McKinney v. McDonald, No. 14-7093 (Fed. Cir. 2015)
Annotate this CaseDuring the Vietnam War, herbicides were applied near the Korean DMZ in 1968-1969. The 2003 Veterans Benefits Act authorized benefits for children with spina bifida born to certain veterans, 38 U.S.C. 1821. In 2004, the VA amended its Manual to provide benefits for “individuals born with spina bifida who are the children of veterans who served with specific units … between September 1, 1967 and August 31, 1971” conceding that certain veterans who served in April 1968 to July 1969 were exposed to herbicides. The final rule, effective February, 2011, was applicable “to all applications for benefits that are received by VA on or after February 24, 2011 and to all applications … pending before VA,” the Veterans Court, or the Federal Circuit on February 24, 2011. McKinney filed a claim in 2010 for service connection based on exposure to Agent Orange during his DMZ service, which began in August 1969. The VA denied his claim. The period of presumed exposure expired one month before McKinney’s service. The VA finalized the 2011 regulation, which extended the presumed exposure period, and granted McKinney’s claim under that regulation, but denied him an effective date earlier than February 2011, so that he received benefits for the post-2011 portion of his claim. The Federal Circuit upheld the VA’s decision to assign the 2011 regulation a prospective effective date.
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