Veteranclaims’s Blog

November 27, 2017

Gray v. Secretary of VA, No. 2016-1782(); Petition for review pursuant to 38 U.S.C. § 502; Agent Orange Act of 1991 (the “Agent Orange Act”), Pub. L. No. 102-4, 105 Stat. 11; 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e);

Excerpt from decision below:

“revisions pertain to the VA’s interpretation of provisions of the Agent Orange Act of 1991 (the “Agent Orange Act”), Pub. L. No. 102-4, 105 Stat. 11, codified as amended at 38
U.S.C. § 1116, as implemented via regulations at 38
GRAY v. SECRETARY OF VETERANS AFFAIRS 3
C.F.R. §§ 3.307(a)(6), 3.309(e). Because the VA’s revisions are not agency actions reviewable under § 502, we dismiss for lack of jurisdiction.

=========================

United States Court of Appeals for the Federal Circuit
______________________
ROBERT H. GRAY,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1782
______________________
Petition for review pursuant to 38 U.S.C. § 502.
—————————————————————————
BLUE WATER NAVY VIETNAM VETERANS
ASSOCIATION,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1793
______________________
Petition for review pursuant to 38 U.S.C. § 502.
______________________
GRAY 2 v. SECRETARY OF VETERANS AFFAIRS
Decided: November 16, 2017
______________________
MICHAEL E. WILDHABER, Veterans Law Office of
Michael E. Wildhaber, Washington, DC, argued for petitioner
in 16-1782. Also represented by SHANNON LYNNE
BREWER, Hill & Ponton, P.A., Deland, FL.
JOHN B. WELLS, Law Office of John B. Wells, Slidell,
LA, argued for petitioner in 16-1793.
ERIC PETER BRUSKIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, MARTIN JAMES
SENDEK, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
______________________
Before PROST, Chief Judge, DYK, and O’MALLEY, Circuit
Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Opinion dissenting in part and concurring in the judgment
filed by Circuit Judge DYK.
O’MALLEY, Circuit Judge.
Robert H. Gray (“Gray”) and Blue Water Navy Vietnam
Veterans Association (“Blue Water”) (collectively,
“Petitioners”) petition this court under 38 U.S.C. § 502 to
review certain revisions the Department of Veterans
Affairs (“VA”) made to its Adjudication Procedures Manual
M21-1 (“M21-1 Manual”) in February 2016. These
revisions pertain to the VA’s interpretation of provisions
of the Agent Orange Act of 1991 (the “Agent Orange Act”),
Pub. L. No. 102-4, 105 Stat. 11, codified as amended at 38
U.S.C. § 1116, as implemented via regulations at 38
GRAY v. SECRETARY OF VETERANS AFFAIRS 3
C.F.R. §§ 3.307(a)(6), 3.309(e). Because the VA’s revisions
are not agency actions reviewable under § 502, we dismiss
for lack of jurisdiction.
I. BACKGROUND
A. The Agent Orange Act
To receive disability compensation based on service, a
veteran must demonstrate that his or her disability was
service-connected, meaning that it was “incurred or
aggravated . . . in line of duty in the active military,
naval, or air service.” 38 U.S.C. § 101(16). Establishing
service connection generally requires three elements: “‘(1)
the existence of a present disability; (2) in-service incurrence
or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service’—
the so-called ‘nexus’ requirement.” Holton v. Shinseki,
557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v.
Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The
claimant has the responsibility to support a claim for
service connection. 38 U.S.C. § 5107(a).
Congress has enacted presumptive service connection
laws to protect certain veterans who faced exposure to
chemical toxins during service, but would find it difficult
or impossible to satisfy the obligation to prove a “nexus”
between their exposure to toxins and their disease or
injury. Among these laws is the Agent Orange Act, which
established a framework for the adjudication of disability
compensation claims for Vietnam War veterans with
diseases medically linked to herbicide exposure in the
Republic of Vietnam during the Vietnam War. Under the
Agent Orange Act, any veteran who “served in the Republic
of Vietnam” during the Vietnam era and who suffers
from any of certain designated diseases “shall be presumed
to have been exposed during such service” to
herbicides “unless there is affirmative evidence to establish
that the veteran was not exposed.” Id. § 1116(f). The
GRAY 4 v. SECRETARY OF VETERANS AFFAIRS
Agent Orange Act also established several statutory
presumptions and a methodology for the VA to create
additional regulatory presumptions that certain diseases
were “incurred in or aggravated by” a veteran’s service in
Vietnam. Id. § 1116(a). The VA then proceeded to determine
which diseases would qualify for presumptive service
connection and to define what service “in the
Republic of Vietnam” encompasses.
In May 1993, the VA issued regulations establishing
presumptive service connection for certain diseases associated
with exposure to herbicides in Vietnam. The
relevant regulation conditions application of the presumption
on the claimant having “served in the Republic of
Vietnam,” 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.”
38 C.F.R. § 3.307(a)(6)(iii) (1993) (emphasis added); see
Diseases Associated with Service in the Republic of Vietnam,
58 Fed. Reg. 29,107, 29,109 (May 19, 1993).
Absent on-land service, the VA concluded that the statute
and regulation do not authorize presumptive service
connection for those veterans serving in the open waters
surrounding Vietnam—known as “Blue Water” veterans.
