Veteranclaims’s Blog

July 30, 2018

Single Judge Application;buddy statement; inland waterways;§ 3.307(a)(6)(iii), see Haas, 525 F.3d at 1197; Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (noting that “a Board decision in one claimant’s case might discuss evidence as to the activities of a particular unit or ship that another claimant could then use in a later appeal”); 38 C.F.R. § 20.1303 (2018) (“Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.”);

Excerpt from decision below:

“The Court agrees with the parties that the Board’s reasons or bases for its decision were
inadequate in two respects. First, the Board did not analyze Mr. Bergman’s buddy statement that the U.S.S. Towers traveled upriver on the inland waterways of Vietnam while Mr. Ball was aboard. R. at 23. Because service on a ship in the inland waterways of Vietnam qualifies as service in the Republic of Vietnam sufficient to trigger the presumption of exposure to herbicides under § 3.307(a)(6)(iii), see Haas, 525 F.3d at 1197, that buddy statement was potentially favorable to the veteran’s claim and the Board was required to discuss it, see Caluza, 7 Vet.App. at 506. The Board’s failure to do so therefore rendered inadequate its reasons or bases for finding that the presumption did not apply to Mr. Ball’s claim. See id.
Second, the Board did not address the potential applicability of the other veteran’s Board
decision specifically identified by docket number by Mr. Ball at the October 2016 Board hearing. R. at 42. Although the Secretary is correct that any finding of fact or law made by the Board in that decision would not be binding in Mr. Ball’s case, Secretary’s Br. at 6-7; see 38 C.F.R. § 20.1303 (2018) (“[P]previously issued Board decisions will be considered binding only with regard to the specific case decided.”), the Court agrees with the Secretary that the Board’s failure to discuss that Board decision was not harmless because that decision may identify or direct the Board to other evidence that may be favorable to Mr. Ball’s claim, such as deck logs or a ship’s history for the U.S.S. Towers that has not yet been associated with his claims file. See Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (noting that “a Board decision in one claimant’s case might discuss evidence as to the activities of a particular unit or ship that another claimant could then use in a later appeal”); 38 C.F.R. § 20.1303 (2018) (“Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.”); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”).

