Veteranclaims’s Blog

July 9, 2019

Single Judge Application; Thailand; steps raters should follow to verify exposure to herbicides; agent orange; parkinson’s disease; Korat Royal Thai Air Force Base (RTAFB); VA ADJUDICATION PROCEDURES MANUAL(M21-1), pt. IV, sbpt. ii, ch. 1, sec. H.5.;

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-1804VIRGIL P.RIDINGS,JR.,APPELLANT,V.ROBERT L.WILKIE,SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before KRAMER, Senior Judge.1

MEMORANDUMDECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

KRAMER, Senior Judge: Appellant Virgil P. Ridings, Jr., served on active duty in the U.S. Air Force from November 1963 to January 1986, including service in Thailand at the Korat Royal Thai Air Force Base (RTAFB) during the Vietnam War Era. Record (R.) at 264, 295, 342. He appeals, through counsel, a March 5, 2018, Board of Veterans’ Appeals (Board) decision that determined new and material evidence had been submitted to reopen a claim of service connection for Parkinson’s disease but denied the claim on the merits.R.at 2-12. 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 March 5, 2018, Board decision and remand the matter for further proceedings consistent with this decision.I.

ANALYSIS

Mr. Ridings asserts that his Parkinson’s disease was caused by exposure to herbicides. Parkinson’s disease is recognized as a disease associated with exposure to “herbicide agents.”

1Judge Kramer is a Senior Judge acting in recall status. In re: Recall of Retired Judge,U.S.VET.APP. MISC. ORDER 06-19(Apr. 10, 2019).

2

38 C.F.R. § 3.309(e) (2019). Although VA has not established a presumption of exposure to herbicide agents for veterans who served in Thailand during the Vietnam War Era,special VA rules were issued governing adjudication of claims based on veterans’ assertions that they were exposed to herbicides whileserving at certain military bases in Thailand. See VA ADJUDICATION PROCEDURES MANUAL(M21-1), pt. IV, sbpt. ii, ch. 1, sec. H.5. This M21-1 provisionoutlines a series of steps raters should follow”to verify exposure to herbicides.”Id.sec. H.5.b. Under step 1, VA should determine whether a veteran served at one of seven RTAFBsandwhether the veteran served in the U.S. Air Force as a security police officer, security patrol dog handler, member of the security police squadron, or was “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence”; if both conditions are met, herbicide exposure is to be conceded. Id. However, step3statesthatifherbicide exposure cannot be conceded under steps1and 2, VA must ask the veteran for the approximate dates, location, and nature of the alleged exposure. Id. If the veteran supplies the requested information, steps 6 and 7 direct the rater to review this information,determine based on this review whether “exposure to herbicides [can] be acknowledged on a direct or facts-found basis,” and, if not, referthe matter to the Joint ServicesRecords Research Center (JSRRC) “for verification of exposure to herbicides.”2Id.Here, Mr. Ridings stated that his exposure is consistent with the M21-1 provision because his living quarters at Korat RTAFB, one of the seven bases named in step 1,were “close to the perimeter not far from the officer’s club” and he often worked on the trim pad, which “was also close to the perimeter.” R. at 15(Aug. 2017 statement); see alsoR. at 548 (June 2015 statementthat “he was around the perimeter often because of [his] job duties”). He also stated that on one occasion he accompanied the commander of the military police “on patrol . . . of the extreme perimeter.” R. at 15. In the decision on appeal, the Board acknowledged Mr. Ridings’sstatements regarding his claimed exposure but concluded that “the credible evidence of record, to include his [military occupation], and performance evaluations, does not show that it is leastas likely as not that he served . . .near the air base perimeter on a consistent basis.” R. at 9. In reaching that conclusion, the Board relied on a 2009 response from the National Personnel Records Center (NPRC) that 2There are additional steps that are not relevant to this analysis.Id. 3there were no records of herbicide exposure, id., and a performance evaluation that outlinedMr. Ridings’s areas of responsibility, but did not identify where he performed those duties or where his living quarters were located, R. at 8. Mr. Ridings argues that the Board’s statement of reasons or bases is inadequate because it apparently found his exposure statements not credible, but did not explain its reasons for doing so. Appellant’s Brief (Br.) at 8. He further asserts that it is not entirely clear from the Board’s analysiswhether the Board found him not credible or found that his degree of his claimed exposure was insufficientto warrant consideration under 38C.F.R. § 3.309(e). Reply Br. at 3. The Court agrees.In every decision, the Board must provide a statement of the reasons or bases for its determination, 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, 7Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence 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).In the March 2018 decision on appeal, the Board determined that “the credible evidence of record” did not support Mr. Ridings’s claim, but theBoarddid not explain why his statements were not considered credible evidence. R. at 9. The Secretary asserts that, despite the Board’s statement,the Board foundMr. Ridings credible, but also found that his “assertions of sporadic exposure to the perimeter were . . . outweighed by the other evidence in the record, including [hismilitary occupation] and performance evaluation.” Secretary’s Br. at 7 (citing R. at 8-9). However, the Secretary’s interpretationdoes not resolve the problem because the Board did notlay a proper foundation for its implied finding that Mr. Ridings’s performance evaluations and areas of responsibility wouldhave specified his proximity to the perimeter, such that their silence on the matter could be considered negative evidence. See Fountain v. McDonald, 27Vet.App. 258, 272 (2015) (“[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”). Therefore, regardless of whether the Board found Mr. Ridings’s statements not credible or, in the Secretary’s alternative, credible but less probative thanother evidence, the Board’s statement of reasons or basesis inadequately supported.

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