diabetes Here It Is Blue Water Ao Vets!

[Berta]

http://bluewaternavy.org/claims/exposureruling.pdf

Have not read it read- 29 pages long-

From Ray B. Davis----Veterans Resourses and vets-

Ray makes excellent points here however:

VETERANS RESOURCES NETWORK

http://www.valaw.org

Dear Readers,

Below is a Veterans Court Ruling from Aug. 16, 2006; Haas v

Nicholson, Posted at:

http://bluewaternavy.org/

wherein the Court ruled several things:

1. that a veteran which served in the waters off South Vietnam during

the Vietnam war, could receive the presumption of exposure to agent

orange under the M-21 manual provisions as they were in 2001, which

allowed the presumption for those awarded the Vietnam Service medal.

And this ruling is based on the fact that the VA did not provide a

period of comment on their M-21 manual changes concerning the Vietnam

Service medal, as required by the Administrative Procedures Act.

2. that the US Code 38 1116 (f) is ambiguous as to the

phrase: "Service in South Vietnam".

3. That 38 USC 1116 (f) does not by it's terms limit the presumption

only to to those who set foot on South Vietnam soil.

The VA could appeal this ruling, and when they do change the M-21

with the proper period of public comment? then the VA can make the

rules require setting foot on South Vietnam soil. The VA would also

have to settle any abiguity of 38 USC 1116 (f) with any there

regulations.

Now is the perfect time to apply, or appeal based on Haas v Nicholson.

See complete case copied below by name.

Your Editor,

Ray B Davis jr

http://www.valaw.org

--Court case ---

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-0491

JONATHAN L. HAAS, APPELLANT

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 10, 2006 Decided August 16, 2006 )

Louis J. George, with whom Barton F. Stichman, was on the brief, both

of Washington,

D.C., for the appellant.

William L. Puchnick, with whom Tim S. McClain, General Counsel; R.

Randall Campbell,

Assistant General Counsel; and Brian B. Rippel, Deputy Assistant

General Counsel, all of

Washington, D.C., were on the brief for the appellee.

Before HAGEL, MOORMAN, and LANCE, Judges.

MOORMAN, Judge: The appellant, Jonathan L. Haas, appeals a February

20, 2004, Board

of Veterans' Appeals (Board) decision that denied entitlement to

service connection for

diabetes mellitus, with peripheral neuropathy, nephropathy, and

retinopathy as a result of

exposure to herbicides during his Vietnam-era service. Record (R.) at

11; see STEDMAN'S

MEDICAL DICTIONARY 1211, 1191, 1560 (27th ed. 2000)

(defining "neuropathy" as "a disease

involving the cranial nerves or the peripheral or autonomic nervous

system"; "nephropathy" as "any

disease of the kidney"; and "retinopathy" as "noninflammatory

degenerative disease of the retina").

The Board determined that

Thus,

. The appellant, initially

2

unrepresented, filed an informal brief. After the appellant obtained

counsel in June 2005, both

parties filed supplemental briefs and the appellant filed a

supplemental reply brief. On January 10,

2006, the parties presented oral argument. The Court has jurisdiction

pursuant to 38 U.S.C. §§ 7252

(a) and 7266(a) to review the February 2004 Board decision.

After considering the parties' briefs and oral argument, we hold that

(1)

We further hold (2) that

We hold (3) that

We hold (4) that the provisions of the

We hold (5) that

.

And, finally, we hold (6) that

For these reasons,

I. FACTS

Mr. Haas served on

R. at 15. He later transferred to the Reserve component and

3

retired from the Naval Reserves effective July 1, 1982. R. at 304.

During his entrance examination

in March 1959, Mr. Haas reported a family history of diabetes, but at

that time also stated that he

did not have diabetes mellitus. R. at 22. The examiner noted that Mr.

Haas was in good health. R.

at 23. Throughout his service, Mr. Haas routinely noted a family

history of diabetes during his

physical examinations, but also reported that he did not suffer from

diabetes mellitus. R. at 61, 71,

78, 253. Mr. Haas was hospitalized from October 4, 1967, to October

10, 1967, at the U.S.

Naval Hospital at Subic Bay, Republic of the Philippines, for an

upper respiratory infection and

inflammation of the right foot. R. at 124-25, 500. During his

hospital stay, Mr. Haas was diagnosed

as having "acute gouty arthritis with hyperuricemia," and a horseshoe

kidney with left

pyelocaliectasis. R. at 124; see DORLAND'S MEDICAL DICTIONARY 800,

1392 (27th ed. 1988)

(defining "hyperuricemia" as "excess of uric acid or urates in the

blood; it is a prerequisite for the

development of gout and may lead to renal disease";

and "pyelocaliectasis" as "dilation of the kidney

pelvis and calices"). The results of a glucose test taken at that

time were abnormal. R. at 124, 127.

In an August 1968 service medical report, an examiner reported that

Mr. Haas would have

to undergo further testing to rule out diabetes mellitus. The

examiner further noted that the glucose

tolerance test conducted in October 1967 was "mildly abnormal but not

significantly and may be a

reflection of [Mr. Haas's] obesity." R. at 140. In December 1972, Mr.

Haas was found to be

physically qualified to continue service. Laboratory tests conducted

at that time revealed normal

albumin and sugar levels, and normal serology reports. R. at 192. He

was also deemed physically

qualified for active-duty-for-training service after physical

examinations in May 1973, February

1975, August 1976, and September 1977. R. at 200, 238, 257. He was

disqualified from activeduty-

for-training service in September 1978 after failing to meet weight

requirements. R. at 273.

In February 1981, Mr. Haas requested a transfer to the "retired list

without pay"; his request was

granted and deemed effective July 28, 1981. R. at 298. On July 19,

1982, he was transferred to the

Retired Reserves, effective July 1, 1982. R. at 304.

In August 2001, Mr. Haas submitted an application for VA disability

compensation,

requesting service connection for diabetes mellitus, peripheral

neuropathy, and loss of eyesight,

resulting from "exposure to [A]gent [O]range/radioactive materials"

during his service. R. at 313-

21. He indicated that these disabilities first manifested sometime in

1980 and that he had received

treatment for these conditions at the VA medical center in Phoenix,

Arizona. Id.

4

A sent Mr. Haas a letter in August 2001 informing him that in order

for the

R. at 323-27. In response to this notice,

R. at 329. He reported that

Ammunition ships and tankers did not enter the ports of Vietnam due

to the

risks of explosion due to enemy fire or sabotage." Id.

