Gray v. Secretary of Veterans Affairs, 875 F.3d 1102

The VA issued a February 2016 revision to its Adjudication Procedures Manual (M21-1) narrowing the definition of "inland waterways" and excluding bays, harbors, and open coastal waters from the statutory presumption of Agent Orange exposure for service "in the Republic of Vietnam."
Petitioners (Gray and Blue Water Navy Vietnam Veterans Association) challenged the revision under 38 U.S.C. § 502, seeking preenforcement judicial review of the Manual change as an interpretive rule of general applicability.
The M21-1 Manual is an internal adjudication guidance document available publicly but not published in the Federal Register; it is not binding on the Board of Veterans’ Appeals, though Regional Office adjudicators follow it in processing most claims.
The Veterans Court previously remanded Gray’s individual claim and criticized VA’s earlier ad hoc definitions of inland waterways; VA then revised the Manual after reviewing evidence and comments.
The court considered whether the Manual revision is reviewable under § 502 by reference to 5 U.S.C. § 552(a)(1) (publication of statements of general policy/interpretations) or whether it falls under § 552(a)(2) (staff manuals and unpublished interpretations), which would bar preenforcement review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the VA’s M21-1 revision is reviewable under 38 U.S.C. § 502 via 5 U.S.C. § 552(a)(1) (i.e., an "interpretation of general applicability")	Gray: The Manual revision functions as an interpretive rule of general applicability that adversely affects an entire class of Vietnam veterans and therefore must be published and is reviewable.	VA: The Manual is an administrative staff manual/unpublished interpretation falling under § 552(a)(2), so it is not subject to preenforcement review under § 502; any challenge must be made in individual appeals or by petitioning for rulemaking.	The court dismissed for lack of jurisdiction: the Manual revision falls under § 552(a)(2) (staff manual/unpublished interpretation) and not § 552(a)(1), so § 502 does not authorize preenforcement review.

Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (elements for establishing service connection)
Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (nexus requirement described)
Haas v. Peake, 525 F.3d 1168 (Fed. Cir.) (review of VA position excluding open waters from Vietnam presumption)
Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir.) (M21-1 Manual revisions held nonreviewable under § 502; controlling precedent here)
Molycorp, Inc. v. EPA, 197 F.3d 543 (D.C. Cir.) (factors for determining whether agency action partakes of the force of law)
LeFevre v. Sec’y, Dep’t of Veterans Affairs, 66 F.3d 1191 (Fed. Cir.) (agency actions with practical impact on veterans reviewable)
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (U.S.) (interpretive rules in manuals lack force of law and receive different weight)