Veteranclaims’s Blog

February 20, 2020

Single Judge Application; Board decisions used to demonstrate that evidence exists to support a particular fact or occurrence; Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016); Chief of the Environmental Management Division, Directorate of Base Operations Support at Fort Knox; chlordane; 2,4,5-T; Board, noting that the chemical 2,4,5-T is a component found in Agent Orange, see 38 C.F.R. § 3.307 (a)(6) (2019);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:21 pm

from decision below:

“In support of his claim, Mr. Poplewski submitted Board decisions in the cases of two other veterans, who claimed exposure to herbicides while serving at Fort Knox. In the first (2002) decision, the veteran asserted exposure at Fort Knox between October 1965 and March 1966. The Board cited a letter from the Chief of the Environmental Management Division, Directorate of Base Operations Support at Fort Knox, indicating that pesticides (both herbicides and insecticides) were used “throughout the installation” between October and December 1965—that is, in dining facilities, living quarters, barracks, administration buildings, ranges, golf courses, and greenery adjacent to buildings. R. at 1004. The pesticides used included “DDT; chlordane; 2,4,5-T; diazinon; and malathion.” Id. The Board, noting that the chemical 2,4,5-T is a component found in Agent Orange, see 38 C.F.R. § 3.307 (a)(6) (2019); concluded that the veteran was at least as likely as not exposed to an herbicide agent “for which presumptive service connection attaches” and awarded service connection for non-Hodgkin’s lymphoma on a presumptive basis. R. at 1004.

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” Likewise, the 2002 decision concluded that a chemical component found in Agent Orange was used at Fort Knox between October and December 1965, just one year before the veteran was there, and awarded presumptive service connection on that basis. See Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (opining that a Board decision might be “used to demonstrate that evidence exists to support a particular fact or occurrence”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-7247
DAVID V. POPLEWSKI, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

