Veteranclaims’s Blog

November 4, 2021

Single Judge Application; 38 C.F.R. § 20.1303 (2021) (“Prior decision in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each 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.” ); Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (explaining that Board decisions can “be used to demonstrate that evidence exists to support a particular fact or occurrence”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2113
DONNIE LEE HYAMS, 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 Army Veteran Donnie Lee Hyams appeals, through
counsel, a July 25, 2017, Board of Veterans’ Appeals (Board) decision denying service connection
for a skin disorder, coronary artery disease, diabetes mellitus, peripheral neuropathy of the upper
and lower extremities as secondary to diabetes mellitus, and entitlement to a total rating based on
individual unemployability due to service-connected disability (TDIU).1 He argues that the Board
failed to provide adequate reasons or bases by relying on silence in unit history records without
laying the proper foundation, and that the Board discounted favorable evidence to find that he was
not exposed to Agent Orange during service. 2 The Court agrees and thus remands for
readjudication. And because entitlement to TDIU is intertwined with appellant’s serviceconnection
claims, the Court will also set aside and remand the Board’s TDIU determination.
1 Record (R.) at 1-15.
2 Appella nt’s Brief (Br.) a t 10-12. Appellant first filed his brief on November 30, 2020. However, on April
12, 2021, he filed an amended brief and a motion for leave to file an amended brief in response to the Secretary’s
amended record before the agency. On April 13, 2021, the Court granted the motion for leave and accepted the
amended brief a s filed. All references to appellant’s brief refer to the amended brief docketed on April 13, 2021.
2
I. ANALYSIS
A. Service Connection
Establishing service connection generally requires evidence of (1) a current disability, (2)
incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service
disease or injury and the current disability.3 VA presumptively concludes that certain medical
conditions relate to service.4 For example, under 38 C.F.R. § 3.309(e), if a veteran was exposed to
an herbicide agent5 during active service and is later diagnosed with an enumerated disease
(including some skin disorders, coronary artery disease, and diabetes mellitus), VA will grant
service connection.6 Here, appellant seeks service connection for conditions enumerated within
38 C.F.R. § 3.309, and so the issue is whether he had in-service exposure to an herbicide agent.
VA has special rules for deciding cases in which a veteran claims that he or she had inservice
exposure to herbicides while serving in South Korea during the Vietnam War. 7 When a
veteran served in a unit that, as determined by the Department of Defense (DoD), operated in or
near the Korean Demilitarized Zone (DMZ) between April 1967 and August 1971, VA presumes
herbicide exposure.8 But as the Board noted, and appellant concedes, appellant did not serve in a
unit that DoD identified as eligible for the presumption.9
Yet appellant may still show herbicide exposure on a facts-found basis.10 Appellant stated
that he worked as a welder in the motor pool of a chemical unit stationed in Uijongbu, a base 12
miles north of Seoul, South Korea.11 Appellant also asserts that he was near the DMZ “mega-
3 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).
4 38 U.S.C. § 1116(b)(1); 38 C.F.R. § 3.309(e) (2021) (listing conditions associated with herbicides for which
presumptive service connection is available).
5 An “herbicide agent” for presumptive service connection is a chemical in an herbicide used in support of
the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and
picloram. 38 C.F.R. § 3.307(a)(6)(i) (2021).
6 38 U.S.C. § 1116(b)(1); 38 C.F.R. § 3.309(e).
7 38 C.F.R. §3.307(a)(6)(iv).
8 38 C.F.R. §3.307(a)(6)(iv).
9 Id.; R. at 11-12; R. at 74.
10 See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).
11 R. at 531.
3
times” at Camp Casey (“which is about 40 miles north of Seoul”)12 for meals and recreational
activities. 13 The record also includes appellant’s references to prior nonprecedential Board
decisions that have found Camp Casey to be on or near the DMZ and that referenced reports that
show herbicides, including Agent Orange, were sprayed near the DMZ.14 Appellant uses these
decisions as persuasive authority showing that presence at Camp Casey could lead to herbicide
exposure.15 He also contends that he worked on vehicles and equipment that carried Agent Orange
in Vietnam and operated at the DMZ, and that he handled an herbicide barrel with a pink or orange
stripe labeled “Dow Chemical Company.”16 The Board did not consider whether this evidence
might support appellant’s claim because of herbicide exposure on a facts-found basis.17
As factfinder, the Board must weigh evidence in the first instance.18 It is also the “duty [of]
the Board to analyze the credibility and probative value of evidence.” 19 In making credibility
determinations, the Board may consider factors such as facial plausibility, bias, self-interest, and
consistency with other evidence of record. 20 The Board may also consider the lack of
contemporaneous evidence when determining the credibility of lay statements, but may not
determine that lay evidence lacks credibility just because it lacks contemporaneous evidence.21
This is because before discounting lay evidence, the Board must “first establish a proper
foundation for drawing inferences against a claimant from an absence of documentation.”22