. R. at 331-32. In May , the Phoenix, Arizona, RO

for diabetes mellitus with peripheral neuropathy,

nephropathy, and retinopathy. R. at 455-60.

In June 2002, Mr. Haas filed a Notice of Disagreement (NOD), and in

December 2002, the

RO issued a Statement of the Case (SOC), maintaining its denial of

his claim on the basis that Mr.

Haas did not have service in the Republic of Vietnam in accordance

with the definition set forth in

VA General Counsel Precedent Opinion (G.C. Prec.) 27-97 (July 23,

1997). R. at 521-39 (the Court

notes that both the RO decision and the SOC refer to a VA General

Counsel precedent opinion that

was published in September 1996; however, the only VA General Counsel

precedent opinions of

record regarding the issue of what constitutes service in the

Republic of Vietnam are G.C. Prec. 7-93

(1993) and G.C. Prec. 27-97 (1997)). Mr. Haas filed an appeal with

the Board in January 2003,

asserting that VA's interpretation of "service in the Republic of

Vietnam," was "arbitrary and

capricious, and . . . contrary to regulation and law." R. at 543.

In July 2003, . R. at 560-71. Mr. Haas

stated that

1. See NavSource Online: Service Ship Photo Archive, AE-16 Mount

Katmai, at

http://www.navsource.org/archives/09/0516.htm (last visited Aug. 10,

2006) (noting the length of

the U.S.S. Mount Katmai as 459 feet).

5

II. CONTENTIONS ON APPEAL

On appeal, the appellant makes three assertions of error. First, he

contends that VA's

regulatory definition of what constitutes

The Secretary first asserts that the term "Republic of Vietnam"

contained in 38 U.S.C.

§ 1116(f) is not ambiguous given the language and the context within

which the statute was enacted;

however, if the Court concludes that the term is ambiguous, then VA's

regulatory definition of what

2. The Court notes that in our recent decision in Pratt v.

Nicholson , __ Vet.App. __, __, No.

04-0451, slip op. at 5 (Aug. 11, 2006), we held that the plain

language of the phrase "in the Republic

of Vietnam," as used in 38 U.S.C. § 1831(2), was sufficiently clear

to resolve the question presented.

Accordingly, we rejected the appellant's claim that the veteran's

service in the San Diego, California,

area qualified the appellant for benefits under 38 U.S.C. § 1805. Id.

Our conclusion in this case that

the statutory language is ambiguous as to service in the waters off

the coast of Vietnam is not in

conflict with Pratt. Rather, these two cases illustrate the principle

that statutory ambiguity is not

an absolute conclusion, but is a case-by-case determination as to

whether the language answers the

particular question presented. Hence, statutory language that plainly

answers one question may still

be ambiguous when applied to another.

6

constitutes service in the Republic of Vietnam is a permissible and

reasonable interpretation of that

language. Second, he maintains that the M21-1 provisions at issue in

this case are interpretive rather

than substantive in nature; thus, they do not have the force and

effect of law and do not dictate an

award of presumptive service connection in this case. The Secretary

asserts that if the Court finds

that the M21-1 provisions are substantive, however, that under any

version of the M21-1 provisions

addressing presumptive service connection for herbicide exposure, the

appellant's own statements

are sufficient to rebut the presumption. Finally, the Secretary

concedes that a remand is necessary

for the Board to consider entitlement to service connection for

diabetes mellitus on a direct serviceconnection

basis.

III. ANALYSIS

A. Standard of Review

At issue in this case is the meaning of the statute and regulations

governing presumptive

exposure to certain herbicide agents as the result of service in the

Republic of Vietnam and what

constitutes "service in the Republic of Vietnam."2 These are

questions of law that the Court reviews

de novo. In deciding these issues, the Court must first analyze the

language of the authorizing

statute and determine "whether Congress has directly spoken to the

precise question at issue."

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842 (1984); see 38 U.S.C.

§ 7261(a) (providing the Court's scope of review); Good Samaritan

Hosp. v. Shalala, 508 U.S. 402,

409 (1993); see also Trilles v. West, 13 Vet.App. 314, 321 (2000) (en

banc). If the text of the statute

speaks unambiguously directly to the question at issue, then "that is

the end of the matter; for the

3. In 1954, pursuant to the Geneva Agreement on Vietnam, the country

was temporarily

partitioned into North and South Vietnam at the 17th parallel; the

northern part was referred to as

the "Democratic Republic of Vietnam," with its capital in Hanoi, and

the southern part was known

as the Republic of Vietnam, with its capital in Saigon. In the 1960s,

U.S. military troops were sent

to South Vietnam to support the Saigon government in maintaining its

independence from North

Vietnam. In 1973, after signing the Paris Agreement, the United

States began to withdraw its troops,

7

[C]ourt, as well as the agency, must give effect to the unambiguously

expressed intent of Congress."

Chevron, 467 U.S. at 842-43; see also Gardner v. Derwinski, 1

Vet.App. 584, 586-87 (1991)

(addressing principles of statutory construction and noting that,

where a statute has a plain meaning,

the Court shall give effect to that meaning), aff'd sub nom. Brown v.

Gardner, 513 U.S. 115 (1994);

see also Meeks v. West, 12 Vet.App. 352, 354 (1999) ("'[E]ach part or

section [of a statute] should

be construed in connection with every other part or section so as to

produce a harmonious whole.'"

(quoting 2A N. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.01

(5th ed. 1992))). If,

however, the statute is silent as to the matter at issue, VA's

attempt at filling that gap "will generally

be sustained as long as it reflects a permissible construction of the

statute." NLRB v. United Food

& Commercial Workers Union, 484 U.S. 112, 123 (1987); see Chevron,

467 U.S. at 842-43; Felton

v. Brown, 4 Vet.App. 363, 370 (1993).

B. Statutory Provision

1. Plain Language of 38 U.S.C. § 1116(f)

Section 1116(f), title 38, of the U.S. Code, provides:

For purposes of establishing service connection for a disability or

death resulting

from exposure to a herbicide agent, including a presumption of

service-connection

under this section, 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, shall be presumed to have been exposed during

such service

to an herbicide agent containing dioxin . . . and may be presumed to

have been

exposed during such service to any other chemical compound in an

herbicide agent,

unless there is affirmative evidence to establish that the veteran

was not exposed to

any such agent during that service.

