Veteranclaims’s Blog

March 3, 2020

Single Judge Application; “Republic of Vietnam,” as used in section 1116, includes both the landmass of Vietnam and the country’s territorial waters (an area composed of the 12 nautical miles immediately offshore); Procopio, 913 F.3d at 1380-81; 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii) (2019); Board denial citing VA Adjudication Procedures Manual (M21-1), pt. IV, subpt. ii, ch. 1, § H(2)(b), (d)), 12;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:49 pm

Excerpt from decision below:

” 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 AO, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii) (2019). In Procopio, the Federal Circuit held that the term “Republic of Vietnam,” as used in section 1116, includes both the landmass of Vietnam and the country’s territorial waters (an area composed of the 12 nautical miles immediately offshore). 913 F.3d at 1380-81

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-4580
RUSSELL J. CATALDO, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Russell J. Cataldo, through counsel appeals a May 23,
2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to disability
compensation for leukemia and declined to reopen previously denied claims for benefits for
diabetes mellitus type II (diabetes), bilateral peripheral neuropathy, and erectile dysfunction (ED).
Record (R.) at 7-15. The Board remanded the matter of entitlement to disability benefits for a skin
rash. The remanded matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478
(2004) (per curiam order) (a Board remand “does not represent a final decision over which this
Court has jurisdiction”); Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by
the Board may not be reviewed by the Court). Additionally, on February 18, 2020, the appellant
filed a motion to expedite proceedings.
This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will (1) reverse
the Board’s finding that the appellant’s service aboard the U.S.S. Davis did not establish
presumptive exposure to herbicide agents in service; (2) reverse the Board’s decision denying
entitlement to disability compensation for leukemia and declining to reopen previously denied
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claims for benefits for diabetes, bilateral peripheral neuropathy, and ED; and (3) otherwise vacate
the Board’s decision and remand these matters for further proceedings consistent with this decision.
The Court will also deny as moot the appellant’s motion to expedite proceedings.
I. BACKGROUND
The appellant served on active duty in the U.S. Navy from July 1964 to July 1968. R. at 807. He was awarded the Vietnam Service Medal, with two bronze stars, for his participation in operations while aboard the U.S.S. Davis from December 1965 to June 1966 and March 1966 to December 1966. R. at 293-94. In February 2009, he filed claims for entitlement to disability benefits for diabetes, as secondary to Agent Orange (AO) exposure, and bilateral peripheral
neuropathy and ED, both as secondary to diabetes. R. at 704-13. In April 2009, a VA physician
stated that the appellant was being followed for diabetes and peripheral neuropathy and opined
that both conditions “are more likely than not [] related to [AO] exposure,” R. at 432; a private
physician diagnosed leukemia and noted peripheral neuropathy and diabetes as other problems that
he experienced, R. at 486; and another private physician stated that he had treated him for the
development of diabetes, impotence, and neuropathy in the previous 13 years, R. at 204.
On April 23, 2009, a response from the National Personnel Records Center confirmed that
the appellant had served aboard the U.S.S. Davis, which was in the official waters of the Republic
of Vietnam from March 6 to April 9, 1966; May 3 to June 9, 1966; and June 21 to July 2, 1966.
R. at 483. In June 2009, a VA regional office (RO) denied his claims for diabetes, and bilateral
peripheral neuropathy and ED, as secondary to diabetes, on the basis that his military records did
not establish that he served in-country in Vietnam. R. at 458-71. He did not appeal this decision.
Subsequently, the RO denied his May 2011 claim for disability compensation for leukemia
and his request to reopen the previously denied claims for diabetes, bilateral peripheral neuropathy,
and ED. R. at 389-400; see R. at 448. He submitted a Notice of Disagreement; the RO issued a
Statement of the Case continuing the denial; and he perfected his appeal to the Board. R. at 70-71, 112-36, 340.
The Board issued the decision on appeal on May 23, 2018, denying entitlement to disability
benefits for leukemia and declining to reopen claims for benefits for diabetes, bilateral peripheral neuropathy, and ED. R. at 7-15. This appeal followed.
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II. ANALYSIS
The appellant argues that the Court should reverse the Board’s denial of entitlement to
disability compensation for leukemia and its denial of his request to reopen his claims for disability benefits for diabetes, bilateral peripheral neuropathy, and ED. Appellant’s Brief (Br.) at 7-11. He asserts that the Board’s finding that he was not exposed to herbicides while aboard the U.S.S. Davis is erroneous in light of the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit’s) recent holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Appellant’s Br. at 8-10.
