United States Court of Appeals 

for the Federal Circuit ______________________ 

MILITARY-VETERANS ADVOCACY INC.,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

______________________ 

2020-1537

______________________ 

Petition for review pursuant to 38 U.S.C. Section 502.

______________________ 

Decided: March 22, 2023

______________________ 

JEFFREY T. QUILICI, Orrick, Herrington & Sutcliffe 

LLP, Austin, TX, argued for petitioner. Also represented 

by MELANIE L. BOSTWICK, Washington, DC; MELANIE 

HALLUMS, Wheeling, WV; JOHN B. WELLS, Law Office of John B. Wells, Slidell, LA. 

 MEEN GEU OH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent. Also represented by BRIAN M.

BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY, JR.; BRIAN 

D. GRIFFIN, BRANDON A. JONAS, Office of General Counsel, 

United States Department of Veterans Affairs, Washington, DC.

 ______________________ 

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Before NEWMAN, PROST, and CUNNINGHAM, Circuit 

Judges. 

NEWMAN, Circuit Judge. 

Military-Veterans Advocacy Inc. (“MVA”) brings this 

petition pursuant to 38 U.S.C. § 502 and asks the court to 

review and revise certain instructions and practices of the 

Secretary of Veterans Affairs (“VA”), as set forth in the Veterans Affairs Adjudication Procedures Manual (the “M21-1 

Manual”). This Manual provides guidance and instructions to the administrators of veterans’ benefits and claims, 

by interpreting and coordinating the application of statutes, regulations, policies, and judicial decisions. Thus the 

M21-1 Manual “limits VA staff discretion, and, as a practical matter, impacts veteran benefits eligibility for an entire 

class of veterans.” Nat’l Org. of Veterans’ Advocates v. Sec’y 

of Veterans Affs., 981 F.3d 1360, 1374 (Fed. Cir. 2020) (en 

banc) (“NOVA”).

BACKGROUND

Section 502 Judicial Review

Direct judicial review of certain VA actions and practices is authorized as follows:

38 U.S.C. § 502. Judicial review of rules and

regulations.— An action of the Secretary to 

which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review. Such review shall 

be in accordance with chapter 7 of title 5 and may 

be sought only in the United States Court of Appeals for the Federal Circuit.

Section 502 establishes Federal Circuit jurisdiction for direct review of VA actions concerning “substantive rules of 

general applicability, statements of general policy and interpretations of general applicability” that must be published in the Federal Register, as provided by the 

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Administrative Procedure Act (“APA”) at 5 U.S.C. 

§ 552(a)(1)(D). LeFevre v. Sec’y of Veterans Affs., 66 F.3d 

1191, 1196 (Fed. Cir. 1995). These administrative rules, 

policies, and interpretations are the substance of the M21-1 

Manual.

Section 553(e) provides “the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). 

Judicial review is available when the right to petition for 

rulemaking is denied, as well as when the petition is denied 

on its merits. Preminger v. Sec’y of Veterans Affs., 632 F.3d 

1345, 1351–53 (Fed. Cir. 2011). However, the Secretary 

errs in stating that the court does not thereby have jurisdiction to review the result when the agency grants a request for rulemaking but does not provide the relief sought 

by the requester. See Sec’y Br. 39; Preminger, 632 F.3d at 

1352 (“Indeed, when Congress reported out § 502 it apparently contemplated that § 502 would provide for review of 

the Secretary’s decision not to issue a rule as well as the 

decision to issue a rule.”) (citing H.R. REP. NO. 100-963 

(1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5786). 

The APA requires the reviewing court to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or 

applicability of the terms of an agency action” to the extent 

necessary to reach a decision. 5 U.S.C. § 706. Section 502

of Title 38 provides further oversight of agency actions with 

respect to veterans’ concerns. See 38 U.S.C. § 502.

