UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 13-3339

R O B E R T H. G R A Y , A P P E L L

A N T ,

V

. R O B E R T A. M C D O N

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.

On Appea l from the B oard of Veter ans' Appea ls

(Arg ued F ebrua

ry 25, 2015 Dec ided April 23, 2015)

Michae l E. W

ildhaber , of Washington, D.C., wi t h whom Matthew D. Hill , of Day tona Be ach, F lorida, was on the br ief for the appe llant.

Sarah Fusina , with whom Tammy L. Kennedy , Acting Gene ral Counsel; Mary Ann Fly nn , Assistant Gene ral Counsel; and Penny C. Kahn , Senior Appellate Attorney , all of Washington, D.C.,
wer e on the br ief for

the appe llee.

John B. W

ells , of Slidell, L ouisiana, was on the brief for Blue Water Navy Vietnam Veter ans Association and f

or Military -Ve tera

ns Advoca cy , I nc., as a

mici curiae

. Be fore HAGEL , DAVI S, and SCHOEL EN, Judges

. SCHOEL EN, Judge : The appellant, Robert H. Gra y , appea ls throug h counsel a November 6, 2013, Boa

rd of Veter ans' Appea ls (B oard or BV A) decision that denied disability compensa tion fo r (1) diabetes mellitus (diabe tes), (2) neuropa thy of the left and rig ht lower extremiti es , (3 ) ischemic hear

t disease, and (4) hy

perte nsion – all to include as due to herbic ide exposure – and (5)

ere ctile dy sfunction, to include as due to herbic ide exposure, seconda ry to diabetes, or both. Record of Procee dings (R

. ) at 3 -11. This appea l is timely , and the Court has jurisdiction to revie w the Boa rd' s November

2013 decision pursua

nt to 38 U.S.C . §§ 7252(a) and 7266(a ). This matter was ref err ed to a p an el o f the Court, with oral arg ument, to addre ss Mr. Gra y ' s arg ument that VA' s interpre tation of 38 C.F.R. § 3.307(a) (6)( iii) desig nating Da Nang Har bor as an offshore , rathe r thaninland, water way is arbitra

ry and capr icious. For the rea sons discussed below, the Court holds that VA' s interpre tation is inconsistent with the pu rpose of the reg ulation and does not ref lect the Ag ency ' s fair and considere d judgme nt. Upon revie w of the parties' arg uments, the Court will aff irm in p ar t an d vaca

te in part the Boa

rd' s November 6, 2013, decision. The vacated matters will be 1

rema nded for proce eding s consistent with this decision.

I. BACKG ROUND Mr. Gra y serve d on active duty in the U.S. Navy from September 1971 t o Fe b ru ary 1975. R. at 547. He serve d aboar d the U.S.S. Roark from Marc h 1972 throug h September 1974. Id. The deck log s ref

lect that the U.S.S. Roark anchor ed in D a Nang Har bor multipl e times in 1972. R. at 611-17. The deck logs also ref lect that the ship opera

ted "of f the Cua Viet River mouth" and
eng ag ed the e nemy

in the vicinity

of the Cua Vie t River. R. at 617. I n J une 2007, Mr. Gra

y applied for disability compensa tion for sever al conditions including "dia betes – ty

pe 2," bil at eral neuropa thy of the lower limbs, and "he art attack/he art damag e." R. at 942. VA o u t p at ient rec ords ref lect diag noses for all three conditions. R. at 678, 763. Recog nizi ng that Mr. Gra y ' s diabetes claim may be aff ecte d by the then-pe nding a ction in Haas v. Peak e , 525 F.3d 1168 (F ed. Cir. 2008), cert. denied , 1 2 9 S

. C t

. 1 02 (Jan. 21, 2009), the reg ional office (RO) defe rre d that claim until Haas was resolved. R. at 780-82. A May 2008 rating decision 2

The November 2013 Boa rd decision denied five clai ms. Mr. Gra y does not distinguish 1 betwee n his claims, t h u s t h ey are all on appea l. The Court notes that the Boa rd denied the hy perte nsion claim beca

use it fou n d that even if Mr. Gra y wer e entitled to the presumption of herbic ide exposure, this claim would fail beca use hy perten s i o n i s n o t on the list of diseases qualify ing for presumptive s er v i ce co nnection based on exposure. R. at 20. Mr. Gra y does not challeng e this deter

mination. Acc ording ly , the Court will aff irm that portion of the Boa rd' s decision deny ing the hy

perte nsion claim. See Soyini v. Derwinski , 1 Vet.App. 540, 546 (1991) (dec lining to
rema nd when ther e is no bene fit flowing to the veter an).
After this Court's de cision in Haas v. Nicholson , 20 Vet.App. 257 ( 2006), VA r equeste d, 2 and the C o u rt g rante d, leave to stay case s rela ted t o Haas pending the appeal t o the U.S

. Court of Appea ls for the Fe der al C i rc u it. Ribaudo v. Nicholson , 21 Vet.App. 137 (2007) (en banc order ). Compare Ribaudo v. Nicholson , 20 Vet.App. 552, 561 (2007) (en banc) (holding that the Secre tary may stay case s pending an appea l of a Court opinion to the Fe dera l Circuit with leave of this Court), with Tobler v. Derwinsk i , 2 Ve t

. App. 8, 14 (1991) (holding that VA is bound by decisions of this
2denied Mr. Gra y ' s neuropa

thy and hear

t disability claims. R. at 618-27. That same month, the U.S. Court of Appea ls for the F eder al Circuit (F eder al Circuit) issued a de cision in Haas

. 3
I n Aug ust 2008, Mr. Gra

y submitt ed an additional claim for "se x ual dy sfunction due to Ty pe 2 diabetes." R. at 609. I n October 2008, the appellant submitt ed a Notice of Disag ree ment as to the May 2008 rating decision. R. at 596-97. A Fe bruar y 2009 rating decision denied service connec tion for diabetes and for ere ctile dy sfunction (ED)

. R. at 410-17. The RO noted that presumptive service

connec tion for diabetes based on herbic ide exposure was not war rante d beca

use the evidenc e did not show that Mr. Gra

y serve d "on the g round" in Vietnam. R. at 416. Mr. Gra y perf ecte d his appea l of the neur opathy and hea rt disease claims in J uly 2009 and the diabete s and ED c laims in S eptember 2009. R. a t 336- 37, 377-78. I n J anuar y 2010, Mr. Gra

y soug ht to reope n a claim for ischemic hear t disease and submitt ed supporting documents including I nterne t article s discussing VA' s eff ort to compile a list of "B lue Water Navy ships," an excerpt from "V eter ans and Ag ent Ora

ng e: Update 2008," and a copy of a November 2009 Boa rd decision from another veter an' s appea l. R. at 302, 308-10, 312-20. The November 2009 Boa rd decision stated that in the instant case , the [v] eter an' s service was conducte d on a ship that freq u en t ly anchor ed in a harbor within the territoria l border s of Vietnam. The evidenc e of
rec ord clea

rly shows that Da Nang Har bor is well sheltere d and surrounde d on three sides by the s horeline of Vietnam. The harbor is near ly totally surrounde d by land and