He thus urges the Court to grant disability compensation for leukemia and diabetes, pursuant to 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), and grant benefits for bilateral peripheral neuropathy and ED on the bases that these disabilities are secondary to his diabetes and no material factual
matters are outstanding. Id. at 7, 10-11. In the alternative, he requests that his claims for bilateral peripheral neuropathy and ED be remanded for readjudication because the matters are inextricably intertwined with a grant of benefits for diabetes. Id. at 7, 11.
In light of Procopio, the Secretary concedes that reversal and a grant of the appellant’s
claims for entitlement to disability benefits is appropriate for leukemia and diabetes. Secretary’s Br. at 3-4. However, the Secretary argues that the appellant’s claims for disability benefits for bilateral peripheral neuropathy and ED should be remanded for additional development and adjudication. Id. at 4-6.
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2019). 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 AO, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii) (2019). In Procopio, the Federal Circuit held that the term “Republic of Vietnam,” as used in section 1116, includes both the landmass of Vietnam and the country’s territorial waters (an area composed of the 12 nautical miles immediately offshore). 913 F.3d at 1380-81.
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Whether the record establishes entitlement to service connection is a finding of fact, which
the Court reviews under the “clearly erroneous” standard of review. See Russo v. Brown,
9 Vet.App. 46, 50 (1996). A finding of fact is clearly erroneous when the Court, after reviewing
the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a
statement of the reasons or bases for its determination “adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v.
Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
Here, the Board conceded that “the [appellant] has a diagnosis of leukemia.” R. at 9.
Further, the Board conceded his presence aboard the U.S.S. Davis. R. at 14. In that regard, the Board acknowledged:
[D]eck logs from the ship [] show the following: 1) on May 13, 1966, the ship was
anchored off the mouth of the Song Tra Cam River; 2) on June 22, 1966, the ship
was 3,000 yards off the coast of Vietnam; and 3) the ship was anchored in Da Nang
Harbor at various times.
R. at 10. However, the Board concluded that presence on the U.S.S. Davis at these locations did
not establish that the appellant had been presumptively exposed to herbicide agents in service.
R. at 10 (citing VA Adjudication Procedures Manual (M21-1), pt. IV, subpt. ii, ch. 1, § H(2)(b), (d)), 12. Further, the Board found that the appellant “is not competent to establish that he was exposed to [an] herbicide agent,” and therefore his testimony was not entitled to probative weight for that purpose. R. at 11-12 (citing Bardwell v. Shinseki, 24 Vet.App. 36 (2010)). The Board thus denied entitlement to disability compensation for leukemia and declined to reopen claims for diabetes, bilateral peripheral neuropathy, and ED. R. at 7-14.
A. Leukemia and Diabetes
The appellant argues that the Board conceded that he served aboard the U.S.S. Davis when
it took station only 3,000 yards off the coast of Vietnam on June 22, 1966, Appellant’s Br. at 9
(citing R. at 10), and that he has a diagnosis of leukemia and diabetes, id. (citing R. at 9, 12). He
asserts that it was, therefore, clearly erroneous for the Board to find that his presence on the ship
did not establish presumed herbicide exposure and that, pursuant to 38 U.S.C. § 1116 and 38 C.F.R.
§ 3.309(e), he is entitled to disability compensation for both conditions. Id. at 8-10. The Secretary
5
concedes that the Board made the above findings and, thus, agrees that the appellant is entitled to
a grant of disability benefits for leukemia and diabetes. Secretary’s Br. at 3-4.
The Court will accept the Secretary’s concession that, in light of Procopio, and pursuant to
section 1116 and § 3.309(e), herbicide exposure has been established and service connection for
leukemia is warranted. As the parties point out in their briefs, the Board found that the appellant
has a diagnosis of leukemia, R. at 9, 12 (finding that “the [appellant] has a diagnosis of leukemia”
and “lay and medical evidence consistently place the onset [of leukemia] in 2009”), and conceded
that he was onboard the U.S.S. Davis when the ship came within 12 nautical miles of the Vietnam
shore, R. at 10, 14 (acknowledging that the deck logs indicate that “the ship was 3,000 yards off
the coast of Vietnam” and concluding that the appellant’s presence aboard the U.S.S. Davis was
“already established at the time of the June 2009 denials”); see Procopio, 913 F.3d at 1380-81.
The Court thus finds that the only permissible view of the evidence is contrary to the Board’s
determination that the appellant failed to establish presumed herbicide exposure and entitlement
to disability compensation for leukemia. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004)
(citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)) (holding that “reversal is the appropriate
remedy when the only permissible view of the evidence is contrary to the Board’s decision”).
Therefore, the Court will reverse the Board’s decision denying entitlement to disability
compensation for leukemia and remand the matter for appropriate action.
However, the Court will only accept in part the Secretary’s concession concerning the
Board’s refusal to reopen the appellant’s claim for diabetes. The Board declined to reopen the claim
