2019 NVLMCC PROBLEM SUMMARY
Robert L. Wilkie, Secretary of Veterans Affairs, Petitioner,
Ryan Jackson, Respondent.
A veteran who “served in the Republic of Vietnam” during the period from January 9, 1962, to May 7, 1975, when the United States used the herbicide known as “Agent Orange” there, is considered presumptively exposed to that herbicide and is entitled to disability benefits if he or she later develops certain specified diseases even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), sitting en banc, concluded that service “in the Republic of Vietnam” for purposes of 38 U.S.C. § 1116(a)(1)(A) unambiguously includes service “in the 12 nautical mile territorial sea” of that country. 913 F.3d 1371, 1380-81 (2019).
However, the presumption of herbicide exposure may be rebutted by “affirmative evidence to establish that the veteran was not exposed to any such agent.” 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Neither the statute nor the implementing regulation defines “affirmative evidence.”
Veteran Ryan Jackson served in the U.S. Navy from April 1972 to July 1974, including a tour aboard a nuclear missile submarine that briefly entered within 12 nautical miles of the Vietnam coast in March 1974. After service, he was diagnosed with prostate cancer and filed a claim for service connection for that condition, arguing that it was caused by exposure to Agent Orange in March 1974, either through contaminated drinking water or during an incident in which a nuclear missile-arming malfunction caused a compartment to flood with contaminated seawater.
Relevant to the exposure issue, the record contains (1) a National Personnel Records Center response stating that Mr. Jackson did not set foot in the Republic of Vietnam; (2) a Joint Services Records Research Center (JSRRC) response acknowledging that most of the submarine’s mission records were classified but nonetheless stating that it was highly unlikely, given the submarine’s class and technical specifications, that chemicals from seawater would have contaminated the drinking water, or that a compartment would have flooded in the manner described, or that the submarine would have armed a nuclear warhead; (3) a “buddy statement” from a fellow submariner corroborating the described events; (4) an internet article purportedly shedding light on a narrowly- averted nuclear crisis in March 1974; and (5) a Board of Veterans’ Appeals (Board) hearing transcript reflecting that the presiding Veterans Law Judge (VLJ) believed the veteran’s testimony about exposure.
A different VLJ, however, authored the Board decision denying service connection for prostate cancer, finding that same Board hearing testimony not credible. The VLJ determined that the presumption of exposure to herbicides within 12 nautical miles of the Vietnam coast was rebutted by “affirmative evidence” of no exposure, namely the JSRRC response. In reaching this conclusion, the VLJ used an interpretation of “affirmative evidence” described in a recent VA training letter, which defined the term as “any evidence of a nature usually accepted as competent to indicate no exposure to herbicides.” The training letter also interpreted the term as not requiring a conclusive showing, “but only such showing as would, in sound scientific and technical reasoning and in the consideration of all evidence of record, support a conclusion that the veteran was not exposed to herbicides in service.”
On appeal, the U.S. Court of Appeals for Veterans Claims affirmed the Board’s decision, affording Skidmore deference to VA’s interpretation of “affirmative evidence” as used in 38 U.S.C. § 1116 and rejecting the veteran’s argument that his Constitutional Due Process rights were violated when a VLJ who did not participate in the hearing decided the appeal. The Federal Circuit reversed, concluding that Skidmore deference was not appropriate; that “affirmative evidence” as used in section 1116 meant evidence that conclusively and indisputably established a lack of exposure; and that having different VLJs conduct the Board hearing and decide the appeal violated the veteran’s Due Process rights.
The Supreme Court granted certiorari on the following two questions:
- Assuming that the language in section 1116 is ambiguous, is VA’s interpretation of “affirmative evidence” in that statute, as stated in its training letter, entitled to Skidmore deference? If not, what definition should the Court adopt?
- Was there a Constitutional Due Process violation where one VLJ presided over the veteran’s hearing and found him credible and a different VLJ adjudicated his appeal and denied the claim based on a lack of credibility?