We considered the VA’s position in Haas v. Peake, 525
F.3d 1168 (Fed. Cir. 2008), and concluded that it was
neither an unreasonable interpretation of the congressionally
mandated presumption nor of the VA’s own
regulations relating thereto. Id. at 1190–95.
The dispute now before us arises from the VA’s decision
not just to exclude open water service from the
definition of service in the “Republic of Vietnam,” but to
also exclude those veterans who served in bays, harbors,
and ports of Vietnam from presumptive service connection.
In other words, absent documented service on the
land mass of Vietnam or in its “inland waterways”—
defined as rivers and streams ending at the mouth of the
river or stream, and excluding any larger bodies of water
GRAY v. SECRETARY OF VETERANS AFFAIRS 5
into which those inland waters flow—the VA has concluded
that no presumptive service connection is to be applied.
The VA did not implement this additional restriction by
way of notice and comment regulation as it did its open
waters restriction, and it has not published its view on
this issue in the Federal Register. Instead, the VA has
incorporated this new restriction into the M21-1 Manual,
which directs VA adjudicators regarding the proper
handling of disability claims from Vietnam-era veterans.
It is this Manual revision which Gray challenges and asks
us to declare invalid.
B. The M21-1 Manual and the 2016 Revision
As we explained recently, “[t]he VA consolidates its
[internal] policy and procedures into one resource known
as the M21-1 Manual.” Disabled Am. Veterans v. Sec’y of
Veterans Affairs, 859 F.3d 1072, 1074 (Fed. Cir. 2017)
(“DAV”). The M21-1 Manual “is an internal manual used
to convey guidance to VA adjudicators.” VA Adjudications
Manual, M21-1; Rescission of Manual M21-1 Provisions
Related To Exposure to Herbicides Based on Receipt of
the Vietnam Service Medal, 72 Fed. Reg. 66,218, 66,219
(Nov. 27, 2007) [hereinafter 2007 M21-1 Manual Revisions].
“The M21-1 Manual provides guidance to Veterans
Benefits Administration (‘VBA’) employees and
stakeholders to allow the VBA to process claims benefits
quicker and with higher accuracy.” DAV, 859 F.3d at
1074 (internal quotation marks omitted). The M21-1
Manual is available to the public through the KnowVA
website. See http://www.knowva.ebenefits.va.gov/system/
templates/selfservice/va_ss/#!portal/554400000001018/
topic/554400000004049/M21-1-Adjudication-Procedures-
Manual. The M21-1 Manual provisions are not binding
on anyone other than the VBA employees, however;
notably, the Board of Veterans’ Appeals (“Board”) is not
bound by any directives in the M21-1 Manual and need
not defer to any administrator’s adherence to those guidelines.
See 38 C.F.R. § 19.5.
GRAY 6 v. SECRETARY OF VETERANS AFFAIRS
In 2007, Gray filed a claim for disability compensation
for a number of medical conditions allegedly arising out of
his naval service in Da Nang Harbor. Gray v. McDonald,
27 Vet. App. 313, 316 (2015). At the time, the M21-1
Manual defined “service in the Republic of Vietnam
(RVN)” as “service in the RVN or its inland waterways.”
M21-1 Manual, part IV, ch. 1, ¶ H.28.a (2005). In a
February 2009 letter, the VA further explained that it
interpreted “inland waterways” to mean “rivers, estuaries,
canals, and delta areas inside the country, but . . . not
. . . open deep-water coastal ports and harbors where
there is no evidence of herbicide use.” Gray, 27 Vet. App.
at 321–22 (alterations in original) (quoting Letter from
the Director of VA C & P Service, February 2009, and
December 2008 C & P Service Bulletin).
After the VA denied Gray’s claim under this interpretation,
he appealed to the U.S. Court of Appeals for Veterans
Claims (“the Veterans Court”). Id. at 318. The
Veterans Court concluded that the VA’s definition of
“inland waterway” was “both inconsistent with the regulatory
purpose and irrational,” in part because the VA had
offered no meaningful explanation for why it classified
some bays as inland waterways but not others. Id. at
322–25. The Veterans Court remanded the matter to the
VA with instructions to reevaluate its definition of “inland
waterway” to be consistent with § 3.307(a)(6)(iii). Id. at
326–27.
Following the remand, the VA surveyed the available
scientific evidence, including documents submitted in July
2015 by counsel for Blue Water, an organization representing
a number of Blue Water veterans. In a draft
document it issued on January 15, 2016, the VA acknowledged
that it had failed to “clearly explain the basis” for
its previous classifications. J.A. 203. The VA concluded
that, because “Agent Orange was not sprayed over Vietnam’s
offshore waters,” the VA did “not have medical or
scientific evidence to support a presumption of exposure
GRAY v. SECRETARY OF VETERANS AFFAIRS 7
for service on the offshore open waters,” which it defined
as “the high seas and any coastal or other water feature,
such as a bay, inlet, or harbor, containing salty or brackish
water and subject to regular tidal influence.” J.A.
203–04.
Accordingly, in February 2016, the VA published a
“Memorandum of Changes” announcing a change in policy
and an accompanying revision of the M21-1 Manual.
J.A. 207. The revised M21-1 Manual defines “inland
waterways” as follows:
Inland waterways are fresh water rivers,
streams, and canals, and similar waterways. Because
these waterways are distinct from ocean
waters and related coastal features, service in
these waterways is service in the [Republic of Vietnam].