. . . the entire harbor is located within the territoria l boundarie s of Vietnam. As such, g iven the location of the harbor as being surrounde d by the land on three sides, and the evidenc e that the harbor is within the territory of Vietnam, and resolving all doubt in the [v] eter an 's favor , the Boa rd finds that Da Nang Har bor is an inland water way for pur poses of the r eg ulation. R. at 320. The Boa

rd g rante d presumptive service connec tion for the veter an in that case stating that there was "c redible evidenc e that the [v] eter an set foot on land in Vietnam during the Vietnam Era, and he now

has diabe tes mellitus." Id. (empha sis added).

Court, unless or until that decision is overturne d by this Court en banc, t he U.S. C ourt of Appe als for the F eder al Circuit, or the U.S. Supreme Court)

. The Fe dera l Circuit aff

irmed VA' s interpre tation of § 3.307 requiring "the service member' s 3 prese nce at some point on the landmass or the inland water s of Vietnam." Haas v. Peak e , 525 F.3d. at 1193.
3I n a J une 2010 diabetes compensa tion and pension (C&P) examination, the examiner noted

Mr. Gra y ' s service on the U.S.S. Roark and his statement "tha t he was never on land." R. at 264. The examiner found that Mr. Gra y ' s ED and periphe ral neuropa thy wer e "a s likely as not" seconda ry to his diabetes. R. at 267. An Aug ust 2010 Supplemental Statement of the Case (SSOC) denied the claims for dia

betes, ED, periphe ral neuropathy , and heart attack and heart dama g e. R. at 257-63. Reg arding Mr. Gray ' s ischemic heart dis ease claim, i n April 2011, the R O i ssued a formal finding of a lack of information for corr oborating ex p o s u re to Ag ent Orang e, noti ng that a March 2011 response from the J oint Service s Records Resear ch Center did not ref lect that the ship transited inland water s or docked or that personne l set foot in Vietnam. R. at 202-03. I n May 2011, the RO denied disability compensa tion for the hear t attack and hear

t damag e claim, also claimed as ischemic hear t disease, for purposes of entitlement to retroa ctive benef its as a result of exposure to herbic ides. R. at 193-201. I n J anuar y 2012, Mr. Gra

y , throug h counsel, submitt ed additional arg ument as s er t ing that although t h e Federa l Circuit upheld VA' s interpre tation of 38 C.F.R. § 3.307(a) (6)( iii) requiring
actua l prese nce on the landmass or inland water s of Vietnam, "[t]he issue is whether service aboar d [t he U.S.S

. Roark

] while it is anchore d in [ Da Na ng Har bor] in Vietnam constitutes service in the i n l and water s of Vietnam." R. at 153. A J uly 2012 SSOC denied all Mr. Gra y ' s pending cl ai m s

. R. at 124-29. I n the November 2013 decision on appea l, the Boa rd reje cted Mr. Gra

y ' s arg ument that Da Nang Har bor i s an inl and waterwa

y of Vietnam beca

use i t contra dicted "VA' s officia l position on this matter." Id. For support, the Boa rd cited a Dec ember 2008 VA Compensation & Pension Servic e Bulletin (De cembe r 2008 C&P Bulletin) that "spe cifica lly stated that Da Nang Har bor and all other harbor s along the Vietnam coastline" wer e considere d blue water and not brown water

. R. at 17. The 4
Boa rd also relied on a September 2010 Veter ans Be nefit Administration Tr aining L etter ( Training L etter 10-06) for the same point. Id. The Boa rd then stated that "[t]he rationale for concluding Da

VA distinguishes the "br own water " Navy -smaller vessels that "ope rated on the muddy , 4 brown-c olored inland water way s of Vietnam" from the "blue water " Navy -larg er "g un line ships and airc raf t car riers

. . . opera t[ ing] on th e b l u e- colore d water s of the open ocea n." Veter ans Be nefits Administration Com pensation and Pension Tra ining L etter 10- 06, at 3 (Sept. 9, 2010).
4Na n g Harbor was an open water way , as opposed to inland water s of Vietnam, is discussed i n t h e Dec ember 2008 C&P Bulletin, Training L etter 10-06, and [ VA Adjudication Procedure s Manual Rewrite (M21-1MR)] provisions. For the sake of brevity , this rationale will not be reiter ated in this decision." Id. The Boa rd also reje cted Mr. Gra

y ' s arg ument that deny ing him the presumption of herbic ide
exposure when the November 2009 Boa rd decision had g rante d it to a differ ent veter an violated the Equal Protection Clause. R. a t 18- 19. The Boa rd emphasized that under 38 C.F.R. § 20.1303, the November 2009 Boa

rd decision did not have pr ece dential value in Mr. G ray ' s case

. R. a t 18. The Boa rd noted that it did not have the specific fac ts of the o t h er case befor e it, and even if the fac ts

wer e before it, the Board could not ignor e VA's stated policy that excludes Da Nang Har bor from i n l an d wa ters of Vietnam. Id. Finding that the evidenc e did not indicate that Mr. Gra y h ad i n country service or documented visitation in the Republic of Vietnam, the Boa rd conclude d that he

was not entitled to a g ra n t o f s ervic e connec tion on a presumptive basis. R. at 20. This appea l followed.