12 R. at 12.
13 R. at 527.
14 R. at 66-67.
15 Id.; Appellant’s Br. a t 20; see 38 C.F.R. § 20.1303 (2021) (“Prior decision in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each 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 la w.” ); Hime v. McDonald, 28 Vet.App. 1, 7 n.1 (2016) (explaining that Board decisions can “be used to demonstrate that evidence
exists to support a particular fact or occurrence”).

16 R. at 523-25; R. at 540-41.
17 R. at 1-15; Robinson v. Peake, 21 Vet.App. 545, 554 (2008) (“The Board commits error only in failing to
discuss a theory of entitlement that wa s ra ised either by the a ppellant or by the evidence of record.”), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
18 Buchanan v. Nicholson, 451 F.3d 1331, 1335, 1337 (Fed. Cir. 2006).
19 Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
20 Buchanan, 451 F.3d at 1337; Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table).
21 Buchanan, 451 F.3d at 1337.
22 Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); see Horn v. Shinseki, 25 Vet.App. 231, 239 (2012)
(refusing to treat the lack of evidence as substantive negative evidence if there is no “proper foundation . . . to
4
The Board must support its decision with adequate reasons or bases and explain its findings
and conclusions on the material issues of fact and law.23 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.24
If the Board fails to do so, remand is appropriate.25
Appellant argues that the Board failed to explain its conclusion that he was not exposed to
an herbicide agent in service. He contends that the Board improperly relied on the lack of
documentation of his service near the DMZ as substantive negative evidence to support its
determination that appellant “did not serve nor was he ever at the DMZ.”26 The Court finds that
the Board failed to lay a foundation for why silence in appellant’s unit history disproved his
contention that he went to Camp Casey and worked on equipment contaminated by Agent
Orange.27
While the Board noted perceived inconsistencies between appellant’s statements and the
DoD record evidence, it exclusively relied on a lack of evidence that he was present at the DMZ
to deny his claim.28 The Board found that the unit history showed that appellant’s unit was in
Uijongbu, but the unit history “does not mention or document any specific duties by unit members
along the DMZ.”29 But the Board failed to discuss why it would have been reasonable to expect
that his regular trips to Camp Casey and his duties near the DMZ would have been documented in
the unit histories. If it would be unreasonable to expect the unit history to contain this type of
information, then the lack of documentation in the unit history does not contradict his statements.
The same is true for appellant’s contention that he worked on vehicles contaminated with
Agent Orange. The Board noted silence in his unit history on whether his “unit worked on
equipment returning from Vietnam that was used to spread Agent Orange.”30 The Board’s reliance
demonstrate that such silence has a tendency to prove or disprove a relevant fact ”).
23 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
24 Caluza, 7 Vet.App. at 506.
25 Tucker v. West, 11 Vet.App. 369, 374 (1998).
26 Appella nt’s Br. a t 23-24; R. at 12.
27 Fountain, 27 Vet.App. at 272; see Horn, 25 Vet.App. at 239.
28 R. at 12.
29 Id.
30 R. at 8.
5
on the lack of a notation in the unit history likewise falls flat. The Board needed to explain why it
would expect the unit history to note that the unit worked on equipment that was used to spread
Agent Orange in Vietnam.31 And again the Board failed to explain why a chemical unit’s history
would document this information. Nor did the Board provide reasoning for why the unit’s duties
in Korea suggested that it did not spray Agent Orange in Vietnam.
