Finkelstein and Partners Veterans Services Group attorney Christine Clemens recently took the lead in writing an AMICUS brief to the US Supreme Court in the Gray case on behalf of the National Organization of Veterans Advocates (NOVA), Military Officers Association of America (MOAA), National Law School Veterans Clinic Consortium (NLSVCC) and Veterans of Foreign Wars of the United States (VFW) in support of the Petitioner Robert Gray.
Below VSG attorney Christine Clemens discusses the VSG’s involvement and the goals of the case.
Can you provide an overview of the Gray case?
Mr. Gray filed a claim with the Department of Veterans’ Affairs (VA) for service connected disability compensation of his conditions to include diabetes, neuropathy, and heart disease. He believed these disabilities were related to his exposure to Agent Orange and other tactical herbicides during his service in Da Nang Harbor during the Vietnam War. When Mr. Gray filed his claim with the VA for entitlement to service connection, the VA’s Policy Manual defined “service in the Republic of Vietnam (RVN)” as “service in the RVN or its inland waterways.” This Policy Manual is used by all of the claims processors at the 58 VA Regional Offices. VA policy (as found in a department letter from 2009) further defined “inland waterways” to exclude “open deep-water coastal ports and harbors where there is no evidence of herbicide use.” On this basis, The VA denied Mr. Gray entitlement to service connection.
Mr. Gray appealed to the U.S. Court of Appeals for Veterans Claims (“CAVC”). The CAVC found the record “devoid of any indication that VA made a fact-based assessment of the probability of exposure in Da Nang Harbor from aerial spraying.” The CAVC held that remand was required for the VA “to reevaluate its definition of inland waterways—particularly as it applies to Da Nang Harbor—and exercise its fair and considered judgment to define inland waterways in a manner consistent with [38 C.F.R. § 3.307(a)(6)(iii)]’s emphasis on the probability of exposure.”
Rather than publishing a provision in the Federal Register, the VA simply revised its interpretation in its Policy Manual. Mr. Gray appealed to the Federal Circuit who upheld the VA’s ability to make critical adjudication and interpretive changes within its manual, free from the requirement to publish in the Federal Register, and free from pre-enforcement judicial review. This means that rather than being able to bring a problematic manual provision to the attention of the court for resolution, individual Veterans must fight the same provision, over and over again, by appealing their cases all the way through the cumbersome VA process all the way up to the courts. Based on the average length of time of an appeal, this means Veterans will be waiting for 7-10 years just to have the court look at the provision. Mr. Gray believes this is not what Congress intended in the drafting of the applicable statutes and now seeks the Supreme Court of the United States to consider his case.
Why is the Gray case so important for other Veterans?
The Gray case is not simply about one Veteran and the injustice taking place in the adjudication or processing of his case. As we stated in our brief to the Supreme Court, the court’s holding in Gray has far reaching, potentially devastating impact on Veterans. This case was related to a Blue Water Veteran issue, but the holding in this case and the earlier DAV case (a Gulf War Manual provision case), have the potential to substantively impact Veterans cases moving forward. It allows for the VA to hide key provisions in its policy manual that will essentially be binding on the VA, without allowing Veterans to challenge those provisions in court before the VA relies on them.
Based on the appeals backlog at the VA, this means veterans will be waiting even longer to have appropriate review of their claims. The provision in the Gray case was one that applied to the definition of “inland waterways,” which affects cases for Veterans (mostly Navy) who served in and around the territorial waters of Vietnam. The VA narrowed its definition to specifically exclude harbors such as Da Nang Harbor, where Mr. Gray served aboard a Navy ship. What is more disturbing is that the VA’s choice to narrowly construe the term inland waterways, does not appear to be based on any sort of technical definition or evidence, nor does it seem to consider the probability of exposure that is suggested by the regulations related to this issue. It makes an already cumbersome, confusing, lengthy process even less transparent.
The VA system was created to be pro-Veteran. We think the result in the Gray case undermines that system and goal.
How did you & the VSG get involved?
I have been a member of the National Organization of Veterans’ Advocates since 2012. In 2017, I volunteered to serve on the Amicus and Litigation Committee. When this opportunity presented itself, several of the other committee members and I were eager to address this vital issue for such a tremendous organization. We were also honored to have the additional support of several other important Veteran’s Service Organizations including MOAA, NLSVCC, and VFW.
What do you hope to achieve in this pursuit?
We hope that the US Supreme Court will correct what we feel are problematic decisions by the Federal Circuit. We believe the Federal Circuit’s holdings in the Gray case and earlier decided DAV case are contrary to the intent of Congress, and encourage the VA to work secretively instead of collaboratively with veterans and their representatives.
We are extremely proud of the hard work of Ms. Clemens and the VSG team. Very few lawyers have the opportunity to write a brief for the US Supreme Court, and in the last few years the VSG has written two. To learn more about the VSG click here.