The opinion of the court was delivered by: James Robertson United States District Judge
This case, pending in this Court since 1979, concerns an Agent Orange Program Guide that was issued by the Veteran's Administration in 1978 and remained in effect until 1985. Plaintiffs' contention is that the VA adopted the AOPG in violation of the notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. § 553, and the publication requirement of the Freedom of Information Act, 5 U.S.C. § 552(a)(1). Because I have concluded that the AOPG did not announce a binding, substantive rule, summary judgment will be granted to the defendant.
Although the statutory and regulatory framework has changed over the nearly three decades in which this suit has been pending, the basic entitlement of veterans to benefits for service-connected disabilities has not. The VA regulation setting out "principles relating to service connection" is found at 38 C.F.R. § 3.303 and has been in effect without substantive change since 1961. Section 3.303(a) provides that service connection can be established in two ways, 1) through "the application of statutory presumptions", or 2) by "affirmatively showing inception or aggravation [of a disease or injury] during service[.]" The first route is known as presumptive service connection and the second as direct service connection. At the time this suit was filed, disabilities stemming from a defined and limited number of conditions, including leukemia, Hodgkin's disease, and malignant tumors, were presumptively service connected if diagnosed within a year after active service. 38 U.S.C. § 312 (1979)(amended by P.L. 102-83, § 5(a), 105 Stat. 406 (1991), and transferred to 38 U.S.C. § 1112). For enumerated diseases diagnosed more than a year after the end of active service, and for all other diseases that were not the subject of a statutory presumption, Section 3.303(d) provided that "[s]ervice connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." See also 38 C.F.R. § 3.304 (listing direct service connection requirements). Reasonable doubt was resolved in favor of the veteran, but, under regulations that were in effect during the same period as the AOPG, "the claimant [was] required to submit evidence sufficient to justify a belief in a fair and impartial mind that his claim is well grounded." 38 C.F.R. § 3.102 (1984).
B. History of Agent Orange Compensation
The Agent Orange Program Guide, in effect from April 17, 1978, until September 25, 1985, was issued by the VA, without public notice or comment, as a one-page amendment to the VA's Compensation and Pension Program Guide (PG 21-1), a resource designed for use by agency adjudicators. [Dkt. 33]. The forward to PG 21-1, written in 1963, states: "It should be understood that program guides are non-directive and non-policymaking. They are obviously superseded by instructions, technical bulletins, regulations, or other authoritative issues at variance on the same subject matter." [Dkt. 26, Ex. 1]. The relevant portion of the AOPG, titled "Rating Practices and Procedures -- Disability -- Vietnam Defoliant Exposure," states:
Claims for service-connected disability benefits are being received from veterans who claim disability incurred through or aggravated by exposure to defoliants used during the Vietnam War.
Except for a skin condition known as chloracne, there are presently no firm data to incriminate the herbicides as causative agents of any other known category of disease or chronic symptom. However, a contaminant Dioxin, found in small quantities in defoliants is toxic.
No special procedures will be initiated for these claims. Instead, each case will receive a thorough development of all available evidence. This will include a request to both the veteran and the service department to furnish verification of exposure to herbicides, the extent and durations thereof and the dates on which such exposure occurred.
All other required development will be done concurrently with the request for verification of exposure to defoliants, and each case will be extended the same consideration given any other claim for service connection.
[Dkt. 23, Ex. A]. These provisions for "rating practices and procedures," in plaintiffs' submission, amounted to the announcement of a rule that required VA adjudicators to deny Agent Orange claims for diseases other than chloracne. Their argument focuses on a single sentence -- "Except for a skin condition known as chloracne, there are presently no firm data to incriminate the herbicides as causative agents of any other known category of disease or chronic symptom" -- and on the fact that, while the AOPG was in effect, agency adjudicators denied every single Agent Orange-related claim that was for a disease or condition other than chloracne. [Dkt. 27 at 6].
Plaintiffs' suit had been pending here for nearly five years when Congress enacted the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (Oct. 24, 1984) ("Dioxin Act"). That statute required the VA to create an advisory committee of scientists, and, after receiving the committee's advice, to promulgate regulations based on "sound scientific and medical evidence" identifying diseases that should be deemed presumptively service connected. 38 U.S.C. § 354(3)(1984). Pursuant to the Dioxin Act, on August 26, 1985, the VA promulgated a final regulation that went into effect in September 1985. 50 Fed. Reg. 34,452, 34,458 (Aug. 26, 1985) (codified at 38 C.F.R. § 3.311a (1985)). In that regulation, the VA authorized presumptive service connection only for chloracne. See Williams v. Principi, 15 Vet. App. 189, 192 (2001) (discussing history of Agent Orange compensation). In 1989, the U.S. District Court for the Northern District of California invalidated the regulation, holding the VA had acted contrary to the Dioxin Act in requiring more evidence than statistical correlation to establish the causal relationship needed for a disease to be the subject of presumptive service connection. Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1418 (N.D. Cal. 1989). The Nehmer litigation, brought as a class action, required the VA to conduct a new rulemaking and voided all denials issued from 1985 until 1989 that had been based on the invalidated regulation.
In 1991, Congress disbanded the VA's internal scientific advisory committee and instead required the VA to work with the National Academy of Sciences in promulgating new Agent Orange regulations. See 38 U.S.C. § 1116(b). Since then, the VA has issued many liberalizing regulations that presumptively service ...