Id. (emphasis added). The precise question at issue in this case is

the meaning of the phrase "served

in the Republic of Vietnam." There are many ways in which to

interpret the boundaries of a

sovereign nation such as the former Republic of Vietnam, which is now

part of the Socialist

Republic of Vietnam.3 For instance, such boundaries can be defined

solely by the mainland

and in the spring of 1975, the northern and southern parts of Vietnam

were unified. On April 25,

1976, the country, now including both the northern and southern parts

of the territory, was renamed

the Socialist Republic of Vietnam. See Embassy of the Socialist

Republic of Vietnam in the United

States of America, History of Vietnam, at http://www.vietnamembassy-

usa.org/learn_about

_vietnam/history (last accessed Mar. 20, 2006).

8

geographic area. See CIA WORLD FACTBOOK, Vietnam, available at

www.cia.gov/cia/publications

/factbook/geos/vm.html (last visited Mar. 3, 2006) (noting the land

boundaries of Vietnam as 4,369

kilometers). The present boundaries of the Republic of Vietnam can

also be construed to include

the surrounding islands it controls in the Hoang Sa and Truong Sa

archipelagos. See Embassy of

the Socialist Republic of Vietnam in the United States of America,

Maps of Vietnam, at http://www.

vietnamembassy-usa.org/learn_about_ vietnam/geography/maps (last

accessed Mar. 2, 2006). Using

international law principles, the Republic of Vietnam could be

defined further to include its

territorial seas, extending 12 nautical miles from its coastline, or

even as far as its exclusive

economic zone, extending its boundary 200 nautical miles beyond the

coastline, and further to

include its airspace. See United Nations Convention on the Law of the

Sea, Part II, Dec. 10, 1982,

at

http://www.un.org /Depts/los/convention_agreements/texts /unclos/closi

ndx.htm (last visited Mar.

2, 2006) ("The sovereignty of a coastal State extends, beyond its

land territory and internal waters

and, in the case of an archipelagic State, its archipelagic waters,

to an adjacent belt of sea, described

as the territorial sea. This sovereignty extends to the air space

over the territorial sea as well as to

its bed and subsoil."); see also United Nations Convention on the Law

of the Sea, Participants, at

http://untreaty.un.org/ENGLISH/bible/englishinternetbible/

partI/chapterXXI/treaty6.asp (last

visited Mar. 2, 2006) (noting that the Republic of Vietnam signed the

Convention on Dec. 10, 1982,

and ratified it on July 25, 1994); cf. United Nations Convention on

the Territorial Sea and the

C o n t i g u o u s Z o n e , A p r . 2 9 , 1 9 5 8 , P a r t i c i p

a n t s , a t

http://untreaty.un.org/ENGLISH/bible/englishinternetbible /partI/chapt

er XXI/treaty1.asp (last

accessed June 30, 2006) (reporting that the United States signed this

treaty on Sept.15, 1958, and

ratified the treaty on Apr. 12, 1961, thus adopting the 12 nautical

mile standard for its territorial

seas, and the 200 nautical mile standard for its contiguous zone).

The appellant argues that the text of this statute is clear, that the

phrase "Republic of

Vietnam" must be read, in accordance with Presidential Proclamation

5928, 54 Fed. Reg. 777 (Jan.

9

9, 1989) to include both the nation's land mass and territorial seas.

Appellant's Supplemental Brief

at 6 (noting that the territorial sea of a sovereign nation extends

12 nautical miles). The appellant

argues that the Court must presume that when Congress enacted section

1116(f), it knew the "widely

accepted territorial definition of a sovereign country," and that by

using the phrase "in the Republic

of Vietnam," it intended to adopt that definition. Id. In response,

the Secretary maintains that

because the regulation first defining "service in the Republic of

Vietnam" (38 C.F.R. § 3.311a(a)(1)

(1985)), predated the enactment of 38 U.S.C. § 1116(f), the Court

must presume that Congress was

aware of VA's then-extant regulatory provision, and therefore, it is

rather the agency's regulatory

definition that Congress must have intended to adopt.

The Court notes, however, that at the time section 1116(f) was

enacted in 1991, there were

two extant VA regulations defining "service in the Republic of

Vietnam." Compare 38 C.F.R.

§ 3.311a(a)(1) (1985) (defining "service in the Republic of Vietnam"

as "includ[ing] service in the

waters offshore and service in other locations, if the conditions of

service involved duty or visitation

in the Republic of Vietnam"), with 38 C.F.R. § 3.313 (1990)

(entitled "Claims based on service in

Vietnam" and defining "service in the Republic of Vietnam" as

including "service in the waters

offshore, or service in other locations if the conditions of service

involved duty or visitation in

Vietnam"). Based on the different syntax and punctuation used in

these regulations supposedly

using the same definition for Vietnam-era service, it is easy to see

how one could interpret and apply

this definition differently in practice. For example, based on the

placement of the comma in

§ 3.311a(a)(1) (1985), the clause "if the conditions of service

involved duty or visitation in the

Republic of Vietnam" can be read to modify both "service in the

waters offshore" and "service in

other locations," although even that interpretation is not certain to

flow from the language and

syntax. The same clause, however, in § 3.313 "Claims based on service

in Vietnam," based on the

comma placement, can be read to modify only "service in other

locations;" thus, service in the

waters offshore could constitute service in the Republic of Vietnam

regardless of whether the

veteran visited or had duty on land in Vietnam. It is further unclear

what the reader should conclude

from the use of "and" after "waters offshore" in § 3.311a(a)(1), and

the use of "or" after "waters

offshore" in § 3.313. The Court cannot conclude, therefore, based on

these varying definitions, that

Congress intended to adopt either the international law definition as

the appellant contends, or, as

the Secretary asserts, the regulatory definitions extant at the time

that the Agent Orange Act of 1991

10

was enacted. Thus, the Court cannot conclude that the text of the

statute is clear on its face. See

Chevron, supra.

2. Legislative History and Context of 38 U.S.C. § 1116(f)

We must next look to the legislative history of this statute to

discern whether Congress

otherwise specified its intent regarding the meaning of the

phrase "service in the Republic of

Vietnam." See Blum v. Stenson, 465 U.S. 886, 896 (1984) (noting that

discerning Congress's intent

can be accomplished by reviewing the legislative history of a

statute). The meaning of the statute

as a whole also warrants scrutiny. See Moreau v. Brown, 9 Vet.App.

