.5S.C.

§ 101(29)XA) not to apply to service members whose

service was on ships in the waters off the coast of

Vietnam. In dicta, the General Counsel suggested

that the same term in the Agent Orange Act, while

not necessarily having the same meaning, likewise

did not cover offshore service. Dep’t. of Veterans

Affairs, Op. Gen Counsel Prec. 27-97 (1997). Simi-

larly, the Department’s response to comments in

2001 diabetes rulemakings stated that service in the

“Republic of Vietnam” meant service on land or in

inland waterways. Disease Associated With Expo-

sure to Certain Herbricide Agents: Type 2 Diabetes,

66 Fed. Reg. 23,166 (May 8, 2001) (to be codified at

38 C.F.R. pt. 3).

In early 2002, the Department amended the lan-

guage of its Manual M21-1, abandoning its Vietnam

Service Medal test for determining Vietnam-service

eligibility and construing 38 C.F.R. § 3.307(a)(6) as

requiring a veteran to show that he “actually served

on land within the Republic of Vietnam” before the

presumption of exposure to herbicides vests. None-

theless, the Department in binding adjudications

continued to award benefits to blue-water Navy

veterans. See, e.g., Bd. of Veteran Appeals (“BVA”)

Decision, Docket No. 02-22 228 (Feb. 2, 2004)

available at http://www.va.gov/vetapp04/files/04029

24.txt; BVA Decision, Docket No. 95-30 437 (July 23,

2002) available at http://www.va.gov/vetapp02/

files02/0208230.txt.

The Department also advanced its “boots-on-land”

interpretation in various proposed rules. In 2004, the

Department proposed a rule (which never became

final), “to make it clear that veterans who served in

waters offshore but did not enter Vietnam, either on

its land mass or in its inland waterways cannot

benefit from” the presumed exposure to herbicides.

Presumptions of Service Connection for Certain

Disabilities and Related Matters, 69 Fed. Reg.

44,614, 44,620 (July 27, 2004) (to be codified at 38

C.F.R. at pts. 3 & 5). Similarly, in April of this year,

in response to the adverse CAVC decision in this

case, the Department again proposed a rule to amend

its adjudication regulation to “clarify” that “service in

the Republic of Vietnam for the purposes of applying

the presumption of exposure to herbicide agents

includes service on land on an inland waterways in

Vietnam.” Definition of Service in the Republic of

Vietnam, 73 Fed. Reg. 20,566 (April 16, 2008)(to be

codified at 38 C.F.R. pt. 3).

C. Proceedings Below.

1. Petitioner’s Claim for Benefits. Petitioner is

Commander Jonathan L. Haas, USN, Retired. He

served in the U.S. Navy from September 1959 to

September 1960 on active duty and subsequently

from May 1963 to June 1970, and was awarded four

Vietnam Service Medals. Cdr. Haas served on the

U.S.S. Mount Katmai, an ammunition supply ship

that operated off the coast of Vietnam. Because of its

highly explosive cargo, the ship never visited any

ports.

Twelve years after the end of his service in

Vietnam, Cdr. Haas was diagnosed with type 2

diabetes, an illness that has been linked to Agent

Orange. In August of 2001, he applied to the Depart-

ment of Veterans Affairs for disability for type 2

diabetes, peripheral neuropathy and loss of eyesight.

Cdr. Haas recalled large, billowing clouds of Agent

Orange drift from coastal spraying and engulf his

ship at the peak of U.S. use of Agent Orange in 1968.

He specifically stated that “each morning we’d run up

and down the coastline to replenish the ships... . if

they were spraying that morning, then we'd get

caught in the fog.” Record on Appeal (“ROA”) 563. He

further testified:

Our ship did go within 100 feet of the coast of

Vietnam. And most of our rearming and replen-

ishing of ships was done in the early morning

hours ana this was the same time that Agent

Orange and other defoliants [were] sprayed on

the coastal forests. You could see the large

clouds of chemicals being dropped by the aircraft

which they sprayed over the forest and these

large clouds would dmnft out over the water

because of the prevailing winds and they would

engulf the ships, my ship in particular. Now, you

could see the chemicals, you could taste them,

smell them and they landed on your skin.

ROA 562.

2. The Regional Office denied Cdr. Haas the

presumption of a service connection and the Board of

Veterans Appeals affirmed. The Board ruled that

Cdr. Haas was not entitled to the statutory presump-

tion for those who served “in the Republic of

Vietnam” because he had never “set foot on land in

the Republic of Vietnam” as the Board believed 38

C.F.R. § 3.307(a)(6)Gii) required. App. 117a-122a.

3. The CAVC reversed the Board of Veterans’

Appeals. The court concluded that the Board’s and

the Department’s interpretation of § 3.307(a)(6)(iii)

was “plainly erroneous” and that the regulation

“must be read to include at least service of the nature

described by the appellant, that is, service in the

waters near the shore of Vietnam.” App. 10la. The

court reasoned that

given the spraying of Agent Orange along the

coastline and the wind borne effects of such

spraying, it appears that these veterans serving

on vessels in close proximity to land would have

the same risk of exposure to the herbicide Agent

Orange as veterans serving on adjacent land, or

an even greater risk than that borne by those

veterans who may have visited and set foot on

the land of the Republic of Vietnam only briefly.

Id. at 100a.

4. On the Department’s appeal, a divided panel of

the Federal Circuit reversed. The majority concluded

that Section 1116 was ambiguous; that the Depart-

ment’s narrow interpretation of § 3.307(a)(6)(iii); and

hence the Agent Orange Act was entitled to defer-

ence; and accordingly, that Cdr. Haas did not serve in

the Republic of Vietnam within the meaning of the

statute. App. 28a, 15la, 56a-59a. Judge Fogel

dissented. He concluded that the majority’s analysis

was “inconsistent with the intent of the statute” and

was thus “based upon an unreasonable interpretation

of the subject regulation.” Jd. at 56a. “Congress was

seeking to make it easier, not more difficult, for

Vietnam veterans to assert claims arising from

exposure to Agent Orange],]” he reasoned. Jd. at 58a.

Cdr. Haas sought and was denied rehearing. Id. at

65a-70a. Judge Fogel again dissented from the

denial of panel rehearing and recommended en banc

review. ld. at 70a. The Federal Circuit denied

rehearing en banc.

REASONS FOR GRANTING THE PETITION

The decision below cannot stand. In accepting the

Department’s construction of 38 U.S.C. § 1116, the

court below disregarded the plain meaning of the

term “Republic of Vietnam” as encompassing that

nation’s territorial seas. The court’s categorical

exclusion of blue-water Navy veterans from the

statute’s protection defies the Congressional intent to

codify a regulation presuming service connection that

was based on a finding of excess disease among that

very class of veterans. Furthermore, the Federal

Circuit granted Chevron deference to the starkly

unreasonable interpretation of the Department with-

out first applying the canon requiring statutory

ambiguity to be resolved in favor of the veteran, in

direct conflict with the rule of Brown v. Gardner, 513

U.S. 115, 118 (1994). Because this question is criti-

cally important — affecting benefits to large numbers

of the estimated 832,000 “blue water” Vietnam

veterans (see Ribaudo v. Nicholson, 21 Vet. App. 137,

144 (2007)) — and because the decision below conflicts

with this Court’s precedent, the petition should be

granted.

I. THIS COURT SHOULD GRANT REVIEW

TO DETERMINE THE MEANING OF A

CRITICAL VETERANS BENEFITS STAT-

UTE.

A. The Term “The Republic Of Vietnam”

Refers To The Sovereign Nation Whose

Boundaries Include The Territorial

Seas.

No deference is ever paid to an agency interpre-

tation if Congress has “directly spoken to the precise

question at issue.” Chevron, U.S.A., Inc. v. NRDC,

467 U.S. 837, 842 (1984). Congress has so spoken

here.

1. The term “served in the Republic of Vietnam”

in Section 1116(a)(1)(A) is plain. There is no dispute

that “Republic of Vietnam” refers to the sovereign

nation colloquially known as South Vietnam. There-

fore, a veteran has “served in the Republic of

Vietnam” if he served in the territory of that

sovereign state. It is well established that “[t]he

territory of a state consists of (a) its land area; (b) its

internal waters and their beds; (c) its territorial sea

and the bed of the territorial sea; and (d) the subsoil

under, and ... the air space above, (a), (b), and (c).”

Restatement (Second) of Foreign Relations Law § 11

(1965) (“Restatement”) (emphasis added); Louisiana

v. Mississippi, 202 U.S. 1, 52 (1906) (territorial seas

are “the minimum limit of the territorial jurisdiction

of a nation”). In the Agent Orange Act of 1991,

Congress clearly would have understood the Republic

of Vietnam’s territory to encompass its territorial

seas. The Federal Circuit had no basis to rewrite the

unqualified term “in the Republic of Vietnam” to

mean “on the land or inland waterways of the

Republic of Vietnam.”

The Federal Circuit nonetheless found that the

statutory term was ambiguous because there were

“competing methods” identified by the CAVC that

purportedly “define sovereign nations” to “includ[e]

only the nation’s landmass.” App. 28a [Opp.26]. But

the only authority cited for the proposition that a

sovereign nation’s “boundaries can be defined solely

by the mainland geographic area” is an online CIA

factbook describing the “land boundaries” of the

current Communist Republic of Vietnam as 4,639 km

long. App. 81a.

Aside from the irrelevance of this source for

divining Congress’s intent in the 1991 Act regarding

the now-defunct Republic of Vietnam, the CIA

factbook does not purport to describe the boundaries

of a sovereign nation as simply its landmass. The

term “land boundaries” is a defined term referring

only to a country’s internal land borders with “con-

‘ Accord United Nations Convention on the Law of the Sea,

Dec. 10, 1982, Part II, Art. 2(1) (1982) (“The sovereignty of a

coastal State extends, beyond its land territory and internal

waters and, in the case of an archipelagic State, its archipelagic

waters, to an adjacent belt of sea, described as the territorial

sea.”); Presidential Proclamation 5928, Territorial Sea of the

United States of America, 54 Fed. Reg. 777 (Dec. 27, 1988)

(same).

tiguous border countries.” CIA World Factbook (defi-

nitions), available at https://www.cia.gov/library/pub

lications/the-world-factbook/docs/notesanddefs.html).

The “land boundaries” of a country do not include

“coastlines,” which are separately reported, precisely

because no one considers the coastline a “boundary”

of a sovereign nation’s territory.’

The CAVC also found ambiguity in the term

“Republic of Vietnam” because it might refer to a

200 mile exclusive economic zone. App. 8la. But

Section 1116 addresses the service member’s pres-

ence in a sovereign nation’s territory, and has noth-

ing to do with rights of natural resource exploitation.

The CAVC also noted that Vietnam claims certain

“surrounding islands in the Hoang Sa and Truong

Sa archipelagos.” “PP. waned tj. But sovereignty

over coastal islands only attects where the baseline

for the territorial sea is drawn. Restatement § 14. It

does not cast doubt on whether the term “Republic of

Vietnam” refers to the entire sovereign territory,

rather than just part of it. Even if those islands were

Vietnamese territory that would only mean that the

Republic of Vietnam would encompass the islands

and their archipelagic seas in addition to the territo-

rial seas off its mainland. See supra n.4. Critically,

either alternative (if deemed a plausible interpreta-

tion of Section 1116) encompasses the territorial seas,

* See id. (Vietnam), available at https://www.cia.gov/library/

publications/the-world-factbook/geos/vm.html] (last visited Octo-

ber 14, 2008) (reporting the “land boundaries” of Vietnam as

“4639 km”, consisting of “Cambodia 1,228 km, China 1,281 km,

Laos 2,130 km,” and separately reporting its coastline of 3,444

km); see id. (United States) (reporting the “land boundaries” of

the United States as “12,034 km,” consisting of “Canada 8,893

km (including 2,477 km with Alaska), Mexico 3,141 km,” and

separately reporting its coastline of 19,224 km).

and would create service-connection for veterans who

served in those seas. No plausible construction of the

term makes the statute ambiguous as to whether it

excludes territorial seas and is limited to the

geographic mainland.

2. When Petitioner informed the Federal Circuit of

this error in his rehearing petition, the court issued a

supplemental opinion to buttress its finding of

ambiguity. The court posited that references to a

sovereign nation are inherently ambiguous because

Congress sometimes uses special definitions. App.

69a-70a. Its analysis does not withstand scrutiny.

First, the court of appeals purported to rely on

immigration cases. App. 69a. But (except for one

erroneous decision) those cases do not claim that the

territorial seas are excluded from the term “United

States” for purposes of immigration statutes.°

Rather, they hold that (in context) the statutory

requirement of “entry” into the United States is not

satisfied by mere “physical presence” in the United

States territory because “United States immigration

law is designed to regulate the travel of human

beings, whose habitat is land, not the comings and

goings of fish or birds.” See Zhang v. Slattery, 55

F.3d 732, 754 (2d Cir. 1995); see also Leng May Ma v.

Barber, 357 U.S. 185, 188 (1958).

* Yang v. Mauqans, 68 F.3d 1540, 1548 (3d Cir. 1995), does so

hold, but its reading of the definition of “United States” in the

Immigration and Nationality Act as implicitly excluding the

territorial seas is questionable. For example, the provision

requiring vessels “arriving in the United States” to detain alien

crewmen, 8 U.S.C. § 1284, would make no sense if it did not

refer to the territorial seas.

Second, the Federal Circuit points to special statu-

tory definitions of sovereigns, such as the provision

governing taxation of continental shelf activities that

specially defines “United States” for that purpose to

include the “subsoil of those submarine areas which

are adjacent to the territorial waters of the United

States.” 26 U.S.C. §638(1). But “Republic of Viet-

nam” in Section 1116 is an undefined statutory term,

and thus has its ordinary meaning. Asgrow Seed

Co. v. Winterboer, 513 U.S. 179, 187 (1995). Congress

often uses special definitions when it departs from

ordinary meaning. For example, Congress has

sometimes defined the term “State” to include Wake

Island and the Canal Zone, 29 U.S.C. § 1002(10)

(ERISA), but such usage creates no ambiguity as to

whether the undefined term “State” in a different

statute would include those jurisdictions. So too here

Congress’s use of special sovereign definitions in

other statutes does not warrant a judicial rewrite of

the statutory term “Republic of Vietnam.”