TOTH, Judge: Veteran David V. Poplewski served on active duty in the Army from 1966
to 1968 and underwent basic training at Fort Knox from October to December 1966. The Board denied disability compensation for several disabilities. On appeal, he argues that the Board failed to provide an adequate statement of reasons or bases as to whether he was exposed to herbicides while stationed at Fort Knox, including failing to address his own lay statements and submissions.1
Because the Board did not address evidence that is both potentially favorable to the veteran and
relevant to each of his claims, the Court vacates and remands.
Mr. Poplewski asserts that, from October to December 1966, he was exposed to herbicide
agents during his basic training at Fort Knox. He states that, while standing guard duty one night,
he saw “fog gun trucks run throughout the compound with fog spray blooming” behind them. R.
at 685. After witnessing the trucks spraying this substance, he recalled smelling and tasting
“polluted air.” Id. He also described two other occasions while serving on kitchen patrol where a
1 The veteran did not specifically identify which of the Board’s denials he wished to appeal. Rather, his brief
argues that the Board erred in denying “service connection for several impairments caused by herbicide exposure.”
Appellant’s Brief (Br.) at 1 (emphasis added). Because each claim decided by the Board in its August 2018 decision
emanates from the threshold issue of whether the veteran was exposed to herbicides, the Court understands him to be
appealing the Board decision in its entirety.
2
team came into the kitchen and sprayed “under the work table area and stoves.” Id. When he asked
the team what they were doing, they responded that they were “killing cockroaches.” Id.
In support of his claim, Mr. Poplewski submitted Board decisions in the cases of two other veterans, who claimed exposure to herbicides while serving at Fort Knox. In the first (2002) decision, the veteran asserted exposure at Fort Knox between October 1965 and March 1966. The Board cited a letter from the Chief of the Environmental Management Division, Directorate of Base Operations Support at Fort Knox, indicating that pesticides (both herbicides and insecticides) were used “throughout the installation” between October and December 1965—that is, in dining facilities, living quarters, barracks, administration buildings, ranges, golf courses, and greenery adjacent to buildings. R. at 1004. The pesticides used included “DDT; chlordane; 2,4,5-T; diazinon; and malathion.” Id. The Board, noting that the chemical 2,4,5-T is a component found in Agent Orange, see 38 C.F.R. § 3.307 (a)(6) (2019); concluded that the veteran was at least as likely as not exposed to an herbicide agent “for which presumptive service connection attaches” and awarded service connection for non-Hodgkin’s lymphoma on a presumptive basis. R. at 1004.
The second (2005) decision concerned a veteran who served at Fort Knox between
September and November 1969 and was seeking to reopen a claim of service connection for a skin disorder due to herbicide exposure. The veteran submitted a letter (the identity of its author is unclear) attesting to the fact that pesticides were used at Fort Knox from the 1940s to the 1970s,
including DDT; chlordane; 2,4,5-T; diazinon; and malathion.
In April 2017, after noting Mr. Poplewski’s statements and submissions, the Board
remanded his claims for VA to attempt to verify whether he was exposed to “herbicides, pesticides,
and other harmful chemicals during his service at Fort Knox Army base from October to December
1966.” R. at 542. Further development resulted in two new pieces of evidence regarding his
possible exposure. The first was a memorandum from the Department of Defense (DOD) Armed Forces Pest Management Board and the other was an email from VA’s Compensation Service.
The Armed Forces Pest Management Board was “not able to state what pesticides were used during the subject time frame,” but noted that it was DOD’s “consistent policy to only use commercial pesticides.” R. at 115. And the email from VA Compensation Service noted that maintenance
activities such as range management, fumigation, brush clearing, and weed killing were
accomplished by use of commercially available pesticides; and that, although the specific
pesticides used during Mr. Poplewski’s time at Fort Knox were not known, DOD’s policy was to
3
transport, store, handle, and use commercial pesticides in accordance with federal law. See R. at
134, 149.
In the decision on appeal, the Board found that the veteran was not exposed to tactical
herbicides while stationed at Fort Knox and that he was exposed only to commercial herbicides.
In reaching this determination, the Board relied on the March 2018 DOD memorandum and Compensation Services email. The Board referenced the 2002 Board decision submitted by Mr.
Poplewski but not the 2005 decision. Its reference to the 2002 decision merely noted that decisions
issued by other Board members are binding only in that specific case.
On appeal, the veteran argues that the Board decisions were not offered for their
precedential value but as evidence relevant to his claim. Appellant’s Br. at 10. Thus, he argues, the
Board erred in failing to adequately address the relevant 2002 and 2005 decisions. In response, the
Secretary argues that Board actions in another case “simply should not control or influence the
Board’s actions here” and remand is not warranted for the Board to consider the decisions.
Secretary’s Br. at 13.
It is true that Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019). Likewise, non-mutual collateral estoppel (whereby different plaintiffs later assert a final judgment against a defendant from an earlier suit) generally does not apply to the government. See United States v. Mendoza, 464 U.S. 154 (1984). However, prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303 (emphasis added). In every case, the Board has an obligation to
provide a written statement of reasons or bases that allows a veteran to understand the precise basis
for its decision and facilitates review in this Court. Hedgepath v. Wilkie, 30 Vet.App. 318, 325
(2018). 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.” Id.
Here, the Board didn’t mention the 2005 Board decision at all and never addressed the
substance of the 2002 decision. But the evidence discussed in both Board decisions reasonably
relates to Mr. Poplewski’s allegation that he was exposed to harmful chemicals at Fort Knox and
so was proper for consideration. That it wasn’t bound by any of the rulings or factual findings of
the earlier cases doesn’t extinguish the Board’s duty to make necessary findings about whether the
material submitted by the veteran is, as an evidentiary matter, relevant or proper for consideration.
4
As to relevance, the evidence discussed in the 2005 decision indicated that a chemical
component found in Agent Orange was used at Fort Knox between the 1940s and 1970s, covering
the time that Mr. Poplewski was there. Likewise, the 2002 decision concluded that a chemical component found in Agent Orange was used at Fort Knox between October and December 1965, just one year before the veteran was there, and awarded presumptive service connection on that basis. See Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (opining that a Board decision might be “used to demonstrate that evidence exists to support a particular fact or occurrence”).
Although the Board is correct that the earlier decisions are not precedential, that does not
automatically render them devoid of evidentiary significance. Here, they formed part of the body of evidence (along with his statements) that Mr. Poplewski submitted to support his claim. Further, it’s hard to deny that the decisions are favorable to his claim and carry probative weight insofar as they offer apparently countervailing accounts of the nature of the herbicides used during the relevant period.
The Board erred in not discussing this relevant and apparently favorable evidence. It was
obligated “to provide the reasons for its rejection of any material evidence favorable to the
claimant.” Hedgepath, 30 Vet.App. at 325. And because the Board didn’t explain why it rejected
this evidence, judicial review is frustrated. Id.
Remand for compliance with the reasons or bases requirement is necessary so that the
Board can resolve the contradiction between evidence contained in the Board decisions tending to
show that herbicides with carcinogenic agents were used at Fort Knox and evidence developed in
this case tending to show that they were not used at Fort Knox. Of course, the Board is free to
weigh evidence as it sees fit in its role as a fact finder, subject to this Court’s review for clear error.
See Arneson v. Shinseki, 24 Vet.App. 379, 382 (2011); cf. 38 C.F.R. § 20.1303 (“[E]ach 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.”). But it is insufficient simply to ignore evidence
discussed in other cited cases as not precedential, at least when the evidence purports to show the
presence of herbicide agents at the same military base and at approximately the same time as the
claimant served. In light of this disposition, the Court need not address the veteran’s remaining
arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001).
5
Upon consideration of the parties’ briefs, the record, and the relevant law, the Court
VACATES the November 29, 2018, Board decision and REMANDS the matter for readjudication
consistent with this decision.
DATED: February 19, 2020
Copies to:
Alan J. Nuta, Esq.
VA General Counsel (027)

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