II. THE P ARTIES' ARG UMENTS Mr. Gra y arg ues that the Boa

rd made three err ors. First, he asser ts, the Boa

rd' s finding that anchor ing in Da Nang Har bor does not constitute service on the inland water s of the Republic of Vietnam is arbitra

ry and capr icious. Appellant' s Br ief (B r.) at 12-13. Mr. Gra y asser ts that there is

no leg al authority or rationale supporting VA' s bare policy statement that Da Nang Har bor is "blue
water ." Id. at 13-14. Mr. G ray notes that the onl y justification for classify ing Da Nang Har bor as blue water i s an opini on that "' Da Nang Har bor i s easy to enter due to being open to the s ea.' " Id. ; Appendix at 47. Mr. Gra y urg es the Court to adopt an alterna tive definition for "inland water s" espoused in the United Nations Convention on the Terr itorial Sea and the Contiguous Z one (Convention), Apr. 29, 1958, 15 U.S.T. 1606, T.I .A.S. No. 5639 (ente red into forc e for the United States J une 10, 1964) and applied by the U.S. Supreme Court in United States v. Louisi ana , 3 9 4 U. S

. 1 1 , 22-23 (1968) (ap ply ing the trea ty definition to a Submerg ed L ands Act issue). He asser ts that under this

5alterna tive definition, Da Nang Har bor would be classified as an inland water way , and he would be entitled to the presumption of her bicide exposure. Appe llant's B r. at 16. Alterna tively , Mr. Gra

y arg ues that the Boa

rd committed a second err or by violating the Equal Protection Clause of the Fifth Amendment of the U.S. Constit ution beca use a November 2009 Boa rd decision had applied the presumption to a simil arly situated veter an. Id. at 18-19. He asser ts
t h at the Boa

rd improperly reje cted his arg ument "out of hand" and ignor ed the Boa rd' s poli cy t o

"' strive for consistency .' " Id. at 19. Finally , Mr. Gray contends that, should the Court uphold VA' s classifica tion of Da Nan g Ha rbor as blue water , rema nd is still appropr iate beca use the Boa

rd provided inade quate r easons or bases f or its decision. Id. at 23-24. The Secre tary argue s t h at the Court should aff irm the Boa

rd decision beca

use Mr. Gra

y ' s arg uments for reve rsal wer e co n sidered and reje cted by the Fe dera l Circuit in Haas v. Peak e
. Secre tary ' s Br

. at 10. The Secre tary asser ts that in Haas , the Fe dera l Ci rc u i t d eferre d to VA' s interpre tation of "se rvice in the Republic of Vietnam" as including service on inland water way s and excluding service only in the blue water Navy from presumptive herbic ide exposure. Id

. at 11. The Secre tary further maintains that the VA' s Adjudication Procedure s Manual Rewrite (M2 1-1MR) clea rly states that anchor ing in Da Nang Har bor does not constitute inland water way service

. Id

. at 12. He arg ues that it is "ma nifestly clea

r that VA does not view offshore service in Da Nang Har bor"

as brown water service and its interpr etation is e ntitled to substantial de fer ence

. Id. at 14-20. The Secre tary contends that Mr. Gray ' s relianc e on United St ates v. L ouisiana is misplaced be cause in Louisi ana , the Supreme Court wa s interpre ting only the Submerg ed L ands Act and chose to a pply the Convention definition in that specific context, and there fore , the lang uag e of the Convention as applied in Louisi ana is not bindi ng on VA or this Court. Id. at 13. As to Mr. Gra

y ' s rema ining arg uments, the Secre tary arg ues that h i s E q u al P rotec tion
arg ument must fail. First, under the rational basis test, he as s er ts that the Feder al C ircuit in Haas has alre ady

found that VA ha s a rational basis for its int erpr etation of 38 C.F.R. § 3.307(a )(6) (iii). S ec re t ary ' s Br

. at 21. Second, the Secre tary maintains that Mr. Gra y ignor es that this Court h as previously declined to consider other veter ans' Boa rd decisions. Id. at 23. The Secre tary asser ts that the November 2009 Boa

rd decision may not serve as a basis for an Equal Protection challeng e and that Mr. Gra

y has not demonstrated that VA lacks a rational basis for its int er p re t at i o n o f inland

6water

way s as excluding Da Nang Har bor. Id. at 25-26. Finally , the Secre tary arg ues that the Boa rd provided a dequate rea sons and base s for its decision. Id. at 26-27. I n the interest of narr owing t h e i s s ues, the Court takes note of the following conce ssions made at oral arg ument. First, Mr. Gra y conce des that the U.S .S. Roark ' s mooring to the U.S.S. Samuel Gompers while it was docked to a pier in Da Nang Har bor is irrele vant: he bases his
arg ument solely on his ship's prese nce within the harbor itself. Ora l Arg ument (Arg .) at 02:45 (F eb. 25, 2015). Second, Mr . Gra y conce des that he ne ver phy sically set foot on land i n the R epublic of Vietnam. Id

. Finally , with the exception of hy perte nsion, Mr. Gra

y ' s claimed disabiliti es are on the list of diseases entitled to presumptive service connec tion as a result of herbicide exposure. There fore , as both parties ag ree d at oral arg ument, if the Court wer e to find that Da Nang Har bor is

an inland water

way , Mr. Gra

y would preva il on his claims for d i s ab i l i t y compensa tion. Ora l Arg . at 49:25.

III. ANALYSIS

A. Over arc hing L eg al Fr amewor k: Haas v. Pe ake Under 38 C.F.R. § 1116(a) a veter an who "se rved i n t h e R ep ublic of Vietnam" betwee n J anuar y 6, 1962, and May 7, 1975, is presumed service connec ted for cer tain conditions likely cause d by exposure to Ag ent Ora ng e, including ty

pe I I diabetes mellitus, even if he cann o t prove he was

ever actua lly expos ed to qualify ing herbic ide. 38 U.S.C. § 1116(a)

. "' Service in the Republic of Vietnam' includes ser

vice in the waters off

shore a nd 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)( iii) (2014). I n revie wing "a

n ag ency ' s construction of the statute which it administe r s , " a court must apply the doctrine set for t h i n C h evron U.S.A., Inc. v. Natural Resource s Defense Council, Inc. , and deter mine whether the statute speaks to the prec ise issue or is ambig uous. 467 U.S. 837, 842 (1984). I f the statute is silent or ambig uous with respe ct to the specific issue, the question become s whether the ag ency ' s interpre tation is based on a permissible construction of the statute. Id. at 843. The
ag ency ' s interpre tation will not be set aside unless it is "a rbitrar y , capr icious, an abuse of discretion

or otherwise not in acc ordanc e with law." 38 U.S.C. § 7261(a) (3)( A); B reniser v. Shinseki , 25 Vet.App. 64, 72 ( 2011).