389, 396 (1996) ("t is

fundamental that sections of a statute should not be read in

isolation from the context of the whole

act, and that in fulfilling our responsibility in interpreting

legislation, 'we must not be guided by a

single sentence or member of a sentence, but [should] look to the

provisions of the whole law, and

to its object and policy.'" (quoting Richards v. United States, 369

U.S. 1, 11 (1962))); see also Cottle

v. Principi, 14 Vet.App. 329, 334 (2001); Meeks, 12 Vet.App. at 354;

Talley v. Derwinski,

2 Vet.App. 282, 286 (1992). As noted above, after such review, if the

intent of Congress is unclear,

then we must defer to VA's construction of the statutory term, if it

is a permissible interpretation.

See Chevron, supra; see also Barnhart v. Walton, 535 U.S. 212, 217-18

(2002).

Although current section 1116(f) was not enacted until 1991, in 1983

Congress first

addressed the issue of creating a statutory presumption of service

connection for diseases resulting

from Agent Orange exposure. See Agent Orange Act of 1991, Pub. L. No.

102-4, 105 Stat. 11

(codifying current section 1116(f) at 38 U.S.C. § 316(a)(3)); see

also H.R. REP. NO. 98-592 (1984),

as reprinted in 1984 U.S.C.C.A.N. 4449 (detailing the history of H.R.

1961, the precursor of Public

Law 98-542, the Veterans' Dioxin and Radiation Compensation Standards

Act). In March 1983,

H.R. 1961 was introduced in an effort to "authorize temporary

monetary benefits pending the results

and receipt of the epidemiological study mandated by Public Law 96-

151 for Vietnam veterans who

suffer from soft-tissue sarcoma, porphyria cutanea tarda . . . and

chloracne." 1984 U.S.C.C.A.N.

4449. The 1983 bill, in its original form, would have "provid[ed] a

statutory presumption of serviceconnection

for any veteran who served in Southeast Asia during the Vietnam era

and who later is

shown to have one of the conditions identified in the bill." Id.

(emphasis added). In further

reporting the results of its previous oversight investigations, the

U.S. House Committee on Veterans'

Affairs (hereinafter the Committee) recognized that the main issues

that still needed to be addressed

11

were not the toxicity of the dioxin contained in Agent Orange, but

rather "how much exposure to

the dioxin was experienced by Vietnam veterans, how much exposure can

be expected to produce

long-term health effects, and at what rate, or frequency, if any, are

these effects being experienced

by veterans who served in Southeast Asia." Id. at 4451. Until these

questions could be answered

by the various studies that Congress had mandated in Public Laws 96-

151 and 97-72, the Committee

proposed the temporary payments set forth in H.R. 1961. Id. at 4453.

In October 1984, Congress enacted the Veterans' Dioxin and Radiation

Exposure

Compensation Standards Act, Public Law 98-542, based on H.R. 1961. In

this act, Congress

recognized that there was scientific and medical uncertainty

regarding the long-term effects of

exposure to Agent Orange, and noted that there was evidence that the

diseases chloracne, porphyria

cutanea tarda, and soft tissue sarcoma were associated with herbicide

exposure. See Pub. L. No. 98-

542, §2(2), (5), 98 Stat. 2725 (1984). Further observing that VA had

not promulgated regulations

setting forth guidelines for the adjudication of claims based on

exposure to Agent Orange, and

noting the unique differences between these types of claims and

claims for service connection based

on an injury in service, Congress then authorized VA to "prescribe

regulations to establish

guidelines and (where appropriate) standards and criteria for the

resolution of claims for benefits . . .

[where] the claim of service connection is based on a veteran's

exposure during service . . . in the

Republic of Vietnam during the Vietnam era to a herbicide containing

dioxin." Pub. L. No. 98-542,

§5(a)(1)(A), 98 Stat. 2727 (1984) (emphasis added). Finally, the act

amended 38 U.S.C. § 354,

adding note (a)(1) to allow for "interim benefits for disability or

death in certain cases." This note

provided:

In the case of a veteran –

(A) who served in the active military, naval, or air service in the

Republic of Vietnam

during the Vietnam era; and

(:o who has a disease described in subsection (:P that became

manifest within one

year after the date of the veteran's most recent departure from the

Republic of

Vietnam during that service, the Administrator shall (except as

provided in

subsection ©) pay a monthly disability benefit to the veteran in

accordance with

this section.

Pub. L. No. 98-542, §9, 98 Stat. 2732 (1984) (emphasis added).

12

Although the original bill, H.R. 1961, would have provided the

temporary payment to

Vietnam-era veterans who served in "Southeast Asia," as noted above,

in the provision ultimately

passed by Congress, that term was replaced with "Republic of

Vietnam." Compare H.R. REP. NO.

98-592, as reprinted in 1984 U.S.C.C.A.N. 4449 (noting that the

statutory presumption would be

afforded to veterans "who served in Southeast Asia during the Vietnam

era"), with Pub. L. No. 98-

542, § 9, 98 Stat. 2732 (1984). There is no explanation in the 1984

Committee Report for this

change in the text.

In addition, the 1984 act focused mainly on the promulgation of VA

regulations, to include

the requirement that the regulations be promulgated through the

public review and comment process

dictated by the APA, 5 U.S.C. § 553, and that the regulations

include "a requirement that a claimant

filing a claim based upon . . . exposure to a herbicide containing

dioxin . . . may not be required to

produce evidence substantiating the veteran's exposure during active

military, naval, or air service

if the information in the veteran's service records and other records

of the Department of Defense

is not inconsistent with the claim that the veteran was present where

and when the claimed exposure

occurred." Pub. L. No. 98-542, §5(B)(3)(:), 98 Stat. 2729 (1984). As

related to any regulation

promulgated pursuant to this act, Congress explicitly adopted the

definitions for "Vietnam era,"

"veteran," "service-connected," and "active military, naval, or air

service," as set forth in 38 U.S.C.

§ 101. Pub. L. No. 98-542, § 9(g), 98 Stat. 2733 (1984). The act,

however, did not define what

constitutes "service in the Republic of Vietnam." Id.

In order for the Court to trace further the legislative history of 38

U.S.C. § 1116(f), it is

necessary to briefly discuss the subsequent regulatory actions of the

Secretary following the 1984

act and other subsequent procedural history that prompted further

legislative action on this issue.

