Garry L. Crawford v. Douglas A. Collins, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARRY L. CRAWFORD,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1075
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-3314, Senior Judge Mary J.
Schoelen.
______________________
Decided: June 16, 2025
______________________
JOHN B. WELLS , Law Office of John B. Wells, Slidell,
LA, argued for claimant-appellant.
ERIC P. BRUSKIN , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by G ALINA I. FOMENKOVA , PATRICIA M. M CCARTHY, Y AAKOV
ROTH ; BRIAN D. G RIFFIN , JONATHAN K RISCH , Office of
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CRAWFORD v. COLLINS 2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before M OORE, Chief Judge, LOURIE and BRYSON , Circuit
Judges.
M OORE, Chief Judge.
Garry L. Crawford appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) affirming a decision of the Board of Veterans’ Ap-
peals (Board) denying his claim for service connection. For
the reasons below, we vacate-in-part, dismiss-in-part, and
remand.
BACKGROUND
Mr. Crawford served in the U.S. Navy from 1967 to
1973, including service aboard the USS Hancock from Au-
gust 1969 to July 1970 and the USS Ranger from October
1970 to June 1971. J.A. 5–6; J.A. 63. In 2011, he filed a
service connection claim for ischemic heart disease, erectile
dysfunction, prostate condition, skin disorder, and periph-
eral neuropathy of the bilateral upper and lower extremi-
ties due to exposure to herbicides, such as Agent Orange.
J.A. 2, 5. Mr. Crawford alleged he was entitled to a pre-
sumption of service connection because he flew to Da Nang,
Vietnam via helicopter sometime between 1968 and 1970,
and the USS Hancock crossed into Vietnam’s territorial sea
on September 6, 1969. J.A. 35; J.A. 110.
The Department of Veterans Affairs (VA) regional of-
fice (RO) denied service connection because it found no rec-
ords of helicopters going ashore from the USS Ranger or
USS Hancock, and based on official logbooks, neither ship
entered Vietnam’s territorial sea. J.A. 50–65. Mr. Craw-
ford appealed to the Board, which denied the claim. J.A.
23–28. Mr. Crawford then appealed to the Veterans Court,
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CRAWFORD v. COLLINS 3
which affirmed the Board’s denial. J.A. 2–12. Mr. Craw-
ford timely appeals.
D ISCUSSION
Our authority to review decisions of the Veterans Court
is limited by statute. Goodman v. Shulkin, 870 F.3d 1383,
1385 (Fed. Cir. 2017). We may review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the deci-
sion.” 38 U.S.C. § 7292(a). Unless the appeal presents a
constitutional issue, we “may not review (A) a challenge to
a factual determination, or (B) a challenge to a law or reg-
ulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2).
I.
Mr. Crawford argues the Board legally erred by apply-
ing the wrong standard for presumption of service connec-
tion for conditions due to herbicide exposure. Appellant’s
Br. 30–34. Specifically, Mr. Crawford argues the Board ap-
plied a 12 nautical miles from shoreline standard rather
than the 12 nautical miles from baseline standard under
38 U.S.C. § 1116A(d). The Veterans Court concluded the
Board applied the standard under 38 U.S.C. § 1116A(d) in
determining the area where exposure can be presumed and
affirmed the Board’s decision. J.A. 7–8. We review the
Veterans Court’s legal conclusions de novo. Sucic v. Wilkie,
921 F.3d 1095, 1098 (Fed. Cir. 2019).
Veterans who served in Vietnam’s territorial sea are
entitled to a presumption of service connection because the
Republic of Vietnam includes both its landmass and its 12
nautical mile territorial sea. Procopio v. Wilkie, 913 F.3d
1371, 1376, 1380–81 (Fed. Cir. 2019) (en banc). This stand-
ard is codified in the Blue Water Navy Vietnam Veterans
Act of 2019, Pub. L. No. 116-23, 133 Stat. 966, which
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CRAWFORD v. COLLINS 4
defines the boundaries of “offshore” service based on a list
of geographical coordinates (i.e., baseline) that represents
Vietnam’s territorial sea. See 38 U.S.C. § 1116A(d).
It is unclear whether the Board applied the correct
standard. The Board acknowledged 38 U.S.C. § 1116A pro-
vides the standard for presumption of service connection
for veterans who served offshore of Vietnam. J.A. 26, 28.
However, nowhere in the Board’s decision does the Board
indicate it measured the 12 nautical mile area from the
baseline, as defined in 38 U.S.C. § 1116A(d), rather than
from the shoreline of Vietnam. See J.A. 23–28. In fact, the
Board found Mr. Crawford did not serve in Vietnam’s ter-
ritorial sea because “[a]fter determining each [ship’s] loca-
tion from deck logs and other official records, it was
determined by VA’s researcher that neither ship was 12
nautical miles or closer to the Vietnam shore.” J.A. 27 (em-
phasis added).
The government argues this is a “misspeak” by the
Board that does not indicate the Board applied the wrong
legal standard. Appellee’s Br. 19. However, the VA re-
searcher’s materials the Board referenced also do not af-
firmatively articulate the standard as being 12 nautical
miles measured from baseline. See J.A. 57–65 (citing 38
U.S.C. § 1116A). Based on the record before us, we are un-
able to conclude the Board applied the appropriate 12 nau-
tical miles from baseline standard articulated in 38 U.S.C.
§ 1116A(d), rather than a 12 nautical miles from shoreline
standard. We therefore vacate this part of the Veterans
Court’s decision and remand with instructions to the Vet-
erans Court to remand to the Board for clarification on the
standard used.
II.
Before the Board, Mr. Crawford submitted buddy
statements from air crew stating they flew him to Da Nang
and a graphic showing the USS Hancock was within Vi-
etnam’s territorial sea. J.A. 37–40. The Board found Mr.
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CRAWFORD v. COLLINS 5
Crawford was not entitled to presumptive exposure from
setting foot in Vietnam because the official naval and mili-
tary records did not support or corroborate the buddy state-
ments. J.A. 27. The Board therefore placed “low probative
value” on those statements. Id. The Board also found Mr.
Crawford was not entitled to presumptive exposure from
serving in Vietnam’s territorial sea because it could not
validate the source of the graphic, and the plotted data on
the graphic was not supported by official deck logs. J.A.
27–28. On appeal, Mr. Crawford argues the Board’s find-
ings that he did not set foot in Vietnam or serve in Vi-
etnam’s territorial sea are clearly erroneous, and the
Board’s stated reasons and bases for its findings are inad-
equate under 38 U.S.C. § 7104(d)(1). Appellant’s Br. 34–
44.
We lack jurisdiction to review these issues because
they involve “a challenge to a factual determination” and
“a challenge to a law . . . as applied to the facts of a partic-
ular case.” 38 U.S.C. § 7292(d)(2). Mr. Crawford’s argu-
ments amount to disagreements with how the Board
interpreted and weighed the evidence when finding he did
not fly to Da Nang via helicopter or serve in Vietnam’s ter-
ritorial sea. Appellant’s Br. 36–43; cf. Waltzer v. Nicholson,
447 F.3d 1378, 1380 (Fed. Cir. 2006) (holding that a chal-
lenge to the proper weight of the evidence is a question of
fact outside our jurisdiction). Allegedly erroneous findings
of fact do not transform into reviewable questions of law
under 38 U.S.C. § 7292(a). And Mr. Crawford’s argument
regarding the adequacy of the Board’s stated reasons and
bases, in effect, asks us to review factual findings or at best
requires application of law to the facts of this case.
III.
Before the Veterans Court, Mr. Crawford filed a motion
to take judicial notice of certain extra-record evidence that
purportedly shows the USS Hancock operated within Vi-
etnam’s territorial sea. J.A. 66–73. The Veterans Court
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CRAWFORD v. COLLINS 6
denied the motion, explaining the facts in question are sub-
ject to reasonable dispute because they relate to the central
question of this case—whether Mr. Crawford served in Vi-
etnam’s territorial sea. J.A. 2–4. On appeal, Mr. Crawford
argues the Veterans Court abused its discretion by denying
the motion. Appellant’s Br. 28–29.
We lack jurisdiction to review this issue because it in-
volves “a challenge to a law . . . as applied to the facts of a
particular case.” 38 U.S.C. § 7292(d)(2)(B). Here, the Vet-
erans Court articulated the correct legal standard for tak-
ing judicial notice, applied that standard to the facts of this
case, and declined to take judicial notice because those
facts were in dispute. J.A. 3–4.
CONCLUSION
We have considered Mr. Crawford’s remaining argu-
ments and find them unpersuasive. Accordingly, we vacate
and remand with instructions to the Veterans Court to re-
mand to the Board for clarification on the standard used
and dismiss the parts of Mr. Crawford’s appeal over which
we lack jurisdiction.
VACATED-IN-PART, DISMISSED-IN-PART, AND
REMANDED
COSTS
No costs.
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