7Her e the Court is not working with a blank canva s: the Fe dera l Circuit eng ag ed in a thoroug h

and extensive application of the Chevron doctrine in Haas v. Peak e , supra
. Reviewing the lang uag e and leg islative history of 38 U.S.C. § 1116(a) , the Fe dera l Circui t found that the statutory phrase "se rved in the Republic of Vietnam" was ambig uous as applied to veter ans who serve d offshore in

ocea n-g o i n g v es sels. R. at 1183-84. The Fe dera l Circuit then deter mined that the implementing
reg ulation, 38 C.F.R. § 3.307(a) (6)( iii), rea sonably interpre ted the statute to "r equire some prese nce in Vietnam, even i f t he veteran' s service larg ely occur red elsewher e." Id. at 1 1 8 6. Howeve r, t he 5
Fe dera l Circuit also conclude d that the phrase s "duty or visitation in the Republic of Vietnam" and "w ater s offshore " wer e "suf ficiently ambig uous" to require a revie w of VA' s interpre tation of its own reg ulation. Id. I n Haas v. Peak

e , VA arg

ued that it rea sonably interpret ed i t s re gu lation to limit the presumption of exposure to veter ans who serve d on or visited the Vietnamese landmass or its inland
water way s and excluded veter ans – such as Mr. H aas – w ho serve d exclusively offshore in oc eang oing ships. Id. at 1182-83. I n Haas , VA noted that it drew this line beca use "A g ent Ora

ng e was 6
spray ed only on land, and there fore , the best proxy for exposure is whether a veter an wa s prese nt within the l and borders of the R ep u b l i c of Vietnam." Id. at 1192. The Fede ral Ci rcuit found this explanation rea sonable and conclude d that absent evid en ce that VA' s line was irrational, it would not impose a diffe rent line. Id. at 1192-93. Essentially , Haas v. Peak e laid the foundation for the blue-ve rsus-brow n-wa ter distinction. The Fe der al Circuit rec og nized that "[t]he entire predic ate for the Ag ent Ora ng e Act and its
reg ulations was exposure to herbic i d es i n gener al and Ag ent Ora ng e in particula

r." Id. at 1185. Thus, VA' s interpre tation of § 3.307(a) (6)( iii) – "a s excluding service members who never set foot

Although Mr. Gra

y a sserted that 38 C.F.R. § 3.307(a) (6)( iii) mere ly parr otted the statute and 5
was there fore not entitled to defe renc e, in Haas v. Peak e , the Fe dera l Circuit observe d that the VA' s reg ulation "e labora te[d] on the statutory phrase ' serve d in the republic of Vietnam' by construing it to include service offshore and service in ot h er l o cations as long as the service ' involved duty or visit at i o n in the R epublic of Vietnam." ' 525 F.3d at 1187. The Fede ral Ci rcuit clearly stated t hat this langua g e " qualifies as inter preta tion rather tha

n reiter ation." Id.

Mr. Haa s never enter ed a harbor or port beca use his ship car

ried explos ive materia ls. Haas 6 v. Pe ake , 525 F. 3d a t 1173. Thus, he serve d exclusively on the open oc ean. Id.
8within the land border s of Vietnam" beca use there was a low probability that offshore veter ans, such

as Mr. Haa s, wer e exposed to herbic ides – was not unrea sonable, "' plainly err oneous, or inconsistent with the reg ulation.'" Id. at 1193 (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414 (1945))

. The Court will not ree x amine the validity of VA' s interpre tation limit ing the presumption
to brown wa t er or i nland waterwa y s – Haas aff

irmed t hat i t was reasona

ble for VA to distinguish betwee n offshore and inland wa terwa y s. Yet, contra

ry to the Secre tary ' s brief, Haas v. Peak e – which dealt with a veter an who only

serve d miles off shore – did not decide the specific question befor e the Court. As noted above, Haas

v. Peak e made i t clea

r that VA may draw a line betwee n blue and brown water while leaving the specific line draw i n g t o VA d iscretion. As the parties ag ree d at oral arg ument, this case asks the Court to examine how VA exercised that discretion and, more specific ally , whether VA' s definition of inland water

way s – which does not include Da Nang Har bor – is entitled to defe renc e: a question not addre ssed by Haas v. Pe ake

.

B. Whether

VA' s interpre tation is entitl ed to def ere nce An ag ency ' s interpre tation of i ts own reg ulations is entitled to substantial defe renc e by the Court. See United States v. Cleveland Indians Baseball Co ., 532 U.S. 200 (2001); Auer v. Robbins , 519 U.S. 452, 461-62 (1997). This hig h deg ree of defe renc e applies even when that interpre tation is first advanc ed during litigation. Reizenstein v. Shinseki , 583 F.3d 1331, 1335 (F ed. Cir. 2009) (citing Cathedra l Ca n d l e C o. v. U.S. Int'l Trade Comm'n , 400 F.3d 1352, 1364 (F ed. C ir. 2005)). Where, as here , the plain lang uag e is ambig uous, the Court must consider the rea sonablene ss of the Secre tary ' s reg ulatory interpre tation. Mason v. Shinseki , 26 Vet.App. 1, 6 (2012). "[C] ourts should defe r to an ag ency ' s interpre tation of its own ambig uous reg ulation so long as that interpre tation is
not inconsistent with the l ang uag e of the reg ulation or ot herw ise plainly err oneous and repr es ents the ag ency ' s considere d view on the matter." Mulder v. Gibson , 27 Vet.App. 10, 16 (2014) (citing Smith v. Nicholson , 451 F.3d 1344 , 1 3 4 9 (F ed

. Cir. 2006) (citing Auer v. Robbins , 519 U.S. 452, 461-62 (1997)) ). I n deter mining whether VA' s interpre tation of its re g ulation is "r easona ble," the Court will consider, among other things, the "timing and consistency of the ag ency ' s interpre tation," Batterton v. Francis , 432 U.S. 416, 425-26 n.9 (1977); the "thor oug hness ev i d en t in its consideration, [and] the validity of its rea soning," Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944)

9(" [R ]ul ings, interpre tations, and opinions

. . . while not controlling upon the courts by rea son of their

authority , do constitute a body of experience and informed judgme nt

. . . proper ly resor t[ ed] [t o] for
g uidance

. The weig ht of such a judgme nt

. . . will d epend upon the thoroug hness evident in its consideration, the validity of its rea soning, its consiste n c y w it h e a r li er and later pronounce ments, and all those fac tors which g ive it power to pe rsuade .")