Finally, the Federal Circuit points to veterans

statutes that define service by reference to a country

and the waters “adjacent” thereto. App. 69a-70a.

But “adjacent” waters is a different concept from

territorial waters, and would not be inherent in a

reference to a sovereign nation. Indeed, in designat-

ing the Vietnam combat zone for purposes of the

federal income tax, President Johnson defined “the

waters adjacent” to Vietnam as extending more than

100 miles offshore. Exec. Order 11216, Designation

of Vietnam and Waters Adjacent Thereto as a

Combat Zone for the Purposes of Section 112 of the

Internal Revenue Code of 1954, 30 Fed. Reg. 5817

(1965). Section 1116 may not reach naval service in

all waters adjacent to the Republic of Vietnam, but it

clearly encompasses service in the waters within that

Republic.

In sum, there is not a single authority that defines

a sovereign nation solely in terms of the perimeter of

its landmass, as the Federal Circuit supposed. There

is no ambiguity whatsoever as to whether “naval

service” in the “Republic of Vietnam” in Section 1116

includes naval service in its territorial seas.

3. The Federal Circuit’s interpretation is also

irreconcilable with the rest of Section 1116. For

example, a veteran seeking benefits for chloracne or

porphyria cutanea tarda must show disease mani-

festation in a specified period “after the last date on

which the veteran performed active military, naval,

or air service in the Republic of Vietnam.” 38 U.S.C.

§ 1116(a)(2)(C),(E). The Federal Circuit’s “boots-on-

land” interpretation puts the veteran to the often

impossible task of proving not just when he last

served in Vietnam, but when he was last on the

mainland or traversing inland waters. Congress did

not intend this absurdity.

Nor can that interpretation be squared with Con-

gress’s usage of the identical phrase in other parts of

the 1991 Act (which is presumed to have the same

meaning. Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Dabit, 547 U.S. 71, 86 (2006)). Section 6 of the

1991 Act directed the Secretary to collect DVA exam

data for use in determining “the association, if any,

between the disabilities of veterans referred to in

such section and exposure to dioxin or any other toxic

substance referred to in such section or between such

disabilities and active military, naval, or air service

in the Republic of Vietnam during the Vietnam era.”

App. 178a-199a (emphasis added). Pub. L. No. 102-4

at § 6(a), 105 Stat. at 15. Section 7 directed the

Secretary to archive blood and tissue samples of

veterans “who performed active military, naval, or air

service in the Republic of Vietnam during the

Vietnam era.” ld. § 7(a), 105 Stat. at 16. Section 8

directed the Secretary to investigate the feasibility of

further scientific study separately of the “health

hazards resulting from exposure to dioxin”; “health

hazards resulting from exposure to other toxic agents

in herbicides used in support of United States and

allied military operations in the Republic of Vietnam

during the Vietnam era”; and “health hazards result-

ing from active military, naval, or air service in the

Republic of Vietnam during the Vietnam era.” Id.

§ 8(a), 105 Stat. at 17. These provisions collectively

show that Congress did not link the concept of

“served in the Republic of Vietnam” solely to dioxin

exposure. They further underscore the error of an

interpretation requiring the Secretary to make indi-

vidualized inquiries into whether the veteran set foot

on land or traversed inland waters in Vietnam in

collecting medical exam data, archiving tissues, or

designing studies.

Finally, in 1996 Congress amended the general

definition of the “Vietnam era” to adopt the same

language of “served in the Republic of Vietnam” for

the 1961 to 1964 period. See 38 U.S.C. § 101(29)(A).

This provision governs wartime pension benefits and

eligibility for hospital, nursing, and domiciliary care.

S. Rep. No. 104-371, at 19-20, reprinted in, 1996

U.S.C.C.A.N. 3762, 3770-71 (1996). The Senate

Report expressly states that, as in Section 1116,

Congress intended to cover “veterans who actually

served within the borders of the Republic of

Vietnam.” Jd. at 21, 1996 U.S.C.C.A.N. at 3772. As

noted above, Vietnam’s coastal borders indisputably

encompass the territorial seas. The Federal Circuit

impermissibly blessed an unreasoned DVA General

Counsel Opinion denying all such benefits to the

naval veterans who participated in the extensive

coastal patrols, counterinfiltration, and minesweep-

ing operations in that period.’ See App. 42a-43a.

4. Historical context and legislative history must

be analyzed in step one of Chevron. INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987). Here, as noted

above, the sponsors of the 1991 Act expressly de-

clared that the Act would codify Regulations 311 and

313. Regulation 313 was predicated on the CDC’s

finding that NHL was correlated with Vietnam

service and not with dioxin exposure, and that blue-

water navy veterans had the highest risk of NHL.

Supra at 8.

In codifying both regulations to require a finding of

service connection veterans who “served in the

Republic of Vietnam,” Congress clearly understood

that there were no material differences between the

service standards of Regulations 311 and 313, and

intended that same unitary standard to apply to each

of the three diseases in Section 1116(a)(1)(A).

Indeed, from the inception of the Act, the Secretary

so interpreted the Act in awarding benefits. Supra at

Ei.

The Federal Circuit concluded otherwise, opining

that the 1991 Congress may have (1) understood

Regulations 311 and 313 to have different service

requirements; (2) understood Regulation 311 to em-

body a “boots-on-land” requirement, and (3) intended

to adopt the “narrower” 311 standard. The Federal

* See II Edward J. Marolda & Oscar P. Fitzgerald, The U.S.

Navy and The Vietnam Conflict 164-188, 219-63, 298-333 (1986).

Circuit thus imputed to Congress the intent to deny a

statutory presumption of service connection to blue-

water Navy veterans with NHL, even though they

were covered under the Secretary’s regulation, and

even though they were the group that the CDC

specifically found had the excess risk of developing

NHL. App. 15a-19a, 3la-32a.

The court reached this conclusion based on dif-

ferent punctuation in Regulations 311 and 313. It

reasoned that the absence in 311 of “a comma

separating the reference to ‘service in the waters

offshore’ and ‘service in other locations,’ . . . suggested

that the requirement of visitation or duty in the

Republic of Vietnam applied to both of those forms of

extraterritorial service.” App. 17a. But statutory

analysis “based only on punctuation is necessarily

incomplete and runs the risk of distorting a statute’s

true meaning.” U.S. Nat'l Bank of Oregon v. Indep.

Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1998).

The Department placed no such weight on punctua-

tion in the 1993 regulation implementing the 1991

Act: it omitted all commas in defining “service in the

Republic of Vietnam” to mean “service in the waters

offshore and service in other locations if the condi-

tions of service involved duty or visitation in the

Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). If

punctuation is to have sway, under the rule of the

last antecedent, the phrase “if the conditions of

service involved duty or visitation in the Republic of

Vietnam” in the 1993 regulation modifies only “ser-

vice in other locations,” and not the phrase “service in

the waters offshore.” Anhydrides & Chemicals,

Inc. v. United States, 130 F.3d 1481, 1483 (Fed. Cir.

1997).

In all events, punctuation cannot trump the direct

legislative history, and Congress did not intend to

exclude from the NHL statutory presumption the

very group (offshore Navy veterans) who were found

to have excess NHL risk. The Federal Circuit

attempted to justify its conclusion by positing that

Congress determined that NHL in fact was correlated

to dioxin exposure. App. 18a. The court relied on a

May, 1990 report from Admiral Zumwalt to the

Secretary evaluating epidemiological evidence. Id.

But the court overlooked that the Secretary, in

issuing Regulation 313 as a final rule in October,

1990, accepted the CDC’s conclusion that NHL was

correlated with Vietnam service but not dioxin expo-

sure. Claims Based on Service in Vietnam, 55 Fed.

Reg. 43,123, 43,124 (Oct. 26, 1990) (to be codified at

38 C.F.R. pts. 3 & 4); Claims Based on Exposure to

Herbicides Containing Dioxin (Soft Tissue Sarcomas),

56 Fed. Reg. 51,651, 51,651 (Oct. 15, 1991) (to be

codified at 38 C.F.R. pts. 3 & 4) (noting that “the

bases for granting service connection are fundamen-

tally different” for NHL and STS because NHL is

linked to Vietnam service and STS to dioxin expo-

sure). There is no evidence that Congress disagreed

with that conclusion or overruled the Secretary’s

decision. Rather, Congress codified the Department’s

regulations as to all three diseases, including NHL.

B. The Panel’s Failure To Apply The Pro-

Veteran Canon Conflicts With This

Court’s Precedent.

1. This Court has instructed that, before applying

Chevron deference, any interpretive ambiguity in the

statute must be resolved in the veteran’s favor.

Brown v. Gardner, 513 U.S. 115, 118 (1994). Con-

gress is presumed to incorporate that rule, King v. St.

Vincent’s Hosp., 502 U.S. 215, 220-21 n.9 (1991), so as

to benefit “those who left private life to serve their

country in its hour of great need.” Fishgold v.

Sullivan Drydock & Repair Corp., 328 U.S. 275, 285

(1946).

Prior to the decision below, the Federal Circuit

adhered to a “modified” rule of Chevron deference.

Disabled Am. Veterans v. Gober, 234 F.3d 682, 691-92

(Fed. Cir. 2000). It resolved ambiguity by applying

the pro-veteran canon in Step One, and the only

question thereafter is whether the agency has com-

plied with the statute. Boyer v. West, 210 F.3d 1351,

1355 (Fed. Cir. 2000). However, it applied Chevron

when the Department promulgates substantive gap-

filling regulations (i.e., when the agency is not merely

interpreting the statute). Terry v. Principi, 340 F.3d

1378, 1383 (Fed. Cir. 2003); Sears v. Principi, 349

F.3d 1326, 1331-32 (Fed. Cir. 2003).

The Federal Circuit has now abandoned that

framework. Even if the agency addresses a pure

question of statutory interpretation, the Federal

Circuit now will defer to the agency “despite [the]

pro-claimant canon.” App. 68a. The Federal Circuit’s

rule directly conflicts with Brown and King and

requires this Court’s review.”

2. In its supplemental opinion denying rehearing,

the Federal Circuit alternatively held that Petitioner

“waived” the right to argue the Brown canon on

* The Federal Circuit’s suggestion that the Department’s

construction is “pro-claimant” under Brown because it applies

“to any veteran who set foot on land, even if for only a very short

period of time” (App. 68a) is unsound. The Department’s

construction is the most restrictive that the statute arguably

permits, and does not resolve ambiguity in favor of claimants.

rehearing because he did not raise that point in his

merits brief. App. 67a. (The panel raised the Brown

canon at oral argument, and Petitioner raised the

issue before the CAVC Ct. App. JA 629). The Federal

Circuit may have overlooked that Petitioner was the

appellee and had no affirmative duty to raise any

issues. See Transamerica Ins. Co. v. South, 125 F.3d

392, 399 (7th Cir. 1997) (reversing panel opinion on

rehearing on grounds not previously argued, because

“the failure of an appellee to have raised all possible

alternative grounds for affirming the district court’s

original decision, unlike an appellant’s failure to

raise all possible grounds for reversal, should not

operate as a waiver”). But even if the Federal Circuit

had discretion not to grant rehearing, its concept of

waiver is both erroneous and no bar to this Court’s

review.

First, Petitioner is aware of no other precedent that

a canon of statutory interpretation is waived unless

affirmatively argued. It is inherent in any question

of statute interpretation that a court will apply the

appropriate canons. See United States v. Speers, 382

U.S. 266, 277 n.22 (1965) (a court construing a statue

“seizes every thing from which aid can be derived,”

whether argued or not).

Second, waiver applies only to issues, not

arguments. “Once a federal claim is properly pre-

sented, a party can make any argument in support

of that claim; parties are not limited to the precise

arguments they made below.” Yee v. Escondido, 503

U.S. 519, 534 (1992). The issue of the proper con-

struction of Section 1116 was squarely presented and

decided below. This Court may consider any argu-

ment relevant to the statute’s construction.

Finally, even if application of the Brown canon

were somehow a separate issue, this Court may

review any issue passed on or presented below.

Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374,

379 (1985) (reaching issue addressed by the court of

appeals “even if this were a claim not raised by

petitioner below”). Notwithstanding its waiver find-

ing, the Federal Circuit ruled on the merits that the

Brown canon is inapplicable when the agency has a

regulation on point. App. 67a-68a. This Court

should review the Federal Circuit’s evisceration of

Brown, which has critical ramifications throughout

veterans benefits law.

C. The Federal Circuit Improperly

Granted Chevron Deference To The

Department’s Unreasonable Interpre-

tation.

Even if the plain language and the Brown canon

do not resolve the issue, the Federal Circuit erred

in granting Chevron deference to the Department’s

“boots-on-land” interpretation. That interpretation

does not appear in Regulation 307 (the regulation

implementing the Agent Orange Act) or any other

order with the force or effect of law. See United

States v. Mead Corp., 533 U. S. 218, 226—227 (2001).

Rather, the Federal Circuit bootstrapped Chevron

deference by treating other departmental pronounce-

ments as interpretations of Regulation 307 and

giving them substantial deference under Auer v.

Robbins, 519 U.S. 452, 461-63 (1997), notwithstand-

ing that the new interpretations are inconsistent

with Department practice and “run[] counter to the

‘intent at the time of the regulation’s promulgation.”

Gonzales v. Oregon, 546 U.S. 243, 258 (2006) (citation

omitted).

Regardless, as the CAVC held and Judge Fogel

declared in dissent, the Department’s “boots-on-land”

interpretation is unreasonable under Step Two of

Chevron. The Department’s interpretation is not

informed by any scientific evidence that blue-water

Navy veterans were not exposed to Agent Orange or

otherwise not at excess risk of incurring the covered

diseases because of their service. App. 61la-62a,

100a-101a.

