E9-23021. Definition of Service in the Republic of Vietnam

AGENCY:

Department of Veterans Affairs.

ACTION:

Withdrawal of proposed rule.

SUMMARY:

In a document published in the Federal Register on April 16, 2008, the Department of Veterans Affairs (VA) proposed to amend its adjudication regulations regarding the definition of “service in the Republic of Vietnam.” This document withdraws that proposed rule.

DATES:

The proposed rule published at 73 FR 20566 on April 16, 2008, is withdrawn as of September 24, 2009.

FOR FURTHER INFORMATION CONTACT:

Nancy Copeland, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, [phone]. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

This rulemaking was initiated to respond to a decision rendered by the U. S. Court of Appeals for Veterans Claims (CAVC) in Haas v. Nicholson, 20 Vet. App. 257 (2006). While the comment period for the proposed rule was pending, the United States Court of Appeals for the Federal Circuit (Federal Circuit) decided Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Federal Circuit reversed and remanded the CAVC decision. The Federal Circuit found that VA's requirement that a claimant had been present within the land borders of Vietnam at some point in the course of his/her duty constitutes a permissible interpretation of 38 U.S.C. 1116, and affirmed that the language used in its implementing regulation, 38 CFR 3.307(a)(6)(iii), may be interpreted as stating such an interpretation. A petition for a writ of certiorari by the U.S. Supreme Court was denied. Haas v. Peake, cert. denied, 129 S.Ct. 173 No. 08-525, 2009 WL 129302 (U.S. Jan. 21, 2009). There is no longer a need to revise § 3.307(a)(6)(iii), or the regulations that use identical language to define service in the Republic of Vietnam (38 CFR 3.814 and 3.815). Thus, VA is withdrawing the proposed rule.

Approved: August 26, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.