Legislation and Rules Relating to the Presumption 

of Exposure to Agent Orange

MVA asks the court to review certain presumptions 

and procedures concerning Vietnam era exposure to the

Agent Orange defoliant. MVA’s petition is directed to VA 

practices described in the M21-1 Manual (1) at Section IV 

(ii)(1)(H)(4)(a) and Section IV (ii)(1)(H)(4)(b) (the “Thailand 

Rules”), (2) at Section IV (ii)(1)(H)(1) (the “Blue Water 

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Navy Rule”), and (3) at Section IV (ii)(2)(C)(3)(e) (the “Airspace Rule”). These rules are founded on legislation that 

arose as veterans of the Vietnam era developed illnesses, 

such as non-Hodgkin’s lymphoma and other cancers, that 

came to be understood as related to exposure to Agent Orange. 

Early legislative action concerning Agent Orange exposure is seen in the Veterans Health Programs Extension 

and Improvements Act of 1979, Pub. L. No. 96-151, § 307; 

93 Stat. 1092, 1097–98 (1979), in which Congress required 

the VA to conduct a study of long-term health effects on 

Vietnam veterans who were exposed to dioxins that were 

components of Agent Orange. After study by the Centers 

for Disease Control (“CDC”) in 1982, see H.R. REP. NO. 98-

592 at 5 (1984), reprinted in 1984 U.S.C.C.A.N. 4449, 

4451–52, Congress enacted the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 

98-542, 98 Stat. 2725 (1984) (the “Dioxin Act”). The Dioxin 

Act directed the VA to establish guidelines for diseases 

shown by “sound scientific or medical evidence” to be associated with herbicides, including Agent Orange, containing 

dioxins. Id. §§ 5(a)(1)(A), 5(b)(2)(B), 98 Stat. at 2727–29. 

The Dioxin Act also instructed the VA to presume that 

a veteran experienced toxic herbicide exposure “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.” Id. § 5(b)(3)(B). In 1986, the 

VA promulgated 38 C.F.R. § 3.311a, a regulation presuming exposure to herbicides containing dioxins for veterans 

who “served in the Republic of Vietnam.” 38 C.F.R. 

§ 3.311a(b) (1986). This presumption applied to service in 

mainland Vietnam, as well as “service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.”

Id. § 3.311a(a)(1).

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In 1990, the CDC reported the results of a comprehensive study, showing a statistically significant relation between service in Vietnam and illnesses such as nonHodgkin’s lymphoma and other cancers. See The Association of Selected Cancers with Service in the U.S. Military 

in Vietnam: Final Study, I. Non-Hodgkin’s Lymphoma, 150 

ARCHIVES INTERNAL MED. 2473 (1990); see also Claims 

Based on Service in Vietnam, 55 Fed. Reg. 43123, 43124

(Oct. 26, 1990) (38 C.F.R. pts. 3, 4). 

There followed the Agent Orange Act of 1991, Pub. L. 

No. 102-4, 105 Stat. 11. This Act established a presumption of service connection for veterans afflicted with designated illnesses who “served in the Republic of Vietnam.” 

Id. § 2 (codified as amended at 38 U.S.C. § 1116). The legislative history records the congressional understanding 

that the VA could amend the list of diseases for which 

Agent Orange service connection would be presumed, after 

considering the advice of the National Academy of Sciences. See 137 CONG. REC. H719-01 (1991). The M21-1 

Manual provided instructions, forms, questionnaires, and 

other guidance for implementation by the VA’s regional offices throughout the nation, establishing “service in Vietnam” if a veteran received the Vietnam Service Medal. 

See M21-1 Manual § 4.08(k)(1) (Nov. 8, 1991) (citation 

omitted). However, in 2002 the VA amended the M21-1 

Manual, replacing the Vietnam Service Medal test for presumptive “service in the Republic of Vietnam,” and instead 

requiring veterans to show a “foot-on-land” or “boots-onthe-ground” presence within Vietnam during their service. 