Pursuant to the 1984 congressional mandate, in April 1985 VA proposed

38 C.F.R. § 3.311a,

"Dioxin Rule," which became effective on September 25, 1985. This

regulation, among other

things, defined "service in the Republic of Vietnam" as "includ[ing]

service in the waters offshore

and service in other locations, if the conditions of service involved

duty or visitation in the Republic

of Vietnam." See 50 Fed. Reg. 34,452, 34,458 (Aug. 26, 1985). In its

notice of proposed

rulemaking, VA recognized that more than 2.4 million U.S. military

personnel served in Vietnam,

and although it could not pinpoint exactly who may have been exposed

to Agent Orange, it

acknowledged that many of these individuals were deployed in or near

locations where Agent

13

Orange was sprayed. See 50 Fed. Reg. 15,848, 15,849 (Apr. 22, 1985).

Thus, VA stated that

"service in the Republic of Vietnam" would "encompass services

elsewhere if the person concerned

actually was in the Republic of Vietnam, however briefly." Id. The

notice contained no further

indication as to what constituted "actually . . . in the Republic of

Vietnam." Id. VA issued the final

regulation without change, noting further that the presumption was

based on the extreme difficulty

of tracking troop movements to determine exactly who may have been

exposed to Agent Orange.

See 50 Fed. Reg. 34,452, 34,455 (Aug. 26, 1985).

In February 1987, a group of Vietnam-era veterans and surviving

spouses filed a class action

suit in the United States District Court, Northern District of

California, alleging that this final

regulation was invalid because it not only violated provisions of the

1984 act, but in the process of

promulgating the regulation, VA also violated provisions of the APA,

5 U.S.C. §§ 701-706, and the

fifth amendment to the U.S. Constitution. See Nehmer v. U.S.

Veterans' Administration, 712 F.

Supp. 1404, 1410-11 (N.D. Cal. 1989) (noting that the court could

exercise jurisdiction because the

action was filed prior to the enactment of the Veteran's Judicial

Review Act, which vested

jurisdiction over statutory challenges to VA rulemaking filed after

September 1, 1989, with the

Federal Circuit). The court held that the "cause and effect test"

employed by VA in 38 C.F.R.

§ 3.311a(d) to determine the relationship between dioxin exposure and

diseases was inconsistent

with both VA's prior practice and the purpose of the 1984 act. Id. at

1418. The court also held that

the 1984 act required VA to apply the benefit of the doubt doctrine

in the aggregate rulemaking

process. In reaching this conclusion, the court relied on the

statement of Senator Simpson, in which

he asserted that the "[1984] Act was intended to ensure that

veterans 'have their exposure claims

adjudicated under uniform and consistent regulations that incorporate

rational scientific judgments,

as opposed to the prior system, in which the claims are 'committed to

the sound judgment of the

VA's adjudication officers' who decide them on 'a case-by-case

basis.'" Id. at 1422 (citing statement

of Senator Simpson, 130 CONG. REC. S13591 (daily ed. Oct. 4, 1984);

cf. King v. St. Vincent's Hosp.,

502 U.S. 215 (1991) (holding that veterans benefits statutes should

be construed liberally for their

beneficiaries). In its conclusion, the court stated that "[t]he

Administrator both imposed an

impermissibly demanding test for granting service connection for

various diseases and refused to

give veterans the benefit of the doubt in meeting that standard."

Nehmer, 712 F. Supp. at 1423. The

court thus invalidated 38 C.F.R. § 3.311a(d), the portion of the

regulation that denied service

14

connection for all diseases other than chloracne, and voided all

decisions denying benefits under this

regulation. Id.

Following VA's regulatory action and the U.S. District Court's

decision in Nehmer, Congress

ultimately enacted the Agent Orange Act of 1991. See Agent Orange Act

of 1991, Pub. L. No. 102-

4, 105 Stat. 11; see also Statements on Introduced Bills and Joint

Resolutions, Veterans' Agent

Orange Exposure and Vietnam Service Benefits Act of 1989, 135 CONG.

REC. S6413 (daily ed. June

8, 1989) (noting that a proposed bill, S. 1153, establishing

presumptive service connection based on

exposure to Agent Orange, was designed to "complement the efforts

Secretary Derwinski will be

making through the new Agent Orange Regulations . . . . This process

will allow the VA's regulatory

procedure to go forward and give NHL [non-Hodgkin's lymphoma] and STS

[soft-tissue sarcoma]

victims the benefit of the doubt in the meantime."); Amendment to S.

13, The Veteran's Benefits and

Health Care Act of 1989, 135 CONG. REC. S12,628 (daily ed. Oct. 4,

1989). As stated by

Representative Dan Burton, this legislation served to codify a prior

VA administrative decision that

deemed three diseases service connected for compensation purposes.

See 137 CONG. REC. E390-03

(daily ed. Jan. 29, 1991) (statement of Rep. Burton). The 1991 act

also required that the National

Academy of Sciences conduct a comprehensive review of "all the

available and future evidence on

the long-term health effects of exposure" to herbicides, and that the

Secretary, upon receipt of this

review, determine whether "any further presumptions for any disease

should be granted." Id.

Although the 1991 act focused mainly on addressing the issues raised

in Nehmer, supra, it

also codified, in similar form, the 1984 note to 38 U.S.C. § 354 at

38 U.S.C. § 316(a)(3), which

provided:

For the purposes of this subsection, a veteran who, during active

military, naval, or

air service, served in the Republic of Vietnam during the Vietnam era

and has a

disease referred to in paragraph (1)(:) of this subsection shall be

presumed to have

been exposed during such service to an herbicide agent containing

dioxin or 2,4-

dichlorophenoxyacetic acid, and may be presumed to have been exposed

during such

service to any other chemical compound in an herbicide agent, unless

there is

affirmative evidence to establish that the veteran was not exposed to

any such agent

during that service.

Pub. L. No. 102-4, §2, 105 Stat. 111; see also Veterans Education and

Benefits Expansion Act of

2001, Pub. L. No.107-103, § 201©(1)(A) (redesignating provision 38

U.S.C. § 316(a)(3) as

38 U.S.C. § 1116(f)). The legislative history of the 1991 act,

however, is silent concerning what

4. It is noteworthy that the U.S. Supreme Court's decision in Brown

v. Gardner, 513 U.S. at

118, does not appear to apply in this instance. In Terry v. Principi,

the U.S. Court of Appeals for

the Federal Circuit (Federal Circuit) observed that the principle

enunciated in Brown is "a canon

of statutory construction that requires that resolution of

interpretive doubt arising from statutory

language be resolved in favor of the veteran." 340 F.3d 1378, 1384

(Fed. Cir. 2003). The Federal

Circuit then concluded that the canon "does not affect the

determination of whether an agency's

regulation is a permissible construction of a statute." Id.