The Federal Circuit nonetheless upheld the “boots-

on-land” rule because line-drawing is always arbi-

trary. App. 47a. But this is precisely the point:

Congress did not intend any lines to be drawn among

Vietnam veterans because in 1991 there was not (and

there is not today) either the scientific evidence to

rule out certain classes of veterans as unexposed or

the records of troop movements to allow for rational

administration of such a rule.” There is no reason

why Congress would want a soldier to recover if he

set foot on land in Vietnam for one day in 1975 (years

after Agent Orange spraying had ended), but not

naval veterans (like Cdr. Haas) who were directly

engulfed in drifting Agent Orange clouds.”

* The Federal Circuit speculated that “the task of determining

whether a particular veteran’s ship at any point crossed into the

territorial seas during an ocean voyage would seemingly be even

more difficult” than determining whether a veteran set foot on

land. Pet. App. at 68a. This is not so. All deck logs of ships

operating more than thirty years ago are retained by and

available from the Modern Military Branch, National Archives.

These deck logs track the ship’s latitude and longitude three

times daily, and the ship’s course and direction, among other

things. See Navy Historical Center FAQs, www.history.navy.

mil/faq73-1.htm (last accessed at Oct. 14, 2008).

'° The Federal Circuit defended the Department’s line-draw-

ing by surmising that Congress would not have intended Section

1116 to cover long-distance pilots whose missions consisted

Indeed, contrary to the DVA’s unscientific claim

that only inland service had a significant exposure

risk, Admiral Zumwalt, the former Chief of Naval

Operations in Vietnam whose report the panel

otherwise credited, recommended that at a minimum

service connection should be presumed for any

veteran within 20 kilometers of a spray area (which

would include veterans serving in the territorial

waters off the heavily sprayed coasts). Zumwalt

Report at 70. But Admiral Zumwalt also recom-

mended an alternative of presuming service connec-

tion for all Vietnam veterans (as the Secretary had

done for NHL), because while overinclusive “it is the

only alternative that will not unfairly preclude

receipt of benefits by a [dioxin] exposed Vietnam

veteran.” Id. at 71. That is the approach Congress

chose.

Il. IMMEDIATE REVIEW IS NECESSARY

TO AVOID PREJUDICE TO VETERANS.

This Court’s review is justified alone by the critical

importance of this case to the numerous blue-water

Navy veterans who served in Vietnam and who have

strictly of overflight in the airspace of Vietnam. App. 68a. But

there is no reason why Congress would deny benefits to those

pilots but grant them to other pilots who made single refueling

stop on land, or why Congress would put claimants to that

proof. In any event, interpreting Section 1116 on the basis of

the assuredly small number of long-distance pilots whose

service in Vietnam only involved overflighis is the tail wagging

the dog. Even if arguendo the Department has some basis for

excluding overflight pilots from Section 1116, there is no

warrant for excluding blue-water Navy veterans, given the

statutory codification of an NHL regulation designed to give

relief to that class.

been (or will be) stricken with covered diseases. But

it is especially critical that this Court grant review

now. The Federal Circuit, which has exclusive

jurisdiction over this statute, has definitively re-

solved this issue. Vietnam veterans who have

contracted the serious diseases addressed in Section

1116 are likely to be in dire financial straits. Delay

in receiving benefits could be severely prejudicial

to many veterans. Many veterans will also be

deprived of free, priority VA medical care available to

persons with Agent Orange diseases, see 38 U.S.C.

§1710(e)(1A), and may forego medical care

altogether, with serious consequences.

Moreover, if this Court were to deny review and the

CAVC were to lift the current stay on Haas-related

claims, many pending claims will be denied. Even if

this Court were later to review and overturn the

Federal Circuit’s rule, many claims will never be

revived, and others would face a demanding standard

of clear and unmistakable error. 38 C.F.R.

§ 20.1403(e); see also Jordan v. Nicholson, 401 F.3d

1296 (Fed. Cir. 2005). Other veterans may never file

claims, and still others will lose benefits from pre-

claim periods if they are deterred by the decision

below from filing. This Court’s immediate review is

imperative.

CONCLUSION

The petition should be granted.

Respectfully submitted,

BARTON F. STICHMAN STEPHEN B. KINNAIRD

LOUIS J. GEORGE Counsel of Record

RICHARD V. SPATARO, JR. SEAN D. UNGER

NATIONAL VETERANS LEGAL ELIZABETH A. STEVENS

SERVICES PROGRAM PAUL, HASTINGS, JANOFSKY

1600 K Street, N.W. & WALKER LLP

Suite 500 875 15th Street, N.W.

Washington, DC 20005 Washington, DC 20005

(202) 265-8305 (202) 551-1700

Attorneys for Petitioner

October 2008

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS,

FEDERAL CIRCUIT.

No. 2007-7037.

JONATHAN L. HAAS,

Claimant-Appellee,

Vv.

JAMES B. PEAKE, M.D., Secretary Of Veterans Affairs,

Respondent-Appellant.

May 8, 2008.

Barton F. Stichman, National Veterans Legal Ser-

vices Program, of Washington, DC, argued for claim-

ant-appellee. With him on the brief was Louis J.

George, Todd M. Hughes, Assistant Director,

Commercial Litigation Branch, Civil Division, United

States Department of Justice, of Washington, DC, ar-

gued for respondent-appellant. With him on the brief

was Jeanne E. Davidson, Director. Of counsel on the

brief were David J. Barrans, Deputy Assistant Gen-

eral Counsel, and Ethan G. Kalett, Staff Attorney,

United States Department of Veterans Affairs, of

Washington, DC.

Before MICHEL, Chief Judge, BRYSON, Circuit

Judge, and FOGEL, District Judge.’

Opinion for the court filed by Circuit Judge BRY-

SON; Dissenting opinion filed by District Judge

FOGEL.

‘ Honorable Jeremy Fogel, District Judge, United States Dis-

trict Court for the Northern District of California, sitting by

designation.

BRYSON, Circuit Judge.

Beginning in 1962, the United States used herbi-

cides such as Agent Orange in Vietnam for the pur-

pose of “defoliation, crop destruction, and on a

smaller scale, clearing vegetation around U.S. fire

bases and other installations, around landing zones,

and along lines of communication.” S.Rep. No. 100-

439, at 64-65 (1988). Agent Orange consisted of an

equal mixture by weight of two chemicals, 2, 4-di-

chlorophenoxyacetic acid and _ 2,4,5-trichloro-

phenoxyacetic acid. It also contained trace amounts

of 2,3,7,8-tetrachlorodibenzo-para-dioxin, also known

as dioxin. Jd. at 64. The use of Agent Orange in

Vietnam increased substantially between 1967 and

1969. Agent Orange came under scrutiny after a re-

port from the National Institutes of Health indicated

that 2,4,5,-trichlorophenoxyacetic acid was associated

with birth defects in animals, although later research

indicated that those birth defects were more likely

caused by dioxin. /d. at 65; see also David A. Butler,

Connections: The Early History of Scientific and

Medical Research on “Agent Orange”, 13 J.L. & Policy

527, 545-48 (2005); Inst. Of Med., Veterans and Agent

Orange: Health Effects of Herbicides Used in Vietnam

30 (1994) (“Veterans and Agent Orange “) (discussing

later research). The use of Agent Orange was phased

out by 1971. Veterans and Agent Orange at 27.

The impact of Agent Orange on humans has subse-

quently been the subject of much research and con-

troversy. Congress has enacted several statutes

mandating that research be conducted regarding the

impact of Agent Orange on human health and pro-

viding that veterans be compensated for illnesses re-

sulting from exposure to the chemical. This case con-

cerns the Agent Orange Act of 1991, Pub.L. 102-4,

105 Stat. 11, which provided a special mechanism of

disability compensation for veterans exposed to her-

bicides such as Agent Orange.

To receive disability compensation, a veteran must

establish that the disability was service connected,

which means that it must have been “incurred or ag-

gravated ...in the line of duty in the active military,

naval, or air service.” 38 U.S.C. § 101(16). The Agent

Orange Act provided that for certain veterans and

certain diseases, both exposure and service connec-

tion are presumed to be established. 38 U.S.C. §

1116(a)(1).

The statutory list of diseases as to which exposure

and service connection are presumed includes non-

Hodgkin’s lymphoma, certain soft-tissue sarcomas,

chloracne, Hodgkin’s disease, porphyria cutanea

tarda, certain respiratory cancers, multiple myeloma,

and diabetes mellitus (type 2). See38 U.S.C. §

1116(a)(2). If a veteran can prove that he or she has

one of the listed diseases and “served in the Republic

of Vietnam” between January 9, 1962, and May 7,

1975, the disease will ordinarily “be considered to

have been incurred in or aggravated by such service.”

38 U.S.C. § 1116(a)(1)(A). Consequently, proving ser-

vice “in the Republic of Vietnam” is important to any

veteran who seeks compensation for onc of the listed

diseases.

This case calls on us to address whether veterans

who served on ships off the coast of Vietnam during

the Vietnam War served “in the Republic of Vietnam”

and thus are entitled to the presumption of service

connection if they suffer from one of the listed dis-

eases. The government argues that the phrase

“served in the Republic of Vietnam” requires that a

servicemember have at some point set foot within the

land borders of Vietnam. Mr. Haas contends that the

phrase extends to those who served on board ships in

the waters off the Vietnamese coast but never went

ashore.

By regulation, the Department of Veterans Affairs

(“DVA”) has interpreted the phrase “served in the

Republic of Vietnam” to mean that the veteran’s ser-

vice must have involved “duty or visitation” in the

Republic of Vietnam in order for the veteran to be en-

titled to the statutory presumption of service connec-

tion. See38 C.F.R. § 3.307(a)(6)iii). That regulation,

as interpreted by the DVA, made the statutory pre-

sumption of service connection unavailable to veter-

ans such as appellant Jonathan Haas, who served on

a naval vessel that traveled in the waters near Viet-

nam but who never went ashore. The Court of Ap-

peals for Veterans Claims (“the Veterans Court”) set

aside the DVA’s interpretation as unduly restrictive.

Haas v. Nicholson, 20 Vet.App. 257 (2006). We hold

that the agency’s requirement that a claimant have

been present within the land borders of Vietnam at

some point in the course of his duty constitutes a

permissible interpretation of the statute and its im-

plementing regulation, and we therefore reverse the

judgment of the Veterans Court.

In August 2001, Mr. Haas applied to the Phoenix,

Arizona, regional office of the DVA seeking disability

compensation for type 2 diabetes, peripheral neu-

ropathy, and loss of eyesight. He claimed that he had

been exposed to herbicides while serving in Vietnam

and that based on that exposure he was entitled to a

finding of service connection for his conditions.

Mr. Haas served on active duty in the United

States Navy from September 1959 to September 1960

and subsequently from May 1963 to June 1970. Ser-

vice records indicate that from August 1967 to April

1969, Mr. Haas served on the U.S.S. Mount Katmai,

which he described as an ammunition supply ship

that operated in the West Pacific off the coast of

Vietnam. It is undisputed that that Mr. Haas never

went ashore, and thus never set foot on the physical

landmass of the Republic of Vietnam. Mr. Haas ex-

plained that his ship did not visit any ports because

it carried highly explosive ammunition and would

have posed a threat if docked in a port. Mr. Haas

subsequently left active duty and was transferred to

the Retired Reserves on July 1, 1982.

Mr. Haas’s claim to service connection for his con-

dition is based on his naval service and the presump-

tive service connection afforded for type 2 diabetes

based upon a showing that the veteran “served in the

Republic of Vietnam.” See38 U.S.C. §§ 1116(a)(1)(A),

(a)(2)(H); 38 C.F.R. § 3.307(a)X6)(iii). In denying his

claim, the regional office explained that in order to

qualify for a presumption of service connection, Mr.

Haas must have “physically served or visited in the

Republic of Vietnam.” For a sailor serving in the wa-

ters offshore, the regional office explained that “the

ship must have come to port in the [Republic of Viet-

nam] and you disembarked.” Mr. Haas disagreed

with the regional office and contended that “service

in the Republic of Vietnam,” as defined by 38 C.F.R. §

3.307(a)(6)(iii), should be interpreted to include ser-

vice in the offshore waters regardless of whether the

servicemember’s ship came to port and the service-

member disembarked.

On appeal, the Board of Veterans’ Appeals affirmed

the regional office’s decision denying Mr. Haas the

presumption of service connection. The Board applied

the DVA’s regulation, as interpreted by the agency,

and ruled that Mr. Haas was not entitled to the

statutory presumption for those who served “in the

Republic of Vietnam” because he had never “set foot

on land in the Republic of Vietnam.” As for Mr.

Haas’s contention that he was actually exposed to

herbicides while his ship operated near the coast of

Vietnam, the Board rejected his claim on the ground

that his allegation was “unsupported by any evidence

demonstrating that his ship was located in waters

sprayed by herbicides.”

Mr. Haas then appealed to the Veterans Court. A

three-judge panel of that court reversed the Board’s

decision. The court first found the phrase “served in

the Republic of Vietnam” in 38 U.S.C. § 1116 to be

ambiguous. The court explained that “[t]here are

many ways in which to interpret the boundaries of a

sovereign mation such as the former Republic of Viet-

nam” and that the “legislative history of the 1991 act

... is silent concerning what constitutes ‘service in

the Republic of Vietnam.” 20 Vet.App. at 263, 268.

Turning to the DVA’s interpretation of the statutory

language, the court first examined the pertinent

regulation, 38 C.F.R. § 3.307(a)(6)(iii). That regula-

tion defines “service in the Republic of Vietnam” as

including “service in the waters offshore and service

in other locations if the conditions of service involved

duty or visitation in the Republic of Vietnam.” The

court determined that the regulation “do[es] not

clearly preclude application of the presumption [of

service connection| to a member of the Armed Forces

who served aboard a ship in close proximity to the

landmass of the Republic of Vietnam.” 20 Vet.App. at

259.

Finding that the regulation “merely has replaced

statutory ambiguity with regulatory ambiguity,” the

Veterans Court then analyzed the DVA’s interpreta-

tion of the regulation and concluded that the agency’s

current interpretation of its regulation conflicts with

the agency’s earlier interpretation of the same regu-

lation. The court noted that the agency’s original in-

structions to its adjudicators in the Adjudication

Manual of the Veterans Benefits Administration,

M21-1 (“Manual M21-1”), called for awarding pre-

sumptive service connection for specified diseases if

the veteran had received the Vietnam Service Medal

“in the absence of contradictory evidence,” and that

those provisions were not altered following the issu-

ance of two precedential DVA General Counsel opin-

ions on related topics. See DVA Op. Gen. Counsel

Prec. 27-97 (1997) (finding that service on a deepwa-

ter vessel off the shore of Vietnam did not constitute

service “in the Republic of Vietnam” under 38 U.S.C.