. 1.The Secre tary's Poli cy I n the wake of Haas v. Peak e , VA exercised its discretion to specific ally delineate the scope of qualify ing service "w ithin the land border s of Vietnam." VA applies the presumption of herbic ide exposure to service members that ( 1) set foot (howe ver briefly ) on land in Vietnam; (2) se rved on inland water

way s; and (3) serve d on a ship with decklog s that ref ere nce "a nchoring or enter ing the

' mouth' of" the Cua Viet River, Saigon River, Mekong River Delta, Ganh Rai Ba y , and the Rung Sat Special Z one. M21-1MR, pt. I V, subpt. ii., ch. 1, sect. H; Training L etter 10-06. VA define s inland
water way s as "r ivers, estuarie s, cana ls, and delta are as inside the country , but

. . . not

. . . open deepwater coasta l ports and harbor s wher e there is no evidenc e of herbic ide use." L etter from the Direc tor of VA C&P Service , Fe bruar y 2009; Dec ember 2008 C&P Service Bulletin; Training L etter 10 -0 6 (e x p laining that open deep- water harbor s are "a re not simil ar to the rivers, cana ls, and estuarie s that make up the i nland waterwa y s y s tem")

. VA' s policy expressly excludes open deepwater harbor s including Cam Ranh Ba y , Vu n g T au Har bor, and Da Nang Har

bor. Id. ; see also Dec ember

2008 C&P Service Bulletin. Mr. Gr ay arg ues that VA' s policy

is flawed a

nd maintains that his service aboar d the U.S.S. Roark constitutes service on an inland water way

. Appellant' s Br

. at 13-14. As Haas v. Peak

e observe d, the presumption did not apply to Mr. Haa s' s service miles offshore beca

use spray flig ht paths did not cross the open ocea n. 525 F.3d at 1192 (quoting 73 Fe d. Reg

. 20, 5 6 6 , 2 0 , 5 6 8 (Apr. 16, 2008)). Haas conclude d that VA' s distinction betwee n inland and offshore water s based on spray ing was rea sonably rela ted to the primary predic ate of both 38 U.S.C. § 1116(a) and 38 C.F.R. § 3.307(a) (6) (i i i): exposure. Id. at 1192-93. The Secre tary asser ts that defining inland water

way s to exclude Da Nang Har bor is likewise premis ed o n the probability of
exposure based on wher e Ag ent Ora ng e was actua lly spray ed. Ora l Arg

. at 46:00. Howeve r, as will be discussed below, althoug h the Court rec og nizes VA' s authority to distinguish betwee n inland and

10offshore water way s, the Court finds that, with respe ct to Da Nang Har bor, the manner in which VA define s inland water

way s is both inconsistent with the reg ulatory purpose and irrational. There fore , the Court cannot f

ind VA' s definition rea sonable or w orthy of def ere nce. 2. VA's int erpretation is inconsistent wi th the regulation. As the Boa

rd clea rly stated in the decision on appea l, VA' s policy desig nates Da Nang Har bor

as blue water and, there fore , anchor ing in the harbor is in s u ff i ci ent to establish entitlement to the presumption. R. at 16-17. The Secre tary contends that, as in Haas v. Peak e , VA' s interpre tation is entitled to defe renc e beca use it rea sonably interpre ts the reg ul ation and has been consistently expressed in VA documents since at least 2008. Howeve r, unlike Haas , the rationale underly ing the desig nation of Da Nang Har bor here is inconsistent with the identified purpo s e o f t h e s t atute and
reg ulation: providing c ompensation to vetera ns based on the likelihood of exposure to herbicide s. Haas , 525 F.3d a t 1183, 1185. Although the Secre tary asser ts that the exclusion of Da Nang Har bor from inland water

way desig nation was explained in statements in the Fe dera l Reg ister, these documents do not reve al any insights specific ally perta ining to the likelihood of exposure in Da Nang Har bor. Ora l Arg

. at 58:00. They all reiter ate VA' s basic premise that herbic ides wer e spray ed on land and not in the open water s "of f the shore of Vietnam." Monetary Allowance Under 38 U.S.C. § 1805 for a Ch i l d Suffer ing Fr om Spina Bifida Who is a Child of a Vietnam Veter an, 62 Fe d. Reg

. 51,274 (Sept. 30, 1997); see also Presumption of Ex posure to Her bicides for Blue Water Navy Vietnam Veter ans Not Supported, 77 Fe d. Reg . 76,170 (De c. 26, 2012); Notice of P roposed Rul emaking on Def inition of S ervic e in the Republic of Vie tnam, 73 Fe d. Reg . 20,566, 20,568 (Apr. 16, 2008). But they shed no l ight on

11the murky are a wher e inland water way s open to the ocea

n and the brown water mix es with the blue. 7 Id. Da Na

ng Har bor is one such a

rea

. T he Secre tary seeks to support the definition of inland water way s throug h three pri m ar y

source s: (1) The M21-1MR; (2) Dec ember 2008 C&P Service Bulletin; and (3) Training L etter 10- 06. These documents all clea rly state that VA d o es n o t consi der Da Nang Har bor an inland
water way

. Yet, contra

ry to the Secre tary ' s asser

tions, they do not explain how VA' s desig nation of Da Nang Har

bor rela tes to the probability of exposure based on herbic ide use. I n explaining that VA

co n siders open water ports such as Da Nang to be extensions of ocea n water s rathe r than in l an d
water way s, Training L etter 10- 06 observe s that "[the distinction] is illustrated by a quote from the 1967 ship's history of the U.S.S. Cleveland (L PD-7), which states: ' Da Nang Har bor is easy to enter due to being open to the sea.' " Training L etter 10-06, at 5. There is no discussion in the manu al, letter, or bulletin of the likelihood of herbic ide exposure based on spray ing. Rather, it appea

rs that VA desig nated Da Nang Har bor as blue w ater

beca use it is an open dee p-wa ter ha rbor that is ea sy to sail into. At oral arg ument, the Secre tary was asked to clar ify this rea soning by compar ing VA' s deter mination that Quy Nhon Ba y was an inland water

way but Da Nang Har

bor was considere d

At oral arg ument, the Secre tary ref err ed to an I nstitut e o f M ed i ci n e (I OM) study that 7 "c onfirmed" that there was no likelihood of exposure to herbicides in Da Nang Har

bor. Ora l Arg

. at 41:40, 69:00. The Court notes that this study was not in the rec ord befor e the Boa rd but will take judicial notice of the document to the exten t the Secre tary relies on it to support his definition of inland water

way s as excludi n g Da Nang Har bor. See Smith v. Derwinski , 1 Vet.App. 235, 238 (19 9 1); see also Tagupa v. Shinseki , 27 Vet.App. 95, 100 (2014). The Secre tary has clea rly expressed that the definition of inland water way s is based on the likelihood of exposure evidenc ed by spraying

