Veteranclaims’s Blog

February 23, 2018

Single Judge Application; dioxin; agent orange; herbicide exposure; Okinawa; Ryukyu Shimpo Paper; Okinawa Defense Bureau;

Excerpt from decision below:

“At the appellant’s February 2014 Board hearing, his representative recited portions of the article from the Ryukyu Shimpo Paper. R. at 2672-73. The representative stated that the article reported that “levels of Agent Orange debris found in Okinawa City exceed environmentally
3
quality standard,” “[t]he Okinawa Defense Bureau detected dioxin and other harmful ingredients inside barrels found at a soccer ground on land returned by the U.S. military in Okinawa City,” and that “[t]he levels found exceeded the environmental quality set by the Japanese Government.” R. at 2673. His representative further stated that the article reported that “[t]he Okinawa City
Government released the results of [an] investigation” and “[t]hey detected dioxin and found the material at levels 8.4 times the normal standard for soil, and in the water at 280 times the standard for ground water.” Id. The representative explained that that the article stated the Okinawa City Government “found the key ingredient of Agent Orange in the barrels and asked NASA Environmental Laboratory Company to carry out their investigation” and that the company “said
the barrels possibly contained Agent Orange because they bear the logo of Dow Chemical company, the United States-based chemical manufacturer that produced Agency Orange during the Vietnam War.” Id. The representative emphasized that the Okinawa Defense Bureau found the key ingredient of Agent Orange in the barrels. Id. In the decision on appeal, in discussing the appellant’s testimony at the Board hearing, the Board acknowledged that the appellant “noted the
Okinawa Defense Bureau detected toxins including dioxins on land that was returned to the Japanese government by the US Government.” R. at 7.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3699
MARC KESSLER, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Marc Kessler, appeals, through counsel, an October 5, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for diabetes mellitus, type II, and prostatectomy status post carcinoma, each claimed as due to herbicide exposure. Record (R.) at 1-12. Both parties submitted briefs and the appellant submitted
a reply brief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the October 5, 2016, Board decision and remand the matters on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served in the U.S. Marine Corps from September 1966 to September 1969,
including service in Okinawa, Japan. R. at 933. His military occupational specialty was “motor
vehicle operator.” Id.
In December 2008, the VA regional office (RO) denied the appellant’s request to reopen
his previously denied claims for entitlement to service connection for diabetes mellitus and
2
prostate removal, each as due to herbicide exposure. R. at 3082. He filed a Notice of
Disagreement, R. at 2001, the RO issued a Statement of the Case (SOC), R. at 1366, and he perfected his appeal, R. at 1355. The appellant presented testimony at a February 2014 Board hearing. R. at 2660-79. He testified that he was a truck driver and that he transported 55-gallon drums filled with, what he thought was, diesel fuel while he was stationed in Okinawa. R. at 2666.
His representative read an August 2013 article from the Ryukyu Shimpo Paper in Tokyo, Japan, into the Board hearing record. R. at 2672-73. In May 2014, the Board reopened his claims and remanded them to the RO for additional development. R. at 910-24.
In the decision on appeal, the Board denied entitlement to service connection for diabetes
mellitus and prostatectomy. R. at 4. In doing so, it acknowledged his belief that he was directly
exposed to herbicides while stationed in Okinawa, but found that the evidence of record does not
establish this. Id.
II. ANALYSIS
The appellant argues, inter alia, that the Board did not discuss potentially favorable
evidence of record, including his representative’s Board hearing testimony regarding the Ryukyu
Shimpo Paper article. Appellant’s Brief at 4-8.
The Board’s decision must include a written statement of the reasons or bases for its
findings and conclusions, adequate to enable an appellant to understand the precise basis for the
Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To
comply with this requirement, the Board must determine the credibility and probative value of the
evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57;
see Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (holding that the Board must provide an
adequate statement of reasons or bases “for its rejection of any material evidence favorable to the
claimant”).
At the appellant’s February 2014 Board hearing, his representative recited portions of the article from the Ryukyu Shimpo Paper. R. at 2672-73. The representative stated that the article reported that “levels of Agent Orange debris found in Okinawa City exceed environmentally
3
quality standard,” “[t]he Okinawa Defense Bureau detected dioxin and other harmful ingredients inside barrels found at a soccer ground on land returned by the U.S. military in Okinawa City,” and that “[t]he levels found exceeded the environmental quality set by the Japanese Government.” R. at 2673. His representative further stated that the article reported that “[t]he Okinawa City Government released the results of [an] investigation” and “[t]hey detected dioxin and found the material at levels 8.4 times the normal standard for soil, and in the water at 280 times the standard for ground water.” Id. The representative explained that that the article stated the Okinawa City Government “found the key ingredient of Agent Orange in the barrels and asked NASA Environmental Laboratory Company to carry out their investigation” and that the company “said the barrels possibly contained Agent Orange because they bear the logo of Dow Chemical company, the United States-based chemical manufacturer that produced Agency Orange during the Vietnam War.” Id. The representative emphasized that the Okinawa Defense Bureau found the key ingredient of Agent Orange in the barrels. Id. In the decision on appeal, in discussing the appellant’s testimony at the Board hearing, the Board acknowledged that the appellant “noted the Okinawa Defense Bureau detected toxins including dioxins on land that was returned to the Japanese government by the US Government.” R. at 7.
Although the Board acknowledged one portion of the Ryukyu Shimpo Paper article, it did not provide any additional discussion or analysis of this evidence. R. at 6-9. In fact, reviewing the Board decision as a whole, it appears that the Board listed the evidence of record and simply determined that, “[i]n light of the above summarized information, the Board concludes that there is no credible evidence that the [appellant] was exposed to herbicides during his service in Okinawa.” R. at 8, 6-9; see Prickett v. Nicholson, 20 Vet.App. 370, 375 (2006) (a Board decision
generally should be read as a whole). However, merely listing the evidence of record and stating a conclusion, as the Board did here, falls short of providing a sufficient statement of reasons or bases. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992) (a mere listing of the relevant evidence is not adequate to fulfill the Board’s obligation to provide a statement of reasons or bases for its decision)). In light of the Board’s terse conclusion, and absent independent analysis and weighing of the evidence of record, the Court cannot understand the precise basis for the Board’s determination that “there is no credible evidence that the [appellant] was exposed to herbicides during his service in Okinawa.” R. at 8; see 38 U.S.C. § 7104(d)(1); Allday 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57; see
4
also Thompson, 14 Vet.App. at 188; Caluza, 7 Vet.App. at 506. The Court will vacate the decision
on appeal and remand the appellant’s claims. Although he argues that reversal is the appropriate
remedy, remand is the appropriate remedy, as the Board failed to provide an adequate statement
of reasons or bases for its determination. Appellant’s Br. at 10; see Tucker v. West, 11 Vet.App.
369, 374 (1998).
The Court will not consider the appellant’s remaining arguments at this time. See Best v.
Principi, 15 Vet.App. 18, 20 (2001) (noting that the factual and legal context may change
following a remand to the Board and explaining that “[a] narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at the readjudication, and,
of course, before this Court in an appeal, should the Board rule against him.”). On remand, the
appellant is free to submit additional evidence and argument, including those in his brief, in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and
the Board must consider any such evidence or argument submitted. See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Board must proceed expeditiously, in accordance with
38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims
remanded by the Court).
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s October 5,
2016, decision is VACATED and the matters on appeal are REMANDED to the Board for further
proceedings consistent with this decision.
DATED: February 20, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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