§ 101(29XA)); DVA Op. Gen. Counsel Prec. 7-93

(1993) (finding that service in high altitude planes

flying over Vietnam without any other contact with

Vietnam did not constitute “service in Vietnam” un-

der 38 C.F.R. § 3.313). Consequently, the court found

that when the DVA adopted the “foot-on-land” test, it

was reversing its previously established course. 20

Vet.App. at 270-72.

The Veterans Court further concluded that the

agencys new interpretation was not a reasonable

one. In so ruling, the Veterans Court noted that un-

der the DVA’s current interpretation of the regula-

tion, the DVA “would afford the presumption of expo-

sure to Agent Orange to a Vietnam-era veteran who

served only in the inland waterways of the Republic

of Vietnam and never set foot on land; yet, in order

for a Victnam-era veteran serving in the waters sur-

rounding Vietnam to be entitled to the presumption,

he or she must have set foot on land, without consid-

eration as to either the length of time spent patrol-

ling in the waters offshore, or the risks of windblown

exposure to Agent Orange sprayed along Vietnam’s

coastline.” 20 Vet.App. at 275. The court explained

that

given the spraying of Agent Orange along the

coastline and the wind borne effects of such

spraying, it appears that these veterans serving

on vessels in close proximity to land would have

the same risk of exposure to the herbicide Agent

Orange as veterans serving on adjacent land, or

an even greater risk than that borne by those

veterans who may have visited and set foot on

the land of the Republic of Vietnam only briefly.

Id. at 273. Based on that reasoning, the court con-

cluded that the DVA’s interpretation of section

3.307(a)(6)(ii) was “plainly erroneous” and that the

regulation “must be read to include at least service of

the nature described by the appellant, that is, service

in the waters near the shore of Vietnam.” Zd.

Finally, the Veterans Court ruled that the perti-

nent provisions of the DVA’s Manual M21-1 were

“substantive rules” and that the DVA’s amendment of

those provisions in February 2002 to incorporate the

“foot-on-land” requirement was invalid because the

DVA had failed to make that change pursuant to the

notice-and-comment requirements of 5 U.S.C. § 553.

20 Vet.App. at 277. Alternatively, the court ruled

that the February 2002 changes could not be applied

retroactively to Mr. Haas’s claim, which had been

filed in August 2001, because the effect of the rule

change was té marrow the scope of Mr. Haas’s sub-

stantive rights. Jd. at 277-78. The court therefore

reversed the Board’s denial of Mr. Haas’s claim to

service connection for diabetes and held that in Mr.

Haas’s case, the Manual M21-1 provision “allowing

for the application of the presumption of exposure to

herbicides based on the receipt of the [Vietnam Ser-

vice Medal] controls.” Jd. at 279.

IT.

This court ordinarily will not hear appeals from the

Veterans Court in cases that the Veterans Court

remands to the Board of Veterans’ Appeals. See

Adams vu. Principi, 256 F.3d 1318, 1320

(Fed.Cir.2001). Nonetheless, we have held that it is

appropriate for us to review such cases in certain cir-

cumstances, under the principles set forth in Wil-

liams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). This

appeal addresses the purely legal question of the

proper interpretation of a statute and its imple-

menting regulations, a question that will not be af-

fected by the proceedings on remand. Moreover, post-

poning review until after completion of the proceed-

ings on remand could deprive the government of its

right to review of the legal issue in this case, because

the Secretary of Veterans Affairs has no right to seek

review of a Board decision in favor of the veteran un-

der 38 U.S.C. § 7252(a). We therefore conclude that

this appeal is ripe for review even though the Veter-

ans Court remanded the case for further proceedings

before the Board. See Williams, 275 F.3d at 1364.

iil.

On the merits, the parties disagree about the

proper resolution of virtually every issue in this case:

10a

whether the phrase “served in the Republic of Viet-

nam” in the Agent Orange Act of 1991 is ambiguous;

whether the DVA’s regulation that interprets that

phrase is itself ambiguous; whether the agency’s in-

terpretation of that regulation is entitled to defer-

ence, or instead is unreasonable and incensistent

with the agency’s previous, longstanding interpreta-

tion of the regulation; and whether the DVA’s 2002

modification to Manual M21-1 constituted a substan-

tive regulatory change that could not be given effect

without notice-and-comment rulemaking.

In order to make sense of the statutory and regula-

tory arguments made by the parties, it is necessary to

review the history of the legislative and regulatory

measures directed to the issue of herbicide exposure

in Vietnam. That history, both prior to and after the

enactment of the Agent Orange Act of 1991, is com-

plex.

Beginning in the late 1970s, Congress responded to

widespread expressions of concern by veterans’

groups regarding the health effects on Vietnam vet-

erans of exposure to Agent Orange and other herbi-

cides used in the conflict there. In 1979, Congress en-

acted a provision requiring the Veterans Administra-

tion (“VA”), as the agency was then known, to con-

duct an epidemiological study of persons who, while

serving in the armed forces during the war in Viet-

nam, were exposed to dioxins produced during the

manufacture of various herbicides, including Agent

Orange, to determine if there might be long-term ad-

verse health effects from such exposure. Pub.L. No.

96-151, § 307, 93 Stat. 1092, 1097-98 (1979). The re-

sponsibility for conducting that study was subse-

quently reassigned to the Centers for Disease Control]

lla

(“CDC”). SeeH.R.Rep. No. 98-592, at 5 (1984), as re-

printed in 1984 U.S.C.C.A.N. 4449, 4451. Congress

directed the VA to publish a description of the actions

that it planned to take in response to those reports.

Pub.L. No. 97-72, § 401, 95 Stat. 1047, 1061-62

(1981).

In 1984, Congress enacted the Veterans’ Dioxin

and Radiation Exposure Compensation Standards

Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984). Section

5 of that Act directed the VA to prescribe regulations

establishing guidelines and standards for resolving

claims for benefits based on exposure during service

“in the Republic of Vietnam during the Vietnam era

to a herbicide containing dioxin.” In particular, the

statute called the VA’s attention to evidence that

three diseases-chloracne, porphyria cutanea tarda,

and soft tissue sarcoma-are associated with exposure

to certain levels of dioxin and directed the VA to de-

termine whether service connection should’ be

granted in individual cases involving each of those

diseases. Id. §§ 2(5), 5(b)(2)(A)(i), 5(b)(2)(B).

In response, the VA promulgated a regulation that

presumed exposure to a herbicide containing dioxin

for any veteran who served “in the Republic of Viet-

nam” during the Vietnam era. The regulation con-

cluded that the development of chloracne manifested

within three months of exposure would be presumed

to be service-connected, but that porphyria cutanea

tarda and soft tissue sarcomas were not sufficiently

associated with dioxin exposure to warrant similar

treatment. 38 C.F.R. § 3.31lla (1986); see50 Fed.Reg.

34,452 (Aug. 26, 1985). The regulation defined “Ser-

vice in the Republic of Vietnam” to include “service in

the waters offshore and service in other locations, if

the conditions of service involved duty or visitation in

12a

the Republic of Vietnam.” 38 C.F.R. § 3.311la(a)(1)

(1986). The VA explained that the regulation was

adopting the VA’s “longstanding policy of presuming

dioxin exposure in the cases of veterans who served

in the Republic of Vietnam during the Vietnam era.”

50 Fed.Reg. at 34,454-55. That policy was “based on

the many uncertainties associated with herbicide

spraying during that period which are further con-

founded by lack of precise data on troop movements

at the time.” Jd. at 34,455. “While it may be possible

to approximate areas where herbicides were

sprayed,” the agency wrote, “it would be extremely

difficult to determine with an acceptable degree of

precision whether an individual veteran was exposed

to dioxin.” Jd. Accordingly, the agency adhered to its

prior policy of presuming exposure for servicemem-

bers who had served in Vietnam. In addition, the

agency provided that because some military person-

nel who were stationed elsewhere “may have been

present in the Republic of Vietnam, ‘service in the

Republic of Vietnam’ will encompass service else-

where if the person concerned actually was in the

Republic of Vietnam, however briefly.”( 50 Fed.Reg.

15,848, 15,849) (Apr. 22, 1985) (proposed rule). The

VA added that “[iJn view of shifting personnel de-

ployments, absence of on-site measurement of dioxin

contamination and other factors the Agency has ad-

hered to a policy of presuming exposure if the veter-

ans served in Vietnam during the relevant period.

This section formalizes that existing policy.” Jd. at

15,849; see also50 Fed.Reg. 34,452 (Aug. 26, 1985)

(adopting proposed rule unamended).

Meanwhile, congressional committees continued to

hold hearings to assess the epidemiological studies of

Agent Orange that had been mandated in 1979.

Those studies were designed to determine whether

l3a

any component of Agent Orange-not just dioxin-

affected human health, although given its notoriety

dioxin often figured prominently in the research and

analysis. See Veterans and Agent Orange at x; see

also id. at 28-36 (discussing history of research on

Agent Orange). The success of those studies de-

pended on determining which veterans had been ex-

posed to Agent Orange and the extent of their expo-

sure, so that health problems among veterans who

had been highly exposed could be compared to those

of a control group. See id. at 58. The VA and the

CDC ran into a series of problems in attempting to

make that determination. Initially, it was believed

that exposure could be deduced from studying ground

troop movements in conjunction with records of aerial

spraying of Agent Orange. See id. That approach

proved unworkable, as a representative of the Cen-

ters for Disease Control explained in testimony be-

fore a subcommittee of the House Committee on Vet-

eran’s Affairs:

When CDC got into this, it was assumed there

would be records that could determine exactly

where an individual was on a given day, and that

could be correlated with known [herbicide] use. I

think with the finest use of existing records, you

cannot separate between exposed and unexposed.

You can get some .. . approximations, but it

would be a disservice to veterans and to everyone

to proceed with an expensive study of this nature

if you can’t clearly differentiate between who's

been exposed and who’s not exposed. Without

that, you have no basis to proceed with doing a

study.

Agent Orange Studies: Hearing Before the Subcomm.

on Hospitals and Health Care of the H. Comm. on

14a

Veterans’ Affairs, 99th Cong. 15 (1986) (“1986 House

Hearing”) (statement of James O. Mason, CDC Direc-

tor); see also Veterans and Agent Orange at 58.

In light of those difficulties, the CDC attempted to

derive an exposure index through other means. Ini-

tially, an attempt was made to develop an index by

measuring the amount of dioxin present in fat sam-

ples from veterans. 1986 House Hearing at 81-83

(statement of James O. Mason, CDC Director). Al-

though the objective was to study Agent Orange, it

was expected that determining dioxin levels would

indicate the degree of exposure to Agent Orange. See

Veterans and Agent Orange at 259-62 (describing use

of dioxin as a “biomarker”). That procedure, however,

did not bear fruit because of the practical difficulties

of obtaining fatty tissue samples. Jd. at 82-83. Sub-

sequent research based on blood tests did not reveal

any difference in the blood levels of dioxin between a

group of veterans stationed in Vietnam and a control

group of veterans stationed outside of Vietnam. The

CDC ultimately concluded that it had no validated

scientific method of identifying a group of veterans

who were highly exposed to Agent Orange. Agent

Orange Legislation and Oversight: Hearing on S.

1692, the Proposed “Agent Orange Disabilities Bene-

fits Act of 1987”; S. 1787, the proposed “Veterans’

Agent Orange Disabilities Act of 1987”; and Agent

Orange Oversight Issues Before the S. Comm. on Vet-

erans’ Affairs, 100th Cong. 165-66 (1988) (statement

of Thomas E. Harvey, Deputy Administrator of the

VA). The CDC explained that “the Agent Orange Ex-

posure Study ... cannot be done... . The difficulty is

and has always been the inability to discriminate be-

tween exposed and unexposed ground troops.” Id. at

165 (discussing the inability to derive an exposure

15a

index from military records, self-reporting, and direct

measurements of dioxin from tissue samples).

Although the CDC was unable to conduct the

Agent Orange exposure study as it was originally

conceived by Congress in 1979 due to the inability to

identify with scientific certainty which Vietnam vet-

erans had been highly exposed to Agent Orange,

there remained other sources of scientific information

on the health effects of Agent Orange and dioxin in

humans. One ongoing study focused on the group of

Vietnam veterans who had been involved in the ae-

rial spraying of Agent Orange, known as the “Ranch

Hand study” after the name of the mission responsi-

ble for conducting the spraying operation. See Veter-

ans and Agent Orange at 53. Further data has also

been available, for example, from populations that

were exposed to chemical accidents involving dioxin,

workers at factories manufacturing herbicides, and

agricultural or forestry workers who were exposed to

herbicides similar to Agent Orange or herbicides con-

taining dioxin before their use was largely banned in

the United States. See id. at 36-45.

Against the backdrop of the ongoing scientific in-

vestigations, the VA declined to change its regula-

tions after 1985 to provide a presumption of in-ser-

vice exposure for any diseases other than chloracne,

on the ground that the scientific evidence did not

show a Statistically probable association between

Agent Orange exposure and any other disease. In

litigation initiated by veterans’ advocacy groups,

however, a federal district court ruled that the

agency, by then renamed the Department of Veterans

Affairs, had applied too stringent a standard for de-

termining which diseases to include in its regulations

promulgated under the 1984 Dioxin Act. See Nehmer

16a

v. U.S. Veterans Admin., 712 F.Supp. 1404, 1420

(N.D.Cal.1989). The DVA subsequently amended its

regulation, 38 C.F.R. § 3.3lla, to include soft tissue

sarcomas. See 56 Fed.Reg. 7632 (Feb. 25, 1991) (pro-

posed rule); 56 Fed.Reg. 51,651 (Oct. 15, 1991) (final

rule).