because the evidence failed to establish an in-service event—AO exposure. R. at 12-14. In light of
Procopio and the appellant’s conceded herbicide exposure, the Court will reverse the Board’s
refusal to reopen the claim.
Although the appellant acknowledges that the Board did not adjudicate the claim on the
merits, he contends that remand for this purpose is not necessary because, pursuant to Bernard v.
Brown, 4 Vet.App. 384, 391 (1993), the Board had jurisdiction to adjudicate both whether new
and material evidence had been submitted and the merits of his claim. Appellant’s Br. at 10-11. As
an appellate tribunal, however, the Court may not find facts in the first instance. See Hensley v.
West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate
fora for initial fact finding”). Here, the parties assert that the Board found that he has a current
diagnosis of diabetes, but that finding is not apparent from the Board’s decision. See Appellant’s
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Br. at 9; Secretary’s Br. at 3 (both citing R. at 12). But see R. at 204, 333, 432, 486. Thus, remand
is necessary. See Hensley, 212 F.3d at 1263; see also 38 U.S.C. § 7261(c).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, including the specific arguments raised here on appeal, and the Board is required
to consider any such relevant evidence and argument.1 See Kay v. Principi, 16 Vet.App. 529, 534
(2002) (stating that, on remand, the Board must consider additional evidence and argument in
assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73
(1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail a
critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
B. Bilateral Peripheral Neuropathy and ED
The appellant argues that the Board erred in denying his request to reopen his claims for
bilateral peripheral neuropathy and ED. Appellant’s Br. at 10-12. Specifically, he asserts that the
Board’s denial of his request to reopen “was premised on the fact that the evidence did not establish
in-service herbicide exposure.” Id. at 10. Similar to his diabetes claim, he asserts that, although the
Board did not adjudicate the merits, remand is unnecessary. Id. at 10-11 (citing 38 U.S.C.
§ 7104(a); Bernard, 4 Vet.App. at 391-92). He contends that the Court should grant service
connection for both disabilities because the Board had jurisdiction to adjudicate the merits of his
claims and the record shows that he had been diagnosed with bilateral peripheral neuropathy and
ED secondary to diabetes. Id. at 11. In the alternative, he asks the Court to remand both matters
because they are inextricably intertwined with his claim for diabetes. Id.
The Secretary counters that the Board did not address the merits of the bilateral peripheral
neuropathy and ED issues in the first instance; there is insufficient evidence to conclude that a
relationship exists between those conditions and his diabetes; and the absence of factual findings
by the Board requires remand, not reversal. Secretary’s Br. at 4-6. In response, the appellant points
to medical evidence, which he alleges demonstrates a relationship between his bilateral peripheral
neuropathy and diabetes, and a diagnosis of ED. Reply Br. at 3 (citing R. at 21, 204).
1 In this regard, the Court again notes the Secretary’s concession that a grant of disability compensation for
diabetes is warranted. See Secretary’s Br. at 4 (“[T]he Secretary concedes that [the a]ppellant is entitled to a grant of
. . . service connection for . . . diabetes.”).
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The appellant’s arguments are not persuasive. See Berger v. Brown, 10 Vet.App. 166, 169
(1997). First, as reflected above, he has not established entitlement to service connection for
diabetes on appeal. Second, the Court may not weigh the evidence in the first instance to determine
whether he has current disabilities or whether they are secondary to diabetes. See Deloach v.
Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (holding “that the evaluation and weighing of
evidence are factual determinations committed to the discretion of the factfinder—in this case, the
Board”). Rather, in light of Procopio and the appellant’s conceded herbicide exposure, the Court
will reverse the Board’s decision declining to reopen his claims for bilateral peripheral neuropathy
and ED, and remand both matters for additional development and adjudication.
As noted above, the appellant is free to submit additional evidence and argument on the
remanded matters, the Board is required to consider any such relevant evidence and argument, and
the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112. See Kay, 16 Vet.App.
at 534; Kutscherousky, 12 Vet.App. at 372-73.
III. CONCLUSION
The appellant’s February 18, 2020, motion to expedite proceedings is denied as moot. After
consideration of the parties’ pleadings and a review of the record, the Board’s finding that the
appellant’s service aboard the U.S.S. Davis did not establish presumed exposure to herbicide agents
in service is REVERSED. The Board’s decision denying entitlement to disability compensation
for leukemia and declining to reopen previously denied claims for benefits for diabetes, bilateral
peripheral neuropathy, and ED is REVERSED; the decision is otherwise VACATED; and the
matters are REMANDED for further proceedings consistent with this decision.
DATED: March 2, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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