Veteranclaims’s Blog

August 28, 2021

Single Judge Application; substantive negative evidence; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012); to the extent that the Board’s analysis may be read as implicitly finding him not credible because his service records did not confirm his testimony regarding the locations of his barracks and the flightline relative to the Udorn Air Base perimeter, the Board generally must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Notably, a lack of confirmation is not the same as a contradiction of the claimant’s assertions. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (observing that the absence of evidence is not necessarily substantive negative evidence). And here, the Board did not explain whether and why it would be expected to find corroboration of the barracks and flightline locations relative to the perimeter in Mr. Cornelious’s service records. Thus, to the extent that the Board drew a negative inference from the lack of corroborating service records and relied on that inference to find Mr. Cornelious not credible, the Court concludes that the Board failed to lay a proper foundation. See Fountain, 27 Vet.App. at 272; Horn, 25 Vet.App. at 239;

Filed under: Uncategorized — Tags: — veteranclaims @ 7:37 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3076
FELTON CORNELIOUS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Felton Cornelious appeals through counsel a March 4,
2020, Board of Veterans’ Appeals (Board) decision denying service connection for diabetes
mellitus (diabetes) and ischemic heart disease (IHG), including as due to herbicide exposure.
Record (R.) at 5-12.
1 For the reasons that follow, the Court will set aside those portions of the
March 2020 Board decision and remand the matters for further development and readjudication
consistent with this decision. The remainder of the appeal will be dismissed.
I. FACTS
Mr. Cornelious served honorably in the U.S. Air Force from May 1968 to December 1971,
including service at Udorn Air Base in Thailand during the Vietnam era. R. at 667, 753.
In December 2010, Mr. Cornelious filed a claim for service connection for several
conditions, including diabetes and IHD, claimed as due to herbicide exposure. R. at 1050-55. He

