Analysis of the CAVC Ruling in Gray v. McDonald
On April 23, the Court of Appeals for Veteran Claims made a ruling in Gray v. McDonald. Mr. Gray's claims were Vacated and Remanded "for further proceedings consistent with this decision." What exactly was the decision? I'm afraid that's a bit disappointing.
Among other things, the CAVC included the following statements or concepts in their write-up:
- "...the Court finds that, with respect to Da Nang Harbor, the manner in which VA defines inland waterways is both inconsistent with the regulatory purpose and irrational."
- "...they do not explain how VA's designation of Da Nang Harbor relates to the probability of exposure based on herbicide use."
- Regarding the IOM Report of 2011 (Blue Water Navy Vietnam Veterans and Agent Orange Exposure), "...the general and inclusive nature of the report falls short of the Secretary's assertion that the report specifically "confirmed" that there was no likelihood of exposure to herbicide in Da Nang Harbor." [Note: This is in keeping with and supports the Blue Water Navy Association's Call for Public Censure of the VA because this was announced in a December 26, 2012 Notice in the Federal Register.]
- "Absent a connection to the probability of exposure based on spraying, the Court finds the rationale supporting VA's designation of Da Nang Harbor is inconsistent with the regulation's purpose of compensation based on the probability of exposure."
- " ...the Secretary's concession at oral argument that a river mouth does not have definite boundaries..."
- "The Court declines to usurp the Agency's authority and impose its own line. Rather, the Court will vacate the Board decision on appeal as arbitrary and capricious because the decision was based on VA's flawed interpretation of 38 CFR 3.307(a)(6)(iii). The Court will remand the matter for VA to reevaluate its definition of inland waterways - particularly as it applies to Da Nang Harbor - and exercise its fair and considered judgment to define inland waterways in a manner consistent with the regulations emphasis on the probability of exposure."
So, basically, what comes out of this is:
1) The court rejected the VA's definitions and distinctions of inland waterways and river mouths;
2) But the Court is allowing VA to rethink and redefine inland waterways and river mouths as based on consistent and well-defined criteria.
At this time, BWNVVA has the following observation: the CAVC acknowledged that the VA's rulings identifying inland water and river mouths based on current definitions are "arbitrary and capricious" but it avoided directing the VA to follow some specific CAVC-defined rules. By handing this back to the VA, they are granting the VA some slack that is, in our opinion, unwarranted. So the VA gets another crack at developing regulations that possibly continue to work against the veteran but are more to the liking of the CAVC.
See the CAVC Documents here: CAVC Website under Orders and Opinions -> Recent Decisions. 13-3339 - Robert H. Gray vs. Robert A. McDonald
John Rossie, Executive Director
Blue Water Navy Vietnam Veterans Association