. Id. at 38:00, 41:25, 44:00. I n assessing the l ikelihood of ex posure to herbic ides, the Commi ttee on Blue Water Navy Vietnam Veter ans an d Agent Ora ng e Ex posure found that "the opportunity for Blue W at er Navy personne l to have experience d inhalation exposure cannot be entirely discounted but w ould ha ve been limit ed to instanc es when vessels wer e opera ting close to (within a few kilometers of) shore in locations wher e and at times w hen spray ing occur red." I N S T

. O F M E D

. O F TH E N A T ' L A C A D S ., B L U E W A TE R N A

V Y V I E TN

A M V E TE R

A N S A N D A G E N T O R A N G E E X P O S U R

E 37 (2011). The committee ac knowledg ed that instance s of this kind of ex posure might be rar e, but may not be disco u n te d "w ithout further , labor-intensive eff orts to coordina

te Ranch Hand mission flig ht paths with Blue Water Navy ship locations." Id. at 95. To the ex tent the S ecr etar y relied on this repor

t at oral arg ument, the g ener al and inconclusive nature of the repor t falls short of the Secre tary ' s asser

tion that the repor

t specific ally "c onfirmed" t hat there was no likelihood of exposure to herbicide s in Da Na ng Har bor.
12offshore water s. Ora l Arg

. at 44:58. The Secre tary emphasized that open deep- water harbor s wer e 8
not inland water

way s and proff

ere d that VA may have deter mined that Quy Nhon was shallower or

more narr ow than Da Nang Har bor. Id. The Secre tary did not offe r any evidenc e that depth or ease of entry was signific ant to the likelihood of spray ing or that the distinction betwee n the two bodies of water was made based on an as s essm ent of herbic ide us e in and around them. Thus, the C ourt is left to conclude that VA did indeed desig nate Da Nang as blue water based on ease of entry despite

a lack of discerna

ble rela tio n s h i p betwee n ease of entry or depth and the probability of exposure based on herbic ide use. Absent a connec tion to the probability of exposure based on spray ing, the Court finds the rationa l e s u p p o rting VA' s desig nation of Da Nang Har bor i s inconsistent with the
reg ulation's purpose of compensa tion base d o n t h e probability of exposure. See Martin v. Occ upational Safety and Health R evie w Commission , 499 U.S. 144, 150-51 (1991) ( hol ding that

an ag ency interpre tation is rea sonable "so long as the interpre tation ' sensibly confor ms to the purpose and the wor ding of

the re g ulations'" (quoting Ehlert v. United States , 402 U.S. 99, 105 (1991)))

.

3. VA's int erpretation is irrat ional

. The Court is mindful of t he challeng es VA fac es i n defining the s cope of the p re s u mption with reg ard to water

way s that open to the ocea n. Howeve r, althoug h the presumption is purportedly applied wher e there is evidenc e of spray ing, the documents the Secre tary relies upon are devoid of
any indication that VA made a fa ct-based assessment of the probability of exposure in Da Nang Har bor from aer ial spray

ing. I nstead Training L etter 10-06, the M21-1MR, and the Dec ember C&P Bulletin ref

lect that VA based its desig nation of Da Nang Har bor on g eog raphic al char acte ristics

– depth and ease of entry – and not on spray i n g. Af t er a revie w of VA' s line-dra wing rela ted to
water way s that open to the ocea n, the Court is unpersua ded that VA' s definition of inland water way s ref lects the Ag ency ' s fair a

nd considere d judgme nt.

A "ba y " is define d as "a

n inlet of the sea or other body of water usually smaller than a g ulf" 8
or "a s m al l b ody of water set off from the main body ." M E R R I A M -W E B S TE R ' S C O L L E G I A TE D I C TI O N

A R Y 98 (10th ed.) (1993). A "ha rbor" is define d as "a part of a body of water protec ted and deep enoug h to furnish anchor ag e; espec ially one with port fac iliti es." Id. at 529. The Court f inds
no meaning ful differ ence betwee n the g eog raphic terms bay and harbor that would distinguish VA' s desig nation of Quy

Nhon and Ga

nh Rai Ba y s as brown w ater

and Da Nang Har

bor as blue.
13First, t h e S ecr etar y asser ts that eac h desig nation was based on wher e Ag ent Ora ng e was spray ed but fails t o identify an y s p ec ific i ndicia, criteria, or evidenc e that VA relies on to classify b o d i es of water

. The Dec ember 2008 C&P Bulletin decla res that "D a Nang harbor and al l o t h er harbor s along the Vietnam Coastline" are blue water , but in contra diction to the policy advanc ed by the Secre tary , VA desig nates both Quy Nhon Ba y and Ganh Rai Ba

y as inland water

way s. The only "pa rame ters" the S ecr etar

y offe red were that open deep-wa ter harbors are not inland beca use t hey

are offshore

. Ora l Arg

. at 44:45. Thus, Quy Nhon was an inland water way beca use it was "pe rhaps

more narr ow or more shallow" than Da Nang

. T h e C o u rt notes that the Secre tary stated that "pe rhaps" Quy Nhon Bay was brown water bec au s e i t wa s m ore narrow or m ore shallow than Da Nang Har bor without identify ing any specific evidenc e or document for support, further sug g esting that VA' s policy is like a ship without an anchor : aimless and adrift from the reg ulation. Ora l Arg

. at 45:00. The Secre tary did not provide any evidenc e or documentation rela ted to spray ing or other

avenue s of herbic ide contamination that distinguished Quy Nhon or Ganh Rai fr o m Da Nang. Reviewing maps of eac h of these bodies of water , the Court cannot discern any rhy me or rea son in 9 VA' s deter

mination that Quy Nhon B ay and Ga nh Rai Ba y are brown wa ter but Vung Tau Harbor

– which appea

rs to be inside Ganh Rai Ba y – Da Nang Har

bor, and Cam Ranh Ba

y are blue water

. 1 0 Second, VA' s rig id line-draw ing in Da Nang Har

bor contra sts markedly

with the approa ch VA takes to mouths of rivers. Training L etter 10-06 notes that "it is not prac tical to draw a l i ne betwee n the m outh of a river and t he S outh China Sea." VA Traini n g L et t er 10-06, at 8. Thus, a

Pursuant to a Court order prior to oral arg ument, the parties jo i n t l y submitt ed maps of 9 water way s rele vant to this appea l and stipul at ed that the maps have copy rig ht ref ere nces to the National Oce anic and Atmospheric Administration and the U.S. Navy and thus, the Court may take judicial notice of them. J oint Response at 1; Ora l Arg

. at 10:57; see Smith , 1 Vet.App. at 2 3 8 (" Courts may

take judicial notice of fac ts not subject t o rea sonable disput e." (citing F E D

. R. E V I D

. 201(b)) ).
Even if the Court we re to a cce pt ease of entry as a valid rationale , it doe s not a ppear that 1 0 VA has consistently followed this rationale

. For example, Ganh Rai Ba y has a much larg er entra

nce than Da Nang Har

bor and Cam Ranh Ba

y , y et Ga nh Rai Ba

y is considere d brown water while Da Nang and Cam Ranh are blue water

. The entra nces to a number of rivers seem likewise wide enoug h to al l o w fo r ea s y entry , particula rly in the M ekong Delta. Thus, even if VA' s entry rationale held water , it does not appea

r to be a pplied consistently

.