In October 1990, the DVA promulgated a separate

regulation providing that “Service in Vietnam during

the Vietnam Era,” together with subsequent devel-

opment of non-Hodgkin’s lymphoma, “is sufficient to

establish service connection for that disease.” 38

C.F.R. § 3.313. That regulation was based on

information in a CDC study that had been released

earlier that year. See 55 Fed.Reg. 25,339 (June 21,

1990) (proposed rule). The CDC study found a

statistically significantly elevated level of non-Hodg-

kin’s lymphoma among Vietnam veterans by com-

paring veterans who served in Vietnam and those

who served in other locations during the Vietnam

era. For purposes of the analysis, the study treated

veterans who were stationed off the coast of Vietnam

as Vietnam veterans. See The Association of Selected

Cancers with Service in the U.S. Military in Vietnam,

as reprinted in Centers for Disease Control Selected

Cancers Study and Scientific Reviews of the Study:

Hearing before the H. Comm. On Veterans’ Affairs,

101ist Cong.2d Sess. 106 (1990) (“1990 CDC Study”).

The study concluded that there was no evidence that

the increased risk of non-Hodgkin’s lymphoma among

Vietnam veterans was related to exposure to Agent

Orange in Vietnam. /d. at 81, 125.

In the 1990 regulation, the DVA defined “Service in

Vietnam” to include “service in the waters offshore,

or service in other locations if the conditions of ser-

vice involved duty or visitation in Vietnam.” 38

17a

C.F.R. § 3.313 (1991). That language was similar to

the language previously used to define “service in the

Republic of Vietnam,” but it differed in two subtle,

but important respects. First, the 1990 regulation re-

ferred to “Service in Vietnam” rather than using the

statutory phrase “service in the Republic of Viet-

nam.” Second, the placement of the comma before the

word “or” in the definition of “service in Vietnam” in

the 1990 regulation, section 3.313, suggested that the

requirement of visitation or duty in Vietnam applied

to “service in other locations,” but not to “service in

the waters offshore.” Section 3.311 a used the word

“and” rather than “or” and did not have a comma

separating the reference to “service in the waters off-

shore” and “service in other locations,” which sug-

gested that the requirement of visitation or duty in

the Republic of Vietnam applied to both of those

forms of extraterritorial service.

The government does not dispute that the 1990

non-Hodgkin’s lymphoma regulation, which is still in

effect, applies to veterans who served “offshore” and

never visited the landmass of Vietnam, as those vet-

erans were among those found to have an elevated

risk of non-Hodgkin’s lymphoma in the 1990 CDC

study. In fact, in 1993 the DVA issued a General

Counse!] opinion in which the agency explicitly stated

that the non-Hodgkin’s lymphoma regulation covers

servicemembers who served in the waters off the

shore of Vietnam, although the opinion concluded

that the regulation does not cover servicemembers

whose involvement in the Vietnam theater was lim-

ited to high-altitude missions in Vietnamese air-

space. DVA Op. Gen. Counsel Prec. 7-93 (Aug. 12,

1993).

18a

By contrast, the government asserts that under the

more general 1985 dioxin exposure regulation, sec-

tion 3.311 a, a veteran who served offshore must have

set foot on the landmass of Vietnam in order to sat-

isfy the regulatory definition of having served “in the

Republic of Vietnam.” The punctuation of the earlier

definition in the 1985 regulation, section 3.3lla, sup-

ports the government’s position, as it suggests that

the requirement of visitation or duty in the Republic

of Vietnam applies to both “service in other locations”

and “service in the waters offshore.”

In 1991, Congress enacted the Agent Orange Act,

Pub.L. No. 102-4, 105 Stat. 11, which established a

more comprehensive statutory framework for herbi-

cide-based claims. As enacted, the Agent Orange Act

specified three diseases-non-Hodgkin’s lymphoma,

certain soft tissue sarcomas, and chloracne-and pro-

vided that when one of those diseases became mani-

fest “in a veteran who, during active military, naval,

or air service, served in the Republic of Vietnam

during the Victnam era,” the disease would be con-

sidered to have been incurred in or aggravated by

such service.” Pub.L. No. 102-4, § 2(a), 105 Stat. 11,

12 (1991) (now codified, as amended, at 38 U.S.C. §

1116(a)(1)). In addition, the Act directed the DVA to

identify other diseases associated with herbicide ex-

* Congress included non-Hodgkin's lymphoma on the list of

diseases specifically identified in the Agent Orange Act based on

evidence that, contrary to the conclusion of the 1990 CDC study,

non-Hodgkin’s lymphoma was in fact associated with exposure

to Agent Orange. See Report to the Secretary of Veterans Affairs

on the Association Between Adverse Health Effects and Exposure

to Agent Orange, reprinted in Links Between Agent Orange, Her-

bicides, and Rare Diseases: Hearing before the Human Resources

and Intergovernmental Relations Subsomm. of the Comm. on

Gov't Relations, 101st Cong., 2d Sess. 22, 41 (1990).

19a

posure. The Act provided that any veteran who

“served in the Republic of Vietnam during the Viet-

nam era” and has a disease designated by the Secre-

tary “shall be presumed to have been exposed during

such service to an herbicide agent containing dioxin

or 2, 4-dichlorophenoxyacetic acid, and may be pre-

sumed to have been exposed during such service to

any other chemical compound in an herbicide agent,

unless there is affirmative evidence to establish that

the veteran was not exposed to any such agent during

that service.” Pub.L. No. 102-4, § 2(a), 105 Stat. at 12

(now codified, as amended, at 38 U.S.C. § 1116(f)).

The legislative history of the Agent Orange Act in-

dicates that Congress sought to strike a balance be-

tween waiting for the results of scientific research re-

garding the effects of Agent Orange and providing

benefits for Vietnam veterans with current health

problems. The Chairman of the House Committee on

Veterans’ Affairs stated:

The question of whether compensation should be

paid for disabilities allegedly related to exposure

to herbicides has gone on for much too long... .

It has received an inordinate amount of attention

and energy. It is time to move on and, in doing

so, to leave in place a mechanism for continuing

scientific scrutiny which, if allowed to work, can

assuage the remaining concerns of affected vet-

erans.

137 Cong. Rec. 2348 (1991) (statement of Rep. Mont-

gomery). The Act therefore codified the presumption

of service connection for the three diseases already

covered by DVA regulations, mandated independent

scientific review through the National Academy of

Sciences, and instructed the Secretary of the DVA to

consider designating additional diseases as service-

20a

connected when recommended by the Nationa] Acad-

emy of Sciences. Importantly for present purposes,

the focus of Congress’s attention was on the scientific

evidence as to what diseases were linked to Agent

Orange exposure; there was no indication during the

legislative process that Congress focused on the pre-

cise scope that should be attached to the statutory

phrase “served in the Republic of Vietnam.”

When the DVA drafted regulations for the Agent

Orange Act, it incorporated the definition of the

phrase “service in the Republic of Vietnam” from the

1985 general dioxin exposure regulation, 38 C.F.R. §

3.3lla. See 58 Fed.Reg. 50,528, 50,529 (Sept. 28,

1993) (adopting amended section 3.307(a)(6)). Thus,

the DVA defined “service in the Republic of Vietnam”

to mean “service in the waters offshore and service in

other locations if the conditions of service involved

duty or visitation in the Republic of Vietnam.” 38

C.F.R. § 3.307(a)(6)(iii) (1994). The DVA explained

that in light of the enactment of the Agent Orange

Act it was no longer necessary to retain the gencral

dioxin exposure regulation, 38 C.F.R. § 3.311a. How-

ever, the DVA noted that the definition of the phrase

“service in the Republic of Vietnam” in the new

regulation would be incorporated directly from the

definition in section 3.3lla. 58 Fed.Reg. 50,528,

50,529 (Sept. 28, 1993) (proposed rule).

The following year, the DVA issued another set of

regulations in which it added Hodgkin’s disease and

porphyria cutanea tarda to the list of diseases for

which the agency would presume exposure and ser-

vice connection based on presence in Vietnam during

the Vietnam era. See59 Fed.Reg. 5106 (Feb. 3,

1994). The new regulation retained the language

from the general dioxin exposure regulation of 1985

2la

and continued to define “service in the Republic of

Vietnam” to include “service in the waters offshore

and service in other locations if the conditions of ser-

vice involved duty or visitation in the Republic of

Vietnam.” 38 C.F.R. § 3.307(a)(6)(ii)) (1995).

The question whether the phrase “service in the

Republic of Vietnam” included servicemembers whose

service was limited to ships that had traveled in wa-

ters off the shore of Vietnam came into sharp focus in

1997. First, in a precedential General Counsel opin-

ion issued that year, the DVA construed the phrase

“served in the Republic of Vietnam” in 38 U.S.C. §

101(29)(A) not to apply to servicemembers whose ser-

vice was on ships and who did not serve within the

borders of the Republic of Vietnam during a portion

of the “Vietnam era.” The opinion stated that the

definition of the phrase “service in the Republic of

Vietnam” in the Agent Orange regulation, 38 C.F.R. §

3.307(a)(6)(i11), “requires that an individual actually

have been present within the boundaries of the Re-

public to be considered to have served there,” and

that for purposes of both the Agent Orange regula-

tion and section 101(29)(A), service “in the Republic

of Vietnam” does not include service on ships that

traversed the waters offshore of Vietnam absent the

servicemember’s presence at some point on the land-

mass of Vietnam. DVA Op. Gen. Counsel Prec. 27-97

(1997).

Later that same year, in a proposed regulation ad-

dressing incidents of spina bifida among the children

of servicemembers who had served in Vietnam, the

DVA proposed to use the same regulatory definition

for “service in the Republic of Vietnam” that it had

used in the 1985 regulation and the Agent Orange

regulation. See62 Fed.Reg. 23,724, 23,725 (May 1,

228

1997) (proposed rule). A commenter objected to the

definitional language and urged that the phrase “if

the conditions of service involved duty or visitation in

the Republic of Vietnam” be eliminated from the

regulation. See62 Fed. 51,274, 51,274-75 (Sept. 30,

1997) (final rule). The DVA declined to make that

change. It explained the reason for not making the

suggested change as follows:

Because herbicides were not applied in waters off

the shore of Vietnam, limiting the scope of the

term service in the Republic of Vietnam to per-

sons whose service involved duty or visitation in

the Republic of Vietnam limits the focus of the

presumption of exposure to persons who may

have been in areas where herbicides could have

been encountered.

62 Fed.Reg. at 51,274.

In 2001, the DVA issued a proposed regulation to

include type 2 diabetes among the illnesses for which

presumptive service connection would be recognized

based on herbicide exposure. See 66 Fed.Reg. 2376

(Jan. 22, 2001) (proposed rule). The proposed regula-

tion would presume herbicide exposure based on

“service in the Republic of Vietnam,” which would

continue to be defined to cover service in waters off-

shore of Vietnam “if the conditions of service involved

duty or visitation in the Republic of Vietnam.” The

DVA subsequently adopted the proposed rule in-

cluding type 2 diabetes among those diseases as to

which presumptive service connection would be rec-

ognized. 66 Fed.Reg. 23,166 (May 8, 2001) (final

rule).

In the course of the rulemaking proceeding, a

comment was made urging the DVA to use that pro-

23a

ceeding to make clear that “service in the Republic of

Vietnam” includes “service in Vietnam’s inland wa-

terways or its territorial waters.” The comment was

based on the assertion that U.S. military personnel

had been exposed to herbicides while serving in those

locations. In its final rulemaking order, the DVA re-

sponded that it s “commonly recognized” that the

statutory term “in the Republic of Vietnam” includes

the inland waterways. 66 Fed.Reg. at 23,166. With

respect to service in the offshore waters, however, the

DVA explained that even before the enactment of the

Agent Orange Act, the agency had taken the position

that service offshore required some duty or visitation

within the Republic of Vietnam to qualify for the pre-

sumptions of herbicide exposure and service connec-

tion, and that service on a deepwater vessel offshore

did not constitute such service. The DVA added that

the commenter had cited “no authority for concluding

that individuals who served in the waters offshore of

the Republic of Vietnam were subject to the same

risk of herbicide exposure as those who served within

the geographical boundaries of the Republic of Viet-

nam, or for concluding that offshore service is within

the meaning of the statutory phrase ‘Service in the

Republic of Vietnam.” Jd. Accordingly, the agency de-

clined to make the suggested change. Later that year,

Congress followed the DVA’s lead by adding type 2

diabetes to the list of diseases included in section

1116(a)(2). See Veterans Education and Benefits Ex-

pansion Act of 2001, Pub.L. No. 107-103, § 201(b),

115 Stat. 967.

In early 2002, the DVA amended the language of

its Adjudication Manual M21-1 to specifically incor-

porate the agency’s “foot-on-land” interpretation of

the Agent Orange regulations. Before the amend-

ment, the Manual provided that in determining

24a

whether a veteran had “service in Vietnam,” it would

ordinarily be sufficient that the veteran had received

the Vietnam Service Medal, but that it might be nec-

essary in some cases to determine if the veteran’s

ship had been in the vicinity of Vietnam for some

significant period of time. The amended version of

Manual M21-1, published in February 2002, stated

that, under section 3.307(a)(6) of the regulations, a

veteran “must have actually served on land within

the Republic of Vietnam (RVN) to qualify for the pre-

sumption of exposure to herbicides.” M21-1, part III,

paragraph 4.24(e)(1) (Feb. 27, 2002). It added that

the fact that a veteran has been awarded the Viet-

nam Service Medal] “does not prove that he or she

was ‘in country,’ “ because servicemembers “who were

stationed on ships off shore, or who flew missions

over Vietnam, but never set foot in-country, were

sometimes awarded the Vietnam Service Medal.” 7d.

In 2004, the DVA published a proposed rule, as

part of a proposed wholesale revision of the DVA’s

regulations, in which it once again articulated its po-

sition with respect to offshore service. Citing the dia-

betes regulation, the DVA explained that veterans

who served on the inland waterways of Vietnam

“may have been exposed to herbicides” and that ser-

vice on the inland waterways “constitutes service in

the Republic of Vietnam” within the meaning of 38

U.S.C. § 1116. However, the agency restated that it

Was

not aware of any valid scientific evidence show-

ing that individuals who served in the waters

offshore of the Republic of Vietnam or in other

locations were subject to the same risk of herbi-

cide exposure as those who served within the

geographic land boundaries of the Republic of

25a

Vietnam. Furthermore, we are not aware of any

legislative history suggesting that offshore ser-

vice or service in other locations are within the

meaning of the statutory phrase, “Service in the

Republic of Vietnam.”