See M21-1 Manual, Pt. III, para. 4.24(e)(1) (Feb. 27, 2002).

 Studies of medical causation and service relation continued as the nation’s experience with diseases associated 

with Agent Orange enlarged with an aging veteran population. See, e.g., Herbicide Exposure and Veterans With

Covered Service in Korea, 74 Fed. Reg. 36640-02 (July 24, 

2009) (proposed rule).

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Representative Bob Filner, the Chairman of the House 

Committee on Veteran Affairs, introduced the Agent Orange Equity Act of 2009 to clarify that 38 U.S.C. § 1116 includes veterans who served in waters offshore of Vietnam 

or at any level of airspace above Vietnam, or who received 

the Vietnam Service Medal. See H.R. 2254, 111th Cong. 

§ 2 (2009). The bill was not enacted, although it received 

hearings. See Vietnam Veterans Longitudinal Study, 2010 

WL 1785800 (May 5, 2010). 

Congressional attention continued in 2013, when the 

Blue Water Navy Vietnam Veterans Act of 2013 was introduced. See H.R. 543, 113th Cong. (2013). This bill would 

have extended the presumption of service connection to include service on the territorial seas of Vietnam. Several 

versions of the bill were reintroduced over the next six 

years. See, e.g., S. 681, 114th Cong. (2015); H.R. 299, 115th 

Cong. (2018).

Several states, including Hawaii, Alaska, and Arizona, 

urged Congress to assure the presumption of service connection to veterans who “served in the waters defined by 

the Combat Zone” and “in the airspace over the Combat 

Zone” in Vietnam. 160 CONG. REC. S3290-05, S2393 (May 

22, 2014) (“Congress is respectfully urged [by the House of 

Representatives of Hawaii] to restore the presumption of a 

service connection for Agent Orange exposure to United 

States veterans who served in the waters defined by the 

Combat Zone and in the airspace over the Combat Zone in 

Vietnam . . . .”); 160 CONG. REC. S6197-01, S6201 (Nov. 20, 

2014) (“[T]he Alaska State Legislature urges the United 

States Congress to restore the presumption of a service 

connection for Agent Orange exposure to United States 

Veterans who served in the waters defined by the combat 

zone and in the airspace over the combat zone . . . .”); see 

also 160 CONG. REC. S4217-01, S4423 (July 7, 2014) (“[T]he 

House of Representatives of the State of Arizona, 

prays . . . [t]hat the United States Congress restore the 

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presumption of a service connection between Agent Orange 

exposure and subsequent illnesses to United States Vietnam War veterans who served in the waters, which is defined as the combat zone, and in the airspace over the 

combat zone.”). Other states and localities urged Congress 

to apply the presumption for veterans who served in the 

“territorial waters” or “offshore waters,” and “airspace” of 

Vietnam. See 155 CONG. REC. E2166-04, E2167 (July 31, 

2009) (“The 81st Legislature of the State of Texas respectfully urge [Congress] to restore the presumption of a service connection for . . . veterans who served on the inland 

waterways, in the territorial waters, and in the airspace of 

the Republic of Vietnam . . . .”); 160 CONG. REC. S3290-05, 

S3291 (May 22, 2014) (“The House of Representatives [of 

Pennsylvania] respectfully urge . . . Congress . . . to restore the presumption of a service connection for . . . veterans who served on the inland waterways, territorial waters 

and in the airspace of Vietnam . . . .”); 159 CONG. REC. 

E1889-01, E1889 (Dec. 16, 2013) (“The United States Congress should . . . direct the [VA] to administer the Agent 

Orange Act under the presumption that herbicide exposure . . . includes [Vietnam’s] inland waterways, offshore 

waters, and airspace . . . .”). 

