[Federal Register Volume 73, Number 73 (Tuesday, April 15, 2008)]
[Notices]
[Pages 20363-20365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7912]


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DEPARTMENT OF VETERANS AFFAIRS


VA Adjudication Procedures Manual, M21-1; Rescission of Manual 
M21-1 Provisions Related to Exposure to Herbicides Based on Receipt of 
the Vietnam Service Medal

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

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SUMMARY: The Department of Veterans Affairs (VA) rescinds provisions of 
its Adjudication Procedures Manual, M21-1 (Manual M21-1) that were 
found by the U.S. Court of Appeals for Veterans Claims (Veterans Court) 
not to have been properly rescinded.

DATES: This rescission is effective April 15, 2008.

SUPPLEMENTARY INFORMATION: On November 27, 2007, we proposed to rescind 
certain provisions of our Manual M21-1. 72 FR 66218. The notice was 
necessitated by the opinion rendered by the Veterans Court in Haas v. 
Nicholson, 20 Vet. App. 257 (2006). Although VA's appeal of that 
decision has been submitted to the U.S. Court of Appeals for the 
Federal Circuit (Federal Circuit), that court has not yet issued a 
decision in the case. The comment period has ended, and we now rescind 
the provisions.
    We received more than 75 comments, most of which were very similar 
and can be addressed in three categories: (1) Citation to scientific 
evidence, in particular a 2002 study performed for Australia's 
Queensland Health Scientific Services by their National Research Center 
for Environmental Toxicology, titled, Examination of the Potential 
Exposure of Royal Australian Navy Personnel to Polychlorinated 
Dibenzodioxins and Polychlorinated

[[Page 20364]]

Dibenzofurans Via Drinking Water (the Australian study); (2) personal 
stories about the commenters' experiences during service and/or their 
current illnesses; and, (3) arguments presented in connection with the 
Haas litigation. We will address these three categories of comments, 
and then address a few additional comments that do not fit within these 
categories.

