Veteranclaims’s Blog

September 20, 2018

Overton v. Wilkie, No. 17-0125(Argued June 20, 2018 Decided September 19, 2018); relying on any M21-1 provision requires adequate reasons or bases for doing so; definition of “inland waterways”; M21-1; internal manual not substantive rules;

Excerpt from decision below:

“In February 2016, VA modified its definition of “inland waterways” in its Adjudications Procedures Manual (M21-1),4 opting not to adopt a formal regulation in title 38 of the Code of Federal Regulations and, thereby, obviating the requirement for notice-and-comment under the Administrative Procedure Act(APA).5 The new M21-1 provision excluded all Vietnamese bays and harbors from the definition
1 27 Vet. App. 313 (2015).
2 Id. at 326-27.
3 Id.
4 VA ADJUDICATIONS PROCEDURES MANUAL (M21-1), pt. IV, sbpt. ii, ch. 1, sec. H.2.a (Feb. 2018). The provision was last updated in March 2018.
5 See 5 U.S.C. §§ 552(a)(1)(D), 553; see also DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“There is no notice-and-comment rulemaking for [M21-1] revisions as required by § 553.”).
2

of “inland waterways.”6 In June 2017, the Federal Circuit decided DAV v. Secretary of Veterans Affairs, in which it held that the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules.7 The Federal Circuit specifically noted that the Board is not bound by the M21-1.8

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

“As we explain below, the Court holds that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position without analysis.

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

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0125
PATRICK M. OVERTON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued June 20, 2018 Decided September 19, 2018)
Jerome T. Wolf, of Kansas City, Missouri, for the appellant.
Jeremy Yung-Ping Wong, with whom James M. Byrne, General Counsel; Mary Ann Flynn,
Chief Counsel; and Sarah H. Fusina, Acting Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge, and PIETSCH and ALLEN, Judges.