69 Fed.Reg. 44,614, 44,620 (July 27, 2004) (proposed

rule). Accordingly, the DVA proposed to revise its

regulation “to make it clear that veterans who served

in waters offshore but did not enter Vietnam, either

on its land mass or in its inland waterways cannot

benefit from this presumption.” Jd.

The new benefits regulations, including the pro-

posed rule regarding offshore service, have not yet

been finally adopted. However, while this appeal was

pending the DVA initiated a rulemaking proceeding

that would amend section 3.307(a)(6)(iii) to incorpo-

rate the DVA’s interpretation of the regulation as

part of the regulatory text. The amended version of

the regulation would define “service in the Republic

of Vietnam” for purposes of section 3.307 to include

“only service on land, or on an inland waterway, in

the Republic of Vietnam during the period beginning

on January 9, 1962, and ending on May 7, 1975.” 73

Fed.Reg. 20,566, 20,571 (Apr. 16, 2008). In explaining

the reason for the amendment, the agency referred to

the litigation in this case and then stated that in its

view the statutory reference to service in the Repub-

lic of Vietnam “is most reasonably interpreted to re-

fer to service within the land borders of the Republic

of Vietnam.” Jd. at 20,568. The agency explained its

position as follows:

It is both intuitively obvious and well established

that herbicides were commonly deployed in foli-

ated land areas and would have been released

seldom, if at all, over the open waters off the

26a

coast of Vietnam. The legislative and regulatory

history indicates that the purpose of the pre-

sumption of exposure was to provide a remedy

for persons who may have been exposed to herbi-

cides because they were stationed in areas where

herbicides were used, but whose exposure could

not actually be documented due to inadequate

records concerning the movement of ground

troops.

Because it is known that herbicides were used ex-

tensively on the ground in the Republic of Vietnam,

and because there are inadequate records of ground-

based troop movements, it is reasonable to presume

that any veteran who served within the land borders

of Vietnam was potentially exposed to herbicides,

unless affirmative evidence establishes otherwise.

There is no similar reason to presume that veterans

who served solely in the waters offshore incurred a

significant risk of herbicide exposure.

Id. Although the DVA conceded that it was “con-

ceivable that some veterans of offshore service in-

curred exposure under some circumstances due, for

example, to airborne drift, groundwater runoff, and

the proximity of individual boats to the Vietnam

coast,” it stated that for purposes of the presumption

of exposure, “there is no apparent basis for conclud-

ing that any such risk was similar in kind or degree

to the risk attending service within the land borders

of the Republic of Vietnam.” Jd. Moreover, observing

that offshore service “encompasses a wide range of

service remote from land and thus from areas of ac-

tual herbicide use,” the DVA concluded that “there is

no reason to believe that any risk of herbicide expo-

sure would be similarly pervasive among veterans of

27a

offshore service as among veterans of service within

the land borders of Vietnam.” Jd.

We first address the government’s argument that

the pertinent language of 38 U.S.C. § 1116 is

ambiguous and that the DVA’s regulation issued pur-

suant to that statute, 38 C.F.R. § 3.307(a)(6)(ii1), is

entitled to deference as a permissible interpretation

of the statute. Under the Cheuron doctrine, “when an

agency invokes its authority to issue regulations,

which then interpret ambiguous statutory terms, the

courts defer to its reasonable interpretations.” Fed.

Express Corp. v. Holowecki, —U.S. —, 128 S.Ct. 1147,

1154, 170 L.Ed.2d 10 (2008); Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43,

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (a court will

defer to an agency’s regulatory interpretation of a

statute if the statute is ambiguous or contains a gap

that Congress has left for the agency to fill through

regulation). “Step one” of the Chevron analysis

considers whether “Congress has directly spoken to

the precise question at issue,” a question that we

analyze using the traditional tools of statutory inter-

pretation. Chevron, 467 U.S. at 842-43, 104 S.Ct.

2778; Cathedral Candle Co. v. Int'l Trade Comm’n,

400 F.3d 1352, 1362 (Fed.Cir.2005).

The relevant portion of section 1116(a)(1)(A) pro-

vides that for a veteran who suffers from one of sev-

eral specified diseases, including type 2 diabetes, and

who “during active military, naval, or air service,

served in the Republic of Vietnam during the period

beginning on January 9, 1962, and ending on May 7,

1975,” the disease “shall be considered to have been

incurred in or aggravated by such service.” As ap-

plied to veterans who served in waters offshore of

28a

Vietnam but not on the landmass of Vietnam, the

Veterans Court concluded that the statutory phrase

“served in the Republic of Vietnam” is ambiguous.’

The court first noted that “[t]here are many ways

in which to interpret the boundaries of a sovereign

nation such as the former Republic of Vietnam.” 20

Vet.App. at 263. The court then surveyed different

sources that define sovereign nations in different

ways, ranging from including only the nation’s land-

mass to including the nation’s “exclusive economic

zone, which can extend up to 200 miles from the

coastline. Jd. at 263-64. The government agrees

with the Veterans Court that section 1116 is ambigu-

ous in this respect. Mr. Haas, however, argues that

the statute has a plain meaning that covers service-

members in his position.

Addressing the phrase “served in the Republic of

Vietnam,” Mr. Haas asserts that “[a]]ll relevant defi-

nitions of the sovereign nation of the Republic of

* In its brief, the government mistakenly refers to section

1116(f) as the provision at issue in this case. Because Mr. Haas’s

disease is one of those listed in section 1116(a)(2), it is section

1116(a\(1), not section 1116(f), that governs his claim. Section

1116(f) was originally enacted as subsection (a)(3) of the first

section of the Agent Orange Act, and it applied to diseases re-

ferred to in subsection (a)(1(B). When the Act was amended in

2001, subsection (a)(3) became section 1116(f), and it was modi-

fied to apply to diseases other than those referred to in subsec-

tions (a)(1) or (a)(2). The legislative history of the 2001

amendment makes it quite plain that the new section 1116(f)

wus designed tu make the Act applicable to new diseases, not to

affect the preexisting scope of subsection (a)(1). S.Rep. No. 107-

86, at 10-12 (2001). The erroneous reference makes no difference

to the analysis in this case, however, as the pertinent phrase

“served in the Republic of Vietnam” appears in both sections

1116(a)(1) and 1116(f).

29a

Vietnam include the territorial waters off the land-

mass of Vietnam.” To support that assertion, Mr.

Haas cites to two definitions identified by the Veter-

ans Court, Presidential Proclamation 5928 (1989)

and the United Nations Convention on the Law of the

Sea (““UNCLOS”). Both definitions include the na-

tion’s “territorial sea,” which is generally defined as

extending 12 nautica] miles from a nation’s coast. Yet

Mr. Haas does not explain why other definitions,

‘such as the contrary ones cited by the Veterans

Court, are not “relevant.” Neither the language of the

statute nor its legislative history indicates that Con-

gress intended to designate one of the competing

methods of defining the reaches of a sovereign nation.

We therefore agree with the Veterans Court that the

statutory phrase “served in the Republic of Vietnam”

is ambiguous as applied to service in the waters ad-

joining the landmass of Vietnam.

Based on a textual analysis of section 1116, Mr.

Haas asserts that Congress made its intention clear

that active duty personnel who served on ships off-

shore of Vietnam should be considered to have

“served in the Republic of Vietnam” within the

meaning of 38 U.S.C. § 1116(a)(1)(A). His argument

is that if a veteran “served in the Republic of Viet-

nam” and has one of the diseases listed in section

1116(a)(2), such as diabetes, the veteran does not

need to provide evidence that he or she was actually

exposed to herbicides. By contrast, under section

1116(a)(1)(B), service connection is presumed only if

the veteran “served in the Republic of Vietnam” and

“while so serving was exposed to” an herbicide. Be-

cause proof of actual exposure is not required under

section 1116(a)(1)(A), Mr. Haas argues that there is

no reason to require proof of actual presence on the

landmass of Vietnam. He contends that the govern-

30a

ment’s asserted justification for the “foot-on-land”

approach-that herbicides are only sprayed on land-is

not relevant under section 1116(a)(1)(A), which by its

terms does not require direct herbicide exposure.

Contrary to Mr. Haas’s contention, the statutory

provision that obviates the need to prove herbicide

exposure for certain diseases neither says nor implies

anything about the meaning of the phrase “served in

the Republic of Vietnam.” Congress simply concluded

that for those who served in Vietnam, it was too diffi-

cult to determine who was exposed and who was not.

But in so concluding, Congress did not indicate that

service “in” the Republic of Vietnam included service

on the waters offshore or in any other location

nearby. Nor did Congress suggest that exposure was

not important to the determination of service connec-

tion. The entire predicate for the Agent Orange Act

and its reguiations was exposure to herbicides in

general and Agent Orange in particular. The fact

that Congress presumed exposure for veterans who

served in Vietnam does not by any means suggest

that exposure was considered unimportant and that

veterans in other areas therefore do not have to prove

exposure. Thus, there is no force to Mr. Haas’s argu-

ment based on the difference between section

1116(a)(1)(A) and section 1116(a)(1)(B).

Mr. Haas next contends that the legislative history

of the Agent Orange Act demonstrates that Congress

intended to give those who served only in offshore

waters the benefit of section 1116(a). His argument is

based on statements in the legislative history of the

Agent Orange Act that Congress intended to codify

the DVA’s then-existing regulations on diseases mer-

iting a presumption of service connection for Vietnam

veterans. See, e.g., 137 Cong. Rec. 2345 (1991)

sla

(statement of Rep. Montgomery) (“This compromise

would codify administrative decisions of the Secre-

tary of Veterans Affairs in deeming three conditions

service-connected for compensation purposes.”); id.

at 2352 (statement of Rep. Stump) (“H.R. 556 codifies

current VA policy regarding agent orange compensa-

tion by establishing in statute a presumption of ser-

vice-connection for non-Hodgkin’s lymphoma, soft-tis-

sue sarcoma, and chloracne.”).

The problem with that argument is that the refer-

ences to the regulatory presumptions in the legisla-

tive history did not distinguish between the broader

definition of “service in Vietnam” provided in the

non-Hodgkin’s lymphoma regulation (section 3.313)

and the narrower definition of “service in the Repub-

lic of Vietnam” found in the chloracne/soft tissue sar-

coma regulation (section 3.311a). In the absence of

any clearer statement in the legislative record, which

Mr. Haas has not identified, the remarks about the

existing regulations do not support the construction

of the statutory phrase “served in the Republic of

Vietnam” that he advocates. If anything, the different

circumstances that prompted the issuance of the two

regulations and the fact that only the chloracne/soft

tissue sarcoma regulation used the precise phrase

that was later incorporated into the statute-“service

in the Republic of Vietnam” (section 3.3lla) rather

than “service in Vietnam” (section 3.313)-suggest the

contrary conclusion. The chloracne/soft tissue sar-

coma regulation was based on scientific evidence

linking those diseases to dioxin expusure. The Agent

Orange Act was similarly designed to provide com-

pensation for exposure to Agent Orange. The non-

Hodgkin’s lymphoma regulation, by contrast, was not

predicated on exposure, but instead was based on

evidence of an association between non-Hodgkin's

32a

lymphoma and service in the Vietnam theater,

including service aboard ships. Thus, the Agent Or-

ange Act closely tracked the narrower chloracne/soft

tissue sarcoma regulation, which defined “service in

the Republic of Vietnam” to apply to those who

served in the waters offshore only if their service in-

cluded “duty or visitation in the Republic of Viet-

nam.

Having concluded that the phrase “served in the

Republic of Vietnam” in section 1116 is ambiguous,

we next turn to “step two” of the Chevron analysis,

which requires a court to defer to an agency's au-

thorized interpretation of the statute in question if

“the agency’s answer is based on a permissible con-

struction of the statute.” Chevron, 467 U.S. at 8438,

104 S.Ct. 2778. We therefore address the DVA

regulation that defines the phrase “service in the Re-

public of Vietnam” to mean “service in the waters off

shore and service in other locations if the conditions

of service involved duty or visitation in the Republic

of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii).

First, we note that Congress has given the DVA

authority to interpret the statute, both under its gen-

eral rulemaking authority, 38 U.S.C. § 501, and in

the Agent Orange Act itself, 38 USC. §

1116(a)(1)(B). Second, we agree with the Veterans

Court that the regulation reflects a reasonable inter-

pretation of the statute in that it requires some pres-

ence in Vietnam, even if the veteran’s service largely

occurred elsewhere.

The government contends that the regulation

makes clear that service connection is presumed only

for veterans who were at some point present on the

33a

landmass of Vietnam. We believe that is probably the

most natural reading of the language of the regula-

tion that refers to “duty or visitation in the Republic

of Vietnam.” That is, we agree with the government

that “duty or visitation” in the Republic of Vietnam

seems to contemplate actual presence on the land-

mass of the country. However, the question as to the

meaning of the phrase “duty or visitation in the Re-

public of Vietnam” is not free from doubt, as “duty” or

“visitation” could be understood to refer to “duty” or

“visitation” within the broader area encompassed, for

example, by the territorial waters of the Republic.

Thus, both the phrase “duty or visitation in the Re-

public of Vietnam” and the phrase “waters offshore”

are sufficiently ambiguous that the language of the

regulation cannot be said to resolve the issue with

certainty.

For that reason, we must look to the DVA’s

interpretation of its own regulation and determine

whether that interpretation resolves the legal issue

before us. Generally, “an agency’s interpretation of

its own regulations is controlling unless plainly erro-

neous or inconsistent with the regulations being in-

terpreted.” Long Island Care at Home, Ltd. v. Coke,

—U.S. —, 127 S.Ct. 2339, 2346, 168 L.Ed.2d 54

(2007) (internal quotations omitted); see also Auer uv.

