In this case, the Federal Circuit determined at step one of the Chevron analysis that “Congress has spoken directly to the question of whether Mr. Chevron directs courts to first assess “whether Congress has directly spoken to the precise question at issue.” If so, the court is to “give effect to the unambiguously expressed intent of Congress.” If the statutory language is ambiguous, step two of the Chevron analysis requires courts to determine “whether the agency’s answer is based on a permissible construction of the statute” – and, if the agency’s interpretation is “reasonable,” Chevron requires courts to defer to that reasonable interpretation. Natural Resources Defense Council, Inc., 467 U.S. The Federal Circuit, en banc, reviewed the history of the Agent Orange Act of 1991 and VA’s implementing regulations, and assessed VA’s interpretation of the statutory language under the analysis set forth in Chevron U.S.A. Procopio appealed to the Federal Circuit and the Court asked the parties to address (1) whether the phrase “served in the Republic of Vietnam” includes “service in the offshore waters within the legally recognized territorial limits of the Republic of Vietnam” and (2) what role, if any, does the “pro-claimant canon” of interpretation of veterans’ statutes play in this analysis. § 1116, “served in the Republic of Vietnam,” was ambiguous and thus deferred to VA’s “reasonable interpretation” that required “duty or visitation on the landmass” of Vietnam or in the inland waterways in order to be entitled to the presumption of service connection for certain herbicide-related conditions. In Haas, the Federal Circuit had held that the language in 38 U.S.C.
The Board affirmed the denial, as did the CAVC, relying on Haas v. In 20, he sought service connection for diabetes and prostate cancer, which the Regional Office denied in 2009. Procopio served aboard the USS Intrepid from 1964 to 1967, during which time the ship was deployed in the offshore waters of the Republic of Vietnam. 29, 2019) HELD: Blue Water Navy veterans who served in the “12 nautical mile territorial sea” of the Republic of Vietnam are entitled to the presumption of herbicide exposure and service connection under 38 U.S.C. 20-year rule: A rating that has been in place for 20 years or more at a certain level cannot be reduced below that level or eliminated unless there is evidence of fraud.Procopio v.10-year rule: A rating that has been consistent for 10 years or more cannot be eliminated (or severed, as the VA refers to it) unless there is proof of fraud, but a rating can be reduced if the condition has improved.5-year rule: A rating that has been in place for 5 years or more is considered to be stable and cannot be reduced unless the veteran’s condition shows “sustained improvement.”.Protected ratings that are based on the length of time a rating has been in place include: “The longer that rating has been in place, the stricter the rules are for the VA,” VA-certified disability benefits lawyer Cecilia Santostefano said. The VA 55-year-old rule is considered a protected ratingĪ protected rating is one the VA cannot reduce or take away even if a VA rule changes. One example of an exception to the 55-year-old rule is that veterans who have completed treatment for certain cancers must be reexamined six months after completing treatment.
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There is an exception to the 55-year-old rule: the VA can request a reevaluation of a rating for a veteran over age 55 “under unusual circumstances.” The Code of Federal Regulations does not define circumstances that are considered unusual. This includes veterans who will be 55 by the date of a future examination, according to the VA Adjudication Procedures Manual.
Veterans who receive VA disability benefits for service-connected conditions are exempt from periodic future examinations once they turn 55 years old. The VA 55-year-old rule is considered a protected rating.In this article about the VA 55-year-old rule
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