Cox: Afghanistan and Gulf War Syndrome and Regulatory Interpretation

Cox v. McDonald, Opinion Number 14-2779, decided November 7, 2016 involves a claim by a veteran who served in Afghanistan and was claiming compensation pursuant to 38 USC Section 1117 and 38 CFR Section 3.371(b).  This is a regulatory interpretation case where the Veterans Court came down overwhelmingly on the VA's side in terms of its ability to interpret regulations.

The veteran was making among other things a claim for service connection for a back disability and bilateral knee disability.  The question was whether his service in Afghanistan qualified him as eligible for compensation for an undiagnosed illness under the special presumptions allowed Persian Gulf War veterans pursuant to 38 USC Section 1117 and 38 CFR Section 3.371(b).

In February 2010, the VA issued Training Letter 10-01, which included language stating while Section 3.371 does not include Afghanistan as a portion of Southwest Asia,

Considering the important of current U.S. military operations in Afghanistan and its environmental similarity to all other regions of Southwest Asia, C&P Service has determined that Veterans with service in Afghanistan fall under all laws related to Gulf War and southwest Asia service.  A regulatory amendment to make this official is forthcoming.

The veteran submitted his claim in August 2010.  In October 2010, the VA withdrew its initial Training Letter 10-01 and issued a revised version that delete the language giving Afghanistan veterans the same presumption for undiagnosed illness or medically unexplained chronic multisymptom illnesses.  An October 2010 RO decision denied service connection for the back and knees stating there was no evidence of a current diagnosis.

On appeal, the veteran argued the Gulf War provisions applied to him due to his Afghanistan service.  The Court determined the Gulf War Syndrome presumptions do not apply to service in Afghanistan.  The Court noted that when the law was passed by Congress, the US had not entered into combat in Afghanistan and that instead Congress intentionally did not identify the term Southwest Asia, instead leaving it to the VA to define that term.  The Court then determined the VA’s interpretation was not arbitrary, capricious or manifestly contrary to the statute. 

Finally, the Court determined the VA’s original Training Letter extending the law to Afghanistan veterans did not create a substantive right that could only be changed with appropriate notice and comment pursuant to the APA.  The Court took the position the claims adjudication manual and Training Letters are not substantive rules but “instead represents guidance from the VA Compensation and Pension Director to RO personnel, giving personnel notice of potential, forthcoming changes to the regulation.”  To support this conclusion, the Court noted the Training Letter stated a regulator amendment was forthcoming and instructed RO personnel to hold some claims where the VA was amending the regulation to make clear some additional illness were covered.  Taken together, the Court determined these showed “the VA policy document at issue was meant to be a guidance directive for VA staff and was not meant to confer any rights upon veterans.”

This is a deeply troubling decision which shows how the VA often changes the “goal posts” on veterans and advocates during the pendency of a claim.  It narrowly reads VA materials as not creating substantive rights and gives what I think is too much deference to the VA’s interpretation of the term Southwest Asia.  I hope this claim to be appealed to the Federal Circuit and think both issues to be issues of concern for the Federal Circuit.

Written by Judge Pietsch, joined by Chief Judge Davis and Kasold.