ALLEN, Judge: In Gray v. McDonald, 1 this Court held that VA’s interpretation of 38
C.F.R. § 3.307(a)(6)(iii) designating Da Nang Harbor as an offshore waterway, while designating other bays and harbors as inland waterways, was arbitrary and capricious.2 The Court remanded the matter for VA to reevaluate its waterway definitions in light of the purpose of the regulation— to provide compensation based on the probability of herbicide exposure.3 In February 2016, VA modified its definition of “inland waterways” in its Adjudications Procedures Manual (M21-1),4 opting not to adopt a formal regulation in title 38 of the Code of Federal Regulations and, thereby, obviating the requirement for notice-and-comment under the Administrative Procedure Act(APA).5 The new M21-1 provision excluded all Vietnamese bays and harbors from the definition
1 27 Vet. App. 313 (2015).
2 Id. at 326-27.
3 Id.
4 VA ADJUDICATIONS PROCEDURES MANUAL (M21-1), pt. IV, sbpt. ii, ch. 1, sec. H.2.a (Feb. 2018). The provision was last updated in March 2018.
5 See 5 U.S.C. §§ 552(a)(1)(D), 553; see also DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“There is no notice-and-comment rulemaking for [M21-1] revisions as required by § 553.”).
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of “inland waterways.”6 In June 2017, the Federal Circuit decided DAV v. Secretary of Veterans Affairs, in which it held that the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules.7 The Federal Circuit specifically noted that the Board is not bound by the M21-1.8
Before us today is U.S. Navy veteran Patrick M. Overton who served on active duty from
March 1967 to February 1968, including service aboard the U.S.S. Providence while it operated and anchored in Da Nang Harbor from October to December 1967. He appeals a November 1, 2016, Board of Veterans’ Appeals decision that denied service connection for type II diabetes mellitus with retinopathy and ischemic heart disease, both including as due to herbicide exposure.9
The Board concluded that the appellant had not demonstrated actual exposure to herbicides and also that he was not entitled to the presumption of exposure.10 The Board relied on the modified M21-1 provision to deny the appellant’s claims concerning presumptive herbicide exposure.11 Yet, the Board did not discuss why it relied on the M21-1. The appeal is timely, and the Court has jurisdiction to review the Board’s November 2016 decision.12 This matter was referred to a panel of the Court primarily to address the Board’s reliance on VA’s new M21-1 provision. The Court will also address the basis for its reasoning in Gray.
As we explain below, the Court holds that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position without analysis. Because the Board did not engage in the appropriate analysis here, the Court will set aside the November 1, 2016, Board decision and remand the matter for readjudication consistent with this decision. Given this disposition, the Court declines to opine on the content of
6 M21-1, pt. IV, sbpt. ii, ch. 1, sec. H.2.a.
7 859 F.3d at 1077-78.
8 Id. at 1077; see also Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017) (affirming the
Federal Circuit’s position in DAV that the Board is not bound by M21-1 provisions).
9 Record (R.) at 2-19.
10 R. at 8-19.
11 R. at 14 (“The new guidance is that all harbors and bays are considered offshore, while all rivers and deltas
are considered inland.”).
12 38 U.S.C. §§ 7252(a) and 7266(a).
3
the revised M21-1 provision on which the Board relied. And, finally, the Court will also remand
the decision concerning direct exposure because the Board’s analysis may be affected by the
actions it takes on remand concerning presumptive exposure.
I. FACTS AND PROCEDURAL HISTORY
This matter stems from the appellant’s timely Substantive Appeal of a May 2013 VA
regional office denial of his claims for benefits for type II diabetes, diabetic retinopathy secondary
to diabetes, and ischemic heart disease.13
In January 2016, the appellant’s private physician, Chris Martin, M.D., opined that the
appellant’s diabetes may have been caused by exposure to herbicides.14 The appellant submitted a
statement to VA explaining that he had experienced headaches while he was aboard the U.S.S.
Providence, he reported odd smells, and observed that his headaches lessened in intensity when
the ship departed Da Nang Harbor.15 In March 2016, another private physician, Michael Sokol,
M.D., opined that it is at least as likely as not that the appellant was exposed to Agent Orange,
which accounts for his development of type 2 diabetes.16 He noted that the appellant did not have
any genetic predisposition to diabetes, which makes it more likely that his exposure to Agent
Orange “is the likely precipitant” to that condition.17 Dr. Martin’s and Dr. Sokol’s opinions are the
only etiological medical evidence of record.
In November 2016, the Board issued the decision on appeal denying the appellant’s claims.
The Board reviewed the appellant’s lay statements that he had been exposed to herbicides while
aboard the U.S.S. Providence to provide support for combat troops. The Board generally explained
that because “inland waterways” are not defined in VA regulations, it would look to the M21-1 for
interpretive guidance, which stated that “the following locations are considered to be offshore