15

constitutes "service in the Republic of Vietnam." Rather, it

indicates Congress's intent to ensure that

a fair and independent system was established to determine the

relationship between herbicide

exposure and the manifestation of certain diseases. Thus, after

reviewing the plain text of the

statute, in concert with the legislative history of both the 1984 act

and the Agent Orange Act of

1991, the Court cannot conclude that the intent of Congress is so

clear as to require either an

interpretation that "service in the Republic of Vietnam" is limited

solely to Vietnam's mainland, or

that such service necessarily includes service in Vietnam's

territorial seas.

C. VA's Regulatory Provisions

1. Chevron Deference

The Secretary has attempted to resolve the ambiguity in 38 U.S.C. §

1116(f) through

regulation 38 C.F.R. § 3.307(a)(6)(iii), as interpreted in subsequent

VA General Counsel Precedent

opinions 7-93 and 27-97, and M21-1 provisions, dated from 1990. Given

the ambiguity of the

statute, VA is permitted to issue regulations in order to resolve the

ambiguity, subject, however, to

the requirement that such regulations express a permissible

interpretation of the statute.4 If the

regulations meet this test, they will be afforded Chevron deference.

Based on the following, the

Court concludes that the regulation, on its face, is ambiguous

regarding whether service on the land

in Vietnam is required for the presumption to apply.

In defining "service in the Republic of Vietnam" before the Court,

the Secretary has used

interchangeably the definitions in 38 C.F.R. § 3.307(a)(6)(iii) and §

3.313(a), thus implying that

there is no difference in the meaning of this definition as it

appears in the separate regulations.

Compare Secretary's Brief (Sec'y Br.) at 13 (relying on the

construction of §3.313 to define service

in the context of applying the presumption of exposure to

herbicides), with Secretary's Supplemental

Brief (Sec'y Suppl. Br.) at 22 (relying on §3.307(a)(6)(iii)); see

also Auer v. Robbins, 519 U.S. 452,

16

461-62 (1997) (relying on litigation documents to determine agency's

interpretation). Upon

reviewing the construction of these two provisions, however, the

Court cannot conclude the same.

As noted above, for example, 38 C.F.R. §3.307(a)(6)(iii)

defines "service in the Republic of

Vietnam" as including "service in the waters offshore and service in

other locations if the conditions

of service involved duty or visitation in the republic of Vietnam,"

while 38 C.F.R. § 3.313, which

is entitled "Claims based on service in Vietnam," defines such

service as "service in the waters

offshore, or service in other locations if the conditions of service

involved duty or visitation in

Vietnam." (emphasis added). Although similar wording is used in these

regulations, the construction

of both definitions, notably the comma placement in §3.313 and the

use of different conjunctions,

is quite different. When read without the aid of the Secretary's

assertion as to the underlying

meaning of this phrase, it is not clear what kind of service is meant

to be included for application

of the presumption of exposure to herbicides. The varying

constructions of this phrase only serve

to heighten the ambiguity of the regulatory language. Thus, based on

the construction of the

regulations, the Court concludes that the Secretary merely has

replaced statutory ambiguity with

regulatory ambiguity and Chevron deference will not be afforded. See

Smith (Ellis) v. Nicholson,

451 F.3d 1344, 1350 (Fed. Cir. 2006).

In situations such as this, VA's interpretation of its own

regulation "becomes 'of controlling

weight unless it is plainly erroneous or inconsistent with the

regulation.'" Smith (Ellis), 451 F.3d at

1350 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945) and maintaining that

such deference is afforded even in cases where the agency announces

its interpretation in litigation

documents). Further, as the U.S. Supreme Court noted in Martin v.

Occupational Safety and Health

Review Commission, 499 U.S. 144, 150-51 (1991), where "'the meaning

of [regulatory ] language

is not free from doubt,' the [Court] should give effect to [VA's]

interpretation so long as it is

'reasonable,' that is, so long as the interpretation 'sensibly

conforms to the purpose and the wording

of the regulations.'" Id. (quoting Ehlert v. United States, 402 U.S.

99, 105 (1971) and N. Ind. Pub.

Serv. Co. v. Porter County Chapter of Izaak Walton League of Am.,

Inc., 423 U.S. 12, 15 (1975)).

In determining whether VA's interpretation of its regulation

is "reasonable," the Court will consider,

among other things, the "timing and consistency of the agency's

interpretation," Batterton v. Francis,

432 U.S. 416, 425-26 n.9 (1977); see INS v. Cardoza-Fonseca, 480 U.S.

421, 446 n.30 (1987)

(maintaining that an agency's interpretation of a statute or

regulation that conflicts with a prior

17

interpretation is "'entitled to considerably less deference' than a

consistently held agency view"

(quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)));

the "thoroughness evident in its consideration,

[and] the validity of its reasoning," Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944) ("[R]ulings,

interpretations, and opinions . . . while not controlling upon the

courts by reason of their authority,

do constitute a body of experience and informed judgment . . .

properly resort[ed] [to] for guidance.

The weight of such a judgment . . . will depend upon the thoroughness

evident in its consideration,

the validity of its reasoning, its consistency with earlier and later

pronouncements, and all those

factors which give it power to persuade."). For the following

reasons, the Court concludes the

interpretation offered to the Court by VA of its regulatory

definition of what constitutes "service in

the Republic of Vietnam" is inconsistent with prior, consistently

held agency views, plainly

erroneous in light of its interpretation of legislative history, and

unreasonable as an interpretation

of VA's own regulations. Thus, the current interpretation will not be

afforded deference. See

Cardoza-Fonseca, Bowles, and Skidmore, all supra;see also Smith

(Ellis), supra.

2. Inconsistent Regulatory Interpretation

As noted earlier, an "agency's interpretation of a statute or

regulation that conflicts with a

prior interpretation is 'entitled to considerably less deference'

than a consistently held agency view."

Cardoza-Fonseca, 480 U.S. at 446 n.30; see also Se. Cmty. Coll. v.

Davis, 442 U.S. 397, 412 n.11

(1979). After reviewing VA's M21-1 provisions, it is clear to the

Court that the most recent

interpretation of § 3.307(a)(6)(iii), that service in Vietnam

requires that a veteran actually set foot

on land, conflicts with VA's past policy in determining "service in

the Republic of Vietnam" for

application of the presumption of exposure to herbicides.

