Euzebio v. McDonough

• Decision Date: 03 March 2021
• Docket Number: 2020-1072
• Citation: 989 F.3d 1305
• Parties: Robert M. EUZEBIO, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

989 F.3d 1305

Robert M. EUZEBIO, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2020-1072

United States Court of Appeals, Federal Circuit.

Decided: March 3, 2021

Zachary Stolz, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also represented by Christopher J. Clay, Barbara J. Cook, April Donahower; Megan Brittney Hall, Disabled American Veterans, Cold Spring, KY.

Martin F. Hockey, Jr., Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Jeffrey B. Clark, Robert Edward Kirschman, Jr. ; Martie Adelman, Brian D. Griffin, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Hillary Anne Wandler, Veterans Advocacy Clinic, Alexander Blewett III School of Law, University of Montana, Missoula, MT, for amicus curiae National Law School Veterans Clinic Consortium. Also represented by Mitchell L. Werbell, V.

Doris Johnson Hines, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for amicus curiae National Veterans Legal Services Program. Also represented by John D. Niles, Barton F. Stichman, National Veterans Legal Services Program, Washington, DC.

Before O'MALLEY, WALLACH, and TARANTO, Circuit Judges.

WALLACH, Circuit Judge.

Appellant, Robert M. Euzebio, appeals a decision of the U.S. Court of Appeals for Veterans Claims ("Veterans Court"). See Euzebio v. Wilkie , 31 Vet. App. 394 (2019). The Veterans Court affirmed the Board of Veterans’ Appeals’ ("the Board") denial of Mr. Euzebio's entitlement to service connection for a thyroid condition "as due to exposure to Agent Orange[.]" Id. at 397 ; see J.A. 22 (Judgment). The Veterans Court held that, contrary to Mr. Euzebio's arguments, the National Academies of Sciences, Engineering & Medicine's ("NAS") report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) ("NAS Update 2014 "), "was not constructively before the Board" and Mr. Euzebio "ha[d] not demonstrated prejudicial error in the Board's decision to decline to obtain a medical nexus opinion" to evaluate whether Mr. Euzebio's thyroid condition is associated with his exposure to Agent Orange. Euzebio , 31 Vet. App. at 397.

We have jurisdiction pursuant to 38 U.S.C. § 7292(a) and (c). Because the Veterans Court applied an erroneous legal standard when it concluded the Board did not have constructive possession of the NAS Update 2014 , we vacate and remand.

BACKGROUND

I. The NAS Agent Orange Reports

Agent Orange was "the most widely used herbicide" during the Vietnam War. S. REP. NO. 100-439, at 64 (1988); see id. at 64–65 (providing that the United States dispersed "[a]pproximately [twenty] million gallons of herbicides ... in Vietnam, including approximately [eleven] million gallons of Agent Orange" from 1962 to 1971). Agent Orange consisted of an equal mixture by weight of two n-butyl esters of phenoxy acid herbicides, 2,4-dichlorophenoxyacetic acid, and 2,4,5-trichlorophenoxyacetic acid. Id. at 64. It also contained a synthetic contaminant, 2,3,7,8-tetrachlo-rodibenzo-para-dioxin, commonly called "dioxin." Id. "The United States used herbicides in Vietnam primarily for defoliation, crop destruction, and, on a smaller scale, clearing vegetation around U.S. fire bases and other installations, around landing zones, and along lines of communication." Id. In 1969, following a National Institutes of Health report indicating that 2,4,5-trichlorophenoxyacetic acid "could cause birth defects in mice, the Government restricted the use of Agent Orange in Vietnam to areas remote from population," and from "1970 to 1971, the use of herbicides was phased out[.]" Id.

A. Individual and Class Actions

In 1979, Vietnam veterans and their families filed what would become a class action tort suit in the U.S. District Court for the Eastern District of New York against the United States and "a major portion of the chemical industry," seeking damages for injuries to and the deaths of "tens of thousands of Vietnam veterans who came in contact with herbicides"—in particular, Agent Orange. In re Agent Orange Prod. Liab. Litig. (Agent Orange I ), 597 F. Supp. 740, 746 (E.D.N.Y. 1984), aff'd sub nom. In re Agent Orange Prod. Liab. Litig. MDL No. 381 (Agent Orange II ), 818 F.2d 145 (2d Cir. 1987). The district court considered it "one of the most complex litigations ever brought," with "[s]ome [six hundred] separate cases" and "an estimated fifteen thousand named plaintiffs," with "[h]undreds of motions" filed and "[m]illions of pages of documents and hundreds of depositions of witnesses" collected into evidence. Id. at 749–50. After five years of litigation, "plaintiffs, on behalf of a class of Vietnam veterans and members of their families, agreed with defendants to settle their claims against the defendant chemical companies," for "$180 million plus interest" in damages. Id. at 748. On behalf of the class, the district court held that the settlement was "reasonable under the law," Agent Orange I , 597 F. Supp. at 749, and the Second Circuit affirmed, Agent Orange II , 818 F.2d at 174.