The Board also provided an improper sleight of hand when it directed appellant’s attention
toward other herbicides to support its conclusion that he was not exposed to Agent Orange. 32 The
Board relied on a notation in the unit history that the chemical unit sprayed DDT and malathion in
Korea to disprove appellant’s contention that Agent Orange residue was present on the equipment
and vehicles he repaired.33 But just because the company sprayed DDT and malathion in Korea
does not necessarily mean that the same vehicles and equipment were not exposed to Agent Orange
at the DMZ or in Vietnam. And the Board failed to explain why the lack of a notation of these
activities in the unit history would tend to suggest that a servicemember assigned to that unit did
not repair vehicles exposed to Agent Orange. Without an explanation of why the Board would
have expected the unit history to document these activities, its decision lacked adequate reasons
or bases for finding that appellant was not exposed to Agent Orange. 34
Appellant also argues that the Board improperly discounted favorable evidence showing
that he served at the DMZ and was directly exposed to Agent Orange. 35 Appellant points to
newspaper clippings submitted with his appeal, which he claims verify his exposure to Agent
Orange and his presence on the DMZ. 36 The Board mentioned these newspaper clippings,
“including one showing that the 25th Chemical Company was detailed to Vietnam” and one with
“descriptions of activities at the DMZ.”37 The Board noted that appellant was not a member of the
25th Chemical Company while it was in Vietnam.38 But appellant does not claim to have served
31 See Fountain, 27 Vet.App. at 272; see also Horn, 25 Vet.App. at 239.
32 Id.
33 R. at 8, 12.
34 Allday, 7 Vet.App. at 527.
35 Id.
36 Appella nt’s Amended Br. at 10-14.
37 R. at 12.
38 R. at 12.
6
in Vietnam. Instead, his claimed exposure turns on his contention that he joined the 25th Chemical
Company shortly after it returned from Vietnam, and that the 25th Chemical Company’s vehicles
and machinery were still contaminated by Agent Orange when they returned to Korea.39 Appellant
posits that the vehicles and machinery he worked on in Korea had Agent Orange residue present
from their use in Vietnam. 40 This seems to be at least partially supported by the newspaper
clippings appellant provided, which show that the company served in Vietnam just before or
around the time that appellant joined the unit in Korea.41 And one of the newspaper clippings
submitted by appellant suggested that the 25th Chemical Company repurposed the “generators
once used to protect Marines at Khe Sahn [,Vietnam]” to spray malathion in the Uijongbu area.42
The Board failed to provide a foundation for relying on silence in the unit history and
mischaracterized appellant’s newspaper clippings. It then concluded that the preponderance of the
evidence weighed against finding that appellant was exposed to Agent Orange, rendering its
reasons or bases inadequate.43 Thus, the Court will set aside the July 2017 Board decision and
remand these matters to the Board to provide adequate reasons or bases for concluding that the
evidence showed that the veteran was less likely than not exposed to herbicides during service.
B. TDIU
Evaluation for TDIU rests on consideration of all the service-connected disabilities. 44
Because the Court is remanding appellant’s service connection claim for a skin disorder, coronary
artery disease, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities as
secondary to diabetes mellitus, the Board may have to reconsider appellant’s employability. As
this Court has explained, “where a decision on one issue would have a ‘significant impact’ upon
another, and that impact in turn ‘could render any review by this Court of the decision [on the other
claim] meaningless and a waste of judicial resources,’ the two claims are inextricably
39 R. at 746.
40 R. at 11-12; Appellant’s Br. a t 3 (citing R. a t 1181, 1185).
41 R. at 62.
42 Id.
43 See Fountain, 27 Vet.App. at 272; see also Horn, 25 Vet.App. at 239.
44 See 38 C.F.R. § 4.16(a) (2021) (“Total disa bility ra tings for compensation may be a ssigned, where the
schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially gainful occupation as a result of service-connected disabilities.”).
7
intertwined.”45 Thus, the Court will remand appellant’s TDIU claim as inextricably intertwined
with his other claims.
Given this disposition, the Court need not address appellant’s remaining arguments.46 On
remand, appellant may submit additional evidence and argument; he has 90 days to do so from the
date of VA’s postremand notice.47 The Board must consider any such additional evidence or
argument submitted48 and proceed expeditiously.49
II. CONCLUSION
For these reasons, the Court SETS ASIDE and REMANDS the Board’s July 25, 2017,
decision denying service connection for a skin disorder, coronary artery disease, diabetes mellitus,
peripheral neuropathy of the upper extremities as secondary to diabetes mellitus, peripheral
neuropathy of the lower extremities as secondary to diabetes mellitus, and entitlement to TDIU.
DATED: August 25, 2021
Copies to:
Tommy D. Klepper, Sr., Esq.
VA General Counsel (027)
45 Henderson v. West, 12 Vet.App.11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App.180, 183
(1991)); see also Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016).
46 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at the readjudication . . . .”).
47 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
48 Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)
(“A remand is meant to entail a critical examination of the justification for the decision.”).
49 38 U.S.C. §§ 5109B, 7112.

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