VA considers inland waterways to end at
their mouth or junction to other offshore water
features, as described below. For rivers and other
waterways ending on the coastline, the end of the
inland waterway will be determined by drawing
straight lines across the opening in the landmass
leading to the open ocean or other offshore feature,
such as a bay or inlet. For the Mekong and
other rivers with prominent deltas, the end of the
inland waterways will be determined by drawing
a line across each opening in the landmass leading
to the open ocean.
Note: Inland waterway service is also referred to
as brown-water Navy service.
M21-1 Manual, part IV, subpart ii, ch. 1, ¶ H.2.a (2016)
(emphasis in original). By virtue of this manual change,
the VA instructed all claims processors in its 56 regional
offices to exclude all Navy personnel who served outside
the now-defined “inland waterways” of Vietnam—i.e., in
its ports, harbors, and open waters—from presumptive
service connection for diseases or illnesses connected with
GRAY 8 v. SECRETARY OF VETERANS AFFAIRS
exposure to Agent Orange. Thus, the VA instructed its
adjudicators to exclude all service in ports, harbors, and
bays from presumptive service connection, rather than
service in only some of those waterways. Petitioners seek
review of this revision pursuant to 38 U.S.C. § 502.
II. DISCUSSION
“A party seeking the exercise of jurisdiction in its favor
has the burden of establishing that such jurisdiction
exists.” DAV, 859 F.3d at 1075 (quoting Rocovich v.
United States, 933 F.2d 991, 993 (Fed. Cir. 1991)). Under
38 U.S.C. § 502, we have jurisdiction to review only those
agency actions that are subject to 5 U.S.C. §§ 552(a)(1)
and 553. We do not have jurisdiction to review actions
that fall under § 552(a)(2). “Section 553 refers to agency
rulemaking that must comply with notice-and-comment
procedures under the Administrative Procedure Act.”
DAV, 859 F.3d at 1075. The parties agree that § 553 is
not at issue in this proceeding. The parties instead focus
on § 552; their debate is whether the manual provisions
challenged in this action fall under § 552(a)(1), giving us
authority to consider them in the context of this action, or
§ 552(a)(2), prohibiting our review here.
In relevant part, § 552(a)(1) provides:
Each agency shall separately state and currently
publish in the Federal Register for the guidance of
the public—
. . . .
(D) substantive rules of general applicability
adopted as authorized by law, and statements of
general policy or interpretations of general applicability
formulated and adopted by the agency;
and
(E) each amendment, revision, or repeal of the
foregoing.
GRAY v. SECRETARY OF VETERANS AFFAIRS 9
§ 552(a)(2) provides that:
Each agency, in accordance with published rules,
shall make available for public inspection in an
electronic format—
. . . .
(B) those statements of policy and interpretations
which have been adopted by the agency and are
not published in the Federal Register; [and]
(C) administrative staff manuals and instructions
to staff that affect a member of the public;
. . . .
The government contends that, because M21-1 Manual
provisions are expressly governed by § 552(a)(2), this
court may not review them unless and until they are
applied in and govern the resolution of an individual
action. This is so, according to the government, regardless
of how interpretive or policy-laden the judgments are
that resulted in the formulation of those manual provisions.
Gray contends that the government’s view of § 552
is too myopic. He contends that a manual provision can
fall under § 552(a)(1) where, regardless of its designation,
it constitutes an interpretive rule of general applicability
that adversely affects the rights of an entire class of
Vietnam veterans. In other words, Gray contends that it
is not the way in which the VA chooses to implement its
policies and statutory interpretations that implicates our
jurisdiction, it is the impact of what the VA is doing that
matters. While Gray’s points are not without force—and
the VA even concedes that the impact of its manual
changes is both real and far reaching—we conclude that
we may not review Gray’s challenge in the context of this
action.
We recently considered a challenge under § 502 to another
revision to the M21-1 Manual. DAV, 859 F.3d at
GRAY 10 v. SECRETARY OF VETERANS AFFAIRS
1074–75. The Manual revision at issue in DAV provided
guidance regarding the term “medically unexplained
chronic multisymptom illness,” which appeared in a
statute and regulation related to presumptive service
connection for Persian Gulf War veterans. Id. (citing 38
U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(ii)). In determining
whether § 502 granted this court jurisdiction to
consider a direct challenge to the Manual revision, we
identified “three relevant factors to whether an agency
action constitutes substantive rulemaking under the APA:
‘(1) the [a]gency’s own characterization of the action;
(2) whether the action was published in the Federal
Register or the Code of Federal Regulations; and
(3) whether the action has binding effects on private
parties or on the agency.’” Id. at 1077 (alteration in
original) (quoting Molycorp, Inc. v. EPA, 197 F.3d 543,
545 (D.C. Cir. 1999)). We noted that “the ultimate focus
of the inquiry is whether the agency action partakes of
the fundamental characteristic of a regulation, i.e., that it
has the force of law.” Id. (quoting Molycorp, 197 F.3d at
545). Applying these factors, we found that the challenged
Manual revisions “d[id] not amount to a § 553
rulemaking and d[id] not carry the force of law.” Id.
We then held that the revisions “clearly f[e]ll under”
§ 552(a)(2) and not § 552(a)(1). Id. at 1078. We explained
that “[w]here, as here, manual provisions are interpretations
adopted by the agency, not published in the Federal
Register, not binding on the Board itself, and contained
within an administrative staff manual, they fall within
§ 552(a)(2)—not § 552(a)(1).” Id. We concluded that this
was so, regardless of the extent to which the manual
provision might be considered interpretive or a statement
of policy. Id. On these grounds, we dismissed the challenge
for lack of jurisdiction. Id.
