Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs, No. 20-2086 (Fed. Cir. 2022)
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The U.S. military sprayed over 17 million gallons of herbicides over Vietnam during “Operation Ranch Hand,” primarily Agent Orange. Concerns about the health effects of veterans’ exposure to Agent Orange led to the Agent Orange Act of 1991, 105 Stat. 11. For veterans who served in the Republic of Vietnam during a specified period, the Act presumes exposure to an herbicide agent containing 2,4-D or dioxin, 38 U.S.C. 1116(f), and presumes a service connection for certain diseases associated with herbicide-agent exposure, such as non-Hodgkin’s lymphoma and soft-tissue sarcoma. The VA subsequently issued regulations extending similar presumptions to other groups of veterans. In 2017, the House of Representatives Armed Services Committee expressed concern that additional exposures to Agent Orange may have occurred in Guam.
In 2018, MVA petitioned the VA to issue rules presuming herbicide-agent exposure for veterans who served on Guam or Johnston Island during specified periods. The VA denied MVA’s petition. The Federal Circuit rejected MVA’s petitions under 38 U.S.C. 502 to set aside the VA’s denial. MVA has not shown that the VA’s determination that the evidence did not warrant presuming exposure for every single veteran who served in named areas during the relevant period was contrary to law nor that the denial “lacked a rational basis.”
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