Comments Based on Scientific Articles

    Several commenters suggested that rescission of the Manual M21-1 is 
inconsistent with scientific articles purportedly showing that 
herbicide exposure in offshore waters could have occurred by virtue of 
wind drift or consumption of drinking water distilled from estuarine 
waters. We make no change based on these comments for the reasons 
explained below.
    Several commenters cited the Australian study as proof that 
American military personnel on ships off the coast of Vietnam were 
exposed to herbicides in drinking water. The Australian study assumed 
that ocean water near estuarine sources could contain dioxin if dioxin 
had been used over adjacent land. It then noted that Australian Navy 
boats distilled water, obtained primarily from locations near such 
estuarine sources, to use as drinking water. Based on these factual 
predicates, the study found that the distillation process used by those 
boats did not remove dioxin when dioxin was added to salt water and the 
distillation process was performed in a laboratory, but, instead, the 
distillation concentrated the dioxin level in the water. The study was 
not peer reviewed or published and, to our knowledge, has never been 
cited in any subsequent reputable study concerning herbicide exposure.
    Even assuming that U.S. Navy ships used a distillation process to 
obtain drinking water from the ocean (VA has been unable to obtain 
official confirmation of this from the Department of Defense), VA's 
scientific experts have noted many problems with this study that 
caution against placing significant reliance on the study. In 
particular, the authors of the Australian study themselves noted that 
there was substantial uncertainty in their assumptions regarding the 
concentration of dioxin that may have been present in estuarine waters 
during the Vietnam War. Further, although distillation concentrated the 
dioxin level in the water, the concentrating effect was shown to depend 
upon the amount of sediment in the water, such that a large sediment 
level, consistent with estuarine waters, could significantly reduce the 
concentrating effect. Moreover, even with the concentrating effect 
found in the Australian study, the levels of exposure estimated in this 
study are not at all comparable to the exposures experienced by 
veterans who served on land where herbicides were applied. This is true 
even if we were to assume that a person drank only such distilled water 
and did so for an extended tour.
    A few commenters cited other studies that discuss generally the 
nature of air and water pollution, the manner in which certain 
pesticides can be borne by the wind, and the effect of water-borne 
pesticides on marine life. None of these studies bears significantly on 
the specific question whether herbicides used, and as administered, by 
the U.S. military during the Vietnam Era could have been blown by the 
wind into the ocean, or into inland waters that then carried the 
chemical into the ocean, to reach a boat offshore and result in any 
significant risk of herbicide exposure. Similarly, the studies do not 
suggest that if those herbicides could have been so transported, they 
could then be transmitted through a distillation process (assuming that 
one was used by U.S. ships) into drinking water, and then consumed by 
military personnel in any measurable quantity. One study merely 
indicated that Agent Orange is carcinogenic, a fact that VA does not 
dispute.
    Further, even if the studies show that herbicide exposure in 
offshore waters is possible in some circumstances, they do not provide 
a basis for maintaining a provision construed by the Veterans Court to 
impose a broad presumption of herbicide exposure based on receipt of 
the Vietnam Service Medal (VSM). The purpose of the presumption of 
herbicide exposure is to eliminate the need for case-by-case showings 
of exposure where there is a reasonable basis for presuming the fact. 
The possibility of exposure in certain circumstances of offshore 
service does not, in our view, establish a basis for presuming exposure 
in all circumstances involving offshore service or receipt of the VSM.
    In our view, the cited studies are of minimal relevance to the 
instant action for the additional reason that the M21-1 provisions were 
not intended to establish a substantive rule, but to implement the 
congressional intent underlying the statutory presumption of herbicide 
exposure in 38 U.S.C. 1116(f). The commenters do not suggest that 
Congress relied upon the cited studies in enacting Sec.  1116(f), but 
appear only to argue that the cited studies would independently support 
a presumption of herbicide exposure for veterans who served offshore. 
It is VA's policy not to issue substantive rules through its M21-1 
manual or other internal documents, but through notice-and-comment rule 
making and subsequent codification in the Code of Federal Regulations. 
Because the Veterans Court's conclusion that the M21-1 provisions 
established a substantive rule is inconsistent with VA's intent in 
issuing the M21-1 provision, VA is rescinding the M21-1 provisions. As 
stated in the notice of proposed rule making, VA will shortly issue a 
proposed revision to its governing regulation, 38 CFR 3.307(a)(6)(iii), 
to clarify our interpretation of 38 U.S.C. 1116(f). The issue of 
whether and to what extent the cited studies bear upon the 
congressional intent underlying Sec.  1116(f) is most appropriately 
dealt with in the context of that rulemaking.
    Additionally, we note that many VSM recipients did not even serve 
on ships off the shore of Vietnam. The VSM was awarded to all members 
of the Armed Forces who served between July 3, 1965, and March 28, 
1973, either: (1) in Vietnam and contiguous waters and airspace 
thereover; or (2) in Thailand, Laos, or Cambodia, or airspace 
thereover, in direct support of operations in Vietnam. See Army Reg. 
600-8-22, para. 2-13.). Clearly, the studies cited by commenters would 
not affect our decision as to veterans who served in Thailand, Laos, or 
Cambodia, or in airspace far above the jungles of Vietnam. If 
commenters relying on these studies believe the studies are relevant to 
the question whether Vietnam service should be extended to the waters 
off the shore of Vietnam, we direct readers to the revision of 38 CFR 
3.307(a)(6)(iii), which we expect will be proposed before May 2008, and 
which will directly address the requirement of service on land in 
Vietnam. For the foregoing reasons, the Australian study and the other 
studies cited by commenters do not cause us to alter our decision to 
rescind the Manual M21-1 provisions.
    Similar to the above category of comments, several commenters 
argued that there is no scientific basis for VA to take the position 
that veterans who served on ships were not exposed to herbicides during 
that service. These comments misunderstand the nature of VA's action. 
This action would not result in a finding or presumption that veterans 
who served on ships were not exposed to herbicides; it would merely 
clarify that such veterans are not automatically presumed to have been 
exposed and that the issue of exposure must be resolved on a case-by-
case basis to the same extent as most other factual

[[Page 20365]]

issues involved in claims for VA benefits.

Comments Based on Personal Experience

    The second group of comments received related the personal 
experiences of veterans who suffer from cancer and other ailments that 
can be caused by exposure to Agent Orange. While we are sympathetic to 
the needs of these veterans, Congress has been quite clear that VA 
cannot presume exposure to herbicides simply because a veteran has a 
disease linked to exposure to herbicides. Again, section 1116(f) states 
that a veteran with such a disease is presumed exposed only if he 
``served in the Republic of Vietnam.'' To the extent that these 
commenters seek relief in their own individual cases, these comments 
are beyond the scope of this notice. The issue presented here is 
whether VA should rescind a Manual M21-1 provision that the Veterans 
Court misinterpreted as requiring VA to presume exposure for any 
veteran who received the VSM.