In November 1991, VA issued M21-1, part III, paragraph 4.08(k)(1)-

(2). This provision

stated:

(1) It may be necessary to determine if a veteran had "service in

Vietnam"

in connection with claims for service connection for non-Hodgkins

lymphoma, softtissue

sarcoma and chloracne. . . . In the absence of contradictory

evidence, "service

in Vietnam" will be conceded if the records shows [sic] that the

veteran received the

Vietnam Service Medal.

(2) If a veteran who did not receive the Vietnam Service Medal claims

service connection for non-Hodgkin's lymphoma, soft-tissue sarcoma or

chloracne

and alleges service on a ship in the waters offshore Vietnam, review

the record for

evidence that the ship was in the vicinity of Vietnam for some

significant period of

18

time (i.e., more than just in transit through the area). If the

veteran cannot produce

evidence that the ship was in the waters offshore Vietnam, contact

the Compensation

and Pension Service Projects Staff. Be prepared to furnish the name

of the ship, the

number of the ship, and the dates that it is alleged to have been in

the waters offshore

Vietnam. Central Office will attempt to obtain confirmation from the

Department

of Defense.

Id.

It appears to the Court that this provision remained in effect

throughout the promulgation and

even after the final publication of 38 C.F.R. § 3.307(a)(6)(iii),

which thus concedes the application

of the presumption based upon the mere receipt of the VSM, without

any additional proof that the

veteran actually set foot on land in the Republic of Vietnam.

Furthermore, even in the absence of

a veteran's receipt of the VSM, this provision requires VA

adjudicators to review the record for

evidence that the veteran's "ship was in the vicinity of Vietnam for

some significant period of time."

Based on this language, it cannot be concluded, as the Secretary

would urge us to conclude, that

VA's longstanding interpretation of what constitutes service in

Vietnam has been to exclude service

in the waters offshore unless the veteran had duty or visitation on

land. If that were the case, there

would be no requirement to examine whether a ship "was in the

vicinity of Vietnam for some

significant period of time" because such evidence would be irrelevant

under the interpretation that

VA now urges on the Court. See Appellee's Opposed Motion to Correct

Mistake at Oral Argument

Dated January 10, 2006, at 2 (asserting that service in Vietnam would

never be conceded under any

provision of the M21-1 if there was "evidence to the contrary,"

including the veteran's own

statements that he never set foot on land in the Republic of

Vietnam); see also M21-1, pt. III, para.

4.08(k)(1)-(2) (Nov. 8, 1991); M21-1, pt. III, para. 4.24(g)(1)-(2),

change 23 (Oct. 6, 1993); M21-1,

pt. III, para. 4.24(g)(1)-(2), change 41 (July 12, 1995); M21-1, pt.

III, para. 4.24(g)(1)-(2), change

76 (June 1, 1999).

Furthermore, this provision was amended in 1995, reflecting the

holding of a 1993 VA

General Counsel precedent opinion in which VA determined that

individuals who participated only

in high altitude flights over the Republic of Vietnam and received

the VSM as a result of such

service would not be entitled to the presumption. See G.C. Prec. 7-93

(maintaining that these

veterans were excluded from the scope of the regulatory definition

because they did not share the

same experiences as those who served in Vietnam or in the waters

offshore of Vietnam). This

19

version of M21-1, part III, paragraph 4.24(g), still allowed for

application of the presumption based

upon the receipt of the VSM and also required VA to conduct

additional development in cases in

which the veteran served on a ship in the waters offshore of Vietnam

but did not receive the VSM,

thus allowing for the inference that the presumption would be

applicable in cases where a veteran

served in the waters offshore of Vietnam and received a VSM for such

service, but never had duty

or visited on land in the Republic of Vietnam as the Secretary now

asserts is required. Compare

M21-1, pt. III, para. 4.24(g)(1)-(2), change 41 (July 12, 1995)

(noting that this version was published

after the publication of § 3.307(a)(6)(iii) (1994)), with 38 C.F.R. §

3.307(a)(6)(iii) (1994) (defining

"service in the Republic of Vietnam"). Thus, it appears that the M21-

1 provision contains additional

criteria not present in the regulation, 38 C.F.R. § 3.307(a)(6)(iii),

that mandate the application of the

presumption of service connection. Therefore, contrary to the

Secretary's arguments, it appears that

it was the longstanding policy of VA to award service connection on a

presumptive basis in cases

in which the veteran served in waters offshore and received the VSM,

without regard to the veteran's

physical presence on land in Vietnam.

3. Plainly Erroneous Regulatory Interpretation

The Court also concludes that VA's current interpretation of its

regulatory definition is based

on a misguided and plainly erroneous review of the legislative

history of 38 U.S.C. § 101(29), which

sets forth the period for Vietnam-era service, and which VA avers

supports its conclusion that

Congress intended to limit the period to cover only "those veterans

who actually served within the

borders of the Republic of Vietnam," and, thus, "service in the

Republic of Vietnam" must also be

limited to those veterans who served on the land mass of Vietnam. See

G.C. Prec. 27-97; see also

Bowles, supra (noting that an agency interpretation of a regulatory

provision controls unless it is

"plainly erroneous or inconsistent"); Smith (Ellis), supra. This

history is set forth in VA General

Counsel precedent opinion 27-97. Although the Board is bound by such

opinions, the Court is not.

See 38 U.S.C. § 7261; see also Theiss v. Principi, 18 Vet.App. 204,

210 (2004).

The statutory provision discussed in VA General Counsel precedent

opinion 27-97,

38 U.S.C. §101(29), was amended in 1996 with the passage of the

Veterans' Benefits Improvements

Act, Pub. L. No. 104-275, § 505, 110 Stat. 3322, 3341 (1996). In

introducing this amendment to the

Senate, Senator Simpson stated that the statutory definition of

Vietnam-era service extant at the time

only covered service from August 5, 1964 (the date of the Gulf of

Tonkin resolution), forward, thus

20

excluding those troops who were in Vietnam as early as February 28,

1961, participating in combat

missions. 142 CONG. REC. S11,774, 11,779 (daily ed. Sept. 28, 1996).