Our holding in DAV compels the same result here.
Like that in DAV, the manual provision at issue here is
an interpretation adopted by the agency; the M21-1
GRAY v. SECRETARY OF VETERANS AFFAIRS 11
Manual “convey[s] guidance to VA adjudicators,” but “[i]t
is not intended to establish substantive rules.” 2007 M21-
1 Manual Revisions, 72 Fed. Reg. at 66,219. The revisions
at issue were not published in the Federal Register
or the Code of Federal Regulations. The Board remains
“bound only by ‘regulations of the Department, instructions
of the Secretary, and the precedent opinions of the
chief legal officer of the Department’”—and not the M21-1
Manual. DAV, 859 F.3d at 1077 (quoting 38 U.S.C.
§ 7104(c)). And, of course, the provisions in question are
contained within an administrative staff manual: the
M21-1 Manual. While it is admittedly true that compliance
with this Manual revision by all internal VA adjudicators
will affect the concerned veterans, at least initially,
it also remains true that the Board is not bound to accept
adjudications premised on that compliance. As we found
in DAV, where the action is not binding on private parties
or the agency itself, we have no jurisdiction to review it.
To be clear, it is not the moniker applied to this VA
policy statement that is controlling. There are circumstances
where we have found agency actions reviewable
under § 552(a)(1) precisely because they had a binding
effect on parties or entities other than internal VA adjudicators.
See, e.g., Lefevre v. Sec’y, Dep’t of Veterans Affairs,
66 F.3d 1191, 1196–98 (Fed. Cir. 1995). We addressed
several of those cases in DAV and explained why they
differed from the circumstances at issue there. 859 F.3d
at 1075–77. While the Manual provisions here differ from
those at issue in DAV, their scope and binding effect are
identical. We, accordingly, must reach the same conclusion
regarding the scope of our jurisdiction here as we did
in DAV.
As we also explained in DAV, this disposition does not
leave Petitioners without recourse. For example, “[a]
veteran adversely affected by a M21-1 Manual provision
can contest the validity of that provision as applied to the
facts of his case under 38 U.S.C. § 7292.” DAV, 859 F.3d
GRAY 12 v. SECRETARY OF VETERANS AFFAIRS
at 1078; see, e.g., Haas, 525 F.3d at 1187–90 (reviewing a
provision of the M21-1 Manual interpreting
§ 3.307(a)(6)(iii) as part of an appeal from the Veterans
Court). Individual veterans and organizations such as
Blue Water also may petition the VA for rulemaking. See
5 U.S.C. § 553(e). We have held that “§ 502 vests us with
jurisdiction to review the Secretary’s denial of a request
for rulemaking made pursuant to § 553(e).” Preminger v.
Sec’y of Veterans Affairs, 632 F.3d 1345, 1352 (Fed. Cir.
2011).1 Because the February 2016 revision to the M21-1
Manual falls under § 552(a)(2) and not § 552(a)(1) or
§ 553, however, we lack jurisdiction under § 502 to hear
Petitioners’ direct challenge to the revision.
We recognize the costs that today’s outcome imposes
on Petitioners and the veterans they represent. Petitioners
sought direct review in this court to bypass yet another
years-long course of individual adjudications or
petitions for rulemaking. Given the health risks that
many of these veterans face, Petitioners’ urgency is understandable.
But we are constrained by the narrow
scope of the jurisdiction that Congress has granted to us.
We also note that, although the VA has delayed review
of its interpretation by revising its manual instead of
1 Indeed, the parties advised us at oral argument
that Gray and several other veterans have filed appeals to
the Veterans Court from the VA’s denials of their claims
for disability compensation under the revised provision of
the M21-1 Manual. Oral Argument at 6:53–8:13, Gray v.
Sec’y of Veterans Affairs, 2016-1782, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
16-1782.mp3. Counsel for Gray and Blue Water also
informed us that a petition for rulemaking regarding the
definition of “inland waterways” is pending before the VA.
Id. at 13:05–13:34.
GRAY v. SECRETARY OF VETERANS AFFAIRS 13
pursuing formal rulemaking, “that convenience comes at a
price.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199,
1204 (2015). As the VA admits, an interpretive rule in an
administrative manual “lack[s] the ‘force and effect of
law,’ and thus receive[s] different ‘weight in the adjudicatory
process.’” Gray Resp. Br. at 30 (quoting Perez, 135 S.
Ct. at 1204). And, agencies’ “interpretations contained in
. . . agency manuals . . . do not warrant Chevron-style
deference.” Christensen v. Harris County, 529 U.S. 576,
587 (2000) (citations omitted). We must await an individual
action to assess the propriety of the VA’s interpretation
of the Agent Orange Act and attendant regulations.
III. CONCLUSION
For these reasons, we dismiss the petition for lack of
jurisdiction.2
DISMISSED
2 Also before us are two motions by Blue Water to
supplement the index of record. No. 16-1793, ECF Nos.
22, 30. Because we lack jurisdiction to consider the
merits of the VA’s action, we deny both motions as moot.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT H. GRAY,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1782
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
—————————————————————————
BLUE WATER NAVY VIETNAM VETERANS
ASSOCIATION,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1793
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________
2 GRAY v. SECRETARY OF VETERANS AFFAIRS
DYK, Circuit Judge, dissenting in part and concurring in
the judgment.
