United States District Court, D. Columbia.
BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, INC., et al., Plaintiffs,
ROBERT A. McDONALD, Secretary of Veterans Affairs, in his official capacity, Defendant
For BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, INC., MILITARY-VETERANS ADVOCACY, INC., Plaintiffs: John B. Wells, LAW OFFICES OF JOHN B. WELLS, Slidell, LA.
For ERIC K. SHINSEKI, Defendant: Daniel Riess, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
TANYA S. CHUTKAN, United States District Judge.
Plaintiffs challenge a Department of Veterans Affairs (" VA" ) policy denying Blue Water Navy Vietnam veterans a presumption that they were exposed to Agent Orange during the Vietnam War. Defendant moves to dismiss the Complaint on a variety of grounds, including that this Court lacks subject matter jurisdiction and that Plaintiffs have failed to state a claim upon which relief may be granted. Upon consideration of the motion, the response and reply thereto, and for the following reasons, the Court grants Defendant's motion to dismiss.
This is an Administrative Procedures Act case brought by two organizations: the Blue Water Navy Vietnam Veterans Association, Inc. and Military-Veterans Advocacy, Inc. These organizations represent Blue Water Navy Vietnam veterans--those veterans who served in deep water vessels off the coast of Vietnam during the war but never actually set foot on Vietnamese soil. Plaintiffs challenge the Secretary of Veterans Affairs' (the " Secretary" ) decision(s) denying a presumption of Agent Orange exposure for Blue Water Navy Vietnam veterans. Without this presumption it is significantly more difficult for Blue Water veterans to receive certain disability benefits from the VA. Unlike ground troops, who receive direct access to these benefits because they are presumed to have been exposed to Agent Orange, Blue Water veterans must prove they were in fact exposed, which is an exceedingly difficult task given the dearth of records regarding Agent Orange use. The denial of the presumption has been reiterated in a number of VA decisions, notices, and manuals, all of which Plaintiffs purport to challenge.
There is a long and complicated history surrounding Agent Orange and the aftermath of its use in the Vietnam War which need not be recounted here. For these purposes, it is enough to begin in 1991, when Congress passed the Agent Orange Act. Pub. L. No. 102-4, 105 Stat. 11. The Act required the VA to develop a list of diseases which were likely caused by exposure to Agent Orange during the Vietnam War. Any veteran " who served in the Republic of Vietnam," 38 U.S.C. § 101(29), would be afforded a presumption that if they developed an enumerated disease, the VA would assume that disease was caused by Agent Orange exposure and the veteran could receive benefits without actually proving they were exposed. 38 U.S.C. § 1116.
Congress did not specify what it meant to have " served in the Republic of Vietnam" in the Agent Orange Act, but the VA has published a series of regulations defining service in Vietnam. The most recent iteration of the relevant regulation states that " '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). The dispute in this case centers on the VA's interpretation of this regulation, and principally whether the clause " if the conditions of service involved duty or visitation in the Republic of Vietnam" modifies only " service in other locations" or also modifies " service in the waters offshore." The difference is important because Blue Water Navy veterans did serve in the waters offshore, but their conditions of service did not involve duty or visitation in the Republic of Vietnam (as that phrase has been interpreted by the VA). If " service in the waters offshore" requires " duty or visitation" in Vietnam, then Blue Water veterans do not receive the presumption; if service offshore does not require " duty or visitation," then Blue Water veterans would receive the presumption and the access to benefits that come with it.
