Robert H. Gray v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 500
| Vet. App. | 2015Background
- Veteran Robert H. Gray served aboard the USS Roark in 1972; deck logs show anchoring in Da Nang Harbor and operations "off the Cua Viet River mouth," but Gray never set foot in Vietnam.
- Gray sought VA disability benefits for diabetes (and secondary conditions), claiming presumptive service connection based on herbicide exposure while his ship anchored in Da Nang Harbor.
- The RO and Board denied presumptive service connection, relying on VA policy treating Da Nang Harbor as "blue water" (offshore) not an "inland waterway," so presumptive exposure to herbicides was not established.
- Gray appealed, arguing VA's classification of Da Nang Harbor as blue water is arbitrary and capricious, that equal protection is violated because another veteran's case treated Da Nang as inland waterway, and that the UN Convention definition (as used in United States v. Louisiana) should govern.
- The Court reviewed whether VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) (defining ‘‘served in the Republic of Vietnam’’) is entitled to deference and whether VA's designation of Da Nang Harbor is consistent with the regulation's purpose (probability of herbicide exposure).
- The Court affirmed denial of hypertension (not a presumptive condition) but vacated and remanded the remaining claims, finding VA's designation of Da Nang Harbor as blue water irrational and inconsistent with the regulation's exposure-based purpose.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA's designation of Da Nang Harbor as offshore (blue water) is arbitrary or capricious | Gray: VA's policy lacks legal justification; designation rests on "ease of entry" not exposure risk; thus arbitrary | Sec'y: VA's blue/brown water line is reasonable, entitled to deference under Haas; VA guidance consistently excludes Da Nang Harbor | Court: VA's designation is inconsistent with regulation's purpose and irrational; not entitled to Auer deference; vacated and remanded for reconsideration |
| Whether the Court should adopt the U.N. Convention definition of "inland waterways" (as in United States v. Louisiana) | Gray: Convention definition would classify Da Nang Harbor as inland water and entitle him to presumption | Sec'y: Louisiana's use of the Convention was specific to the Submerged Lands Act and not binding here; VA discretion governs | Court: Declined to adopt Convention definition; refused to usurp agency authority; remanded for VA to exercise fair, exposure-focused judgment |
| Equal Protection / disparate treatment based on a November 2009 Board decision finding Da Nang an inland waterway | Gray: Another Board decision applied the presumption for a similar veteran, so Gray was treated differently | Sec'y: Board decisions are not precedential; Haas provides rational basis for VA policy | Court: November 2009 decision’s facts unclear; Gray not shown similarly situated; equal protection claim fails |
| Adequacy of Board's reasons and bases regarding deck logs and possible presence at Cua Viet River mouth | Gray: Even if Harbor classified blue, deck logs referencing Cua Viet River mouth could trigger presumption; Board gave inadequate explanation | Sec'y: Board followed VA policy and guidance | Court: Noted Board failed to address reasonably raised river-mouth evidence; remand required for proper consideration |
Key Cases Cited
- Haas v. Peake, 525 F.3d 1168 (Fed. Cir.) (deference to VA on limiting presumption to landmass and inland waterways; foundation for blue- vs. brown-water distinction)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for reviewing agency statutory interpretations)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency's interpretation of its own ambiguous regulation)
- United States v. Louisiana, 394 U.S. 11 (1968) (adoption of U.N. Convention definition for purposes of the Submerged Lands Act)
- Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352 (Fed. Cir.) (deference considerations for agency interpretations first advanced in litigation)