He noted that it was "entirely

appropriate that [VA] benefits be extended to those who actually

faced peril in Vietnam before that

war's 'legal' starting date." Id. Similarly, the Senate reported

that, for the purpose of section 1116(f),

the appropriate period of service would start from January 9, 1962,

the date on which the use of

herbicides and defoliants in Vietnam began. See S. REP. NO. 104-371

(1996), as reprinted in

1996 U.S.C.C.A.N. 3,762, 3,772. Thus, Congress determined

that "benefits that are premised on

presumed exposure to defoliants and herbicides shall be available to

all who served in the Republic

of Vietnam when such materials were present there, but that they not

be extended to those who

served in the Republic of Vietnam only before such materials were

introduced." Id. Thus, contrary

to the Secretary's assertion, this amendment was not based on

Congress's intent to focus solely on

ground forces, but rather it was meant to encompass all veterans who

may have been at risk for

exposure based on the time frame during which those herbicides and

defoliants were sprayed in the

Republic of Vietnam.

Furthermore, even if it is a correct interpretation of section 1116

(f), this VA General Counsel

precedent opinion, limited to a specific type of service – service on

a deep water vessel offshore of

Vietnam – is inapplicable to the appellant's claim. This opinion

cannot be read to further exclude

another type of service that was not contemplated by VA in General

Counsel precedent opinion 27-

97, service such as that described by the appellant in his

uncontradicted testimony, that his ship

sailed in close proximity to the shore, yet he never set foot on

land. Using VA's risk-of-exposure

test outlined in its June 2001 notice of final rulemaking, given the

spraying of Agent Orange along

the coastline and the wind borne effects of such spraying, it appears

that these veterans serving on

vessels in close proximity to land would have the same risk of

exposure to the herbicide Agent

Orange as veterans serving on adjacent land, or an even greater risk

than that borne by those

veterans who may have visited and set foot on the land of the

Republic of Vietnam only briefly. See

66 Fed. Reg. 23,166. This type of service may reasonably be equated

to that of the veteran serving

on a vessel operating in the inland waterways of the Republic of

Vietnam without having set foot

5. During oral argument, in an attempt to clarify the limits of the

Secretary's bright-line

interpretation, the Court asked a series of questions. The

Secretary's responses only served to

confirm the Court's conviction that VA's interpretation is

unreasonable, and when applied, results

in such disparate outcomes that it cannot be said to comport with

Congress's intent in enacting

38 U.S.C. § 1116(f). When asked to apply the regulatory

interpretation in the case of a veteran who

was in the waters off of Vietnam, in such sufficient depth of water

that his feet did not touch the

seabed, versus a veteran who was in the waters off of Vietnam and was

able to touch the seabed, the

Secretary responded that neither veteran would be entitled to the

presumption because the regulatory

definition is limited to those veterans "who set foot on land, if you

will boots on ground, not

touching the ocean floor." Furthermore, when asked whether there was

a rational distinction

between the case of a veteran aboard a vessel floating up an inland

body of water such as a river

(which, according to the Secretary's argument, could be miles wide),

who never touched land within

the geographic area of Vietnam, and a veteran who served on a ship

within 100 feet of the shoreline

who never touched the land, the Secretary simply responded without

rationale that the latter form

of service would not warrant application of the presumption. Finally,

when asked whether the issue

was if the veteran had been subject to being sprayed with Agent

Orange, the Secretary simply

reiterated that the veteran in this case, who testified that he had

served within close proximity to the

shore, did not have service in the Republic of Vietnam according to

the regulatory definition. Thus,

when further given the opportunity to provide a reasoned basis for

this bright-line rule, the Secretary

could not.

21

on land, contrary to the Secretary's assertions made during oral

argument.5 The Secretary has

provided no rational distinction between these types of service and

the Court can divine none. See

Smith (Ellis), 451 F.3d at 1351 (noting conditions under which VA's

interpretation as set forth in

litigation documents and proceedings is entitled to deference); see

also Auer, 519 U.S. at 461-62.

Thus, in light of the lack of clear legislative history on this

subject and VA's own plainly erroneous

and underinclusive interpretation, the Court concludes that § 3.307(a)

(6)(iii) must be read to include

at least service of the nature described by the appellant, that is,

service in the waters near the shore

of Vietnam, without regard to actual visitation or duty on land in

the Republic of Vietnam.

Furthermore, this interpretation is supported by VA's M21-1

provisions, as outlined earlier,

regarding the application of the presumption in claims for service

connection based on exposure to

herbicides.

4. Unreasonable Interpretation of Regulation

Finally, the Court notes that VA also has not provided valid or

thorough reasoning for either

its present interpretation of what constitutes "service in the

Republic of Vietnam," or the difference

in construction of the definition among the various regulations

incorporating the definition. See

22

Skidmore, supra. In September 1993, pursuant to the congressional

mandate of the 1991 act, VA

proposed deleting § 3.311a and replacing it with § 3.307(a)(6)(iii).

In its notice of proposed

rulemaking, VA reported that its regulations addressed the issue of

diseases resulting from herbicide

exposure under two separate sets of criteria, at 38 C.F.R. §§ 3.307

and 3.309 (implementing the

statutory presumption established by Congress under Public Law 102-

4), and at 38 C.F.R. § 3.311a,

which established service connection on the basis of exposure to

herbicides containing dioxin

pursuant to Public Law 98-542. VA noted that since "ection 10 of

Public Law 102-4 amended

Public Law 98-542 by removing the provisions concerning dioxin

exposure . . . there is . . . no need

for VA to maintain separate regulations on this issue." 58 Fed. Reg.

50,528, 50,529 (Sept. 28,

1993). VA therefore proposed "to amend 38 C.F.R. § 3.307(a)(6) so

that it . . .ases the

presumption of service connection on exposure to certain herbicide

agents rather than on service in

the Republic of Vietnam during the Vietnam era as it currently

does, . . . [and] incorporates the

definition of the term 'service in the Republic of Vietnam' from 38

C.F.R. § 3.311a." Id. No

comments were reported received, and the regulation was adopted

without change. See 59 Fed. Reg.

5106 (Feb. 3, 1994) (noting that 38 C.F.R. § 3.307(a)(6)(iii)

defines "service in the Republic of

Vietnam" as including "service in the waters offshore and service in

other locations if the conditions

of service involved duty or visitation in the Republic of Vietnam").

The notice of proposed

rulemaking, as well as the notice of the final rule, does not contain

any explanation indicating that

VA viewed this regulation as limiting application of the presumption

to those who actually set foot

on land in the Republic of Vietnam. The Court notes that 38 C.F.R. §

3.313, promulgated in 1990

and also defining "service in the Republic of Vietnam," was neither

amended nor removed by this

change and remains in effect today. See id.; see also 38 C.F.R. §

3.313 (2005). The variance in

form of these regulatory provisions defining "service in the Republic

of Vietnam," as dis