waters of the Republic of Vietnam: Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor,
Cam Rahn Bay Harbor, Vung Tau Bay Harbor, and Ganh Rai Bay.”18 Moreover, the Board cited
13 R. at 1428 (initial claim for benefits), 1642 (May 2013 VA rating decision), 1380-81 (Notice of
Disagreement), and 1334 (Aug. 2014 Substantive Appeal).
14 R. at 391.
15 R. at 274-75.
16 R. at 418-19.
17 R. at 629.
18 R. at 10.
4
our decision in Gray v. McDonald and stated that, as a result of the Court’s decision in that matter,
VA had updated its policy to treat all bays and harbors in the same way concerning the inland—
versus—offshore classification and the M21-1 now provided that “all harbors and bays are
considered offshore, while all rivers and deltas are considered inland.”19
After providing this general explanation, the Board addressed the appellant’s claim
specifically both on a direct and presumptive exposure basis. As to direct exposure, the Board
discounted the appellant’s lay statements finding that he had not demonstrated that he was
competent to identify herbicides to which he might have been exposed, and the Board provided
little probative value to the private medical evidence of record. 20 Thus, the Board denied
entitlement on a direct basis for lack of nexus evidence. The Board made short work of entitlement
to service connection on a presumptive basis because the M21-1 categorically excluded harbors,
such as Da Nang, from presumptive exposure to Agent Orange.21 The Board adopted that position
without discussing why it had decided to follow the M21-1’s guidance.22 This appeal followed.
II. PARTIES’ ARGUMENTS
The appellant argues that his service aboard the U.S.S. Providence supports his claims for
service connection for diabetes and ischemic heart disease. First, he asserts that he is entitled to
the presumption of service connection based on herbicide exposure. He argues that the Board erred
when it, without analyzing the probability of herbicide exposure, found he was excluded from the
presumption by relying on a an M21-1 provision that service aboard a ship anchored in Da Nang
Harbor did not constitute inland waterway service. He alleges that the Board essentially rendered
the same analysis that the Court rejected in Gray, and thus, remand is warranted.
Further in connection with the presumption, the appellant seeks clarification of the Court’s
decision in Gray to ensure that VA applies the proper standard of review in matters like his. He
asserts that the Board is required to determine, based on the particular evidence in his case, whether
it is at least as likely as not that there were levels of herbicides present in Da Nang Harbor sufficient
19 R. at 10.
20 R. at 8-19.
21 R. at 14.
22 Id.
5
to justify the herbicide exposure presumption, not whether it is probable that he was exposed to
herbicides.
Finally, the appellant claims that, regardless of the presumption, he established the
likelihood of direct herbicide exposure. He argues that the Board’s contrary finding is either clearly
erroneous or not supported by an adequate statement of reasons or bases.
The Secretary responds that the Board properly applied VA’s policy according to the law
and this Court’s Gray decision. He asserts that the Gray Court focused on the inconsistency of
deeming certain harbors as “inland waterways” and designating others “offshore waterways,”
“only finding issue with the inconsistent manner in which it was previously done.”23 He also asserts
that since VA revised its policy, it is no longer inconsistent because it establishes a firm, brightline
rule—exclusion of service in all bays and harbors from presumptive herbicide exposure. And
as to direct exposure, the Secretary argues that the Board’s decision was not erroneous and was
supported by adequate reasons or bases.
At oral argument, the appellant insisted that remand in light of the Court’s decision in Gray
is warranted for the Board to find independently whether he is entitled to the presumption based
on the probability of exposure. He explained that VA’s guidance set forth in the M21-1 is erroneous
because geographical line drawing fails to take into account the probability of herbicide exposure.
In other words, he argues that to determine whether Da Nang Harbor is an inland waterway, the
Board must assess the evidence based on the probability that a veteran’s presence in the harbor
would likely lead to herbicide exposure, and not simply rely on VA’s general conclusion set forth
in the M21-1.
Though the Secretary did not argue in his brief that VA’s current policy on distinguishing
between inland and offshore waterways is based on a reasonable interpretation of its own
regulation—38 C.F.R. § 3.307—and warrants Auer deference, he raised that argument for the first
time at oral argument.24 He further explained that because the M21-1 contains evidence of this
interpretation, which he argues was formally set forth in the Federal Circuit’s Gray v. Secretary of
Veterans Affairs decision, the Board’s reliance on the M21-1 for guidance was proper.
23 Secretary’s Brief (Br.) at 10.
24 Oral Argument at 29:15-30:26, Overton v. Wilkie, U.S. Vet.App. No 17-0125, (oral argument held on June
20, 2018) (referencing Auer v. Robbins, 519 U.S. 452, 461-62. (1997) http://www.uscourts.cavc.gov/
oral_arguments_audio.php.
6
III. ANALYSIS
