Veteranclaims’s Blog

September 24, 2018

Single Judge Application; Herbicides/Agent Orange; Thailand; U-Tapao Air Base;

Except from decision below:

“Mr. Harms contends that he was exposed to Agent Orange while serving in Thailand at the U-Tapao Air Base in 1967. Mr. Harms filed two service-connection claims based on that alleged exposure, in January 2012, for diabetes, and in March 2013, for chronic lymphocytic leukemia (CLL).2 He also filed a May 2012 claim for entitlement to service connection for a skin disorder on a direct basis.3″

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0646
LEONARD E. HARMS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Chief Judge: During the Vietnam War, U.S. Air Force veteran Leonard Harms served on active duty, including deployment to Thailand. 1 Mr. Harms contends that he was exposed to Agent Orange while serving in Thailand at the U-Tapao Air Base in 1967. Mr. Harms filed two service-connection claims based on that alleged exposure, in January 2012, for diabetes, and in March 2013, for chronic lymphocytic leukemia (CLL).2 He also filed a May 2012 claim for entitlement to service connection for a skin disorder on a direct basis.3
In the May 5, 2016, decision on appeal, the Board of Veteran’s Appeals conceded Mr. Harms’ service at U-Tapao, but found no evidence corroborating his claimed herbicide exposure.4
In addition, the Board cited a June 2012 VA dermatological examination report in denying direct service connection for a skin disorder because there was no evidence linking his current fungal
skin disorders to his in-service fungal infections.5 Mr. Harms asserts that the Board failed to
1 Record (R.) at 27.
2 R. at 264, 448, 475, 489.
3 R. at 407, 452.
4 R. at 5, 7, 27.
5 R. at 8.
2
consider his lay statements and that June 2012 VA dermatological examination was inadequate. This Court is now asked to decide whether the Board’s decision provided Mr. Harms an adequate statement of reasons or bases for rejecting his lay statements and if the June 2012 VA examination was adequate. Because the Board failed to address Mr. Harms’s lay statements and the June 2012
VA examination was inadequate, the Court will set aside the Board’s May 2016 decision and remand the matters for further proceedings.
I. ANALYSIS
A. The Board provided inadequate reasons or bases for denying Mr. Harms’s diabetes and CLL
claims.
Mr. Harms reported a 2011 diabetes diagnosis through the VA healthcare system, and the private treatment records reflect a March 2013 diagnosis of CLL.6 VA denied service connection for those claims in two separate rating decisions.7 Mr. Harms timely appealed those decisions and ultimately appealed both claims to the Board, arguing that he had lived and worked near the perimeter of the U-Tapao Air Base.8 He also stated that while working he had routinely relieved himself at the fence line and regularly travelled in and out of the perimeter fence.9
The May 2016 Board decision discussed Mr. Harms’s lay statements regarding living and working on the perimeter of U-Tapao, and considered his service in Thailand corroborated by his service personnel records.10 The Board did not make an explicit credibility finding as to Mr. Harms’s reports regarding where he lived and worked within U-Tapao. Instead, the Board discussed the veteran’s military occupational specialty as involving inventory management based on his DD 214, weighed his duties in his military occupational specialty against the kind of duties that would have placed him at or near the base’s perimeter, and concluded that his duties would
not have placed him there.11 The Board also relied on a lack of information required to corroborate
6 R. at 233, 475.
7 R. at 198, 458.
8 R. at 176, 448.
9 R. at 129.
10 R. at 5.
11 R. at 6.
3
his claimed herbicide exposure to support its finding that the evidence does not establish that Mr. Harms was exposed to herbicides while stationed in Thailand.12
Where lay evidence is competent, the Board must weigh the competent lay evidence against the other evidence of record in determining credibility. 13 However, the absence of corroborating records is an insufficient basis on which to find lay statements not credible. 14
Rather, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”15 As with any finding on a material issue of fact or law, the Board must support its competence and credibility determinations with an adequate statement of reasons or bases that enables a claimant to understand the precise basis for its decision and facilitates review in this Court.16 The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence, 17 discuss all issues raised by the claimant or the evidence of record, 18 and discuss all provisions of law and regulation when they are made “potentially applicable through the assertions and issues raised in the record.”19
The Court agrees with Mr. Harms that the Board erred when it failed to discuss his lay statements regarding his proximity to the perimeter of the U-Tapao Air Base and that its decision in this regard lacks adequate reasons or bases.20 The Board provided no credibility determination regarding Mr. Harms’s statements and instead concluded that he was not near the perimeter.
Though it was required to do so by Buchanan and Fountain, the Board provided no foundation for
12 R. at 7.
13 Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).
14 Id. at 1337 (Although the absence of corroborating or contemporaneous evidence may be a factor to consider, “the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”); see also Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
15 Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); see Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012) (absence of evidence cannot be taken as substantive negative evidence without “a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact”).
16 38 U.S.C § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
17 Thompson v. Gober, 14 Vet.App. 187, 188 (2000).
18 Robinson v. Peake, 21 Vet.App. 545, 552 (2008); aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009).
19 Schafrath v. Derwinski, 1 Vet.App. 589-593 (1991).