The majority holds that we lack jurisdiction to review
revisions to a Department of Veterans Affairs (“VA”)
manual used by the agency to adjudicate veterans benefits.
The majority concludes it is bound to reach this
result by the recent decision of another panel in Disabled
American Veterans v. Secretary of Veterans Affairs (DAV),
859 F.3d 1072 (Fed. Cir. 2017). There, the panel categorically
held that “[w]here, as here, manual provisions are
interpretations adopted by the agency, not published in
the Federal Register, not binding on the Board [of Veterans’
Appeals], and contained within an administrative
staff manual, they fall” outside the scope of 5 U.S.C.
§§ 552(a)(1) and 553. DAV, 859 F.3d at 1078. It follows
that there is no jurisdiction under 38 U.S.C. § 502. Id.
I agree we are bound by DAV to hold that the manual
revisions are not reviewable. But I respectfully suggest
that DAV was wrongly decided. The analysis of 5 U.S.C.
§ 552(a)(1) in DAV—rendered without substantial briefing
on that statutory provision—conflicts with our prior
decisions applying that subsection to VA actions. The
rule established by DAV also departs from the approach of
other courts of appeals, which have held that analogous
agency pronouncements are reviewable. Nothing in § 502
suggests that we should be less generous in our review
with respect to VA than other courts have been with
respect to other agencies. And DAV imposes a substantial
and unnecessary burden on individual veterans, requiring
that they undergo protracted agency adjudication in order
to obtain preenforcement judicial review of a purely legal
question that is already ripe for our review.
I
Pursuant to the Agent Orange Act of 1991, 38 U.S.C.
§ 1116, and VA regulations, veterans who “served in the
Republic of Vietnam . . . shall be presumed to have been
GRAY v. SECRETARY OF VETERANS AFFAIRS 3
exposed” to Agent Orange, 38 C.F.R. § 3.307(a)(6)(iii).
The regulations further define “[s]ervice 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 the Republic of Vietnam.”
Id. For those veterans covered by the presumption,
certain specified diseases “shall be considered to have
been incurred or aggravated by such service, notwithstanding
that there is no record evidence of such disease
during the period of such service.” § 1116(a)(1). This
presumed service connection was established because, as
Congress realized, in the absence of adequate contemporaneous
records and testing, “it was too difficult to determine
who was exposed and who was not.” Haas v. Peake,
525 F.3d 1168, 1185 (Fed. Cir. 2008); see also LeFevre v.
Sec’y, Dep’t of Veterans Affairs, 66 F.3d 1191, 1197 (Fed.
Cir. 1995) (“Congress . . . recognized that ordinarily it
would be impossible for an individual veteran to establish
that his disease resulted from exposure to herbicides in
Vietnam.”).
Many of the rules that govern whether and how to
apply the presumption of service connection are set forth
in a VA document known as the Adjudications Procedures
Manual M21-1 (the “Manual”), “an internal manual used
to convey guidance to VA adjudicators” in dealing with
veterans’ benefits claims. Maj. Op. 5 (quoting VA Adjudications
Manual, M21-1; Rescission of Manual M21-1
Provisions Related to Exposure to Herbicides Based on
Receipt of the Vietnam Service Medal, 72 Fed. Reg. 66,218,
66,219 (Nov. 27, 2007)). As described by the majority, the
Manual has for at least a decade included service in the
“inland waterways” of Vietnam as sufficient to warrant
the presumption. Id. at 6. In a 2009 letter, VA supplemented
this provision by defining “inland waterways” to
include rivers and deltas but not harbors and bays. Id.
Petitioner Gray challenged that definition before the
Court of Appeals for Veterans Claims, which found it to
4 GRAY v. SECRETARY OF VETERANS AFFAIRS
be both irrational and inconsistent with VA’s own regulations.
Id. (citing Gray v. McDonald, 27 Vet. App. 313,
322-25 (2015)). The matter was remanded for further
action by the Secretary. Id. (citing Gray, 27 Vet. App. at
326-27).
In February 2016, following the remand by the Court
of Appeals for Veterans Claims, VA revised the portion of
the Manual concerning its interpretation of the Agent
Orange Act’s requirement that the veteran have “served
in the Republic of Vietnam.” These revisions for the first
time established a detailed test for determining whether
service aboard a vessel in the vicinity of Vietnam suffices
to establish a presumption of service connection. First,
mirroring its 2009 letter, VA inserted a new instruction
that “[s]ervice on offshore waters does not establish a
presumption.” Manual § IV.ii.1.H.2.a. In other words,
while service in inland waterways qualifies, service in the
offshore waters of Vietnam does not constitute service in
the Republic of Vietnam. The revised Manual then goes
on to narrowly define “inland waterways”1 at the same
1 “Inland waterways are fresh water rivers,
streams, and canals, and similar waterways. Because
these waterways are distinct from ocean waters and
related coastal features, service on these waterways is
service in [Vietnam]. VA considers inland waterways to
end at their mouth or junction to other offshore water
features, as described below. For rivers and other waterways
ending on the coastline, the end of the inland waterway
will be determined by drawing straight lines
across the opening in the landmass leading to the open
ocean or other offshore water feature, such as a bay or
inlet. For the Mekong and other rivers with prominent
deltas, the end of the inland waterway will be determined
by drawing a straight line across each opening in the
landmass leading to the open ocean.” Id.
