Well, now. Wash my mouth out with vodka. Ain’t that a breath of fresh air from the Fed Circus? Who wouldda thunk it? Well, not a hell of a lot of us logical, thinking-like-scientists types but that isn’t the problem. Congress, in its infinite wisdom, granted us 38 U.S.C. § 1116 (myself included), the Holy Herbicide Presumptive in 1991. VA sought to give it a haircut and reduce the number of freeloaders in succeeding years. They enlisted the Office of General Counsel (OGC) to play the game of what the word “Is” was. This was, of course, about the same time Clinton was getting Presidential Lewinskys. It wasn’t but two years later Old Willy was forced to resort to that  “is” line of defense, too. Didn’t work then and it didn’t work this week any better.

Albert Procopio, Jr. was a Blue Water Squid who served on one of those flat things they land airplanes on out in the middle of the ocean. We could have handled it on shore with the United States Air Force but you know wars. Everybody has to test out their new M 60s, M 16s and M 79s… and A1Es. The Navy wanted their crack at some Air Medals and wasn’t about to let the Air Force pukes take all the credit.

Here’s the decision:

http://www.cafc.uscourts.gov/node/24300

Alberto came down with a few of these Agent Orange-type problems and filed for them. Unfortunately, Eugene Haas had already occurred (2008) so Al’s chances were slightly less than an ice cube in the 4th Circle of Dante’s Bar and Grill down below. Nevertheless, he kept on whacking at the VA piñata. He had more theories than a cat has lives and then a few.

1. It was on the mailbags that came ashore on the courier flight.
2. It was on the wheels of the mail courier flight which means it was on the flight deck where the Almeister jogged.
3. It was on the flight suits of the mail courier pilots and by golly they were washed in the same water system that the courier pilots showered in. Well, hey. There you go. Smokin’ gun, dude.
4. Then there was a theory about the reverse osmosis fresh water system possibly being contaminated with dioxin.
5. Then the theory that all those A4s had flown through the mist of the herbicide being sprayed by C 123 slow movers. Yeah. C 123s spraying herbicide in downtown Hanoi on the Paul Doumer Bridge. You know how that works. Someone screws up the Operation Ranchhand Frag Order and all of a sudden, there they are- right in the middle of a gaggle of A 4s cleared in hot on a bombing mission. According to Al, this happened frequently. He could even smell the residue on the aircraft and see an orange sheen on the fuselage when they landed. That’s how he knew he, himself, was contaminated and that’s why he had that prostrate cancer and The Diabetus.

As usually happens when we get older, some of us come down with prostate cancer, DM II and a heavy dose of Ischemic Heart Disease. Vet’s call IHD Micky D Heart. The problem, according to scientists (and Vets) is that an inordinately huge number of us Vietnam Vets seem to come down with these and a high incidence of Parkinson’s… and about 14 other cancers, leukemia-shucks, the list goes on and on.

In fact, Albert Procopio is right. A lot of Blue Water Squids come down with a lot of these things but maybe not in the same large numbers as those of us who actually got the red clay between our toes. Folks on land seem to have a bunch more cancer, too.

It culminated in the Hasse decision back in 2008 and we figured this was a dry hole. Sure,  Congress was getting prodded by all the Vets (who vote and are easy marks for campaign contributions) to pass a new Statute to bring in the Blue Water Boys Presumptive coverage but that legislation just wasn’t sailing merrily along the Bounding Main. In fact, the U.S. Senate and even VA Secretary Robert (Call me Bob II) Wilkie weren’t giving Blue Water a thumbs up. And then along comes the Fed. Circus and wipes the slate clean by  reading the Geneva Conventions lingo in a favorable (read correct) light. Hey, if Congress spoke clearly and concisely, and the VA Secretary embodied that into the contemporary regulations, where was the beef at the time (1991)?

As most of you know, I was not very pro-Procopio. It’s not that I don’t like Squids.  I didn’t think he was entitled to service connection to herbicide exposure for scientific reasons which, I feel, still ring true. Dioxin is a heavy metal and sinks to the bottom of any liquid it encounters- like the South China Sea, for example. Mr. Procopio began by grasping at flimsy precepts and then moved on to everything short of alien abduction. Turns out all he had to do was go to the Geneva Conventions books and look up the definitions of what constitutes a Nation-even if it ceased to exist in 1975. Remember, Congress spoke in 1991. They used the generally accepted terminology to encompass the territorial seas adjacent to the land mass of the former Republic of South Vietnam. The problem decided this week arose about a decade later in 2001 when VA began to gerrymander the meaning of the statute. It might have succeeded if VA had begun their regulatory gerrymandering immediately after Congress passed §1116. It was another thing entirely to come back 10 years later and suddenly take the Chevron/Auer machete to eviscerate what Congress said.

