Overton: Presumption of Exposure to Agent Orange, Bluewater v Brownwater Part 3

Overton v. Wilkie, Case Number 17-0125, decided September 19, 2018 is the third case in a long line of cases (including many cases by Gray) dealing with the VA’s illogical distinction between Blue and Brownwater veterans.

The blue versus brownwater distinction is important because those veterans who served on what is termed brownwater areas are deemed to be exposed to Agent Orange and thus a presumption applies to several disabilities.

In the 2015 decision Gray v. McDonald, the Court held the VA’s interpretation of a statute designating Da Nang Harbor as offshore was arbitrary and capricious and remanded the case so the VA could reevaluate its waterway definition in light of the purpose of the regulation, which is to provide compensation based on herbicide exposure.  Rather than creating a more pro-veteran rule, the VA modified its Adjudications Procedural Manual (M21-1) to exclude all Vietnamese bays and harbors from the definition of “inland waterways.” 

Importantly, the VA avoided changing the actual regulation, which would have required notice and comment rulemaking and simply changed its internal manual.  The result was a challenge before the Federal Circuit of the manual change and a decision, Gray v. Secretary of Veteran Affairs, by that Court stating the M21-1 was internal manual used to guide adjudicators and was not a substantive rule and that the Board is not bound by the M21-1.

In light of these decisions, the Board denied service connection to Overton for among other things type II diabetes mellitus, which would normally be presumed to be caused by Agent Orange for veterans who served in Vietnam (including in inland waterways).  The Court noted “The Board relied on the modified M21-1 provision to deny the appellant's claims concerning presumptive herbicide exposure.11 Yet, the Board did not discuss why it relied on the M21-1.”  Id. at *2.

The Court then held:

that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position

without analysis. Because the Board did not engage in the appropriate analysis here, the Court will set aside the November 1, 2016, Board decision and remand the matter for readjudication consistent with this decision.

Id. at *2.

            In its analysis, the Court recited the history of the Gray decisions and particularly the Federal Circuit case and stated:

we know first that VA is permitted to draw reasonable lines demarcating inland versus offshore waterways when considering whether a veteran is entitled to the presumption of herbicide exposure. Second, when drawing such a line, VA must do so in a reasoned, nonarbitrary manner focused on the likelihood of herbicide exposure. And finally, the Board is not bound by M21-1 provisions.

Id. at *7.

considers the Board’s reference to GAF scores when setting a PTSD rating.  The Court strictly determines GAF scores should not be considered. 

As said by the Court:

The "Global Assessment of Functioning" scale was a scale ranging from 0 to 100, that was created to reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See DSM-IV at 32. In other words, a GAF score was a numerical summary on a standardized scale reflecting the presence and severity of psychological symptoms and their effects.

Id. at *4.

The Court then explained the Board

provided nothing more than this historical recitation to support its conclusion that Da Nang Harbor is not brown water warranting presumptive herbicide exposure. Instead, the Board tersely stated that the "new guidance," referring to its earlier discussion of the M21-1 provision, deems all harbors or bays offshore, and all rivers and deltas inland.44 This is error.
The Federal Circuit made it clear that the Board is not bound by the M21-1.45 This holding is meaningful. To support its decision the Board can't simply cite an M21-1 provision without further analysis. First, doing so would effectively negate the Federal Circuit's decisions in Gray and DAV. Doing so would convert the M21-1 into substantive rules as a practical matter without providing a means to challenge such rules under the APA. Second, because the M21-1 is not binding on the Board, the Board's citation to a manual provision as the only support for a conclusion–here that Da Nang Harbor is blue water–is inconsistent with the Board's congressionally mandated obligation to provide an adequate statement of reasons or bases for its decisions

Id. at *8.

The Court also noted the Board suggested the all or nothing rule of stating all bays and harbors are not inland waterways alleviated the problems from Gray, but the Court made clear the problem is the lack of rationale in determining what makes something an inland or offshore waterway.  Id. at *9.

The Court also rejected the Secretary’s last minute request that the Court defer to the agency.  The Court rejected because the matter was not briefed but raised at oral argument and such deference would be misplaced where the Court was reviewing the Board decision as opposed to the M2-1 provision.

This Court reveals a significant flaw in the VA’s failure to pursue notice and comment rulemaking and demonstrates how reliance on an M21-1 provision can be attacked.

Decision by Judge Allen, joined in by Chief Judge Davis and Judge Pietsch.


To know more about whether Thomas Andrews can help you, please visit my website.