In Congressional hearings, the Congressional Budget 

Office provided data and estimated that 229,000 veterans 

were presumptively exposed to Agent Orange in the Vietnam Service Medal area, 55,000 more veterans than the 

Congressional Research Service estimated were serving in 

the territorial seas of Vietnam. See Veteran Benefits Legislation, 2015 WL 3378295 (May 13, 2015). The MVA participated in Congressional hearings and pointed out 

differences between various criteria used to determine 

“service in the Republic of Vietnam,” including the Vietnam Service Medal area, the territorial seas of Vietnam, 

and the “foot-on land” rule. See id. (“Historically . . . the 

M21-1 Manual[] allowed the presumption to be extended to 

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all veterans who had received the Vietnam service 

medal . . . . In a February 2002 revision to the M21-1 Manual, the VA . . . required a showing that the veteran has set 

foot on the land or entered an internal river or stream.”); 

Pending Legislation, 2017 WL 1281456 (Apr. 5, 2017) 

(“Prior to 2002, the VA granted the presumption of exposure to any ship that crossed the [Vietnam Service Medal 

demarcation line]. [The Blue Water Navy Vietnam Veterans Act] will restore the presumption only to a ship that 

crosses the [line demarcating the territorial seas].”). 

In 2015, an Institute of Medicine of the National Academy of Sciences report led the VA to presume herbicideagent exposure for veterans who “regularly and repeatedly 

operated, maintained, or served onboard C-123 aircraft 

known to have been used to spray an herbicide agent during the Vietnam era.” 38 C.F.R. § 3.307(a)(6)(v); see also

Presumption of Herbicide Exposure and Presumption of 

Disability During Service for Reservists Presumed Exposed to Herbicide, 80 Fed. Reg. 35246-01, 35247 (June 19, 

2015) (interim final rule). 

A Senate resolution in 2017 “recognize[d] the intent of 

the Agent Orange Act of 1991 (Public Law 102-4) included 

the presumption that those veterans who served in the 

Armed Forces in the bays, harbors, and territorial seas of 

the Republic of Vietnam . . . served in the Republic of Vietnam for all purposes under the Agent Orange Act of 

1991.” 163 CONG. REC. S2219-03, S2220 (Apr. 4, 2017). In 

2018, the National Academy of Sciences issued its Veterans

and Agent Orange: Update 11, stating that “there was inadequate information to determine the extent of exposure 

experienced by Blue Water Navy personnel, but that there 

were possible routes of exposure,” including ships drawing 

contaminated seawater to distill for potable water. NAT’L 

ACAD. SCI, VETERANS AND AGENT ORANGE: UPDATE 11 at 36 

(The National Academics Press, 2018). 

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In 2019, this court held that the Republic of Vietnam 

includes its 12 mile territorial sea. Procopio v. Wilkie, 913 

F.3d 1371, 1380–81 (Fed. Cir. 2019). This was codified by

the Blue Water Navy Vietnam Veterans Act of 2019, Pub. 

L. No. 116-23, § 2, 133 Stat. 966 (codified at 38 U.S.C. 

§ 1116A), stating “[a] veteran who . . . served offshore of 

the Republic of Vietnam . . . shall be presumed to have 

been exposed.” The Act then defines the boundaries of “offshore” service based on a list of geographical coordinates 

that represent Vietnam’s claimed territorial waters. See

38 U.S.C. § 1116A. 

However, the airspace over Vietnam was not included

in the scope of the Act, as Congressman Mark Takano submitted that “an aircraft that passed in the airspace above 

the offshore waters would not have drawn water from the 

sea and therefore is not considered present within the offshore waters for purposes of this legislation.” H.R. REP. NO. 

116-58, at 11–12 (2019), reprinted in 2019 U.S.C.C.A.N. 

279, 280–82. Still, Rep. Takano stated that “the Committee intends that VA’s definition . . . be broad and comprehensive.” Id. at 11. The House Report also referred to the 

Institute of Medicine’s conclusion that, given the passage 

of time and lack of data collected during the conflict, definitive answers concerning Blue Water Navy Veterans’ exposure to Agent Orange are not available, and are unlikely to

ever become available. Id. at 10. 

