from the United States Court of Appeals for Veterans Claims
in No. 15-4082, Judge Coral Wong Pietsch.
Melanie L. Bostwick, Orrick, Herrington & Sutcliffe LLP,
Washington, DC, argued for claimant-appellant. Also
represented by Thomas Mark Bondy, Robert Manhas; Matthew R.
Shahabian, New York, NY; John B. Wells, Law Office of John B.
Wells, Slidell, LA.
Peter Bruskin, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Joseph H. Hunt,
Robert E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian D.
Griffin, Brandon A. Jonas, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
Catherine Emily Stetson, Hogan Lovells U.S. LLP, Washington,
DC, for amici curiae National Organization of Veterans'
Advocates, Inc., Paralyzed Veterans of America, Military
Officers Association of America, AMVETS, Veterans and
Military Law Section, Federal Bar Association. Also
represented by William David Maxwell. Amicus curiae National
Organization of Veterans' Advocates, Inc. also
represented by Chris Attig, Attig Steel, PLLC, Little Rock,
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, for amicus curiae Joseph A. Taina.
R. Bergmann, Bergmann Moore, LLC, Bethesda, MD, for amicus
curiae The American Legion. Also represented by James Daniel
K. Drake, The Veterans Clinic at The University of Missouri
School of Law, Columbia, MO, for amicus curiae National Law
School Veterans Clinic Consortium.
Hines, Finnegan, Henderson, Farabow, Garrett & Dunner,
LLP, Washington, DC, for amicus curiae Disabled American
Veterans. Also represented by Charles Collins-Chase, Sean
Damon, Ronald Lee Smith.
Stanley Joseph Panikowski, III, DLA Piper LLP (US), San
Diego, CA, for amici curiae Blue Water Navy Vietnam Veterans
Association, Association of the United States Navy, Fleet
Reserve Association. Also represented by Jacob Anderson, Erin
Stephen Blake Kinnaird, Paul Hastings LLP, Washington, DC,
for amici curiae National Veterans Legal Services Program,
Veterans of Foreign Wars of the United States. Amicus curiae
National Veterans Legal Services Program also represented by
Barton F. Stichman, National Veterans Legal Services Program,
Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley,
Reyna, Wallach, Taranto, Chen, and Stoll, Circuit Judges.
Procopio, Jr., appeals a decision of the Court of Appeals for
Veterans Claims denying service connection for prostate
cancer and diabetes mellitus as a result of exposure to an
herbicide agent, Agent Orange, during his Vietnam War-era
service in the United States Navy. Because we hold that the
unambiguous language of 38 U.S.C. § 1116 entitles Mr.
Procopio to a presumption of service connection for his
prostate cancer and diabetes mellitus, we reverse.
1991, Congress passed the Agent Orange Act, codified at 38
U.S.C. § 1116, granting a presumption of service
connection for certain diseases to veterans who "served
in the Republic of Vietnam":
[A] disease specified in paragraph (2) of this subsection
becoming manifest as specified in that paragraph in a veteran
who, during active military, naval, or air service, served in
the Republic of Vietnam during the period beginning on
January 9, 1962, and ending on May 7, 1975; and [B] each
additional disease (if any) that (i) the Secretary determines
in regulations prescribed under this section warrants a
presumption of service-connection by reason of having
positive association with exposure to an herbicide agent, and
(ii) becomes manifest within the period (if any) prescribed
in such regulations in a veteran who, during active military,
naval, or air service, served in the Republic of
Vietnam during the period beginning on January 9, 1962,
and ending on May 7, 1975, and while so serving was exposed
to that herbicide agent, shall be considered to have been
incurred in or aggravated by such service, notwithstanding
that there is no record of evidence of such disease during
the period of such service.
38 U.S.C. § 1116(a) (emphasis added). Under §
1116(f), such a veteran "shall be presumed to have been
exposed during such service to [the] herbicide agent . . .
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
1993, the Department of Veterans Affairs issued regulations
pursuant to § 1116 that stated "'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) (1993)
("Regulation 307"). In 1997 in a General Counsel
opinion about a different regulation, the government
interpreted Regulation 307 as limiting service "in the
Republic of Vietnam" to service in waters offshore the
landmass of the Republic of Vietnam only if the service
involved duty or visitation on the landmass, including the
inland waterways of the Republic of Vietnam,
("foot-on-land" requirement). Gen. Counsel Prec.
27-97 (July 23, 1997); 62 Fed. Reg. 63, 603, 63, 604 (Dec. 1,
of this court considered the government's interpretation
of § 1116 in Haas v. Peake, 525 F.3d 1168 (Fed.
Cir. 2008). Mr. Haas had served in waters offshore the
landmass of the Republic of Vietnam but was denied §
1116's presumption of service connection because he could
not meet the government's foot-on-land requirement.