20 See Appellant’s Brief (Br.) at 6-7; Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the Board must analyze 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), aff’d per curiam, 78 F.3d 604 (1996).
4
its implied negative credibility finding, such as whether and why it would be expected that the personnel records of veterans in this situation would normally note whether exposure to herbicides had occurred or that his duties required work near the base perimeter. On remand, if the Board wishes to discount the credibility of such statements, it must point to affirmative evidence tending to show that exposure did not occur or provide a sufficient foundation for doing so.21
B. The Board provided inadequate reasons or bases for denying Mr. Harms’ skin disorder claim.
Mr. Harms’ service treatment records include a November 1965 entry for skin irritation from shorts and sweating and a November 1966 entry for a rash in the pubic area.22 Since his separation from service, Mr. Harms sought private treatment for several skin conditions, including athlete’s foot, skin tags, psoriasis, and eczema.23 He also received VA treatment for seborrheic keratosis, seborrhea, dermatitis, conjunctiva, actinic keratosis, and seborrheic eczema. 24 At a March 2012 VA dermatology consultation, Mr. Harms reported a longstanding history of red scaly patches and plaques on his scalp, axilla, and groin, with red scaly papules on his right ear and
face.25
In June 2012, a VA examiner reviewed Mr. Harms’s service treatment records, noted entries reflecting in-service fungal infections, reviewed current treatment records showing actinic and seborrheic keratoses, and concluded that these current conditions were not related to in-service treatment for fungal infections. 26 In offering this opinion, the examiner noted the lack of any skin disorder at his June 1967 separation examination, and that actinic and seborrheic keratoses are unrelated to fungus.27
After VA denied service connection for a skin condition in June 2012, Mr. Harms timely disagreed with that decision and ultimately appealed to the Board.28 In his NOD, he argued that
his skin condition began during service and continues to be a problem. He explained that the
21 See Fountain 27 Vet.App. at 272; Horn, 25 Vet.App. at 239.
22 R. at 38, 39.
23 R. at 302, 304, 415.
24 R. at 428, 679, 680, 728 (Oct. 2009, Feb. 2012, and Mar. 2012 records).
25 R. at 426, 428.
26 R. at 412-30.
27 R. at 428.
28 R. at 351, 402.
5
symptoms present themselves in the same way as they did in service. The Board found no evidence showing that his current fungal skin disorders are etiologically related to his in-service fungal infections.29
Mr. Harms argues that the medical and lay evidence is contrary to the June 2012 examiner’s review of his medical history. 30 He explains that the examiner cited his normal June 1967 separation examination, but did not address the conflicting medical history in his lay statements as to a skin condition that began during service with persistent symptoms that are still a problem and his medical records showing a longstanding history of skin problems.31
An adequate examination is “based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one.'”32 A medical examination that
is based on an inaccurate factual premise lacks probative value,33 as does an examination that merely lists facts and conclusions with no reasoned explanation connecting the two.34
While Mr. Harms reported to the June 2012 examiner that he had experienced intermittent skin problems over the years and the private and VA dermatological treatment records show a longstanding history of skin problems, the examiner selected the normal June 1967 separation examination as the relevant medical history to support his conclusion that the in-service fungal infections are unrelated to current diagnoses for actinic and seborrheic keratoses.35 The examiner failed to explain the medical significance of the normal separation examination, or address the diagnoses other than actinic and seborrheic keratoses in the VA and private treatment records.36
Further, the examiner’s explanation that actinic keratoses and seborrheic keratoses are not related to fungus does not address his conclusion that fungus of the ears, underarms, legs, groin, and head
is less likely than not related to in-service fungal type infections.37 A medical examination report
29 R. at 8.
30 Br. at 10-11.
31 Id.; R. 351, 426, 428.
32 Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
33 Reonal v. Brown, 5 Vet.App. 458, 461 (1993).
34 Nieves—Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
35 R. 415, 428.
36 Psoriasis/eczema, R. at 302; seborrheic eczema, R. at 428; Psoriasis, R. at 680; dermatitis R. at 728.
37 R. at 428.
6
must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.38 Remand is warranted for the Board to provide an adequate medical examination or explain why a new medical examination is not warranted. 39
Because the claim is being remanded, the Court need not address Mr. Harms’s additional arguments, that the duty to assist requires VA examination or further research with the JSRRC for his diabetes and CLL claims and that the Board’s reasons or bases are inadequate with regard to his lay statements concerning the symptoms of his skin condition.40 In pursuing his claim on remand, Mr. Harms will be free to submit additional argument and evidence as to the remanded matter, and the Board must consider any such evidence or argument submitted.41
II. CONCLUSION
On consideration of the foregoing, the Board’s May 5, 2016, decision is SET ASIDE, and the matters are REMANDED to the Board for further proceedings consistent with this decision.
DATED: September 21, 2018 Copies to:
Joseph J. Donnelly, Esq.
VA General Counsel (027)
38 Nieves—Rodriguez, 22 Vet.App. at 301; See also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007).
39 Barr, 21 Vet.App. at 311.
40 Br. at 7-8, 10-11; See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
41 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

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.