Robbins, 519 U.S. 452, 461-63, 117 S.Ct. 905, 137

L.Ed.2d 79 (1997). An agency’s interpretation of its

regulations is entitled to “substantial deference,” re-

quiring a court to defer to the agency’s interpretation

“unless an alternative reading is compelled by the

regulation’s plain language or by other indications of

the [agency’s] intent at the time of the regulation’s

promulgation.” Thomas Jefferson Univ. v. Shalala,

34a

512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405

(1994), quoting Gardebring v. Jenkins, 485 U.S. 415,

430, 108 S.Ct. 1306, 99 L.Ed.2d 515 (1988).

That rule does not apply if a particular regulation

merely “parrots” statutory language, because if it did,

an agency could bypass meaningful rule-making pro-

cedures by simply adopting an informal “interpreta-

tion” of regulatory language taken directly from the

statute in question. See Gonzales v. Oregon, 546 U.S.

243, 257, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006);

Christensen v. Harris County, 529 U.S. 576, 588, 120

S.Ct. 1655, 146 L.Ed.2d 621 (2000) (an agency cannot

“under the guise of interpreting a regulation .. . cre-

ate de facto a new regulation”). In this case, however,

we are satisfied that the DVA regulation does more

than merely parrot section 1116. The Supreme Court

in Gonzales v. Oregon characterized the regulation in

that case as a parroting regulation because it “just

repeats two statutory phrases and attempts to sum-

marize the others.” 546 U.S. at 257, 126 S.Ct. 904.

The Court added that the regulation “gives little or

no instruction on a central issue.” Jd. By contrast,

the regulation at issue in his case, 38 C.F.R. §

3.307(a)(6)(iii), elaborates on the statutory phrase

“served in the Republic of Vietnam” by construing it

to include service offshore and service in other loca-

tions as long as the service “involved duty or visita-

tion in the Republic of Vietnam.” That language

qualifies as interpretation rather than reiteration.

The fact that the regulation is itself subject to

competing interpretations, depending on whether it

is read to require duty or visitation on land, as op

posed to duty or visitation within Vietnam’s territo-

rial waters, does not mean that the regulation merely

parrots the statute. It is not unusual for an interpre-

35a

tive regulation to be itself ambiguous; that happens,

in fact, whenever a court is required to look to an

agency’s interpretation of a regulation that in turn

interprets a statute. See, e.g., Auer, 519 U.S. at 461-

63, 117 S.Ct. 905; Cathedral Candle Co., 400 F.3d at

1352, 1363-64. In such cases, courts do not disregard

the regulation and its interpretation as long as the

regulation reflects the agency’s exercise of its inter-

pretive authority and does not simply “restate the

terms of the statute itself.” Gonzales, 546 U.S. at 257,

126 S.Ct. 904; see id. at 256, 126 S.Ct. 904 (deference

was accorded to the agency’s interpretation in Auer

because “the underlying regulations gave specificity

to a statutory scheme the [agency] was charged with

enforcing and reflected the considerable experience

and expertise the [agency] had acquired over time...

.”). For these reasons, it is appropriate to defer to the

DVA’s asserted interpretation unless it is plainly er-

roneous or inconsistent with the regulations.

The Veterans Court concluded that it did not need

to grant deference to the DVA’s interpretation of

section 3.307(a)(6)(ii11) for several reasons: because

the DVA’s interpretation of the regulation has been

inconsistent; because the DVA’s interpretation was

based on what the court considered plainly erroneous

statutory analysis in a precedential opinion of the

DVA’s General Counsel; and because the court re-

garded the DVA’s interpretation as unreasonable in

that the agency has interpreted service in Vietnam

differently under two different regulations and has

failed to point to scientific evidence supporting its in-

terpretation. We address each issue in turn.

1. The Veterans Court first decided that the DVA’s

current interpretation of section 3.307(a)(6)(ii) con-

flicts with the agency’s prior interpretation of the

36a

regulation, and that the agency’s current interpreta-

tion therefore merits less deference than it might

otherwise deserve. We agree with the Veterans Court

that there has been some inconsistency in the DVA’s

application of section 3.307(a)(6)(iii), but we do not

agree that the DVA’s inconsistency deprives the

agency's interpretation of entitlement to deference,

particularly in light of the fact that the agency has

interpreted its regulation consistently for some years,

going back to a time well before Mr. Haas filed the

application for benefits that is at tssue in this case.

For several years after the enactment of the Agent

Orange Act and the corresponding regulations, the

DVA did not formally interpret the regulatory refer-

ence to service “in the Republic of Vietnam.” During

that period the agency did not give any explanation of

the meaning of the proviso requiring “duty or visita-

tion in the Republic of Vietnam” in cases involving

servicemembers whose principal service was in the

waters offshore of Vietnam.

During that period, DVA adjudicators relied on the

DVA’s Adjudication Manual M21-1, which instructed

DVA adjudicators on how to determine whether

claimants had served “in the Republic of Vietnam.”

That 1991 version of Manual M21-1 provided as fol-

lows in pertinent part:

(1) It may be necessary to determine if a veteran

had “service in Vietnam” in connection with

claims for service connection for non-Hodgkin’s

lymphoma, soft-tissue sarcoma and chloracne... .

In the absence of contradictory evidence, “service

in Vietnam” will be conceded if the records shows

[sic] that the veteran received the Vietnam Ser-

vice Medal.

37a

(2) If a veteran who did not receive the Vietnam

Service Medal claims service connection for non-

Hodgkin’s lymphoma, soft tissue sarcoma or

chloracne and alleges service on a ship in the wa-

ters offshore Vietnam, review the record for evi-

dence that the ship was in the vicinity of Viet-

nam for some significant period of time ({i.e.,

more than just in transit through the area). If

the veteran cannot produce evidence that the

ship was in the waters offshore Vietnam, contact

the Compensation and Pension Service Projects

Staff. Be prepared to furnish the name of the

ship, the number of the ship, and the dates that

it is alleged to have been in the waters offshore

Vietnam.

M21-1, part III, paragraph 4.08(k). The government

contends on appeal, as it did in the Veterans Court,

that the “contradictory evidence” mentioned in para-

graph (1) has always included evidence that a vet-

eran did not set foot in Vietnam. The Veterans Court

concluded, however, that the second paragraph ad-

dressing the special case of veterans on board ships,

which never mentions a foot-on-land requirement,

would not have been necessary if the first paragraph

had already implicitly contained a requirement that

the veteran set foot on land in order to have “served

in the Republic of Vietnam.” 20 Vet.App. at 276.

We agree with the Veterans Court’s analysis of the

Manual M21-1 provision. The government’s argu-

ment that the Manual provision incorporates the re-

quirements of section 3.307(a)(6)(iii) simply reads too

much into the “contradictory evidence” provision of

Manual M21-1. In particular, the government’s con-

tention that M21-1 has always contained a “foot-on-

land” requirement is unconvincing given that the

38a

Vietnam Service Meda] was awarded to a broader

class of service members than those who served on

the landmass of Vietnam. See Exec. Order No. 11231

(July 8, 1965) (establishing award of the Vietnam

Service Medal “to members of the armed forces who

serveld]) in Vietnam or contiguous waters or air

space”).

Moreover, paragraph (2) of the Manual M21-1 pro-

vision, which refers to the possible need to review

evidence that a veteran’s ship was in the vicinity of

Vietnam for some period of time, suggests that the

Adjudication Manual did not exclude the possibility

of benefits being granted to a veteran who never set

foot in Vietnam. We therefore reject the government’s

suggestion that the DVA’s current interpretation of

the “service in the Republic of Vietnam” language in

section 3.307(a)(6)(Gii) could be discerned from the

outset in Manual M21-1.

Even though the 1991 version of the Manual and

later versions issued on several occasions during the

1990s do not reflect the DVA’s present interpretation

of section 3.307(a)\(6)(iii), the Veterans Court was

nonetheless mistaken to conclude that the inconsis-

tency between the early versions of the Manual and

the agency’s current interpretation of the regulation

deprives the DVA’s current interpretation of the right

to judicial deference. As noted above, the DVA

adopted its current interpretation of section

3.307(a)(6)(ii1) in 1997. Since that time, it has reiter-

ated its interpretation on numerous occasions, in-

cluding by amending Manual] 21-1 in 2002 to ex-

pressly incorporate the “foot-on-land” interpretation

of the Agent Orange regulations and then formally

rescinding the Manual provision in 2008. See 73

Fed. Reg. 20,363 (Apr. 15, 2008). Thus, any lack of

39a

clarity or inconsistency in the DVA’s interpretation of

the Agent Orange regulations has long since been re-

solved, and the “foot-on-land” policy is now firmly in

place.

The DVA made its interpretation clear first in DVA

General Counsel Opinion 27-97, the 1997 General

Counsel opinion that ruled that sailors on deepwater

vessels who did not set foot on land in Vietnam were

not “in the Republic of Vietnam” within the meaning

of 38 U.S.C. § 101(29)(A). In the course of analyzing

section 101(29)(A), the opinion noted that the regula-

tory definition in 38 C.F.R. § 3.307(a)(6)(iii) “requires

that an individual actually have been present within

the boundaries of the Republic to be considered to

have served there.” The opinion concluded that the

definition of “service in the Republic of Vietnam” in

the regulation was consistent with the definition of

the same phrase in section 101(29)(A), which the

General Counsel interpreted to require physical pres-

ence on the landmass of Vietnam.

During the same year, the DVA set forth its inter-

pretation of the regulatory language again in its re-

sponse to comments on the spina bifida regulation.

See 62 Fed.Reg. 51,274 (Sept. 30, 1997). The DVA ex-

plained that “[b]ecause herbicides were not applied in

waters off the shore of Vietnam, limiting the scope of

the term service in the Republic of Vietnam to per-

sons whose service involved duty or visitation in the

Republic of Vietnam limits the focus of the presump-

tion of exposure to persons who may have been in ar-

eas where herbicides could have been encountered.”

More significantly for purposes of this case, in the

very regulation that made type 2 diabetes the subject

of presumed service connection (and thus provided

the basis for Mr. Haas’s claim), the DVA noted that

40a

service offshore does not constitute “service in the

Republic of Vietnam.” 66 Fed.Reg. 23,166, 23,166

(May 8, 2001).

To be sure, during the 1990s the DVA was not en-

tirely consistent in its adjudications of claims arising

under the Agent Orange Act. Mr. Haas cites four

Board of Veterans’ Appeals decisions that he con-

tends support his position that a servicemember is

entitled to presumptions of exposure to herbicides

and service connection based on service offshore of

Vietnam. The two earliest Board decisions support

his argument, but the other two are at best unclear

as to their interpretation of section 3.307(a)(6)(ii1).

For its part, the government cites a number of other

decisions in which the Board applied the regulation

as urged by the government, i.e., requiring proof of

some duty or visitation onshore in Vietnam. The

dates of the decisions cited by the government range

from 1998 to 2005; both of the Board decisions that

support Mr. Haas’s position are from 1997.

While it is true that “[aJs a general matter .. . the

case for judicial deference is less compelling with re-

spect to agency positions that are inconsistent with

previously held views,” Pauley v. BethEnergy Mines,

Inc., 501 U.S. 680, 698, 111 S.Ct. 2524, 115 L.Ed.2d

604 (1991) (citing Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 212-13, 109 S.Ct. 468, 102 L.Ed.2d 493

(1988)), the DVA never formally adopted the position

urged by Mr. Haas either in General Counsel opin-

ions or in the rulemaking process. And even though

the agency’s current interpretation of its regulations

differs from the position it took in some previous ad-

judications and seemed to take in its Adjudication

Manual, that inconsistency does not mean that its

current interpretation does not deserve deference.

4la

The Supreme Court made that point clear in its re-

cent decision in Long Island Care at Home, 127 S.Ct.

at 2349:

[Wle concede that the Department may have inter-

preted these regulations differently at different times

in their history .... But as long as interpretive

changes create no unfair surprise-and the Depart-

ment’s recourse to notice-and-comment rulemaking

in an aitempt to codify its new interpretation ...

makes any such surprise unlikely here-the change in

interpretation alone presents no separate ground for

disregarding the Department’s present interpreta-

tion.

See also Smiley v. Citibank (South Dakota), N.A.,

517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25

(1996) (change under the Chevron doctrine is “not in-

validating, since the whole point of Chevron is to

leave the discretion provided by the ambiguities of a

statute with the implementing agency”).

In this instance, the agency’s position has been

consistent for more than a decade, and there is “no

reason to suspect that the interpretation does not re-

flect the agency’s fair and considered judgment on the

matter in question.” Aver, 519 U.S. at 462, 117 S.Ct.

905. Moreover, because the agency adopted its cur-

rent interpretation long before Mr. Haas filed his

claim, and long before the statute and regulations

were amended to include type 2 diabetes among the

diseases entitled to special consideration, there is no

issue of “unfair surprise” here. Accordingly, we con-

clude that the DVA’s interpretation of section

3.307(a)(6)(i11) merits deference unless _ that

interpretation is plainly erroneous or inconsistent

with the language of the regulation.

42a

2. The Veterans Court concluded that the DVA’s

interpretation of section 3.307(a)(6)(i11) is “plainly er-

roneous” in part because it is based on what the court

regarded as flawed legal analysis in DVA General

Counsel Opinion 27-97. As noted, that General Coun-

sel opinion construes 38 U.S.C. § 101(29), a related

statute that defines the term “Vietnam era” for pur-

poses of title 38 and in the course of the discussion

sets forth the DVA’s interpretation of section

3.307(a)(6)(iii). We find nothing in the opinion’s

analysis that renders the DVA’s interpretation

plainly erroneous.