Id. at 1173. Accordingly, we were asked to decide
whether "serv[ice] in the Republic of Vietnam" in
§ 1116 required presence on the landmass or inland
waterways of the Republic of Vietnam. Id. at 1172.
applied the two-step framework of Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984), to § 1116 and Regulation 307. At
Chevron step one, the Haas court held that
§ 1116 was ambiguous as applied to veterans who, like
Mr. Haas, served in the waters offshore the landmass of the
Republic of Vietnam but did not meet the foot-on-land
requirement. 525 F.3d at 1184. At Chevron step two,
the Haas court held Regulation 307 was "a
reasonable interpretation of the statute" but itself
ambiguous. Id. at 1186. It then "[a]ppl[ied]
the substantial deference that is due to an agency's
interpretation of its own regulations" under Auer v.
Robbins, 519 U.S. 452, 461-63 (1997), to uphold the
government's interpretation of Regulation 307, i.e., the
foot-on-land requirement. Id. at 1195. See also Haas
v. Peake, 544 F.3d 1306 (Fed. Cir. 2008).
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. Diabetes mellitus is
listed in the statute under paragraph (2) of § 1116(a),
and prostate cancer is listed in the pertinent regulation, 38
C.F.R. § 3.309(e). 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,
determining it was bound by our decision in Haas.
Mr. Procopio timely appealed.
of this court heard oral argument on May 4, 2018, and on May
21, 2018, the parties were directed to file supplemental
briefs on "the impact of the pro-claimant canon on step
one of the Chevron analysis in this case, assuming
that Haas v. Peake did not consider its
impact." On August 16, 2018, the court sua sponte
ordered the case be heard en banc. We asked the parties to
address two issues:
Does the phrase "served in the Republic of Vietnam"
in . . . § 1116 unambiguously include service in
offshore waters within the legally recognized territorial
limits of the Republic of Vietnam, regardless of whether such
service included presence on or within the landmass of the
Republic of Vietnam?
What role, if any, does the pro-claimant canon play in this
In addition to the parties' briefs, we received seven
amicus briefs. The en banc court heard oral argument on
December 7, 2018.
1116 extends the presumption of service connection to
veterans who "served in the Republic of Vietnam"
during a specified period if they came down with certain
diseases. At issue is whether Mr. Procopio, who served in the
territorial sea of the "Republic of Vietnam" during
the specified period, "served in the Republic of
Vietnam" under § 1116.
sets forth a two-step framework for interpreting a statute,
like § 1116, that is administered by an agency. 467 U.S.
at 842. Step one asks "whether Congress has directly
spoken to the precise question at issue." Id.
"If the intent of Congress is clear, that is the end of
the matter," and we "must give effect to the
unambiguously expressed intent of Congress."
Id. at 842-43. If, on the other hand, "the
statute is silent or ambiguous with respect to the specific
issue," we proceed to Chevron step two, at
which we ask "whether the agency's answer is based
on a permissible construction of the statute."
Id. at 843.
we determine at Chevron 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. Congress chose to use the formal name of the country
and invoke a notion of territorial boundaries by stating that
"service in the Republic of Vietnam" is
included. The intent of Congress is clear from its use of the
term "in the Republic of Vietnam," which all
available international law unambiguously confirms includes
its territorial sea. Because we must "give effect to the
unambiguously expressed intent of Congress," we do not
reach Chevron step two.
1954, the nation then known as Vietnam was partitioned by a
"provisional military demarcation line" into two
regions colloquially known as "North Vietnam" and
"South Vietnam." Geneva Agreements on the Cessation
of Hostilities in Vietnam, art. 1, July 20, 1954, 935
U.N.T.S. 149 ("Geneva Accords"). In 1955, South
Vietnam was formally named, by proclamation of its president,
the "Republic of Vietnam." Provisional
Constitutional Act Establishing the Republic of
Viet-Nam, Oct. 26, 1955, reprinted in A.W. Cameron
(ed.), Viet-Nam Crisis: A Documentary History, Volume I:
law uniformly confirms that the "Republic of
Vietnam," like all sovereign nations, included its
territorial sea. This was true in 1955 when the
"Republic of Vietnam" was created. Geneva Accords
at art. 4 (extending the provisional military demarcation
line into the "territorial waters"). And this was
true in 1991 when Congress adopted the Agent Orange Act. In
1958, the United States entered into the Convention on the
Territorial Sea and the Contiguous Zone ("1958
Convention"), agreeing that "[t]he sovereignty of a
State extends, beyond its land territory and its internal
waters, to a belt of sea adjacent to its coast, described as
the territorial sea." 1958 Convention, art. 1(1), 15
U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29, 1958); see also
United States v. California, 381 U.S. 139, 165 (1965)
(stating the 1958 Convention provides "the best and most
workable definitions available" for defining coastal
boundaries); Legal Issues Raised by the Proposed Presidential
Proclamation to Extend the Territorial Sea, 12 O.L.C. 238,
247 (1988) ("[T]he modern view is that the territorial
sea is part of a nation and that a nation asserts full
sovereignty rights over its territorial sea . . . .").
