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United States Court of Appeals for the Federal Circuit
January 29, 2019, Decided
[*1373] Moore, Circuit Judge.
Alfred Procopio, Jr., appeals a decision of the Court of Appeals for Veterans Claims denying service connection for prostate cancer and diabetes mellitus as a result of exposure to an herbicide agent, Agent Orange, during his Vietnam War-era service in the United States Navy. Because we hold that the unambiguous language of 38 U.S.C. § 1116 entitles Mr. Procopio to a presumption of service connection for his prostate cancer and diabetes mellitus, we reverse.
In 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who "served in the Republic of Vietnam":
[A] disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, [**4] or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and [B] each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service.
38 U.S.C. § 1116(a) (emphasis added). Under § 1116(f), such a veteran "shall be presumed to have been exposed during such service to [the] herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."
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913 F.3d 1371 *; 2019 U.S. App. LEXIS 2906 **
ALFRED PROCOPIO, JR., Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Subsequent History: Related proceeding at Procopio v. Sec'y of Veterans Affairs, 943 F.3d 1376, 2019 U.S. App. LEXIS 36089 (Fed. Cir., Dec. 5, 2019)
US Supreme Court certiorari denied by Procopio v. Wilkie, 2020 U.S. LEXIS 2557 (U.S., May 4, 2020)
Prior History: [**1] Appeal from the United States Court of Appeals for Veterans Claims in No. 15-4082, Judge Coral Wong Pietsch.
Procopio v. McDonald, 2016 U.S. App. Vet. Claims LEXIS 1751 (U.S. App. Vet. Cl., Nov. 18, 2016)
Disposition: REVERSED AND REMANDED.
veterans, territorial, sea, waters, deference, ambiguous, canon, regulation, offshore, pro-veteran, foot-on-land, landmass, herbicides, diseases, visitation, territorial waters, exposure, agency's interpretation, adjacent, international law, unambiguously, benefits, sovereign, lymphoma, statutory interpretation, Non-Hodgkin's, sovereignty, includes, statutory construction, en banc
Military & Veterans Law, General Benefits, Compensation for Service Connected Death & Disability, Eligibility, Administrative Law, Judicial Review, Standards of Review, Veterans, Appeals & Review, International Law, Territorial Boundaries