The appellant bases his argument for service connection on two theories. First, he argues
that he should be entitled to the presumption that he was exposed to herbicides and, therefore, his
conditions are service connected.25 Second, he asserts that even if he is not entitled to the
presumption of exposure, he has sufficiently established actual exposure to Agent Orange. We
address each theory below.
A. Presumptive 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 certain herbicides, including Agent Orange.26 And a
second presumption provides that certain conditions, including type II diabetes and ischemic heart
disease, are the result of such exposure.27 “Service in the Republic of Vietnam includes service in
the waters offshore and service in other locations if the conditions of service involved duty or
visitation in the Republic of Vietnam.”28 In Haas v. Peake, the Federal Circuit examined the
validity of limiting the herbicide presumption to service members who set foot on land in Vietnam
or who served in the inland waterways of that nation.29 The court concluded that it was reasonable
for VA to make such distinctions based on the probability of exposure to herbicides.30
In Gray v. McDonald, this Court considered VA’s regulation designating certain
Vietnamese bays and harbors as “inland waterways” (brown water) or “offshore seas” (blue water)
in light of Haas.31 The Court explained that VA’s definition of “inland waterway” was arbitrary
and capricious because it designated some harbors and bays as brown water and some as blue
water without basing the designations on the probability of herbicide exposure, including exposure
to Agent Orange.32 Therefore, the Court determined that VA’s interpretation was not entitled to
deference and remanded the matter for VA to reevaluate its definition.33
25 See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (2018).
26 Id.
27 38 U.S.C. §1116(a); 38 C.F.R. § 3.307(a)(6)(iii).
28 38 C.F.R. § 3.307(a)(6)(iii).
29 525 F.3d 1168, 1185, 1192-93 (Fed. Cir. 2008), cert. denied, 555 U.S. 1149 (2009).
30Id.
31 27 Vet.App. at 313.
32 See, e.g., id. at 322-23.
33 Id. at 321-27.
7
Less than a year after our decision in Gray, VA modified its policy in the M21-1, adopting
an interpretation that excluded all Vietnamese bays and harbors from the herbicide presumption.
VA redefined inland waterways as
water rivers, streams, and canals, and similar waterways. Because these waterways
are distinct from ocean waters and related coastal features, service in these
waterways is service in the [Republic of Vietnam]. VA considers inland waterways
to end at their mouth or junction to other offshore water features, as described
below. For rivers and other waterways ending on the coastline, the end of the inland
waterway will be determined by drawing straight lines across the opening in the
landmass leading to the open ocean or other offshore feature, such as a bay or inlet.
For the Mekong and other rivers with prominent deltas, the end of the inland
waterways will be determined by drawing a line across each opening in the
landmass leading to the open ocean.34
Shortly thereafter, Mr. Gray, along with the Blue Water Navy Vietnam Veterans
Association, directly petitioned the Federal Circuit to invalidate this change to the M21-1.35
Ultimately, the Federal Circuit concluded that it lacked jurisdiction to review the M21-1, and
dismissed the direct regulatory challenge.36 The Federal Circuit concluded it lacked jurisdiction to
consider the challenge because the Board is not bound by the M21-1.37 This meant that the
provision being challenged was not “substantive” under the APA.38
Putting all this together, we know first that VA is permitted to draw reasonable lines
demarcating inland versus offshore waterways when considering whether a veteran is entitled to
the presumption of herbicide exposure.39 Second, when drawing such a line, VA must do so in a
reasoned, nonarbitrary manner focused on the likelihood of herbicide exposure.40 And finally, the
Board is not bound by M21-1 provisions.41 With this guidance, the Court will evaluate the Board’s
decision on appeal.
34 M21-1, pt. IV, sbpt. ii, ch. 1, sec. H.2.a.
35 Gray, 875 F.3d at 1102; see also 38 U.S.C. § 502.
36 Gray, 875 F.3d at 1109. The Federal Circuit denied rehearing and en banc review of its decision in Gray.
884 F.3d 1379 (Fed. Cir. 2018).
37 Gray, 875 F.3d at 1108-09.
38 Id. at 1108.
39 Haas, 525 F.3d at 1185-98.
40 See, e.g., 27 Vet.App. at 322-26.
41 Gray, 875 F.3d at 1108; DAV, 859 F.3d at 1077.
8
In the decision on appeal, the Board recounted much of the history we have set forth
concerning the presumption of herbicide exposure.42 The Board described the holding in Haas,
this Court’s decision in Gray, and the subsequent revision of the M21-1.43 But the Board provided
nothing more than this historical recitation to support its conclusion that Da Nang Harbor is not
brown water warranting presumptive herbicide exposure. Instead, the Board tersely stated that the
“new guidance,” referring to its earlier discussion of the M21-1 provision, deems all harbors or
bays offshore, and all rivers and deltas inland.44 This is error.
The Federal Circuit made it clear that the Board is not bound by the M21-1.45 This holding
is meaningful. To support its decision the Board can’t simply cite an M21-1 provision without
