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Procopio v. Secretary of Veterans Affairs

United States Court of Appeals, Federal Circuit

December 5, 2019

ALFRED PROCOPIO, JR., JOHNNIE HARPER, MICHAEL YATES, MICHAEL KVINTUS, BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, MILITARY- ETERANS ADVOCACY, Petitioners
v.
SECRETARY OF VETERANS AFFAIRS, Respondent

         Petition for review pursuant to 38 U.S.C. Section 502.

          John B. Wells, Law Office of John B. Wells, Slidell, LA, argued for petitioners.

          Eric 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.

          Brian Keith Lewis, Francis White Law, PLLC, Woodbury, MN, for amicus curiae Federal Bar Association Veterans & Military Law Section.

          Before Newman, Moore, and Chen, Circuit Judges.

          MOORE, CIRCUIT JUDGE.

         Alfred 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.

         Background

         The individual petitioners in this case are Blue Water Navy Veterans who served on open sea ships off the Vietnamese shore during the Vietnam War.[1] 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.[2] 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.

         In 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 such service.

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).

         In 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, ΒΆ 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 to ...


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