Judge Alan Lourie

The best analysis comes from the two concurring justices who wrote separately- Judges Lourie and O’Malley. First a few vignettes from Lourie which really nail it.

I instead agree with the court in Haas,  and the dissent, that
“served in the Republic of Vietnam” is ambiguous under
Chevron step one. The statute entitles a veteran to a
presumption of service connection for certain diseases if
the veteran “served in the Republic of Vietnam.” 38
U.S.C. § 1116(a). That qualification does not tell us
whether offshore waters are or are not included. Thus, as
to that issue, the statute surely is ambiguous.

I also agree with the Haas court that under Chevron
step two, the regulation promulgated by the agency
reflects a reasonable interpretation of the statute. However, unlike the court in Haas, I would hold that the agency’s interpretation of its regulation is not owed any deference as generally required by Auer v. Robbins because the regulation is not ambiguous, see Christensen (“Auer deference is warranted only when the language of the regulation is ambiguous.”).

The agency’s regulation states that “‘[s]ervice 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)
In interpreting the regulation, we need not resort to
international definitions of national sovereignty over
waters adjacent to land or to the pro-veteran canon; we
should simply read the plain language of the regulation.
And, the plain reading of this inclusive regulation specifies that service in the Republic of Vietnam includes (1) “service in the waters offshore” and (2) “service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” Id. Thus, a veteran who served in the “waters offshore” is included within the meaning of “service in the Republic of Vietnam” and entitled to presumptive service connection.

Judge Kathleen M. O’Malley

Judge O’Malley’s concurrence, on the other hand, is, to me, the coup d’ grace.  Here’s a few verbal snapshots of her take on it. Hey. I like it. To me, Veterans are a protected class or- should be. We comprise less than 3% of America at any given time. When the shit hits the fan, Americans sure don’t call Ghostbusters, now do they?

I write separately because I believe the pro-veteran canon of construction adds further support to the majority’s conclusion. Specifically, I write to explain that:

(1) the pro-veteran canon, like every other canon of statutory construction, can and should apply at step one of Chevron to help determine whether a statutory ambiguity exists;
and,

(2) even when a statute remains irresolvably ambiguous, when a choice between deferring to an agency interpretation of that statute—or particularly where that interpretation is itself ambiguous—and resolving any ambiguity by application of the pro-veteran canon come to a head, traditional notions of agency deference must give
way.

 The Supreme Court has made clear that courts are obligated to apply all traditional tools of statutory interpretation at step one of Chevron.  Indeed, “we owe an agency’s interpretation of the law no
deference unless, after ‘employing traditional tools of statutory  construction,’ we find ourselves unable to discern Congress’s meaning.”…And [here,] that is missing: the canon against reading conflicts into statutes is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed, is more than up to the job of solving today’s interpretive puzzle. Where, as here, the canons supply an answer, Chevron leaves the stage.”

I believe this says it in no uncertain terms.

The Supreme Court first articulated this canon in Boone v. Lightner to reflect the sound policy that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” 319 U.S. 561, 575 (1943). This same policy underlies the entire veterans benefit scheme. Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he veterans benefit system is designed to award entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.”

Boy howdy, how ’bout them apples? Chevron? We don’t need no stinkin’ Chevron! We’re talking about Veterans here, bubba. Which brings me back to Kizor. You just have to know the Supremes are going to be giving Procopio the hairy eyeball and taking the pulse of Chevron/Auer’s misguided reach into Veterans Law. I certainly would.

Last, but not least, thank you Mr. Procopio, for hanging in there. I’m sure Mr. Wells and  you never in a million years thought you’d catch any air with that ‘bombing downtown Hanoi with AO’ theory of exposure crap. Or maybe you did…………….. The mail courier flight thing was innovative but one hell of a stretch. No, you won because an en banc majority of the Fed. Circus knows how to read what Congress wrote. And even worse- what the VA Secretary compounded with interest until he tried to backtrack. Every time we have one of these brouhahas, it always comes down to what the meaning of “is” is. Veterans invariably end up with the short straw in this remunerations game. It’s refreshing to see a Tribunal finally recognize we aren’t lower than whale shit.

I was wrong as wrong can be on this one. I myopically viewed it from only one perspective-science. Thank goodness for Amicus Curiae opinions.  And may I say I have never been so overjoyed as I am today for my Squid Brothers. The funny thing is I bet a lot of these servicemen went ashore to Vung Tau  for R&R or flights to Australia for their R&R. Unfortunately, the Navy was not forthcoming in providing evidence of these R&R expeditions.

Lastly, I’ve always wondered who would want to get on a boat with no women for aeons at a time. Maybe these guys had domineering mothers or older sisters and wanted to take a break. Maybe their dads were Navy and they felt some obligation to carry on the tradition. As we say in the Air Force, why paddle or walk when you can fly?

And that’s all I’m going to say about that.