14veter an may qualify for brown water service if the ship's deck logs ref ere nce anchor ing or enter ing the "' mouth'" of the "' Cua Viet River,' ' Saigon River,' ' Mekong River Delta,' and ' Ganh Rai B ay ' or

' Rung Sat Special Z one.' " VA Training L etter 10-06, at 7-8 (explaining that apply ing the benef

it of the doubt doctrine, "e vidence of the vessel' s prese nce in a river' s mouth is sufficie nt to establish the presumption of exposure for [v] eter ans aboar d that ship"). The Secre tary conce des that VA does not have a s pecif

ic definiti on for "mouth" of a river; instead, counsel for the Secre t ar y stated t hat VA "w ould rely on the deck rec ords to indicate

. . . anchor ag e or entra nce into the mouth of the river in order to est ab l i s h p re s ence in the mouth of the river." Ora l Arg

. at 51:53. Depe nding on the deck log' s use of the word "mouth," the "bor ders" of Vietnam may extend well bey ond the phy sical land

mass around a river mouth. VA' s vary ing and inconsistent application of the presumption ref lects 1 1 a strug g le to classify

the g ray are a whe re br own inland wate rwa y s meet blue off

shore waters. Unlike in Haas v. Peak

e , the seeming ly arbitra

ry and inconsistent results h er e ar e not a tolerable by -produc t of line-dra wing

. Haas defe rre d to V A' s line-dra wing as a proxy for exposure and acknow ledg ed that line-dra wing nece ssarily led to over- and under- inclusiveness, which alone did not rende r the line unrea sonable. Howeve r, her e, the a rbitrar y outcomes ar e not the re sult of a clea r consistent rule anchor ed to the reg ulation. The inconsistent application of the presumption to

wa t erw ay s that open to the ocea n flows from VA' s improper relianc e on fac tors unrela t ed t o t h e reg u l at i o n – like ease of entry – to draw the line. The Court appre ciates that VA fac es a difficult task. Howeve r, VA i s n o t fr ee to label bodies of water by flipping a coin, y et the outcomes here
appea r just as arbitra

ry

.

Her e, the r ecor d contains deck logs from the U.S .S. Roark dated April 1972, during Mr. 1 1 Gra y 's p er i o d o f service , and one entry contains the following notation: "ope rating off of the Cua Viet River Mouth.

. . . The ship is at g ener al quarte rs, materia l condition zebra and condition of the
rea diness I are set throug h out [si c] the ship. The ship is darke ned." R. at 617. Moreove r, Mr. Gra y ' s service rec ords also note that the U.S.S. Roark was "f iring a night hara ssment mission in the vicinity of the Cua Viet River." R. a t 781. I n light of the Secre tary ' s stated policy to rely on deck rec ords to deter mine a ship's location and the Secre tary ' s conce ssion at oral arg ument that a river mouth doe s not have definite bo u n d aries, the Court questions why the Boa rd did not addre ss this rea sonably raised issue which may have qualified Mr. Gra y for the presumption. See Training L etter 10-06 (noting that with r eg ard to the presumption, the benef it of the doubt should be applied whe re de ck logs r efle ct that a ship anc hored in or e ntere d the mouth of the Cua Viet River)

. 15Recog nizi ng "[t]hat [a] g ener ous deg ree of defe renc e is due to an ag ency interpre tation of its

own reg ulations even when that interpre tation is offe red in the very litigation in which the arg ument in favor of defere n ce i s m ade," Cathedral Candle Co. , 400 F.3d at 1364 (citing Auer , 519 U.S. at 461-62), and in light of Haas v. Peak e , the Court here consi dere d the Ag ency ' s interpre tation

car efully

. Howeve r, unlike in Auer and Cathedral Candle Co ., here VA' s interpre tation of its
reg ulation is both inconsistent with the reg ulatory purpose and irrational; thus, the Court has "' rea son to suspect t hat t he int erpr etation does not ref lect the ag ency ' s fair a

nd considere d judgme nt on the

m atter in question.' " Cathedral Candle Co. , 400 F.3d at 1364 (quoting Auer , 519 U.S. at 4 6 2 ). There fore , VA' s interpre tation is "unworthy of def ere nce." Auer , 519 U.S. at 462. C. Remedy Mr. Gra y arg ues that the Court should adopt the definition of inland water way s espoused in the U.N. Convention on the Terr itorial and Contiguous Z one. Appellant' s Br

. at 18. He asser ts that under the Convention, Da Nang Har bor is an inland water

way within the border s of the Republic of Vietnam, and there fore , reve rsal would be the appropr iate reme dy

. Id. He arg ues that the Court and VA are bound by the Convention definition beca use the U.S. Supreme Court adopted that definition i n Louisi ana , supra , and thus, the definition applies to all uses of the term "inland wate rw ay s " i n U.S. law. Appellant' s Br

. at 15-16; Ora l Arg . at 05:20. The Court disag ree s. Contrary to Mr. Gra

y ' s arg ument, the Supreme Court adopted the Convention definition for

a specific purpose – not as the definition for "inland water way s" in all applicati o ns of the term in U.S. law. Louisi ana , 394 U.S. at 34. Louisi ana rec og nized that, four y ear s ear lier, United St ates

v. Calif orni a , 381 U.S. 139 (1965), adopted the convention definition "' for purposes of the Submerg ed L ands Act.' " I n Calif ornia , the Supreme Court interpre ted "inland water way s" as it was used in the Submerg ed L ands Act. Id. at 1 6 4 -66. The Supreme Court deter mined that Congr ess specific ally left t he definition of "inland water way s" in the S ubmerg ed L an d s Ac t t o the courts to define and that the Convention offe red the "be st and most worka ble" definition available

. Id. at 165. The Supreme Court acc ording ly adopted that definition "f or the purposes of the Submerg ed L ands Act." Id. The Supreme Court g ave no indication in e ither Calif ornia or Louisi ana that it intended for the Convention to apply ever y time the term "inland water way s" was used in U.S. law. Moreve r,

as the Fe dera l Circuit noted in Haas , there is no indication in the lang uag e of section 1116(a) or its