Debate continued, along with legislative attention. On 

August 10, 2022, President Biden signed the Sergeant 

First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act of 2022, Pub. L. No. 117-

168, 136 Stat. 1759 (codified at 38 U.S.C. §§ 1116 and 1710)

(“the PACT Act”), effective October 1, 2022. The PACT Act

included provisions relevant to Agent Orange exposure for 

Vietnam era veterans who served in Thailand, as we shall 

discuss. 

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DISCUSSION

MVA’s 38 U.S.C. § 502 petition is directed to the designated “Thailand Rules,” the “Blue Water Navy Rule,” and 

the “Airspace Rule,” with respect to presumptions of Agent 

Orange exposure and service connection, as administered 

by VA statutes, regulations, and M21-1 Manual provisions. 

Similar issues for other areas and additional background 

are reported in our decision in Military Veterans Advocacy, 

Inc. v. Secretary of Veterans Affairs, 38 F.4th 154 (Fed. Cir. 

2022).

We review § 502 petitions to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the 

terms of an agency action.” 5 U.S.C. § 706; McKinney v. 

McDonald, 796 F.3d 1377, 1383 (Fed. Cir. 2015). We will 

“hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.” 5 U.S.C. § 706(2)(A). 

A 

THE THAILAND RULES

The challenged Thailand Rules concern the scope of the 

presumption of exposure to Agent Orange for veterans who 

served on military bases in Thailand.

The relief that MVA requested of the VA, and subsequently this court, relating to the Thailand Rules has now

been provided in part by the PACT Act as follows. 

In 2010, the Secretary responded to congressional concern and amended the M21-1 Manual to apply the presumption of service connection to veterans who were 

stationed in Thailand during the Vietnam era. However, 

the presumption was limited to veterans whose duties 

placed them “at or near the base perimeter,” for defoliant 

use was primarily at the perimeter. M21-1 Manual, Section IV (ii)(2)(C)(10)(q) (Oct. 4, 2010). This provision had 

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not substantively changed since 2010, despite petitions for 

rulemaking, legislative hearings, and the filing of this 

§ 502 petition. Then, in 2022 the requested change was 

partially made in the PACT Act, enacted while this case 

was pending: 

PACT Act § 403. Presumptions of service connection for diseases associated with exposures to certain herbicide agents for veterans 

who served in certain locations.—

*** 

(d) In this section, the term “covered service” means active military, naval, air, or space service— . . . . (2) performed in Thailand at any 

United States or Royal Thai base during the period 

beginning on January 9, 1962, and ending on June 

30, 1976, without regard to where on the base the 

veteran was located or what military job specialty 

the veteran performed . . . . 

136 Stat. 1759, 1780–81 (amending 38 U.S.C. § 1116). 

In view of this enactment, we requested briefing from 

the parties concerning its effect on MVA’s § 502 petition. 

The Secretary responded that “the PACT Act does not 

moot MVA’s ‘Thailand Rules’ challenge . . . . because it 

does not provide MVA with the full extent of the relief that 

it had sought from VA and this court,” referring to a discrepancy in the chronological period covered by the PACT 

Act (January 9, 1962–June 30, 1976), and the period used 

by the VA in the Thailand Rules context (February 28, 

1961–May 7, 1975). Sec’y Suppl. Resp. Br. 2–3, Sept. 14, 

2022, ECF No. 56. The Secretary stated that “there is [a]

portion of MVA’s ‘Thailand Rules’ challenge that remains 

live even after the PACT Act.” Id. at 3–4.

But the MVA wrote that “the PACT Act provides the 

full relief requested by MVA on behalf of its Thailand 

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veteran members, and any relief provided by this Court 

would not affect their legal interests.” MVA Suppl. Resp. 

