Edward R. Powers v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7315
EDWARD R. POWERS,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in 05-0240, Judge
Robert N. Davis.
ON MOTION
Before MAYER, SCHALL, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
ORDER
Edward R. Powers and the Secretary of Veterans Affairs move to vacate the
judgment of the United States Court of Appeals for Veterans Claims and to remand for
further proceedings.
Powers filed service connection claims for asbestosis, various ailments due to
lead paint exposure, and diabetes mellitus and secondary vision problems due to
herbicide exposure. The Board of Veterans' Appeals denied all of Powers' claims.
With respect to the herbicide claim, the Board determined that Powers 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

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served on ships off the coast of Vietnam but who never set foot within the land borders
of Vietnam.
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 Is! Jan Horbaly
Jan Horbaly FILED
U.S. COURT OF APPEALS FOR
Clerk THE FEDERAL CIRCUIT
Date
cc: Michael A. Leonard, Esq.
Todd M. Hughes, Esq.
s20 MAR 2 7 2009
ISSUED AS A MANDATE:
2007-7315 2
MAR 2 7 2009
JAN HORBALY
CLERK

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