16leg islative history that Congr ess intended to specific ally define the rea ch of a sovere ign nation and

there fore the phrase "se rved in the Republic of Vietnam" was ambig uous. 525 F.3d at 1184. Unlike in the Submerg ed L ands Act, here the discretion to de fine and interpre t the scope of the reg ulation

was g iven to the Ag ency , not the Court. See Haas v. Peak e , 525 F.3d at 1180 (noting that "the re is

no indication during the leg islative proce ss [for the Ag ent Ora ng e Act] that Congr ess focuse d on the
prec ise scope that should be attache d to the statutory phrase ' serve d in the Republic of Vietnam' ")

. There is no indication that in using the term "inland water way s" VA intended to adopt t he Convention definition, and the Secre tary expressly denied any in t en t t o d o s o at oral arg ument. Although the Court finds VA' s definition of inland water way s ir r a ti o nal and not entitled to defe renc e, VA reta ins its discretionar y authority to define the scope of the presumption. The Court declines to
usurp the Ag ency ' s authority and impose its own line. Ra ther, the Court will vaca te the Boa

rd decision on appea l as ar bitrary and capr icious beca use the decision was based on VA' s flawe d interpre tation of 38 C.F.R. § 3.307(a) (6)( iii). The Court will rema nd the matter for VA to ree valuate its definition of inland waterw ay s – particular ly as it applies to Da N ang Har bor – and e x erc ise its fair and considere d judgme nt to define inland water way s in a manner consistent with the reg ulation's emphasis on the proba

bility of exposure. D. Equal Protec tion Arg ument As stated previously , Mr. G r a y a rg ues that reve rsal is war

rante d on Equal Protection g rounds. Appellant' s Br

. at 18-19. Specifica lly , he contends that VA violated the Equal Protection Clause of the Fifth Amendment of the U.S. Constit ution beca use a Boa rd decision in another veter an' s case found that Da Nang Har

bor was an inland water

way and awa

rded that veter an the presumption. Id. The Due Process Clause of the Fifth Amendment provides that "[n]o person shall

. . . be deprive d of life, liberty , or proper ty , without due proce ss of law." U.S. C O N S T

. Amend. V. The Fe dera l Circuit has held that Due Process protec tions apply to disability compensa tion proce eding s befor e the Boa

rd. Cushman v. S

h i n s ek i , 576 F.3d 1290 (F ed. Cir. 2009). Although the Fifth Amendment, which applies to the Fe dera l Gover nment, "doe s not contain an equal protec tion clause

as does the Four

teenth Amendment[,] which applies only to the states," "disc rimination ma y be so unjustifiable as to be violative of due proce ss" under the Fi ft h Amendment. Bolling v. Sharpe , 347 U.S. 497, 499 (1954); see Bowers v. Shinseki , 26 Vet.App. 201, 208 n.11 (2013); Robinson v.

17Brown , 9 Vet.App. 398, 401 (1996). "[A] party challeng ing a law on equal protec tion g rounds ' may

make out a prima fac ie case of purposef ul discrimination by showing that the totality of the rele vant fac ts g ives rise to an infe renc e of discr iminatory purpose.' " Ree ves v . W

est , 11 Vet.App. 255, 259 (1998) (quoting Batson v. Kentucky , 476 U.S. 79, 93-94 (1986))

. The Equal Pro t ec t i o n C lause "c ommands that no State shall ' deny to any person within its jurisdiction the equal protec tion of the laws,' which is essentially a direc tion that all persons si m ilarly situated should be trea ted alike." Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 439 (1985). To demonstrate that he was simil arly sit u at ed t o t h e other veter an, Mr. Gra y submits a November 2009 Boa

rd decision in another veter an' s case

. Appellant' s Br

. at 19-2 0; R. at 3. A revie w of that Boa

rd decision ref

lects that in November 2009 the Boa rd found that Da Nang Har bor

was an inland water

way for purposes of the reg ulation (R. at 320), y et the Boa rd conclude d that the presumption applied beca use "the re is cre dible ev i d en ce that the [v] eter an set foot on land in Vietnam during the Vietnam Era." (R

. at 320 (empha sis added) ). The specific fac ts befor e the November 2009 Boa

rd decision are not befor e the Court; and thus, the Court finds that the Boa rd' s indication that the veter an set foot on land a mbiguous. The veter an in that ca se ser ved aboard the U.S.S. Oklahoma City , which appe ars on the l ist of shi ps with inland water way service beca

use i t "doc ked in Saigon during J uly 21-24, 1964." Ag ent Ora ng e: Alphabetized Ships L i s t , U. S. Depa rtment of Veter ans Affa irs, http:// www.publiche alth.va.g ov/ (Ac cesse d Mar. 17, 2015). Thus, it is unclea

r from the Boa

rd decision whether the "c redible evidenc e" the Boa rd relied on to a ffor d the veter an the presumption was his ship's anchor ing in Da Nang Har b o r al o n e or some other evidenc e ref

lecting that the veter an had qualify ing inland service , such as setting fo o t o n land or prese nce in other inland waterway s. There fore , the Court cannot deter mine whether Mr. Gra

y is simil ar l y s i t u ated to the veteran refe renc ed in the November 2009 Boa rd decision. Acc ording ly ,

1 2 the November 2009 Boa rd dec ision cannot form the basis of or provide support for an equal protec tion challeng e, and Mr . Gra y ' s arg ument on this point must fail.

Even if it wer e clea

r that Mr. Gra

y is simil arly situat ed t o t h e v et era n ref ere nced in the 1 2 November 2009 Boa

rd decision, it i s well established that B oard de cisions are not prec edential or binding on other veter ans. See 38 C.F.R. § 20.1303 (2014); see also Lynch v. Gober , 11 Vet.App. 22, 27 (1997), vacate d on other grounds sub nom. Lynch v . W est , 178 F.3d 1312 ( Fe d. Cir. 1998); Hillyard v. De rwinski , 1 Vet.App. 349, 351 ( 1999).
18IV. CONCLUSION

Upon considera

tion of the fore g oing, the portion of the November 6, 2013, Boa rd decision deny ing Mr. Gra

y ' s claim for hy

perte nsion is AFF I RMED, and the rema i ning claims for diabetes,
neuropa thy of the left and r ight lower extremiti es, ischemic hear t dise ase, and ere ctile dy sfunction

are VACATED a

nd REMANDED f

or fur ther proc eeding s consistent with this decision.

19