## Facts

- Congress authorized a presumption of service connection for certain diseases for veterans who “served in the Republic of Vietnam” and were exposed to herbicides under 38 U.S.C. § 1116 and implementing regulations.
- VA adjudication practice distinguishes between veterans who served on land or inland waterways (“brown water”) and those who served offshore (“blue water”) for purposes of the herbicide-exposure presumption.
- VA uses the Adjudication Procedures Manual M21-1 to instruct regional-office claims adjudicators on applying presumptions in benefits decisions.
- In February 2016, VA revised M21-1 provisions describing what geographic waters qualify as Vietnam “inland waterways.”
- The revisions generally stated that “bays, harbors, and ports” are not inland waterways, affecting claims based on service in those waters.
- The revisions were not promulgated through notice-and-comment rulemaking and were not published in the Federal Register or codified in the Code of Federal Regulations.
- The manual provisions were binding on VA regional-office adjudicators but not on the Board of Veterans’ Appeals, which decides appeals under statutes, VA regulations, and precedential General Counsel opinions.
- A Navy veteran and an advocacy association petitioned for direct review in the Federal Circuit under 38 U.S.C. § 502, challenging the 2016 M21-1 revisions.

## Issues

1. Whether the 2016 M21-1 Manual revisions regarding Agent Orange “inland waterway” determinations are reviewable “rules” or “regulations” under 38 U.S.C. § 502 (by reference to APA publication or notice-and-comment provisions).
2. If reviewable, whether the revisions are arbitrary, capricious, or contrary to law.

## Decision

- The Federal Circuit dismissed the petition for lack of jurisdiction.
- The court held the challenged M21-1 revisions were not reviewable under 38 U.S.C. § 502 because they did not have binding legal effect as agency “rules” or “regulations” covered by APA §§ 552(a)(1) or 553.
- Because jurisdiction was lacking, the court did not reach the merits of whether the inland-waterway classifications were lawful or rational.
- A separate opinion concurred in part and dissented in part, taking a broader view of when manual provisions may be reviewable.

## Legal Principles

- Federal Circuit jurisdiction under 38 U.S.C. § 502 extends to certain VA actions to which APA § 552(a)(1) (publication of substantive rules of general applicability) or APA § 553 (notice-and-comment rulemaking) refers.
- Agency pronouncements are generally reviewable as “rules” when they have the force and effect of law; internal guidance that does not bind the agency’s ultimate decisionmaker is generally not reviewable under § 502.
- VA’s M21-1 Manual functions as guidance for regional-office adjudicators and does not bind the Board of Veterans’ Appeals; that limited binding effect weighs against treating manual provisions as legislative rules.
- When a court dismisses for lack of jurisdiction under § 502, it does not decide whether the challenged VA guidance is arbitrary or inconsistent with the underlying benefits statutes or regulations.

## Conclusion

The Federal Circuit held it lacked jurisdiction under 38 U.S.C. § 502 to review VA’s 2016 M21-1 revisions defining Vietnam “inland waterways” for Agent Orange purposes because the revisions were nonbinding interpretive guidance rather than reviewable rules or regulations, leaving any merits challenges to other procedural avenues.


Gray v. Sec'y of Veterans Affs., 875 F.3d 1102 (Fed. Cir. 2017)