GRAY v. SECRETARY OF VETERANS AFFAIRS 5
time it broadly defines “offshore waters”: “Offshore
waters are the high seas and any coastal or other water
feature, such as a bay, inlet, or harbor, containing salty or
brackish water and subject to regular tidal influence.
This includes salty and brackish waters situated between
rivers and the open ocean.” Id. § IV.ii.1.H.2.b. Finally,
the Manual notes that these revisions change the treatment
of Qui Nhon Bay Harbor and Ganh Rai Bay: service
in these bays previously entitled a veteran to the presumption,
but they now fall outside the Manual’s definition
of inland waterways. Id. § IV.ii.1.H.2.c. The Manual
revisions significantly restrict the right to the presumptive
service connection. The question before us is whether
the revisions are subject to preenforcement judicial review.
II
Our jurisdiction here rests on 38 U.S.C. § 502, which
provides, “An action of the Secretary to which section
552(a)(1) or 553 of title 5 (or both) refers is subject to
judicial review.” Section 553 defines the requirements for
notice-and-comment rulemaking. Section 552(a)(1) defines
the circumstances when publication in the Federal
Register is required and covers, among other things,
“statements of general policy or interpretations of general
applicability formulated and adopted by the agency.” 5
U.S.C. § 552(a)(1)(D). While I agree with DAV that the
Manual is not the type of document that is reviewable
because it is subject to the notice-and-comment rulemaking
provisions of § 553, it is nevertheless an interpretation
of general applicability under § 552(a)(1).
Other circuits have held that agency pronouncements
such as those involved here are subject to preenforcement
review. Thus, for example, the District of Columbia
Circuit has found agency guidance documents reviewable
where, as here, the petitioners present purely legal
claims. In Appalachian Power Co. v. Environmental
6 GRAY v. SECRETARY OF VETERANS AFFAIRS
Protection Agency, 208 F.3d 1015, 1020-23 (D.C. Cir.
2000), the District of Columbia Circuit determined it had
jurisdiction to review a Clean Air Act guidance document
published on an Environmental Protection Agency
(“EPA”) website. Although informally published and not
subject to notice and comment, the guidance was found to
be a “final agency action, reflecting a settled agency
position which has legal consequences” for the parties. Id.
at 1023. The court’s decision rested in part on its observation
that, as with the VA Manual revisions at issue
here, “officials in the field [we]re bound to apply” the rules
set forth in the guidance. Id. at 1022. In 2011, yet another
Clean Air Act guidance was found reviewable where it
bound EPA regional directors. See Nat. Res. Def. Council
v. Envtl. Prot. Agency, 643 F.3d 311, 320 (D.C. Cir. 2011).
In the transportation context, the District of Columbia
Circuit found jurisdiction to review a Federal Highway
Administration investigative training manual. Aulenback,
Inc. v. Fed. Highway Admin., 103 F.3d 156, 163-65
(D.C. Cir. 1997); see also W. Coal Traffic League v. United
States, 719 F.2d 772, 780 (5th Cir. 1983) (en banc) (reviewing
guidelines of the Interstate Commerce Commission
for regulating railroad rates). Thus the circuit found
agency guidance, binding on agency subordinates, to be
reviewable.
Nothing in § 502 suggests that we should be less generous
in our review of actions taken by VA. There is, of
course, a “well-settled presumption that agency actions
are reviewable,” unless Congress clearly precludes such
review. LeFevre, 66 F.3d at 1198. There is no such clear
preclusion in the VA statute. To the contrary, here—as in
the other circuit cases discussed above—in the relevant
jurisdictional provision, “Congress has declared its preference
for preenforcement review of agency rules.” Nat’l
Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans
Affairs, 330 F.3d 1345, 1347 (Fed. Cir. 2003).
GRAY v. SECRETARY OF VETERANS AFFAIRS 7
III
Preenforcement review of manual provisions is entirely
consistent with the language of § 502. In that statute,
as noted earlier, Congress chose to define our jurisdiction
with reference to the Administrative Procedure Act’s
provisions concerning the requirements for public notice
of agency actions. See 38 U.S.C. § 502. Agency actions
requiring notice-and-comment rulemaking were made
reviewable by reference to § 553. In addition, Congress
made reviewable other agency actions described in
§ 552(a)(1). Section 552(a) establishes a hierarchy of
government records.2 Several categories of records most
2 Section 552(a) provides, in relevant part:
Each agency shall make available to the public information
as follows:
(1) Each agency shall separately state and currently
publish in the Federal Register for the guidance of the
public—
. . .
(D) substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability formulated
and adopted by the agency;
. . . .
(2) Each agency, in accordance with published rules,
shall make available for public inspection in an electronic
format—
. . .
(B) those statements of policy and interpretations
which have been adopted by the agency and are not
published in the Federal Register;
(C) administrative staff manuals and instructions
to staff that affect a member of the public;
. . . .
8 GRAY v. SECRETARY OF VETERANS AFFAIRS
directly affecting members of the public must be published
in the Federal Register, see § 552(a)(1); many
routine or internal agency records must be publicly available,
see § 552(a)(2); and still others need only be available
by request, see § 552(a)(3). With respect to
interpretive rules, § 552(a)(2)(B) directs that if they are
“of general applicability,” the Federal Register publication
requirement of § 552(a)(1)(D) applies. In short, “statements
of general policy or interpretations of general
applicability formulated and adopted by the agency,” 5
U.S.C. § 552(a)(1)(D), must be published in the Federal
Register and are thus reviewable under § 502. The relevant
question for jurisdictional purposes, then, is whether
the Manual revisions here are properly characterized as
“statements of general policy or interpretations of general
applicability.” If so, we have jurisdiction under § 502.
