Da Nang Harbor and bluewater veterans

Gray v. McDonald, Opinion Number 13-3339, was decided April 23, 2015 and concerns the Bluewater designation and whether a veteran who served in the Navy aboard a ship that anchored in Da Nang Harbor is entitled to an Agent Orange Presumption.

The veteran served in the Navy and his ship anchored in Da Nang Harbor.  He was seeking service connection for several ailments that are presumptively linked to Agent Orange.  The veteran argued he should be afforded those presumptions based on his location in Da Nang Harbor.  He argued the VA’s interpretation of Da Nang Harbor as an offshore rather than inland waterway was arbitrary and capricious and the Court held the veteran’s interpretation was inconsistent with the purpose of the regulation and does not reflect the Agency’s fair and considered judgment.

The VA requires actual presence on the landmass or inland waters of Vietnam for a presumption of exposure to Agent Orange.  The issue was whether being anchored in Da Nang Harbor constituted service in inland waters. 

The Court recognized the blue versus brown water distinction created in Hass v. Peake and that an agency’s interpretation of its own regulations is given substantial deference.  The Secretary argued labeling Da Nang Harbor bluewater is a reasonable interpretation of its statute and sought to rely on the adjudication manual, a training letter, and a service bulletin as support.  The Court recognized these documents labeled Da Nang Harbor bluewater, but noted they did not explain the likelihood of herbicide exposure based on spraying but seemed to rely on the fact the harbor is easy to sail into.  The Court stated “Absent a connection to the probability of exposure based on spraying, the Court finds the rationale supporting VA’s designation of Da Nang Harbor is inconsistent with the regulation’s purpose of compensation based on the probability of exposure.”  Id. at *13.  Instead the Court found the documents the VA relied upon are devoid of any indication of a fact-based assessment of the probability of exposure to aerial spraying in Da Nang Harbor and determined the VA’s definition of an inland waterway did not reflect the agency’s fair and considered judgment. 

The Court ultimately did not grant service connection but remanded with the instruction the VA had to reevaluate its definition of inland waterways—specifically Da Nang Harbor—and exercise its fair and considered judgment to define them in a manner consistent with the regulation’s emphasis on the probability of exposure.

This is an important case that potentially impacts many Navy veterans who anchored in an inland waterway and were exposed to aerial spraying, but have been denied presumptive Agent Orange exposure because the VA has uniformly labeled these waterways as offshore rather than inland.  It is still unclear how the VA will handle the remand and if they will try to limit its reach, but it bears close watching and could result in compensation for many Navy veterans.

Decision by J. Schoelen and joined by J. Hagel and J. Davis.