1 The Board also found that Mr. Cornelious had withdrawn his appeal seeking service connection for prostate
cancer. R. at 11-12. Because he has not challenged that portion of the Board decision, the appeal as to that matter
will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the
merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014)
(same).
2
explained that his barracks were located somewhat close to the base perimeter and that the area
was frequently sprayed for weeds. R. at 1054. In an October 2011 statement, he clarified that his
barracks were located near the front perimeter of the base, about 20 feet from a ditch with a lot of
vegetation that was frequently sprayed. R. at 956. Furthermore, he reported, the barracks windows
were covered only with wire screen and did not block the spray from entering the building. Id.;
see also R. at 920 (Mar. 2012 statement reporting the same details).
In April 2012, a VA examiner confirmed that Mr. Cornelious had IHD. R. at 910. The
following month, another VA examiner confirmed a diabetes diagnosis. R. at 901. The regional
office (RO) requested information through the Personnel Information Exchange System to confirm
Mr. Cornelious’s report of herbicide exposure, but his personnel file did not reflect evidence that
he “was a security policeman, a dog handler, or performed duties along the base perimeter.” R. at 898. In June 2012, the RO denied the service-connection claims, citing a lack of evidence to
establish exposure to herbicides in Thailand. R. at 877-79.
In October 2012, Mr. Cornelious filed a Notice of Disagreement. R. at 854-55. In October
2014 correspondence, he reiterated his contention that his barracks were close to the perimeter and
also asserted that he “worked near the flightline as an aircraft controller.” R. at 587. During an
informal RO hearing, he reported that the flightline was along the perimeter. R. at 499. However,
in October 2015, the RO issued a Statement of the Case continuing to deny the service-connection
claims on the basis that herbicide exposure could not be presumed. R. at 477-96. Mr. Cornelious
filed his Substantive Appeal in December 2015. R. at 405-06. He included a photograph of his
barracks showing a walkway he identified as being approximately 15 yards from the perimeter. R.
at 404.
In January 2020, Mr. Cornelious testified before a Board member. R. at 284-94. He stated
that his living quarters were about 30 yards from the perimeter and that the windows had only
screens. R. at 287-88. He further testified that the foliage between his barracks and the perimeter
fence was sprayed several times a week to prevent growth. R. at 290-92.
In the March 2020 decision on appeal, the Board did not make an explicit credibility
finding. See R. at 10-11. The Board acknowledged Mr. Cornelious’s testimony that his barracks
were located near the perimeter and that he “witnessed trucks spraying chemicals,” but found that
“there is no evidence that these chemicals were herbicide agents.” R. at 11. The Board also
considered the barracks photo Mr. Cornelious submitted, but found that it did not support the
3
claimed herbicide exposure because the photograph did not show the perimeter. R. at 10. As for
his work duties, the Board found that Mr. Cornelious served as an air traffic controller, “which
would at times require him to serve near the flight[]line,” id., but found that there was “no
corroboration” that the flightline was near the perimeter, R. at 11. Consequently, the Board denied
the service-connection claims. R. at 5. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Cornelious’s appeal is timely and the Court has jurisdiction to review the March 2020
Board 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).
The Board’s determination regarding service connection is a finding of fact subject to the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see D’Aries v. Peake, 22 Vet.App.
97, 107 (2008); Davis v. West, 13 Vet.App. 178, 184 (1999). “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.'” Hersey v.
Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
As with any finding on a material issue of fact and law presented on the record, the Board
is required to support its service-connection determination with an adequate statement of reasons
or bases that enables the claimant to understand the precise basis for that determination and
facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday v.
Brown, 7 Vet.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 evidence,
account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection
of 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).
III. ANALYSIS
Mr. Cornelious argues, among other things, that the Board erred because it improperly
discounted his favorable lay testimony that his barracks and the flightline were near the perimeter
of Udorn Air Base. Appellant’s Brief (Br.) at 16-20. The Secretary contends that, under the
4
applicable M21-1 provision, a claimant’s duties must be similar to the type specifically enumerated
for the claimant to benefit from a concession of herbicide exposure and that air traffic controller is
not similar to a security policeman, security patrol dog handler, or member of a security police
squadron. Secretary’s Br. at 7-8. The Secretary further asserts that the Board adequately explained
that his lay testimony about living near the perimeter and barracks photo were “insufficient
evidence to support the herbicide exposure presumption.” Secretary’s Br. at 10. The Court agrees
with Mr. Cornelious.
Special VA rules were issued governing adjudication of claims based on veterans’
assertions that they were exposed to herbicides while serving at certain military bases in Thailand
during the Vietnam War Era. See VA ADJUDICATION AND PROCEDURES MANUAL (M21-1), Pt. IV,
sbpt. ii, ch. 1, sec. H.4; see also Effective Date for Claims Involving Exposure to Agent Orange
with Thailand Base Perimeter Duty, VA Compensation Service Bulletin 1-2 (Dec. 2011). This
M21-1 provision states that, “to verify exposure to herbicides,” VA should first determine whether
a veteran served at one of seven Royal Thai Air Bases—among which is Udorn—and whether the
veteran served in the U.S. Air Force as a security police officer, security patrol dog handler, or
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.”
M21-1, Pt. IV, sbpt. ii, ch. 1, sec. H.5.b (emphasis added). For a veteran whose circumstances do
not meet those outlined above, or other enumerated circumstances not at issue here, VA must ask
the veteran for the approximate dates, location, and nature of the alleged exposure; review this
information; and determine based on this review whether “exposure to herbicides [can] be
acknowledged on a direct or facts-found basis.” Id. If not, the matter must be referred to the U.S.
Army and Joint Records Research Center “for verification of exposure to herbicides.” Id.
Here, the Board conceded that Mr. Cornelious was an air traffic controller whose duties
“entailed traveling to and from the flight[]line.” R. at 10. It further acknowledged his lay evidence
“that he was exposed to herbicide agents because he slept near the perimeter of the base and worked
close [to] the perimeter at the flight[]line.” Id. But the Board also found that there was no
corroboration of the lay evidence and denied the claims. R. 10-11.
It is not clear from the Board’s analysis whether it found the lay evidence not credible or
not sufficient to support the claims. As to the former possibility, “[i]f something as fundamental
as the veteran’s credibility were an issue, we would expect the Board to say something,” Miller v.
5
Wilkie, 32 Vet.App. 249, 260 (2020), and here, the Board did not explicitly find Mr. Cornelious
not credible. Furthermore, to the extent that the Board’s analysis may be read as implicitly finding him not credible because his service records did not confirm his testimony regarding the locations of his barracks and the flightline relative to the Udorn Air Base perimeter, the Board generally
must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015). Notably, a lack of confirmation is not the same as a contradiction of the claimant’s assertions. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (observing that the absence of evidence is not necessarily substantive negative evidence). And here, the Board did not explain whether and why it would be expected to find corroboration of the barracks and flightline locations relative to the perimeter in Mr. Cornelious’s service records. Thus, to the extent that the Board drew a negative inference from
the lack of corroborating service records and relied on that inference to find Mr. Cornelious not
credible, the Court concludes that the Board failed to lay a proper foundation. See Fountain, 27
Vet.App. at 272; Horn, 25 Vet.App. at 239
.
As to the latter interpretation of the Board’s analysis—that Mr. Cornelious’s lay evidence
is insufficient to establish that his barracks or the flightline were near the perimeter—the Court
reminds the Board that “‘competent lay evidence can be sufficient in and of itself'” to support a
finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007)
(quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). To the extent that the
Board finds corroboration necessary, it should explain why that is so and what efforts, such as
obtaining base maps, were undertaken to assist Mr. Cornelious in obtaining that corroboration.
See 38 U.S.C. § 5103A(a)(1) (“The Secretary shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law
administered by the Secretary.”).
And as for the Secretary’s argument that the M21-1 should be interpreted as limiting the
concession of herbicide exposure to veterans in one of the enumerated positions or in “a position
that involves similar duties to those enumerated in the provision,” Secretary’s Br. at 9, no authority
is cited for that proposition. Moreover, because the Board did not address this theory, the
Secretary’s arguments in this regard are impermissible post hoc rationalization for the Board’s
decision. See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept
appellate counsel’s post hoc rationalizations for agency action.'” (quoting Burlington Truck Lines,
6
Inc. v. United States, 371 U.S. 156, 168 (1962))); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011)
(“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the
Secretary cannot make up for its failure to do so.”).
Because the Board failed to explain whether—and why—it found Mr. Cornelious’s lay
evidence incredible or inadequate, its statement of reasons or bases is inadequate. See 38 U.S.C.
§ 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506;
Gilbert, 1 Vet.App. at 56-57. Accordingly, the Court concludes that remand is warranted. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy
“where the Board has . . . failed to provide an adequate statement of reasons or bases for its
determinations”).
In accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order), Mr. Cornelious is free, consistent with this decision, to submit any additional arguments
and evidence on remand, including any additional arguments he made to this Court; the Board
must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529,
534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination
of the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the portions of the March 4, 2020, Board decision
denying service connection for diabetes and IHD are SET ASIDE, and the matters are
REMANDED for additional development and readjudication consistent with this decision. The
balance of the appeal is DISMISSED.
DATED: April 30, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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.