Cox v. McDonald, docket no. 14-2779 (Nov. 7, 2016)

HELD: Veterans with Afghanistan service are not entitled to the presumption of service connection for certain conditions, including chronic undiagnosed illnesses, provided in 38 U.S.C. § 1117 and 38 C.F.R. § 3.117. VA’s exclusion of Afghanistan from its definition of the geographic area comprising the “Southwest Asia theater of operations” is “reasonable” in light of the legislative history of 38 U.S.C. § 1117, and VA’s Training Letter that indicated that VA was going to amend its regulation to include Afghanistan was not a substantive rule that required a “notice-and-comment” period in order to be rescinded.

SUMMARY: Veteran Clifford Cox appealed the Board’s denial of service connection for back and knee disabilities, arguing to the Court that the Board failed to apply the “Gulf War provisions” of 38 U.S.C. § 1117. This statute and its implementing regulation, 38 C.F.R. § 3.117(b), provide for presumptive service connection for veterans with “qualifying chronic disabilities,” including diagnosed and undiagnosed illnesses, who served in the “Southwest Asia theater of operations.”

Mr. Cox served in Afghanistan in 2009, and began experiencing back and knee problems during that deployment. His current x-rays and examinations were negative for any abnormalities. However, he argued that the statute and case law (specifically, Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014)) state that pain alone “may establish an undiagnosed illness that causes a qualifying chronic disability.” Because the record contained medical and lay evidence of back and knee pain that the Board found credible, he argued that the Board erred by failing to apply the presumptions of 38 U.S.C. § 1117.

He also pointed out that in February 2010, VA issued a Training Letter indicating that it was going to amend its regulation to include Afghanistan in the definition of “Southwest Asia theater of operations.” In October 2010, VA issued a revised version of that Training Letter that deleted the language concerning veterans with Afghanistan service. Mr. Cox argued that the February 2010 Training Letter created a “substantive rule” that VA could not withdraw or change without complying with the “notice-and-comment” requirements of the Administrative Procedure Act.

The Court disagreed with Mr. Cox’s interpretation of the statute and with his characterization of the Training Letter as a substantive rule.

The Court first noted that Congress did not define the geographic area comprising the “Southwest Asia theater of operations” in 38 U.S.C. § 1117 – but instead delegated the authority to VA to issue regulations that defined the area. The Court found that the plain language and the legislative history of the statute did not support Mr. Cox’s position – particularly since Afghanistan was not part of the “Southwest Asia theater of operations” when the statute was first enacted in 1994. After 9/11, when Afghanistan was added by Executive Order as a combat area, Congress amended the statute in December 2001 to expand the definition of included illnesses – but still did not include a definition of “Southwest Asia theater of operations.”

In 2010, VA proposed to amend its regulation to include Afghanistan, but that never made it into the final rule. Based on the plain language of the statute – and the legislative history showing that Congress could have, but did not amend the statue to define the geographic area to include Afghanistan – the Court found VA’s interpretation of the statute as including only the original Desert Storm theater of operations to be permissible.  

With respect to the Training Letter, the Court found that it did not create any substantive “rights” that a claimant could rely on – but that it instead only provided “guidance” to VA personnel regarding potential future changes to the regulations.

The Court acknowledged that VA has publicly recognized that Afghanistan veterans face the same types of exposures to environmental hazards as Iraq veterans – and “encouraged” VA to “review the appropriateness of an overall change to the definition of ‘Southwest Asia theater of operations’ to explicitly include Afghanistan.” Unfortunately, the Court made these statements in footnotes, which do not alter the holding of this case.