Larry R. Pierce v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7312
LARRY R. PIERCE,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in 05-2949, Judge
Bruce E. Kasold.
ON MOTION
Before MAYER, SCHALL, and MOORE, Circuit Judges.
MOORE Circuit Judge.
ORDER
The Secretary of Veterans Affairs moves without opposition to vacate the
judgment of the United States Court of Appeals for Veterans Claims and to remand for
further proceedings.
Larry R. Pierce filed a service connection claim for carcinoma of the prostate due
to herbicide exposure. The Board of Veterans' Appeals denied Pierce's herbicide
claim. The Board determined that Pierce 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.
MAR 2 7 2009 FOR THE COURT
/s/ Jan Horbaly
Date Jan Horbaly
Clerk
tr.-OLEO
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
cc: Daniel G. Krasnegor, Esq.
Todd M. Hughes, Esq.
s20
..AR 2 7 2009
ISSUED AS A MANDATE:
MAR 2 7 2009
Jru ,. lohbai
CLERK
2007-7312 2

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