The General Counsel opinion examines the ques-

tion whether veterans who served on deepwater Navy

vessels in the vicinity of Vietnam between 1961 and

1975 are considered to have served “during the Viet-

nam era,” as that phrase is used in 38 U.S.C. §

101(29). That question arose because the Veterans’

Benefits Improvements Act of 1996 enlarged the

statutory period of the “Vietnam era” to the period

beginning on February 28, 1961, to May 7, 1975, “in

the case of a veteran who served in the Republic of

Vietnam during that period.” Pub.L. No. 104-275, §

505, 110 Stat. 3322, 3342 (1996). The General Coun-

sel opinion addresses whether service on an aircraft

carrier would constitute service in the Vietnam era

for purposes of section 101(29) during the period be-

tween February 28, 1961, and August 5, 1964, the

period for which service “in the Republic of Vietnam”

was required. DVA Op. Gen. Counsel Prec. 27-97

(1997). Focusing on legislative history that empha-

sized Congress’s concern with ground troops who had

been present on the landmass of Vietnam before Au-

gust 1964, the General Counsel determined that ser-

vice offshore was not included within the meaning of

service “in the Republic of Vietnam.”

43a

Although the General Counsel opinion does not di-

rectly support the DVA’s interpretation of section

3.307(a)(6)(ii1), it makes clear that the agency viewed

the regulatory definition of “service in the Republic of

Vietnam” in section 3.307(a)(6)Uiil) as closely parallel

to the definition of that term in 38 U.S.C. §

101(29)(A). Having interpreted section 101(29)(A) as

requiring actual service “within the borders of the

Republic of Vietnam” during the pertinent period,

i.e., on the landmass of Vietnam, the opinion noted

that section 3.307(a)(6)Gii) also requires that

individuals “not actually stationed within the borders

of the Republic ef Vietnam” have been “present

within the boundaries of the Republic to be consid-

ered to have served there.”

We do not agree with the Veterans Court that the

General Counsel opinion was legally flawed. While it

is true that the amendment to section 101(29)(A) was

meant to encompass veterans who may have been at

risk for exposure to herbicides prior to 1964, as the

Veterans Court stated, the General Counsel opinion

merely pointed out that in addressing soldiers who

may have been exposed to herbicides during that

time period, Congress’s express focus was on ground

troops. The opinion correctly noted that there was no

indication in the legislative history that Congress in-

tended for the definition of section 101(29)(A) to in-

clude service on a deep-water vessel off the shores of

Vietnam within the scope of the phrase “served in the

Republic of Vietnam.”

What is particularly important about the General

Counsel opinion is that it made clear at least as early

as 1997 that the agency interpreted section

3.307(a)(6)Uii) to require presence on the landmass of

Vietnam. We see nothing in the General Counsel

44a

opinion that renders that interpretation of section

3.307(a)(6)(iii) plainly erroneous.

3. The Veterans Court then found the DVA’s inter-

pretation of “service in the Republic of Vietnam” in

38 C.F.R. § 3.307(a)(6)(iii) to be unreasonable because

it was not the product of “valid or thorough reason-

ing.” 20 Vet.App. at 273.

First, the court criticized the DVA’s interpretation

of the phrase “service in the Republic of Vietnam” in

section 3.307(a)(6)(iii) because it differs from the

DVA’s interpretation of the phrase “service in Viet-

nam” in the non-Hodgkin’s lymphoma regulation, 38

C.F.R. § 3.313. 20 Vet.App. at 274. The court’s criti-

cism of that inconsistency, however, fails to account

for the differences in language, scientific basis, and

legal authorization between the two regulations.

Section 3.307 (formerly section 3.311 a) was the

regulatory predecessor of the Agent Orange Act; it

was based on the Veterans’ Dioxin and Radiation Ex-

posure Compensation Standards Act, and it included

diseases that had been found to be linked to herbicide

exposure. Section 3.313, however, was based on the

agency’s more general authority to adopt regulations

“with respect to the nature and extent of proofs and

evidence . . . in order to establish the right to bene-

fits.” 38 U.S.C. § 210(c) (1982). It was not based on

herbicide exposure, but on a CDC study of the occur-

rence of non-Hodgkin’s lymphoma in different groups

of veterans, which was specifically found not to be

related to herbicide exposure. See 55 Fed.Reg. 25,339

(June 21, 1990) (proposing section 3.313); 1990 CDC

Study at 81, 125. Because the CDC study included

veterans who served exclusively aboard ships that

traveled off the coast of Vietnam among the tested

group of Vietnam veterans, it made sense for section

45a

3.313 to include those veterans as beneficiaries of the

regulation. Under these circumstances, it was not

unreasonable for the agency to interpret the two

regulations differently.‘

Second, the Veterans Court also found the DVA’s

interpretation of section 3.307(a)(6)(iii) unreasonable

based on the agency’s failure to offer scientific evi-

dence in support of the line it drew at the Vietnamese

coast and the seeming arbitrariness of some results

produced by that line. 20 Vet.App. at 274-75.

Due in part to problems of testing for herbicide ex-

posure and in part to the difficulties in tracking troop

movements, it has proved difficult to determine

which groups of veterans were exposed to herbicides

and to what extent. Congress and the DVA have

therefore resorted to a line-drawing process that con-

cededly does not closely track levels of actual expo-

sure. Thus, Congress has determined that for certain

diseases, all veterans who served for any period of

time in Vietnam will be presumed to have established

service connection, even if there is no showing that

they were exposed to herbicides or were in areas of

herbicide use. The DVA, required to draw a line

where Congress’s intention was unclear, has con-

strued the statute not to extend presumed service

“Mr. Haas argues that the non-Hodgkin's lymphoma regula-

tion, section 3.313, not the general dioxin exposure regulation,

section 3.311 a, was the true predecessor to section

3.307(a)(6)Uii). That contention is plainly wrong. When propos-

ing section 3.307(aX6)(iii), the Secretary of Veterans Affairs spe-

cifically stated that the definition of “service in the Republic of

Vietnam” was taken from section 3.311 a, see58 Fed. Reg. 50,528,

50,529 (Sept. 28, 1993), and the text of the two regulations is

virtually identical (and significantly different from the text of

section 3.313).

46a

connection to those who were in the Vietnam theater

but who served only offshore or in other locations.

The DVA has explained the rationale for its line-

drawing, which is that Agent Orange was sprayed

only on land, and therefore the best proxy for expo-

sure is whether a veteran was present within the

land borders of the Republic of Vietnam. In a state-

ment accompanying its recent proposed amendment

to section 3.307(a)(6)(iii), the DVA explained:

As a factual matter, our legislative interpretation

accords with what is known about the use of her-

bicides during Vietnam. Although exposure data

is largely absent, review of military records dem-

onstrate[s] that virtually all herbicide spraying

in Vietnam, which was for the purpose of elimi-

nating plant cover for the enemy, took place

overland .... Regarding inland waterways, Navy

riverine patrols reported to have routinely used

herbicides for clearance of inland waterways ....

Blue water Navy service members and other per-

sonnel who operated off shore were away from

herbicide spray flight paths, and therefore were

not likely’ to have incurred a risk of exposure to

herbicide agents comparable to those who served

in foliated areas where herbicides were applied.

73 Fed.Reg. at 20,568. In light of that explanation,

which accords with the position taken by the DVA for

the past decade, and in the absence of evidence that

the line drawn by the DVA is irrational, we are not

prepared to substitute our judgment for that of the

agency and impose a different line.

The Veterans Court pointed out that service on

land could be fleeting and could occur far from the

area where herbicides were used, while service on the

water could include extended service in coastal wa-

47a

ters close to areas where herbicides were used. Under

the DVA’s interpretation of its regulation, a service-

member in the first category would be entitled to a

presumption of service connection for one of the des-

ignated diseases, while a servicemember in the sec-

ond category would not, even though the second ser-

vicemember would seem intuitively more likely to

have been exposed to herbicides than the first. 20

Vet.App. at 273.

There are no doubt some instances in which the

“foot-on-land” rule will produce anomalous results.

That is not surprising. Line-drawing in general often

produces instances in which a particular line may be

overinclusive in some applications and underinclu-

sive in others. As the Supreme Court has explained,

“any line must produce some harsh and apparently

arbitrary consequences.” Mathews v. Diaz, 426 U.S.

67, 83, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). But just

because some instances of overinclusion or underin-

clusion may arise does not mean that the lines drawn

are irrational. See Vance v. Bradley, 440 U.S. 93,

108, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (line-draw-

ing is upheld even if the classification “is to some ex-

tent both underinclusive and overinclusive, and

hence the line drawn by Congress is imperfect”);

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96

S.Ct. 2562, 49 L.Ed.2d 520 (1976) (“Perfection in

making the necessary classifications is neither possi-

ble nor necessary.”).

The asserted arbitrariness of the line-drawing done

by the agency in this case is in part the result of Con-

gress’s decision to extend the presumption of service

connection to all persons who served for any period

and in any area within the Republic of Vietnam. Be-

cause that blanket rule provides a presumption of

48a

service connection to some persons who were unlikely

to be exposed, it makes virtually any line-drawing

effort appear unreasonable as applied to those who

were outside of Vietnam but near enough to have had

some chance of exposure.

In our view, it was not arbitrary for the agency to

limit the presumptions of exposure and service

connection to servicemembers who had served, for

some period at least, on land. Drawing a line between

service on land, where herbicides were used, and ser-

vice at sea, where they were not, is prima facie rea-

sonable. Moreover, the line drawn by the agency does

not cut off all rights of sea-going veterans to relief

based on claims of herbicide exposure, in that even

servicemembers who are not entitled to the presump-

tion of exposure are nonetheless entitled to show that

they were actually exposed to herbicides, as Mr. Haas

has endeavored to do in this case. See 38 C.F.R. §

3.309(e). The DVA’s_ interpretation of ‘section

3.307(aX(6)Gii) as excluding servicemembers who

never set foot within the land borders of Vietnam

thus was not unreasonable, and it certainly did not

rise to the level of being “plainly erroneous or incon-

sistent with the regulation.” Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89

L.Ed. 1700 (1945); see Smith v. Nicholson, 451 F.3d

1344, 1349-51 (Fed.Cir.2006).

In an effort to demonstrate that the DVA’s inter-

pretation was not only-unsupported by science but

was contrary to scientific studies, Mr. Haas argues

that servicemembers serving offshore could have

been exposed to Agent Orange through several

mechanisms, such as “runoff” carrying toxic chemi-

cals into the sea, “spray drift” transporting toxins via

the wind, and the shipboard consumption of drinking

49a

water produced by evaporative distillation. As sup-

port for the last of those contentions, he cites to a

study conducted for the Australian Department of

Veterans Affairs suggesting that Vietnam veterans of

the Royal Australian Navy may have been exposed to

herbicide compounds by drinking water distilled on

board their vessels. Nat'l Research Ctr. for Envtl.

Toxicology, Queensland Health Scientific Servs., Ex-

amination\of the Potential Exposure of Royal Austra-

lian Navy (RAN) Personnel to Polychlorinated Diben-

zodioxins and Polychlorinated Dibenzofurans via

Drinking Water (Dec. 12, 2002).

The Australian study and the other cited sources

were not part of the record below and were not con-

sidered either by the Veterans Court or by the DVA

in its prior rulemaking proceedings. Judgments as to

the validity of such evidence and its application to

the particular problem of exposure to herbicides in

Vietnam are properly left to Congress and the DVA

in the first instance; this court is not the proper fo-

rum for an initial analysis of such evidence and its

implications for the DVA’s policies. We note, how-

ever, that in its most recent rulemaking proceeding

the DVA made the following observations with re-

spect to the Australian study:

VA scientists and experts have noted many

problems with the study that caution against re-

liance on the study to change our long-held posi-

tion regarding veterans who served off shore.

First, as the authors of the Australian study

themselves noted, there was substantial uncer-

tainty in their assumptions regarding the con-

centration of dioxin that may have been present

in estuarine waters during the Vietnam War...

Second, even with the concentrating effect found

50a

in the Australian study, the levels of exposure

estimated in this study are not at all comparable

to the exposures experienced by veterans who

served on land where herbicides were applied .. .

. Third, it is not clear that U.S. ships used dis-

tilled drinking water drawn from or near estua-

rine sources or, if they did, whether the distilla-

tion process was similar to that used by the Aus-

tralian Navy.

73 Fed.Reg. 20,566, 20,568 (Apr. 16, 2008). Based on

that analysis, the DVA stated that “we do not intend

to revise our long-held interpretation of ‘service in

Vietnam.” Td. As to other cited studies, the DVA

stated in connection with the publication of the re-

scission of the Manual M21-1 provision at issue in

this case that none of those studies “bears signifi-

cantly on the specific question whether herbicides

used, and as administered, by the U.S. military dur-

ing the Vietnam Era could have been blown by the

wind into the ocean, or into inland waters that then

carried the chemical into the ocean, to reach a boat

offshore and result in any significant risk of herbicide

exposure.” 73 Fed.Reg. 20,363, 20,364 (Apr. 15, 2008).

Without reference to evidence, the Veterans Court

stated that “it appears that these veterans serving on

vessels in close proximity to land would have the

same risk of exposure to the herbicide Agent Orange

as veterans serving on adjacent land.” 20 Vet.App. at

273. The dissenting judge in this court likewise con-

cludes, also without reference to supporting evidence,

that veterans such as Mr. Haas “have asserted a rea-

sonable claim that they may have been exposed to

herbicides.” But focusing on the facts of Mr. Haas’s

claim, including his assertion that his ship was

within 100 feet of the coast of Vietnam, does little to

5la

help answer the question of how the statutory phrase

“served in the Republic of Vietnam” should be inter-

preted. The Veterans Court, for example, did not

suggest what would constitute the proper interpreta-

tion of the statute, but merely concluded that the

DVA’s regulation “must be read to include at least

service of the nature described by the appellant, that

is, service in the waters near the shore of Vietnam.”

A standard such as “near the shore” is unmanageably

vague, not to mention its lack of mooring in the

statutory or regulatory language. By contrast, the

DVA’s interpretation is a plausible construction of

the statutory language and it is based on a simple

but undisputed fact-that spraying was done on land,

not over the water. Applying the substantial defer-

ence that is due to an agency’s interpretation of its

own regulations, we uphold the DVA’s interpretation

of section 3.307(a)(6)(iii).

Finally, the Veterans Court concluded that the per-

tinent provision of the DVA’s Manual M21-1, al-

though styled as an interpretation of the law, was ac-

tually a substantive rule that could not be changed

without compliance with formal notice-and-comment

rulemaking procedures. Accordingly, the Veterans

Court concluded that the 2002 change in Manual

M21-1, in which the DVA made cle

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