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Veterans Law

Agent Orange Case Gray v. Wilkie Certified to Supreme Court

Michael Lostritto

November 7, 2018

Updated: February 16, 2024

supreme court

On Friday November 2, 2018, the Supreme Court of the United States granted certiorari in the veteran’s case Gray v. Wilkie.  The justices agreed to address an issue involving whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction to hear pre-enforcement litigation of VA rules set forth in its adjudication manual knowns as the M21-1.

Procedural History

In 1991, Congress passed the Agent Orange Act to make it easier for veterans who were exposed to toxic herbicides in Vietnam to obtain VA disability benefits.  If a veteran served in-country in Vietnam between January 9, 1962 and May 7, 1975 and developed any one of several disabilities linked to Agent Orange exposure, he or she is granted presumptive service connection.  In 2007, Mr. Gray filed a claim for disability compensation for a number of medical conditions related to his naval service in Da Nang Harbor, Vietnam.  At the time, VA considered service in Vietnam as service on its land-mass or in its inland waterways, but not open deep-water coastal ports and harbors.

VA denied Mr. Gray’s claim under the above-mentioned interpretation.  Eventually, he appealed to the U.S. Court of Appeals for Veterans Claims (“CAVC”).  The CAVC concluded that VA’s definition of “inland waterways” was both inconsistent with the regulatory purpose and irrational in part because VA offered no meaningful explanation for why it classified some bays as inland waterways, but not others.  Therefore, the CAVC remanded Gray’s case to the Board with instructions to re-evaluate its definition of “inland waterways” to be consistent with 38 CFR § 3.307, relating to the presumption of exposure

Following this CAVC decision in February of 2016, VA published a Memorandum of Changes, announcing a change to its interpretation of the Agent Orange Act by revising the manual in which it publishes its policies and procedures for resolving claims for benefits: the Adjudication Procedures Manual M21-1 (“M21-1 Manual”).

The M21-1 Manual revision held that only veterans who set foot on Vietnam soil or served in the country’s “inland waterways” would be presumed to have been exposed to Agent Orange.  Furthermore, the M21-1 Manual defined “inland waterways” as “fresh water rivers, streams, and canals and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service in these waterways is service in Vietnam.”  Importantly, this revision to the M21-1 Manual instructs VA to exclude all Navy personnel who served outside the now-defined inland waterways of Vietnam, including ports, harbors, and open waters, from presumptive service connection for conditions connected with Agent Orange exposure.  Mr. Gray sought pre-enforcement review of this matter in the Federal Circuit.

What is 38 U.S.C. § 502?

38 U.S.C. § 502 is a specialized review mechanism pertaining to the U.S. Court of Appeals for the Federal Circuit.  Specifically, this statute gives the Federal Circuit jurisdiction to adjudicate pre-enforcement challenges to substantive rules, interpretive rules, and statements of general policy issued by VA.  The purpose of this statute is to protect veterans by allowing them to directly challenge unlawful VA agency policy, without having to first process such challenges through the backlogged VA disability claims process.  In Gray v. Wilkie, Mr. Gray petitions the Court under 38 U.S.C. § 502 to review the revisions made to the M21-1 Manual in February of 2016.

Federal Circuit Decision

In Gray, the Federal Circuit held that it lacked the jurisdiction to review VA interpretive rules if VA published them in its M21-1 Manual.  In response to this decision, Mr. Gray asked the Supreme Court to review the lower court’s ruling.  He argued that it should be overturned not only because it undermines the purpose of 38 U.S.C. § 502, but also because it will impose significant hardship on veterans.  Specifically, the holding prevents veterans from obtaining prompt review of unlawful VA rules from the beginning, when the damage to veterans could otherwise be minimized.  The Supreme Court justices agreed to decide whether the Federal Circuit has jurisdiction to review VA policies set forth in the M21-1 Manual under 38 U.S.C. § 502.


About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael