Tommy G. Gober v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7309
TOMMY G. GOBER,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in 05-3156, Judge
Lawrence B. Nagel.
ON MOTION
Before MAYER, SCHALL, and MOORE Circuit Judges.
MOORE, Circuit Judge.
ORDER
The Secretary of Veterans Affairs moves to vacate the judgment of the United
States Court of Appeals for Veterans Claims and to remand for further proceedings.
Tommy G. Gober filed a service connection claim for diabetes mellitus due to
herbicide exposure, as well as a number of other claims. The Board of Veterans'
Appeals denied Gober's herbicide claim. The Board determined that Gober was not
entitled to the presumption of service connection due to herbicide exposure by
interpreting a controlling regulation to exclude the presumption of service connection for
veterans who served on ships off the coast of Vietnam but who never set foot within the
land borders of Vietnam.

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On appeal, the Court of Appeals for Veterans Claims reversed the Board's
herbicide determination, interpreting the regulation so that the presumption of service
connection also applied to veterans who served on ships off the coast of Vietnam but
did not set foot within Vietnam's borders. The Secretary appealed to this court.
We recently issued our decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir.
2008). Haas held, inter alia, that only veterans present on the landmass or inland
waters of Vietnam were entitled to the presumption of service connection due to
herbicide exposure. Because the Court of Appeals for Veterans Claims erred in
concluding that veterans who did not set foot within Vietnam's borders were entitled to
the presumption of service connection for herbicide exposure, we remand for further
proceedings.
Accordingly,
IT IS ORDERED THAT:
The motion is granted. The judgment is vacated and the case is
remanded for further proceedings.
All sides shall bear their own costs.
FOR THE COURT
MAR 2 7 2009
/s/ Jan Horbaly
Jan Horbaly FILED
Clerk U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
Date
cc: Allan T. Fenley, Esq.
Todd M. Hughes, Esq.
s20
MAR 2 7 2009
ISSUED AS A MANDATE:
MAR 2 7 2009
JAN HORBALY
CLERK
2007-7309 2

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