The Government did not "participate in the negotiations that culminated in the settlement of th[at] class action." Agent Orange II , 818 F.2d at 160. Rather, the plaintiffs’ claims against the United States were dismissed as "barred by the Feres doctrine and the discretionary function exception to the Federal Tort Claims Act." Id. at 152 ; see Feres v. United States , 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (holding that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service"). Veterans also pursued their claims against the United States through what is now called the U.S. Department of Veterans Affairs ("VA"), seeking disability compensation for diseases they asserted were caused by exposure to Agent Orange. H.R. REP. NO. 98-592 , at 6 (1984) (providing that "as of October 1, 1983, Veterans had filed 18,518 disability claims with the VA for disorders they attribute to Agent Orange exposure"; of those, "9,170 ... had a diagnosed disability"; and, of those, "7,709 were denied" disability compensation for lack of service connection (capitalization normalized)). The VA took the position that only chloracne, a skin disorder, was "causally related to Agent Orange exposure" and largely denied the veterans’ Agent Orange claims. Id. (capitalization normalized); see id. (noting that of the 18,518 disability claims for Agent Orange exposure, the "1,461 ... [that] were granted service connection were for skin conditions" (capitalization normalized)).

B. The Dioxin Act

In 1984, in response to "concern," generally, "about the decision[-]making process within the [VA] with respect to Agent Orange compensation," and, specifically, to the absence of "standards or guidelines available by which the [VA] justifie[d] its position that no illness, except chloracne, result[ed] from Agent Orange exposure," H.R. REP. NO. 98-592 , at 21 (capitalization normalized), Congress enacted the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act ("Dioxin Act"), Pub. L. No. 98–542, 98 Stat. 2725 (1984). Given the "scientific and medical uncertainty regarding [the] long-term adverse health effects" resulting from dioxin exposure, Congress had previously "authoriz[ed] priority medical care at [VA] facilities for any disability of a veteran who may have been ... exposed [to dioxin]," even where "there [wa]s insufficient medical evidence linking such disability with such exposure," "unless the disability [wa]s found to have resulted from a cause other than the exposure." Dioxin Act § 2(2), (3) (citing An Act to Make Technical Corrections in the Defense Officer Personnel Management Act, Pub. L. No. 97–22 § 102, 95 Stat. 124 (1981) ). However, the VA had yet to "promulgate[ ] permanent regulations setting forth guidelines, standards, and criteria for the adjudication of claims for [VA] disability compensation based on exposure to herbicides containing dioxin[.]" Id. § 2(11).

With the Dioxin Act, Congress sought "to ensure that [VA] disability compensation [wa]s provided to veterans who were exposed" to Agent Orange, for disabilities that were service-connected "based on sound scientific and medical evidence[.]" Id. § 3. The Dioxin Act required the VA to "prescribe regulations ... for the resolution of [Agent Orange] claims" based on "exposure during service" in Vietnam, id. § 5(a)(1)(A), including "guidelines governing the evaluation of the findings of scientific studies relating to the possible increased risk of adverse health effects of exposure to herbicides containing dioxin," id. § 5(b)(1)(A). The Dioxin Act further required the VA, "in the evaluation of [such] studies," id. , to "receiv[e] the advice of" a panel of individuals drawn from "the Scientific Council of the Veterans’ Advisory Committee on Environmental Hazards" ("the Dioxin Council") as created within the VA by the Dioxin Act, id. § 5(b)(1)(B). The Dioxin Act directed the VA to create a presumptive service connection for any disease which had, "based on sound medical and scientific evidence," id. § 5(b)(2)(A), "a connection to exposure to a[n] herbicide containing dioxin," id. § 5(b)(2)(B); see LeFevre v. Sec'y, Dep't of Veterans Aff'rs. , 66 F.3d 1191, 1193 (Fed. Cir. 1995) (explaining that the Dioxin Act "require[d] the [VA] to create or reject a presumption-of-service connection for particular diseases, based upon the statistical probability of such connection, as reflected in scientific studies").

In April 1985, the VA published a proposed rule to implement the Dioxin Act. Adjudication of Claims Based on Exposure to Dioxin or Ionizing Radiation ("Proposed Rule"), 50 Fed. Reg. 15,848 (Apr. 22, 1985). The Proposed Rule provided "a formal process for the [V...