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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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,
Ws

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)

ii
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

10
15
17

18

18

27

lv
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

v1

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

ix

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

x

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

xl
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,
Va
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

2

(“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

3

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.

4

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-

5

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.

6

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

7

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

1

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).

8

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

9

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-

10

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.”

11

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”).

12

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’

13

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,

14

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

15

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

16

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.

I

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

18

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

19

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).

20

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).

21

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.

22

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

23

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

24

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

25
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).

26

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).

27

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.

28

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.

29

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.

30

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).

31

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

32

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.

33

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.

34
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

la
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.

2a
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,

3a

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

4a

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.

I.

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.

5a

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.

6a

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

7a

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

8a

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

9a

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.

A.

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.

B.

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0760%3A1. Public record. Not legal advice.