The VA first decided that the presumption of exposure did not apply to Blue Water veterans because they did not " serve in the Republic of Vietnam" pursuant to the Agent Orange Act in a precedential opinion issued by the VA General Counsel in 1997 (the " 1997 GC Opinion" ). A summary of the 1997 GC Opinion was published in the Federal Register later in 1997. 62 Fed.Reg. 63,603 (Dec. 1, 1997). According to Plaintiffs, the 1997 GC Opinion was then incorporated into a final rule published by the VA in 2001. 66 Fed.Reg. 23,166 (May 8, 2001). The 2001 rule added Type 2 diabetes as an enumerated disease under the Agent Orange Act, but also discussed the 1997 GC Opinion and explained:
With respect to offshore service, 38 CFR 3.307(a)(6)(iii) provides that " Service in the Republic of Vietnam" includes service in offshore waters or other locations only if the conditions of service involved duty or visitation within the Republic of Vietnam. In interpreting similar language in 38 U.S.C. 101(29)(A), VA's General Counsel has concluded that service in a deep-water vessel in waters offshore the Republic of Vietnam does not constitute service " in the Republic of Vietnam." (See VAOPGCPREC 27-97). VA's regulatory definition of " Service in the Republic of Vietnam" predates the enactment of section 1116(a)(3) (see former 38 CFR 3.311a(a)(1) (1990)), and we find no basis to conclude that Congress intended to broaden that definition. The commenter cited no authority for concluding that individuals who served in the waters offshore of the Republic of Vietnam were subject to the same risk of herbicide exposure as those who served within the geographic boundaries of the Republic of Vietnam, or for concluding that offshore service is within the meaning of the statutory phrase " Service in the Republic of Vietnam." We therefore make no change based on this comment.
The practical effect of these decisions is felt by individual veterans when they apply for benefits. Officials who process benefits claims use a manual (the M21-1 Manual) which instructs them on VA policy with respect to specific benefits-related issues. The M21-1 Manual includes instructions for how to process Blue Water veterans' claims. The Blue Water instructions first appeared in 2002, when the VA added an instruction that " [a] veteran must have actually served on land within the Republic of Vietnam (RVN) to qualify for the presumption of exposure to herbicides." (Def. Mot. Ex. 1 at 2). This instruction stayed in place until 2008, when the VA made a flurry of changes to the M21-1 Manual as a result of a lawsuit by a veteran challenging the denial of the presumption for Blue Water veterans. When the U.S. Court of Appeals for Veterans Claims held that the VA erred in denying the presumption, the VA rescinded the Blue Water provisions in the M21-1 Manual. 73 Fed.Reg. 20,363 (Apr. 15, 2008). Later that year, the Federal Circuit overturned the Court of Appeals for Veterans Claims in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The VA then reinserted the provision into the 2008 M21-1 Manual, citing the 1997 GC Opinion and instructing that " service in the Republic of Vietnam (RVN) means . . . service in the RVN or its inland waterways, or . . . service in other locations if the conditions of service involved duty or visitation in the RVN." (Def. Mot. Ex. 1 at 10). The VA amended the manual again in 2009 and 2011 to allow Blue Water Navy veterans to receive the presumption if they can show they were on a ship that docked on the shores of Vietnam or operated on the inland waterways or close coastal waters for extended periods. (AR 1737, 1758). The 2011 manual also specifically instructed that " Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the RVN coast does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides, unless the Veteran served as a coxswain and reports going ashore during anchorage." (AR 1759).
Amid continuing pressure to reconsider the denial of the presumption, the VA commissioned a study by the Institute of Medicine of the National Academy of Sciences to analyze whether and to what extent Blue Water Navy veterans were exposed to herbicides during the Vietnam War (the " IOM Study" ). The results of the IOM Study, released in 2011, are vigorously disputed between the parties in this case. The IOM Study found that there is no way to know whether Blue Water Navy veterans were or were not exposed to the same amount of herbicides as ground troops. (Compl. ¶ 38; AR 735-36). Plaintiffs argue that this shows that the VA's exclusion of Blue Water Navy veterans from the presumption is arbitrary and capricious because there is no scientific basis on which to deny them the presumption as compared to ground troops. However, the IOM Study also found that while there is no way to know who got exposed to what, ground troops had more " pathways" to exposure (or potential ways of being exposed) than Blue Water Navy veterans. (AR 735). The VA therefore contends their decision is not arbitrary and capricious because it is more likely that ground troops (and Brown Water Navy troops, or those troops serving in the inland waterways) were exposed than Blue Water troops.
In 2012, the VA published a Notice in the Federal Register summarizing the IOM Study and stating that " the Secretary has determined that the evidence available at this time does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans." 77 Fed.Reg. 76,170 (Dec. 26, 2012). In response, Plaintiffs sent a series of letters to the VA in 2013 asking the VA to overturn its decision. Defendant argues that these letters constituted a petition for rulemaking, and the VA's response was a denial of a petition for rulemaking. (Def. Reply 14). Plaintiffs argue the " demand was not a request for rulemaking but a demand that ...