DAV never directly addressed this question of the
scope of “interpretations of general applicability.” DAV’s
analytical omission is not surprising given that the petitioners
in that case focused their jurisdictional argument
primarily on whether the Manual revisions at issue were
substantive rules requiring notice and comment under
§ 553. The panel nonetheless rejected the applicability of
§ 552(a)(1). Latching onto the undisputed fact that the
Manual is an “administrative staff manual” under
§ 552(a)(2)—a provision not referenced in § 502—the DAV
(3)
(A) Except with respect to the records made available
under paragraphs (1) and (2) of this subsection, and
except as provided in subparagraph (E), each agency,
upon any request for records which (i) reasonably describes
such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any), and
procedures to be followed, shall make the records promptly
available to any person.
GRAY v. SECRETARY OF VETERANS AFFAIRS 9
court held that we lack jurisdiction “[w]here, as here,
manual provisions are interpretations adopted by the
agency, [1] not published in the Federal Register, [2] not
binding on the Board itself, and [3] contained within an
administrative staff manual, they fall within § 552(a)(2)—
not § 552(a)(1).” 859 F.3d at 1078.
None of these three theories is supportable. First, the
fact that the Manual revisions were not in fact published
in the Federal Register does not support the majority’s
result. As the majority in this case and the panel opinion
in DAV acknowledge, Maj. Op. 11; DAV, 859 F.3d at 1077,
an agency’s choice of whether and where to publish a rule
are not controlling, see, e.g., Preminger v. Sec’y of Veterans
Affairs, 632 F.3d 1345, 1351 (Fed. Cir. 2011) (per curiam);
Anderson v. Butz, 550 F.2d 459, 463 (9th Cir. 1977).
Indeed, neither the majority here nor DAV cites any case
in which the decision not to publish was even relevant in
deciding the scope of § 552(a)(1). A contrary rule would
permit the agency to defeat judicial review by the simple
expedient of failing to fulfill its obligation to publish the
document in the Federal Register.
Second, the fact that the Manual is not binding on the
Board is equally irrelevant.3 We have previously rejected
this very theory. In LeFevre, the Secretary argued that
his refusal to establish a presumption of service connec-
3 As the majority notes, the Manual is “not binding
on anyone other than the VBA [Veterans Benefits Administration]
employees” and, in particular, does not bind the
Board of Veterans Appeals (“Board”). Maj. Op. 5; see also
Carter v. Cleland, 643 F.3d 1, 5 (D.C. Cir. 1980) (noting
the Manual’s binding effect on VA adjudicators); Office of
Gen. Counsel, U.S. Dep’t of Veterans Affairs, Op. Prec. 7-
92, Applicability of VA Manual M21-1, Part 1, Paragraph
50.45, 1992 WL 1200482, at *2 cmt. 4 (Mar. 17, 1992)
(same).
10 GRAY v. SECRETARY OF VETERANS AFFAIRS
tion for certain cancers was not subject to review because
it was nonbinding—veterans were still permitted to prove
service connection on a case-by-case basis. 66 F.3d at
1197. We rejected that contention, noting that such an
action “‘has an immediate and practical impact’ on Vietnam
veterans and their survivors . . . , was not ‘abstract,
theoretical, or academic,’ ‘touches vital interests of’
veterans and their survivors, and ‘sets the standard for
shaping the manner in which an important segment’ of
the Department’s activities ‘will be done.’” Id. at 1198
(quoting Frozen Food Express v. United States, 351 U.S.
40, 44 (1956)). The same is true of the Manual revisions
at issue here. Also, as noted earlier, other circuits have
held agency actions that were binding on subordinate
agency officials to be reviewable. See Appalachian Power,
208 F.3d at 1022 (reviewing a policy issued in a guidance
document that “EPA officials in the field are bound to
apply”); Nat. Res. Def. Council, 643 F.3d at 321 (reviewing
a guidance document that “binds EPA regional directors”).
As recognized by the majority, the Manual revisions’
impact is extensive: “the VA instructed all claims processors
in its 56 regional offices to exclude all Navy personnel
who served outside the now-defined ‘inland
waterways’ of Vietnam . . . from presumptive service
connection for diseases or illnesses connected with exposure
to Agent Orange.” Maj. Op. 7-8. VA, too, “concedes
that the impact of its manual changes is both real and far
reaching.” Id. at 9. Even though not binding on the
Board, the Manual does bind the front-line benefits
adjudicators located in each VA Regional Office (“RO”).
See, e.g., Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir.