further analysis. First, doing so would effectively negate the Federal Circuit’s decisions in Gray
and DAV. Doing so would convert the M21-1 into substantive rules as a practical matter without
providing a means to challenge such rules under the APA. Second, because the M21-1 is not
binding on the Board, the Board’s citation to a manual provision as the only support for a
conclusion–here that Da Nang Harbor is blue water–is inconsistent with the Board’s
congressionally mandated obligation to provide an adequate statement of reasons or bases for its
decisions.46
There is no question that the M21-1 provision defining “inland” and “offshore” waterways
is relevant to the issues at hand. Indeed, the Board referred to that provision as VA’s “new
guidance.”47 The Board can’t ignore such a relevant provision. But it is equally insufficient for the
Board to simply rely on an M21-1 provision, like the one at issue here, without first independently
reviewing the matter. The Board is required to provide a reasoned explanation for why it finds the
M21-1 an accurate guideline for its decision. In other words, the Board is required to discuss any
relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases,
but because it is not bound by those provisions, it must make its own determination before it
chooses to rely on an M21-1 provision as a factor to support its decision. Therefore, the Court
42 R. at 8-10.
43 Id.
44 R. at 15.
45 Gray, 875 F.3d at 1108; DAV, 859 F.3d at 1077.
46 See 38 U.S.C. § 7104(d)(1); see also Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990).
47 R. at 16.
9
concludes that though the Board was correct in acknowledging the relevance of the M21-1
provision delineating inland and offshore waterways, the Board failed to explain in any way why
it relied on that position. This failure renders its statement of reasons or bases insufficient for
judicial review and necessitates remand.48
Further, the Board appears to suggest that an all-or-nothing rule, stating that all bays and
harbors are or are not inland waters, automatically alleviates the problem this Court identified in
Gray.49 This is not correct. The Court in Gray made clear that there must be some rationale for
deciding what makes a bay or harbor an inland or offshore waterway.50 Because there was no
rhyme or reason for why VA was designating some waterways but not others as inland waters, the
designation was inconsistent with the purpose of the regulation establishing the presumption—to
compensate veterans based on the probability or likelihood of exposure to herbicides.51 This was
the rationale for the Court’s decision in Gray. The Board erred to understand otherwise. The issue
was not merely a lack of uniformity. Thus, on remand, the Board must explain why its
determination of entitlement to presumptive service connection is based on likely herbicide
exposure and achieves the purpose behind the regulation.52
Before moving on, the Court must address one final matter concerning presumptive
herbicide exposure. For the first time at oral argument, the Secretary suggested that the Court
should defer to his interpretation in the M21-1 under Auer v. Robins.53 This argument appears
nowhere in the Secretary’s brief – indeed, Auer is not even cited.54 For three reasons, the Court
declines to consider deference under Auer.
48 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); see also 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 52.
49 R. at 10.
50 Gray, 27 Vet.App. at 322-26.
51 See, e.g., id. at 324-26.
52 The appellant rather confusingly argues that the Board misconstrued the Court’s holding in Gray when it
analyzed the evidence of record based on whether it is probable that he was exposed, rather than rendering a
determination whether it is “at least as likely as not” that he was exposed to herbicides. See Appellant’s Br. at 26-27.
He seems to argue that Gray adopted an evidentiary standard. It did not. Gray was concerned with whether a regulation
was lawful. It in no way changed any evidentiary standard or burden of proof.
53 Oral Argument at 29:15-30:26, http://www.uscourts.cavc.gov/oral_arguments_audio.php. (referring to
Auer v. Robins, 519 U.S. 452, 461-62 (1997)).
54 See generally Secretary’s Br.
10
First, the Court has made clear that it “generally will not entertain arguments raised by
counsel at oral argument for the first time.”55 Such conduct is not helpful to the Court and is
fundamentally unfair to opposing counsel. This alone is a reason not to consider the argument.56
Second, there is nothing special about deference under Auer that suggests that an argument
concerning that doctrine can’t be waived by failing to raise it in the brief. Both this Court and the
Federal Circuit have specifically found Auer arguments to be subject to waiver.57
Third, even if the Auer argument had not been waived, it would be misplaced here. We are
not reviewing the position set forth in the M21-1. After all, the M21-1 provision is not a substantive
rule of law.58 Rather, we are reviewing the final Board decision on the appellant’s claims.59 As we
explained, the Board’s decision is deficient because the Board did not explain why it relied on the
M21-1 and its conclusions concerning the brown water/blue water distinctions for Vietnamese
harbors and bays. Thus, we are not called on to express any view about what the M21-1 says, and