Br. 7, Sept. 14, 2022, ECF No. 57 (citations omitted). MVA 

did not agree with the Secretary that any part of its challenges to the Thailand Rules remained live, so it appears 

that the MVA has waived its challenges to the Thailand 

Rules to the extent that its challenges were not moot.

The Thailand Rules portion of the petition is accordingly dismissed.

B 

THE BLUE WATER NAVY RULE

As an initial matter, the Secretary argues that MVA 

does not have associational standing to challenge the Blue 

Water Navy Rule, as well as the other M21-1 Manual provisions at issue. To establish associational standing, an organization must show that: 

(a) its members would otherwise have standing to 

sue in their own right; (b) the interests it seeks to 

protect are germane to the organization’s purpose; 

and (c) neither the claim asserted nor the relief requested requires the participation of individual 

members in the lawsuit. 

NOVA, 981 F.3d at 1368 (citations omitted). The Secretary 

accepts that this § 502 action meets NOVA’s requirements 

as described in (b) and (c), but the Secretary argues that 

“[n]one of the manual revisions MVA disputes affect any of 

its members’ substantive rights.” Sec’y Br. 29. 

The MVA filed affidavits of two of its members, stating 

uncertainty as to whether their claims are covered by the 

current Blue Water Navy rule. Section 502 authorizes petitions for clarification of VA Rules when there is “an actual 

or potential claim [that] is sufficiently affected by the particular challenged rule to meet the requirements of actual 

or imminently threatened concrete harm and the other 

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requirements for that member to have Article III standing.” NOVA, 981 F.3d at 1370. Having reviewed the record, 

we do not agree with the Secretary that the MVA lacks organizational standing here.

With respect to the Blue Water Navy Rule portion of 

the § 502 petition, we do not share MVA’s view that the

VA’s interpretation of the Blue Water Navy Vietnam Veterans Act of 2019 unduly narrowed the presumption of exposure and service connection as applied to shipboard 

service. MVA Br. 1–5. 

The initial regulations as adopted in 1993 stated that 

the presumption of service connection regarding Agent Orange exposure applied to shipboard veterans with 

“[s]ervice in the waters offshore and service in other locations if the conditions of service included duty or visitation 

in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii) 

(1993). As noted supra, in 2002 the VA began interpreting 

this regulation to require a veteran to show some service 

on land within Vietnam applying the “foot-on-land” or 

“boots-on-the-ground” policy. See M21-1 Manual, Pt. III, 

para. 4.24(e)(1) (Feb. 27, 2002).

This court previously upheld that interpretation as 

within the Secretary’s discretion. See Haas v. Peake, 525 

F.3d 1168, 1193 (Fed. Cir. 2008) (“Drawing a line between 

service on land, where herbicides were used, and service at 

sea, where they were not, is prima facie reasonable.”). 

Thus naval service without foot-on-land presence did not 

create a presumption of service connection for veterans 

who became afflicted with the designated conditions. 

The foot-on-land rule was the subject of ongoing debate, and in 2019 we overruled Haas and held that the presumption of service connection does not require presence 

on mainland Vietnam. Procopio, 913 F.3d at 1376 (“[W]hen 

the Agent Orange Act was passed in 1991, the ‘Republic of 

Vietnam’ included . . . its 12 nautical mile territorial sea.”). 

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The requirement for “duty or visitation” onshore was eliminated. Id. at 1377–78. This decision led to the Blue Water

Navy Vietnam Veterans Act of 2019, which provides: 

38 U.S.C. § 1116A(b). Exposure.— A veteran who, 

during active military, naval, or air service, served 

offshore of 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 unless there is affirmative evidence to establish that 

the veteran was not exposed to any such agent during that service.