2009). Over 1.3 million claims were decided by the ROs in
2015, yet during that same period only 52,509 appeals of
those decisions were filed before the Board. Compare
Office of Mgmt., U.S. Dep’t of Veterans Affairs, FY 2016
Agency Financial Report 18 (Nov. 15, 2016),
https://www.va.gov/finance/docs/afr/2016VAafrFullWeb.pd
GRAY v. SECRETARY OF VETERANS AFFAIRS 11
f, with Bd. of Veterans Appeals, U.S. Dep’t of Veterans
Affairs, Annual Report Fiscal Year 2015 (2016) [hereinafter
BVA Report], https://www.bva.va.gov/docs/Chairmans_
Annual_Rpts/BVA2015AR.pdf. Those few veterans who
do seek Board review can expect to wait an additional
three years between the filing of their appeal and a Board
decision. See BVA Report 21. With roughly 96% of cases
finally decided by VBA employees bound by the Manual,
its provisions constitute the last word for the vast majority
of veterans. To say that the Manual does not bind the
Board is to dramatically understate its impact on our
nation’s veterans. Review of the Manual revisions is
essential given the significant “hardship [that] would be
incurred . . . if we were to forego judicial review.” Coal.
for Common Sense in Gov’t Procurement v. Sec’y of Veterans
Affairs, 464 F.3d 1306, 1316 (Fed. Cir. 2006).
Finally, as the majority here appears to agree, see
Maj. Op. 11, DAV’s reliance on the form of the Manual
cannot defeat jurisdiction. Nothing about the statute
suggests that a document described in subsection (a)(2)
could not also be subject to subsection (a)(1)’s more demanding
requirements. Given the statute’s “goal of broad
disclosure” and the Supreme Court’s instructions to
construe its exemptions narrowly and exclusively, U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989),
we should not read new limitations into § 552.
Implicit to DAV’s reasoning, in this respect, is the notion
that § 552(a)(1) and § 552(a)(2) are mutually exclusive.
In other words, DAV instructs that provisions of
agency manuals, because described in subsection (a)(2),
are therefore not rules of general applicability for purposes
of subsection (a)(1). See id. at 1077-78 (“Congress
expressly exempted from § 502 challenges to agency
actions which fall under § 552(a)(2).”). There is no support
for this view. Congress did not in fact “expressly
exempt” actions described in § 552(a)(1) from § 552(a)(2).
To the contrary, a range of content commonly found in
12 GRAY v. SECRETARY OF VETERANS AFFAIRS
staff manuals—such as descriptions of an agency’s organization,
rules of procedure, and, importantly, generally
applicable policies and interpretations—is expressly
described in subsection (a)(1) despite also arguably being
covered by the reference to manuals in subsection
(a)(2)(C). Even if subsections (a)(1) and (a)(2) could be
regarded as mutually exclusive, the Manual at issue here
is not merely an “administrative staff manual”: the Manual
provides the rules of decision to be applied by agency
adjudicators in responding to veterans’ benefits claims.
The revisions challenged here go well beyond “administrative”
directions. They announce “interpretations of
general applicability” subject to § 552(a)(1)’s publication
requirement and, accordingly, to our review under § 502.
Cases from the Supreme Court, other courts of appeals,
and our own court have held that similar agency
pronouncements fall within the scope of § 552(a)(1) despite
appearing within agency manuals. For example, in
Morton v. Ruiz, 415 U.S. 199, 232-36 (1974), the Supreme
Court held that provisions of the Indian Affairs Manual
should have been published in the Federal Register
pursuant to § 552(a)(1)(D) and the agency’s own internal
publication rules. Likewise, in NI Industries, Inc. v.
United States, 841 F.2d 1104, 1107 (Fed. Cir. 1988), this
Court held that contracting provisions located in an Army
Standard Operating Procedures document were subject to
§ 552(a)(1)(D)’s publication requirement. See also Linoz v.
Heckler, 800 F.2d 871, 878 n.11 (9th Cir. 1986) (finding a
provision of the Medicare Carrier’s Manual to be a generally
applicable interpretation subject to § 552(a)(1)(D)
publication); Anderson, 550 F.2d at 461-63 (same with
respect to the Food Stamp Certification Handbook).
The majority’s approach is also inconsistent with our
own prior cases finding similar agency actions within the
scope of § 502 and thus reviewable. Unlike DAV, each of
these cases analyzed the substance and effect of the
agency action, rather than its form. Most recently, in
GRAY v. SECRETARY OF VETERANS AFFAIRS 13
Snyder v. Secretary of Veterans Affairs, 858 F.3d 1410,
1413 (Fed. Cir. 2017), we found reviewable an opinion of
the VA General Counsel relating to attorney’s fees because
it “announces a rule that readily falls within the
broad category of rules and interpretations encompassed
by § 552(a)(1)(B).” In Military Order of the Purple Heart
v. Secretary of Veterans Affairs, 580 F.3d 1293, 1296 (Fed.
Cir. 2009), we found jurisdiction to review a VA letter
changing the procedures for reviewing certain benefits
awards. Our determination turned not on the form of the
letter but on the fact that it “affects the veteran’s substantive
as well as procedural rights, and is ‘a change in
existing law or policy which affects individual rights and
obligations.’” Id. (quoting Animal Legal. Def. Fund v.
Quigg, 932 F.2d 920, 927 (Fed. Cir. 1991)). We found
another VA letter reviewable in Coalition for Common
Sense, 464 F.3d at 1316-18, by focusing on its effect within
the agency and on outside parties and tribunals, not on
its form. Finally, as described above, in LeFevre, 66 F.3d
at 1196-98, we found jurisdiction to review the Secretary’s
decision to exclude certain cancers from the presumption
of service connection by looking to its effects on the veterans
suffering from those diseases.
* * *
The provisions of agency manuals and similar documents
have been previously held subject to preenforcement
review. The DAV decision and the majority decision
here represent an unwarranted narrowing of our jurisdiction.
I respectfully suggest the DAV case was wrongly
decided.

 

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