In 1982, the United Nations Convention on the Law of the Sea
("UNCLOS") echoed the 1958 Convention, stating
"[t]he sovereignty of a coastal State extends . . . to
an adjacent belt of sea, described as the territorial
sea," having a breadth "not exceeding 12 nautical
miles." Part II, arts. 2, 3, 1833 U.N.T.S. 397, 400
(Dec. 10, 1982). And the Restatement of Foreign Relations Law
in effect when the Agent Orange Act was passed provided that
"[a] state has complete sovereignty over the territorial
sea, analogous to that which it possesses over its land
territory, internal waters, and archipelagic waters,"
meaning "[t]he rights and duties of a state and its
jurisdiction are the same in the territorial sea as in its
land territory." Restatement (Third) of Foreign
Relations Law §§ 511, cmt. b, 512, cmt. a (1987);
see also id. ("[I]nternational law treats the
territorial sea like land territory . . . .");
Presidential Proclamation 5928, 103 Stat. 2981 (1988)
("International law recognizes that coastal nations may
exercise sovereignty and jurisdiction over their territorial
all available international law, including but not limited to
the congressionally ratified 1958 Convention, confirms that,
when the Agent Orange Act was passed in 1991, the
"Republic of Vietnam" included both its landmass
and its 12 nautical mile territorial sea. The government
has pointed to no law to the contrary. This uniform
international law was the backdrop against which Congress
adopted the Agent Orange Act. By using the formal term
"Republic of Vietnam," Congress unambiguously
referred, consistent with that backdrop, to both its landmass
and its territorial sea. We also note that the statute expressly
includes "active military, naval, or air service . . .
in the Republic of Vietnam," § 1116(a)(1),
reinforcing our conclusion that Congress was expressly
extending the presumption to naval personnel who served in
the territorial sea. We conclude at Chevron step one
that the intent of Congress is clear from the text of §
1116: Mr. Procopio, who served in the territorial sea of the
"Republic of Vietnam," is entitled to §
no merit in the government's arguments to the contrary.
Its primary argument is that it injected ambiguity
into the term "Republic of Vietnam" prior to the
Agent Orange Act by promulgating two regulations, 38 C.F.R.
§ 3.311a(a)(1) ("Regulation 311") and §
3.313(a) ("Regulation 313"). According to the
government, Regulation 311 imposed the foot-on-land
requirement, but Regulation 313 did not. The government
contends that § 1116 codified both regulations
and that, accordingly, it is ambiguous whether Congress
intended to impose the foot-on-land requirement. We are not
311 created a presumption of service connection for chloracne
and later soft-tissue sarcomas for veterans who served in
"the Republic of Vietnam." It stated:
"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.
313 created a presumption of service connection for
Non-Hodgkin's lymphoma for veterans who served in
"Vietnam." It stated:
"Service in Vietnam" includes service in the waters
offshore, or service in other locations if the conditions of
service involved duty or visitation in Vietnam.
government asks us to infer that Regulation 311 imposed the
foot-on-land requirement, and that Regulation 313 did not.
This distinction is essential to its argument that §
1116, which codified both, is ambiguous. We do not agree. We
do not read Regulation 311, Regulation 313, or even
later-adopted Regulation 307 as articulating the
government's current foot-on-land requirement. And there
is no indication anyone, including the government, did before
§ 1116 was adopted.
311 grants a presumption of service connection for
"service in the waters offshore and service in
other locations, if the conditions of service
involved duty or visitation in the Republic of Vietnam."
Regulation 313 grants the presumption for "service in
the waters offshore, or service in other locations
if the conditions of service involved duty or
visitation in Vietnam." We do not read these minor
grammatical differences to compel the distinction the
government urges. At best, the addition of a comma in
Regulation 311 permits the clause "if the conditions of
service involved duty or visitation in the Republic of
Vietnam" to modify both "service in the waters
offshore" and "service in other locations."
But even if Regulation 311 is so read, it still does not
impose the foot-on-land requirement: it covers everyone whose
service included duty or visitation "in the Republic of
Vietnam," which, under background law, embraces the
the straightforward meaning of the regulation even after
taking full account of the comma. As the government concedes,
the "waters offshore" are broader than the
territorial sea. See Oral Argument at 55:08- 55:19
(government's counsel acknowledging offshore waters
"can also include beyond the territorial seas");
id. at 55:40-56:10 (government's counsel
confirming offshore waters extend beyond the territorial
sea); cf. id. at 2:00- 2:16 (Mr. Procopio's
counsel stating "[t]he offshore water is broader than
the territorial sea . . . and it's an important
difference because a nation is sovereign only in its
territorial sea."). Regulation 311's requirement of
"duty or visitation in the Republic of Vietnam"
brings within coverage only a subset of all those who served
"offshore," namely, those whose service included
presence on land, in the inland waterways, or in the
territorial sea, consistent with international law. That is,
veterans who served in the ...