This presumption is implemented in the M21-1 Manual, 

Section IV (ii)(1)(H)(1)(g), referring to service on vessels operating in “eligible offshore waters.” The question as presented in MVA’s § 502 petition relates to the definition of 

“eligible offshore waters.” The Blue Water Navy Vietnam 

Veterans Act of 2019 defines “offshore of Vietnam” as

within the traditional 12 nautical mile limit of territorial 

sea: 

38 U.S.C. § 1116A(d). Determination of Offshore.— Notwithstanding any other provision of 

law, for purposes of this section, the Secretary shall 

treat a location as being offshore of Vietnam if the 

location is not more than 12 nautical miles seaward 

of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia 

and intersecting the following points . . . [longitudinal and latitudinal coordinates].

MVA argues that the 12 nautical mile limit should not 

apply, for Procopio and 38 U.S.C. § 1116(d) did not limit 

Vietnam’s territorial waters to any specific nautical mileage, nor did the court define offshore waters by longitude 

and latitude as in 38 U.S.C. § 1116A. MVA argues that

these delineations are contrary to this court’s holding in 

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Procopio and asks this court to assure that the presumption of service connection applies to all naval and air service “throughout the Vietnamese theater of combat.” MVA 

Reply Br. 32. MVA points out that “§ 1116A captures some 

360 square nautical miles of the sea that lie outside the 

territorial sea of the Republic of Vietnam.” MVA Br. 39. 

MVA also argues that “§ 1116A does not capture the entire 

territorial sea of the Republic of Vietnam,” such as the sea 

near the island of Phu Quoc, id., and states that those areas should be deemed covered by the presumption in view 

of our ruling in Procopio, where we stated that “all available international law, including but not limited to the congressionally ratified 1958 Convention, confirms that, when 

the Agent Orange Act was passed in 1991, the ‘Republic of 

Vietnam’ included both its landmass and its 12 nautical 

mile territorial sea,” 913 F.3d at 1376.

The Secretary states that it was Congress, not the VA, 

that defined the geographic scope of what “offshore” areas 

were included within the Blue Water Navy Vietnam Veterans Act of 2019. See Sec’y Br. 52. The Secretary argues 

that Phu Quoc is not within § 1116A and that, “[i]f MVA 

wishes to challenge the scope of the plain reach of the statute, it must direct that grievance toward Congress.” Id. We 

agree with the Secretary that, if any changes are warranted, the legislative process is the appropriate forum.

MVA also objects to the remand of authority from the 

regional offices to a centralized team of administrators for 

processing claims for Agent Orange exposure. In accordance with the Blue Water Navy Vietnam Veterans Act of 

2019, the M21-1 Manual was amended to state:

ROs are no longer authorized to establish if a Veteran’s service qualifies for herbicide exposure in 

RVN claims. The centralized processing teams will 

be responsible for all adjudication activities involved in processing blue water Navy contentions . . . . 

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M21-1 Manual, Section IV (ii)(1)(H)(1)(a). MVA states that 

the 2019 “withdrawal of authority from the Regional Offices leaves Blue Water Navy veterans who served outside 

the area defined in § 1116A completely unable to obtain a 

presumption of service connection in the initial adjudication of their claims.” MVA Reply Br. 19. MVA’s criticism 

appears to be unwarranted, and unresponsive to the notion 

that a centralized team of experienced claim administrators is a desirable step in the area of complex medical science. 

The petition with respect to review of the Blue Water 

Navy Rule is denied.

C 

THE AIRSPACE RULE

After the Agent Orange Act was enacted in 1991, questions soon arose as to what should constitute service “in the 

Republic of Vietnam” under the Act. The VA’s general 

counsel issued an opinion that concluded, for purposes of

the presumption of service connection regarding Agent Orange exposure under 38 C.F.R. § 3.313, “‘service in Vietnam’ does not include service of a Vietnam era veteran 

whose only contact with Vietnam was flying high-altitude 

missions in Vietnamese airspace.” VA Office Gen. Couns., 

Prec. Op. 7-93 Service in Vietnam under 38 C.F.R. § 3.313

(Aug. 12, 1993), https://www.va.gov/ogc/opinions/1993precedentopinions.asp. This position was reflected in the 

