ALFRED PROCOPIO, JR., JOHNNIE HARPER, MICHAEL YATES, MICHAEL KVINTUS, BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, MILITARY- ETERANS ADVOCACY, Petitioners
SECRETARY OF VETERANS AFFAIRS, Respondent
for review pursuant to 38 U.S.C. Section 502.
B. Wells, Law Office of John B. Wells, Slidell, LA, argued
Peter Bruskin, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Joseph H. Hunt, Martin F.
Hockey, Jr., Robert Edward Kirschman, Jr.; Brian D. Griffin,
Brandon A. Jonas, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Stanley Joseph Panikowski, III, DLA Piper LLP (US), San
Diego, CA, for amicus curiae Association of the United States
Navy. Also represented by Amy Walters, East Palo Alto, CA.
Keith Lewis, Francis White Law, PLLC, Woodbury, MN, for
amicus curiae Federal Bar Association Veterans & Military
Newman, Moore, and Chen, Circuit Judges.
Procopio, Jr., Johnnie Harper, Michael Yates, Michael
Kvintus, Blue Water Navy Vietnam Veterans Association, Inc.,
and Military-Veterans Advocacy, Inc. (collectively,
Petitioners) filed a petition for expedited review pursuant
to 38 U.S.C. § 502 challenging the authority of the
Secretary of Veterans Affairs to stay pending disability
compensation claims until January 1, 2020. We have
jurisdiction to decide the present petition under 5 U.S.C.
§ 552(a)(1)(D) because the Secretary's memorandum
amounts to an "interpretation of general applicability
formulated and adopted by the agency." See 5
U.S.C. § 552(a)(1)(D). Because the Secretary had the
authority, pursuant to Section 2(c)(3) of the Blue Water Navy
Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat.
966, 968 (2019)) (the Act), to stay pending disability
compensation claims from the date of the Act's enactment,
June 25, 2019, until its effective date, January 1, 2020, we
deny the petition for review.
individual petitioners in this case are Blue Water Navy
Veterans who served on open sea ships off the Vietnamese
shore during the Vietnam War. Following our decision in
Procopio v. Wilkie this year, many Blue Water Navy
Veterans were afforded hope that they may be entitled to a
presumption of service connection for diseases covered by 38
U.S.C. § 1116. 913 F.3d 1371 (Fed. Cir. 2019) (en banc).
Their hope was then further bolstered by Congress'
passing of the Act, which provides relief for many of these
veterans who, prior to this court's Procopio
decision, were without such relief. But the Secretary's
decision to stay awarding of benefits pursuant to the Act
poses new problems for Blue Water Navy Veterans many of whom,
Petitioners assert, are dying and may not live to see the
benefits provided by the Act. According to Petitioners, the
journey for benefits has been long enough and many Blue Water
Navy Veterans "are running out of time."
Petitioners' Br. 3.
1991, Congress passed the Agent Orange Act, codified at 38
U.S.C. § 1116, granting a presumption of service
connection for certain diseases to veterans who "served
in the Republic of Vietnam":
(A) a disease specified in paragraph (2) of this subsection
becoming manifest as specified in that paragraph 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; and (B) each
additional disease (if any) that (i) the Secretary determines
in regulations prescribed under this section warrants a
presumption of service-connection by reason of having
positive association with exposure to an herbicide agent, and
(ii) becomes manifest within the period (if any) prescribed
in such regulations 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, and while so serving was exposed to that
herbicide agent, shall be considered to have been incurred in
or aggravated by such service, notwithstanding that there is
no record of evidence of such disease during the period of
38 U.S.C. § 1116(a). Under § 1116(f), such a
veteran "shall be presumed to have been exposed during
such service to [the] herbicide agent . . . unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service."
Id. § 1116(f).
1993, the Department of Veterans Affairs (VA) issued
regulations pursuant to § 1116 that stated
"'Service in the Republic of Vietnam' includes
service in the waters offshore and service in other locations
if the conditions of service involved duty or visitation in
the Republic of Vietnam." 38 C.F.R. §
3.307(a)(6)(iii) (1993) (Regulation 307). But in 1997, in a
General Counsel opinion about a different regulation, the
government interpreted Regulation 307 as limiting service
"in the Republic of Vietnam" to service in waters
offshore the landmass of the Republic of Vietnam only if the
service involved duty or visitation on the landmass,
including the inland waterways of the Republic of Vietnam,
("foot-on-land" requirement). Vet. Aff. Op. Gen.
Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63, 603,
63, 604 (Dec. 1, 1997). In 2002, VA amended its internal
adjudication manual "to specifically incorporate the
agency's 'foot-on-land' interpretation of the
Agent Orange regulations." Haas v. Peake, 525
F.3d 1168, 1182 (Fed. Cir. 2008) (citing M21-1, part III,
¶ 4.24(e)(1) (Feb. 27, 2002) (stating a veteran
"must have actually served on land within the Republic
of Vietnam . . . to qualify for the presumption of exposure