we don’t. In essence, there is nothing to defer to here because in terms of the Board’s rationale for
adopting the M21-1’s position, the Board’s decision is deficient as a matter of law.
In sum, because the Board did not adequately explain the bases for its decision on
presumptive herbicide exposure, remand is required.60 We now turn briefly to the other issues this
appeal raises.
B. Direct Service Connection
“The availability of presumptive service connection for some conditions based on exposure
to Agent Orange does not preclude direct service connection for other conditions based on Agent
Orange exposure.”61 Here, the Board also denied the appellant entitlement to service connection
55 Sellers v. Wilkie, 2018 WL 4040024, U.S. Vet. App. at *6 (Aug. 23, 2018); see also McFarlin v. Conseco
Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004) (“A party is not allowed to raise at oral argument a new issue for
review.”); Pieczenik v. Dyax Corp., 265 F.3d 1329, 1332-33 (Fed. Cir. 2001) (“It is well settled that an appellant is
not permitted to make new arguments that it did not make in its opening brief.”); Tarpley v. Greene, 684 F.2d 1, 7
n.17 (D.C. Cir. 1982) (“Clearly, oral argument on appeal is not the proper time to advance new arguments or legal
theories.”); Norvell v. Peake, 22 Vet.App. 194, 201 (2008) (“This Court and the U.S. Court of Appeals for the Federal
Circuit have repeatedly discouraged parties from raising arguments that were not presented in an initial brief to the
Court”).
56 See Sellers, 2018 2018 WL 4040024, at *6.
57 See Mass. Mut. Life Ins. Co. v. U.S., 782 F.3d 1354, 1369 (Fed. Cir. 2015); Norvell, 22 Vet.App. at 201.
58 See Gray, 875 F.3d at 1108; DAV, 859 F.3d at 1077-78.
59 See 38 U.S.C. §§ 7252(a) and 7266(a).
60 See Tucker, 11 Vet.App. at 374.
61 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see also Polovick v. Shinseki, 23 Vet.App. 48, 52-53
11
for type II diabetes and ischemic heart disease on a direct basis due to herbicide exposure. The
Board concluded that the weight of the probative evidence of record was against finding that the
appellant was exposed to herbicides while stationed aboard the U.S.S. Providence when it was in
Da Nang Harbor.62 The appellant argues that the Board’s finding is clearly erroneous,63 or, in the
alternative, is not supported by an adequate statement of reasons or bases.64
The Court declines to address the appellant’s arguments at this time. As explained above,
we are remanding this matter as it relates to presumptive service connection so that the Board may
adequately explain why Da Nang Harbor should or should not be considered brown water for
purposes of the presumption of herbicide exposure. Consistent with our decision in Gray, that
assessment must be made based on the likelihood of exposure to herbicides. The analysis (and
potential development associated with that effort) in which the Board may engage with respect to
the presumptive exposure question may affect the Board’s assessment of direct exposure.
Given all of this, we are not confident that the direct exposure claim is sufficiently
independent of the presumptive exposure claim to resolve the matter at this point. For example,
we don’t know how the Board will develop the record to support its conclusion on Da Nang
Harbor’s status concerning presumptive herbicide exposure. That development could easily
implicate the direct exposure analysis. Thus, and given the potential interconnectedness of these
matters, we conclude that remand of the direct exposure theory is advisable.65
C. Other Matters
The appellant also challenges the Board’s determination that VA’s duty to assist has been
satisfied and claims that his due process rights have been violated. Because the Court has
determined that remand is necessary, it need not consider these arguments.66 In pursuing his case
on remand, the appellant is free to submit additional evidence and argument, including the specific
(2009).
62 R. at 14-16.
63 38 U.S.C. § 7261(a)(4); see Dyment v. West, 13 Vet.App. 141, 144 (1999) (stating that a finding of service
connection, or a lack of service connection, is a finding of fact that the Court reviews under the “clearly erroneous”
standard).
64 See, e.g., Appellant’s Br. at 17-20, 23-27.
65 See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that where the facts underlying two
claims are “intimately connected,” the interests of judicial economy and of avoiding piecemeal litigation require the
claims to be appealed together).
66 Best v. Principi, 15 Vet.App. 18, 20 (2001).
12
arguments raised here on appeal, and has 90 days to do so from the date of VA’s post remand
notice.67 The Board is required to consider any such relevant evidence and argument. It must also
proceed expeditiously, in accordance with 38 U.S.C. § 7112.68
IV. CONCLUSION
After consideration of the parties’ briefs, oral arguments, the record on appeal, and the
governing law, the Court SETS ASIDE the November 1, 2016, Board decision and REMANDS
the matter for readjudication consistent with this decision.69
67 See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke,
30 Vet.App. 92 (2018).
68 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
69 The Secretary’s April 30, 2018, motion for leave to file a notice of correction remains pending before the
Court. We deny that motion as moot.

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