Veteranclaims’s Blog

August 27, 2021

Single Judge Application; “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is not bound by [M21-1] ; Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-l provision . . . .”); It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection; Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir. 2018)));

Filed under: Uncategorized — Tags: — veteranclaims @ 6:44 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3736
DENNIS W. DICKMANN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LAURER, Judge: United States Air Force veteran Dennis W. Dickmann appeals, through
counsel, an April 22, 2020, Board of Veterans’ Appeals (Board) decision denying service
connection for thyroid cancer, prostate cancer, diabetes mellitus, type 2, and chronic lymphocytic
leukemia on a presumptive basis.1 Appellant argues that the Board failed to provide adequate
reasons or bases for finding that he was not entitled to a presumption of herbicide exposure. The
Court agrees and remands.
I. ANALYSIS
Establishing service connection generally requires medical or, in some cases, 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. 2 The VA
1 Appellant does not argue entitlement to service connection on a basis other than presumptive service
connection based on herbicide exposure. See Appellant’s Brief (Br.) a t 8-27. Because appellant does not challenge
these parts of the Board decision that denied service connection on a direct basis, the Court dismisses the appeal on
that matter. Record (R.) at 9-10; see Pederson v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc) (finding that
the Court may decline to review an issue appellant has abandoned on appeal).
2 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 (2021).
2
Adjudication Procedures Manual, M21-1, (M21-1) provides special rules for deciding cases in
which a veteran claims that he or she was exposed to herbicides while serving in Thailand during
the Vietnam era.3 Under those rules, VA will concede herbicide exposure if a veteran served at
one of seven Royal Thai Air Force Bases (RTAFB) (U-Tapao, Ubon, Nakhon Phanom, Udorn,
Takhli, Korat, or Don Muang) and performed duties that regularly required his or her presence at
the base perimeter (e.g., security police), or if the veteran was “otherwise near the air base
perimeter.”4 Under M21-1, a veteran can establish regular presence at the base perimeter with
“evidence of daily work duties, performance evaluation reports, or other credible evidence.”5
Like other findings of fact, the Court reviews the Board’s determination for an appellant’s
claim for service connection under the “clearly erroneous” standard. 6 “A factual finding ‘is
“clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’”7 The
Court reviews de novo whether the Board followed VA regulations and correctly applied legal
principles.8
For all its findings on material issues of fact and law, the Board must support its decision
with adequate reasons or bases that allow a claimant to understand the precise reasons for the
Board’s decision and facilitate review by this Court.9 To satisfy this requirement, the Board must
account for evidence it finds persuasive or unpersuasive, analyze the credibility and probative
value of relevant evidence, and provide reasons for rejecting any evidence favorable to appellant.10
If the Board fails to do so, remand is appropriate.11
3 See VA Adjudication Procedures Manual, M21-1, pt. VIII, subpt. i, ch. 1, § A.4.b.1,
http://knowva.ebenefits.va.gov (last updated July 29, 2021).
4 Id. at § A.4.b
5 Id. at § A.4.
6 38 U.S.C. § 7261 (a)(4); Lennox v. Principi, 353 F.3d 941, 944 (Fed. Cir. 2003).
7 Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 33 U.S. 364,
395 (1948)).
8 Faust v. West, 13 Vet.App. 342, 348 (2000).
9 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
10 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
11 Tucker v. West, 11 Vet.App. 369, 374 (1998).
3
In the decision on appeal, the Board conceded that appellant has diabetes, prostate cancer,
thyroid cancer, or leukemia.12 In reciting the pertinent authorities, the Board set forth the content
of the M21-1 provision regarding herbicide exposure in Thailand, citing an “August 2015 C&P
Service Bulletin” that contains the exact language of the M21-1 provision.13 The Board noted that
appellant served at RTAFB Udorn from August 1967 to August 1968, and noted his assertions that
he performed daily duties at the base perimeter.14 The Board had remanded appellant’s claims for
further development in line with the modifications made in August 2015 for some U.S. Air Force
veterans who served in Thailand to establish presumptive service connection.15 In February 2019, VA specifically asked appellant for information about his herbicide exposure and cited the M21-1 provision as guidance.16
Appellant responded that “[he] was exposed to Agent Orange at [RTAFB] Udorn . . . [and he] traveled the [base] perimeter every day in [his] duties as a clerk.”17 He also stated that he
“witnessed a tractor pulling a 55 gal[lon] drum spraying the perimeter and around the runway at
different times during the day to keep vegetation down.”18 While stationed at RTAFB Udorn he
“lived on one side of the base and worked on the other side of the base [and he] could not cross
through the middle [of the base] because the airfield and runways were in the middle. [Instead he]
had to travel the perimeter several times a day, every day . . . to get mail, deliver supplies, [and]
go to and from [his] barracks.” 19 The Board noted appellant’s assertions and specifically
“consider[ed] [his] lay statements that he walked between his post and barracks along the base
perimeter several times each day.”20 The Board did not question appellant’s credibility.21
12 R. at 7, 10.
13 R. at 7.
14 R. at 7-10; see R. at 7, 3754.
15 R. at 3381.
16 R. at 36.
17 R. at 3413.
18 R. at 3458.
19 R. at 3944.
20 R. at 7-8.
21 R. at 5-11.
4
Because the Board was silent on the credibility of appellant’s reports of h is routine proximity to the base perimeter, the Board implicitly found the evidence credible.22 But the Board
ultimately denied presumptive service connection because it found that the presumption required
“consistent, prolonged exposure to the air base perimeter similar to that [experienced by] those
serving as security policemen, security patrol dog handlers, or members of a police squadron.” 23
It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection.24
Appellant argues for reversal because the Board completed all necessary factfinding and
the only possible conclusion to be drawn is that he was exposed to herbicides in service.25 The
Court disagrees. His arguments presume that the Board needed to apply the M21-1 provision
regarding herbicide exposure in Thailand and that the evidence satisfies that provision. But that is
not the case. “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is
not bound by [M21-1].”26 And while the Board noted in its boilerplate the content of the M21-1
provision about Thailand without identifying it as such, and also cited an “August 2015 C&P
Service Bulletin,” the Board did not explain whether it relied on either provision or provide its
reasons for applying or departing from the M21-1.27 Rather, the Board, without explanation, imposed requirements for establishing herbicide exposure that VA did not explicitly list in the M21-1 provision—“consistent, prolonged exposure to the air base perimeter similar to that [experienced by] those serving as security policemen, security patrol dog handlers, or members of
22 Miller v. Wilkie, 32 Vet.App. 249, 260 (2020).
23 R. at 8-9.
24 R. at 36; see Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims
LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for
his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an
optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir.
2018))).

25 Appella nt’s Br. a t 21-24.
26 Overton v. Wilkie, 30 Vet.App. 257, 263 (2018).
27 See Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in
the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses
to rely on an M21-l provision . . . .”)
.
5
a police squadron.”28 Given those deficiencies, the Court will remand for the Board to provide an
adequate statement of reasons or bases.29
Given this disposition, the Court will not now address the remaining arguments and issues
raised by appellant. On remand, appellant may present additional arguments to the Board. 30
II. CONCLUSION
For these reasons, the Court SETS ASIDE and REMANDS the Board’s April 22, 2020,
decision denying service connection for thyroid cancer, prostate cancer, diabetes mellitus, type 2,
and chronic lymphocytic leukemia.
DATED: August 18, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
28 R. at 8-9.
29 See Tucker, 11 Vet.App. at 374 (“[W]here the Board . . . failed to provide an adequate statement of reasons
or bases for its determinations, . . . a remand is the appropriate remedy.”).
30 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).

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.