Comments Related to Haas Litigation

    The third category of comments received includes comments 
presenting the same statutory-interpretation arguments that have been 
presented to the Federal Circuit in the Haas litigation. These comments 
assert that the language of 38 U.S.C. 1116 plainly requires that 
offshore service be considered service ``in the Republic of Vietnam'' 
for purposes of that statute. We do not agree. In its Haas opinion, the 
Veterans Court held that neither the language nor the legislative 
history of Sec.  1116 reflects a clear intent to treat offshore service 
as service ``in the Republic of Vietnam.'' Haas, 20 Vet. App. at 264-
68. We therefore make no change based on these comments, but we note 
that this issue remains pending before the Federal Circuit.
    Additionally, some commenters suggested that VA, by this action, 
was usurping the power of the courts. We do not agree. VA has the legal 
right to engage in rulemaking and the legal obligation to interpret 
title 38, United States Code. As the Federal Circuit has held, the fact 
that a court has interpreted VA's regulations does not bar VA from 
later revising those regulations. See National Organization of 
Veterans' Advocates v. Secretary of Veterans Affairs, 260 F.3d 1365, 
1373-74 (Fed. Cir. 2001). This action in no way usurps the court's 
authority to review our actions in this regard.

Other Comments

    In addition to the categories of comments addressed above, we 
received the following specific comments. First, one commenter asked 
why the proposed rescission did not address ``any action [VA] may 
contemplate to sever service connection'' granted based upon the Manual 
M21-1 provisions. We have no plans to undertake such action. The same 
commenter asked whether a claimant who had been presumed exposed to 
herbicides based on the Manual M21-1 provision would now, post-
rescission, not be presumed exposed if he filed a claim based on a new 
disease. VA has never interpreted the Manual M21-1 provision to require 
a presumption of service connection for every veteran who received the 
VSM. (In fact, this is precisely why VA denied Mr. Haas' claim.) That 
interpretation was made by the Veterans Court, not by VA. Therefore, if 
a veteran had been presumed exposed to herbicides before this 
rescission, it is because the evidence in his file, viewed as a whole, 
supported applying the presumption in the particular case.
    The same commenter added that if VA believes that other evidence 
besides the award of the VSM is relevant to a finding of service in 
Vietnam, then VA should identify such evidence. This comment is beyond 
the scope of this rescission, which simply removes from the Manual M21-
1 a provision that required VA to consider the VSM in connection with a 
claim for a disability allegedly caused by herbicide exposure. In this 
regard, the commenter may wish to review and comment on our revision of 
38 CFR 3.307(a)(6)(iii).
    Another commenter stated that he ``can understand why blue water 
sailors [i.e., sailors who served off the coast of Vietnam] would be 
more closely scrutinized, but not automatically deemed ineligible.'' 
Removal of the Manual M21-1 provisions would not render blue water 
sailors ineligible for benefits based on herbicide exposure. Such 
veterans could establish service connection for herbicide-related 
conditions by submission of evidence establishing exposure to 
herbicides during service, just as they always could. If a veteran is 
eligible for that presumption, then, as a result, VA will not further 
scrutinize that veteran's claim on the issue of exposure. We are 
rescinding this misinterpreted Manual M21-1 provision precisely 
because, like the commenter, VA believes that blue water veterans' 
claims must be subjected to greater scrutiny than claims by veterans 
who served on land. Blue water veterans who received the VSM can 
directly establish the fact of their exposure with evidence of contact 
with herbicides or evidence that they actually served on land.
    Several comments related to the exposure of veterans who served in 
Thailand, Cambodia and/or Laos. Persons who received the VSM could have 
served in these regions. However, because we have no confirmed evidence 
of the extent of the possible exposure of such persons to herbicides, 
and no statutory mandate to consider such persons to have been exposed, 
we make no change to our decision based on these comments.
    Based on the foregoing, VA rescinds the following manual provisions 
describing service in Vietnam for the purposes of the presumption of 
exposure to herbicides: M21-1, pt. III, para. 4.08(k)(1)-(2) (November 
8, 1991); M21-1, pt. III, para. 4.24(g)(1)-(2), change 23 (October 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); M21-1, 
pt. III, para. 4.24(e)(1)-(2), change 88 (February 27, 2002).

    Approved: April 8, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
[FR Doc. E8-7912 Filed 4-14-08; 8:45 am]
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