==========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-3984
RICHARD L. BALL, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Self-represented veteran Richard L. Ball appeals through counsel a
September 5, 2017, Board of Veterans’ Appeals (Board) decision denying service connection for prostate cancer, to include as due to herbicide exposure. Record (R.) at 2-11. Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the
September 2017 Board decision and remand the matter for further development, if necessary, and
readjudication consistent with this decision.
I. FACTS
Mr. Ball served on active duty in the U.S. Navy from July 1966 to August 1971, including
service in Vietnam. R. at 204. Service personnel records reflect that he served aboard the U.S.S.
Towers, which was intermittently in the “official waters of the Republic of Vietnam” from October
1968 to February 1969 and from February 1971 to June 1971. R. at 319.
Mr. Ball was diagnosed with prostate cancer in May 2009. R. at 328. One year later, he
filed a claim for service connection for that condition, R. at 437-47, which a VA regional office
2
(RO) denied in December 2010, R. at 361-67. The veteran filed a timely Notice of Disagreement
in March 2011, R. at 344; the RO issued a Statement of the Case (SOC) continuing the denial of
the claim in November 2011, R. at 286-300; and he timely perfected an appeal to the Board the
next month, R. at 283. At that time, Mr. Ball asserted that he was exposed to herbicides aboard
the U.S.S. Towers because he drank contaminated water aboard the ship in Da Nang Harbor and
was “close enough [to shore] to be exposed [to] airborn[e] herbicides.” Id.
At an October 2016 Board hearing, the veteran testified that he was exposed to herbicides
when the U.S.S. Towers entered the brown waters of Vietnam. R. at 40-47. Specifically, he
averred that the ship was anchored “in stream” in Da Nang Harbor and received incoming fire from
the shores while escorting the U.S.S. New Jersey. Id. He also alerted the presiding Board member
that another veteran who had served aboard the U.S.S. Towers with him had received service
connection for a disability based on presumed exposure to herbicides and identified the docket
number of the case for the Board member to review. R. at 42.
The next month, Mr. Ball submitted additional evidence in support of his claim, including
a buddy statement from Lloyd Bergman II. R. at 22-38. Mr. Bergman stated that he served aboard
the U.S.S. Towers from April 1966 to September 1969 and that, when the ship “returned to duty
in 1968,” it was anchored in Da Nang Harbor providing support fire inland and “made several trips
up the Saigon river to provide support to [] amphibious crafts (PBRs) and land forces.” R. at 23;
see R. at 31-32 (photos of PBRs submitted by Mr. Ball).
In September 2017, the Board issued the decision currently on appeal, which denied service
connection for prostate cancer, to include as due to herbicide exposure. R. at 2-11. The Board
found that there was insufficient evidence to establish that Mr. Ball was exposed to herbicides in
service because VA recognizes that the U.S.S. Towers entered the inland waterways of Vietnam
only during 1966, before the veteran was aboard the ship; he did not assert that he ever set foot in
Vietnam; Da Nang Harbor is considered offshore waters for VA compensation purposes; and the
other evidence of alleged exposure that he submitted was either not competent or probative. R. at
10. The Board therefore denied service connection for prostate cancer on a direct and presumptive
basis. R. at 10-11. This appeal followed.
3
II. ANALYSIS
In his informal brief, which the Court liberally construes, see De Perez v. Derwinski,
2 Vet.App. 85, 86 (1992), Mr. Ball generally argues that the Board provided inadequate reasons
or bases for its decision because it did not address evidence that he was exposed to herbicides
while serving aboard the U.S.S. Towers in Vietnam. Appellant’s Brief (Br.) at 1-3. He requests
that the Court reverse the Board decision and grant service connection for prostate cancer based
on that exposure. Id. at 3. The Secretary concedes that the Board did not adequately address Mr. Bergman’s buddy statement or the applicability of the other veteran’s Board decision that Mr. Ball identified at the October 2016 Board hearing and asserts that remand, not reversal, is appropriate to remedy those reasons-or-bases errors. Secretary’s Br. at 4-5, 7.
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). Regarding the second element of service
connection, veterans who served in the Republic of Vietnam between January 9, 1962, and May
7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange, unless
there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii)
(2018). For purposes of the presumption, “service in the Republic of Vietnam” includes “duty or
visitation in the Republic of Vietnam,” 38 C.F.R. § 3.307(a)(6)(iii), which VA has interpreted as
requiring that the veteran was present at some point on the landmass or inland waterways of
Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding this interpretation);
see also Gray v. McDonald, 27 Vet.App. 313, 320 (2015) (describing Haas as holding that
§ 3.307(a)(6)(iii) “reasonably interpreted the statute to ‘require some presence in Vietnam, even if
the veteran’s service largely occurred elsewhere”). Regarding the third element of service
connection, veterans presumptively exposed to herbicides are entitled to the presumption that
specified conditions diagnosed after service—including prostate cancer—are related to service.
38 C.F.R. § 3.309(e) (2018).
In rendering its decision, the Board is required to provide a written statement of reasons or
bases for its “findings and conclusions[] on all material issues of fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to
understand the precise basis for the Board’s decision and to facilitate review in this Court. Gilbert
4
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence that it finds persuasive or
unpersuasive, and provide reasons for rejecting 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).
The Court agrees with the parties that the Board’s reasons or bases for its decision were inadequate in two respects. First, the Board did not analyze Mr. Bergman’s buddy statement that the U.S.S. Towers traveled upriver on the inland waterways of Vietnam while Mr. Ball was aboard. R. at 23. Because service on a ship in the inland waterways of Vietnam qualifies as service in the Republic of Vietnam sufficient to trigger the presumption of exposure to herbicides under § 3.307(a)(6)(iii), see Haas, 525 F.3d at 1197, that buddy statement was potentially favorable to the veteran’s claim and the Board was required to discuss it, see Caluza, 7 Vet.App. at 506. The
Board’s failure to do so therefore rendered inadequate its reasons or bases for finding that the presumption did not apply to Mr. Ball’s claim. See id.
Second, the Board did not address the potential applicability of the other veteran’s Board
decision specifically identified by docket number by Mr. Ball at the October 2016 Board hearing. R. at 42. Although the Secretary is correct that any finding of fact or law made by the Board in that decision would not be binding in Mr. Ball’s case, Secretary’s Br. at 6-7; see 38 C.F.R. § 20.1303 (2018) (“[P]previously issued Board decisions will be considered binding only with regard to the specific case decided.”), the Court agrees with the Secretary that the Board’s failure to discuss that Board decision was not harmless because that decision may identify or direct the Board to other evidence that may be favorable to Mr. Ball’s claim, such as deck logs or a ship’s history for the U.S.S. Towers that has not yet been associated with his claims file. See Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (noting that “a Board decision in one claimant’s case might discuss evidence as to the activities of a particular unit or ship that another claimant could then use
in a later appeal”); 38 C.F.R. § 20.1303 (2018) (“Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.”); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”). Accordingly, the Board’s failure to address the referenced Board
5
decision further diminished the adequacy of its reasons or bases for denying service connection
for prostate cancer. See Caluza, 7 Vet.App. at 506.
Having found error, the Court must now determine the appropriate remedy. Although Mr.
Ball argues that reversal of the Board decision and a grant of service connection is warranted, see
Appellant’s Br. at 10-11, the Court concludes that remand is proper because the Board provided
inadequate reasons or bases for its decision and additional development and factfinding may be
needed to decide the claim. See Bankhead v. Shulkin, 29 Vet.App. 10, 23 (2017) (citing Deloach
v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013)); see also Patricio v. Shulkin, 29 Vet.App. 38,
46 (2017) (“This Court may not reverse a Board decision and order the award of benefits when
there are outstanding material factual matters requiring Board resolution.”). Accordingly, the
Court will remand the claim for further development, if necessary, and readjudication.1 See Tucker
v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
Mr. Ball is free on remand to present any additional arguments and evidence to the Board
in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand
is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the September 5, 2017, Board decision is SET ASIDE
and the matter is REMANDED for further development, if necessary, and readjudication
consistent with this decision.
DATED: July 27, 2018
1 Given this disposition, the Court need not address Mr. Ball’s additional reasons-or-bases arguments, which
could not result in a remedy greater than remand. See Appellant’s Br. at 1-2.
6
Copies to:
Richard L. Ball
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.