M21-1 Manual, Section IV (ii)(2)(C)(3)(e) (the “Airspace 

Rule”). Efforts to remove the “high-altitude missions” limitation have not succeeded, as summarized supra. MVA 

asks us to act under § 502 to “invalidate the Airspace Rule 

as contrary to the governing statute, international law, and 

[our] recent decision in Procopio.” MVA Br. 29. MVA states 

that our reasoning in Procopio that explained the Agent 

Orange Act should be interpreted consistently with international law compels the conclusion that the “Republic of 

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SECRETARY OF VETERANS AFFAIRS

Vietnam” includes the airspace above its territory. Thus 

MVA states that a regulatory exception for “high-altitude 

missions” should be corrected by action under § 502.

MVA provided the affidavit of Frederick Hinchliffe, a 

U.S. Navy veteran who flew bombing missions over Vietnam, but never landed in the country. Hinchliffe states 

that on one of his bombing runs over South Vietnam at 

3,000 feet, “the air was significantly thick with yellowish 

haze” and “all vegetation was defoliated.” Id. at A3–A4. 

However, flying at 3,000 feet is not a high-altitude mission, 

as admitted by MVA. Id. at 26–27. 

MVA states that “if the Airspace Rule were vacated, 

Mr. Hinchcliffe [sic] would be able to show that he should 

be granted the presumption of service connection under a 

correct interpretation of the governing statutes and case 

law.” MVA Reply Br. 11.

The Secretary argues that MVA’s challenge to the Airspace Rule is time barred under 28 U.S.C. § 2401(a), for the 

exclusion of high-altitude missions from the presumption 

of service connection has been the rule since 1993, and that 

the December 2019 M21-1 Manual revisions merely republished the Airspace Rule with a change to capitalization. 

See Sec’y Br. 34–37; 28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless 

the complaint is filed within six years after the right of action first accrues.” (emphasis added)). We agree with the 

Secretary that MVA’s challenge to the Airspace Rule is 

barred by the six-year limit provided in § 2401(a) because 

the rule has been in full force and effect since 1993. See

Sec’y Br. 34–35.

However, even if the time bar did not apply, we also 

agree with the Secretary on the merits. The Secretary supports the current Airspace Rule by citing the statement in 

H.R. REP. NO. 116-58, at 11–12 (2019), reprinted in 2019

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 SECRETARY OF VETERANS AFFAIRS

18

U.S.C.C.A.N. 279, that “an aircraft that passed in the airspace above the offshore waters would not have drawn water from the sea and therefore is not considered present 

within the offshore waters for purposes of this legislation.”

Because Congress is presumed to have had knowledge of 

the VA’s Airspace Rule, the Secretary argues this statement signals that Congress chose not to enlarge the presumption of service connection with respect to highaltitude flights. See Sec’y Br. 44–45.

The Secretary points out that Congress has consistently preserved the high-altitude exception since its adoption in 1993. See id. at 44–46. It appears that Congress 

has, again, not accepted the position that MVA requests of 

the court. In the recently enacted PACT Act, in which Congress broadened the Thailand Rules, Congress explicitly 

included airspace service in the toxic exposure presumption for certain designated locations, but not Vietnam. See

PACT Act, 136 Stat. at 1778 (defining “covered veteran” for

certain toxic exposure presumption purposes as “any veteran who . . . performed active military, naval, air, or space 

service while assigned to a duty station in, including the 

airspace above [the named countries]”). 

The petition with respect to the Airspace Rule must be 

denied.

CONCLUSION

This petition under 38 U.S.C. § 502 is dismissed as to 

the Thailand Rules and denied as to the Blue Water Navy 

Rule and the Airspace Rule.

DISMISSED IN PART, DENIED IN PART

COSTS

No costs.

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