January 29, 2019

Click to access 17-1821.Opinion.1-29-2019.pdf


United States Court of Appeals For The Federal Circuit – Washington DC

Today the Federal Circuit rejected VA’s long-standing interpretation of  38 USC 1116, that grants a presumption of service connection for certain diseases for veterans who “served in the Republic of Vietnam.”

Appellant – Veteran Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea. Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007 but was denied service connection for both in April 2009.

The Board of Veterans’ Appeals likewise denied him service connection in March 2011 and again in July 2015, finding “[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange,” under § 1116. The Veterans Court affirmed.

The Court reversed and mandated, “Here, we determine at Chevron [Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984)]step one that Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the“Republic of Vietnam,” “served in the Republic of Vietnam.” He did.”

The Court continued, “we see no basis for incorporating a foot-on-land requirement into Regulation 311 [38 CFR 3.311].”  Concluding the Federal Circuit ruled, “international law uniformly confirms that the “Republic of Vietnam” included its territorial sea.”

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