Veteranclaims’s Blog

November 17, 2021

Single Judge Application; herbicide exposure Thailand; Marcelino v. Shulkin, 29 Vet.App. 155, 157 (2018); Veterans exposed to herbicides in Thailand may obtain service connection for certain diseases without demonstrating that link.see 38 C.F.R. § 3.307(a)(6) (2020); In 2010, VA acknowledged evidence of herbicide use around the perimeters of certain Royal Thai Air Force Bases in Thailand during the Vietnam era.Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016); a special consideration of herbicide exposure . . . should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases.” VA ADJUDICATION PROCEDURES MANUAL, M21-1 (M21-1), pt. VIII, subpt. i, ch. 1, § A.4.a, http://www.knowva.ebenefits.va.gov (last visited Nov. 10, 2021); M21-1 instructs adjudicators to concede exposure for security police, security patrol dog handlers, members of the security police squadron, and those who were “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.” VA ADJUDICATION PROCEDURES MANUAL, M21-1 (M21-1), pt. VIII, subpt. i, ch. 1, § A.4.b, http://www.knowva.ebenefits.va.gov (last visited Nov. 10, 2021);

Filed under: Uncategorized — veteranclaims @ 1:13 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4478
RICHARD G. BAKER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: Veteran Richard G. Baker appeals a June 1, 2020, Board of Veterans’ Appeals (Board) decision that denied service connection for type 2 diabetes mellitus (diabetes), to include as due to herbicide agent exposure. Mr. Baker argues for reversal, or alternatively, remand because the Board failed to provide adequate reasons or bases to deny service connection for herbicide exposure. The Court agrees that remand is the appropriate disposition because the Board failed to provide adequate reasons or bases for its decision.
Service connection usually requires evidence of a current disability, an in-service incurrence or aggravation of an injury or a disease, and a link between the two.2 Veterans exposed to herbicides while serving in Thailand during the Vietnam era, however, may obtain service connection for certain diseases without demonstrating that link.3 In 2010, VA acknowledged evidence of herbicide use around the perimeters of certain Royal Thai Air Force Bases in Thailand during the Vietnam era.4 And based on that evidence, it “determined that a special consideration
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-21 (Jan. 4, 2021).
2 Marcelino v. Shulkin, 29 Vet.App. 155, 157 (2018).
3 See 38 C.F.R. § 3.307(a)(6) (2020).
4 Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016).
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of herbicide exposure . . . should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases.”5
In particular, the Agency’s M21-1 instructs adjudicators to concede exposure for security police, security patrol dog handlers, members of the security police squadron, and those who were “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.”6

Like other findings of fact, the Court reviews the Board’s service connection finding under the “clearly erroneous” standard.7 “‘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.'”8 The Court reviews de novo whether the Board followed VA regulations and correctly applied legal principles.9
The Board must support its determination with an adequate statement of reasons or bases that enables a claimant to understand the precise basis for the finding and that facilitates review by this Court.10 To satisfy this requirement, the Board must account for evidence it finds persuasive or unpersuasive, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any evidence favorable to the veteran.11 If the Board fails to do so, remand is appropriate.
Mr. Baker served at the Udorn and Ubon Royal Thai Air Force Bases referred to above. But he did not serve in one of the roles expressly noted. So, the question before the Board was whether he served “near the air base perimeter.”12 Here, the Board inexplicably imposed additional requirements for establishing herbicide exposure that VA did not explicitly list in the M21-1 provision, namely, “regular, sustained exposure of Agent Orange.”13 The Board acknowledged Mr.
5 VA ADJUDICATION PROCEDURES MANUAL, M21-1 (M21-1), pt. VIII, subpt. i, ch. 1, § A.4.a, http://www.knowva.ebenefits.va.gov (last visited Nov. 10, 2021).
6 Id. at § A.4.b.

7 Deloach v. Shinseki, 704 F.3d 1370, 1378 (Fed. Cir. 2013).
8 Id. at 1378-79 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
9 Faust v. West, 13 Vet.App. 342, 348 (2000).
10 38 U.S.C. § 7104(d)(1); Sharp v. Shulkin, 29 Vet.App. 26, 31 (2017).
11 Sharp, 29 Vet.App. at 31.
12 M21-1, pt. VIII, subpt. i, ch. 1, § A.4.b.
13 Record (R.) at 9.
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Baker’s lay assertions that rain from nearby hills could have washed Agent Orange onto his airbase.14 But the Board denied presumptive service connection because Mr. Baker could not show “regular” service at or near the perimeter of a Royal Thai Air Force Base. The M21-1 provision does not specify how often and to what degree a veteran must have been “otherwise near the air base perimeter” to establish presumptive service connection.15 Thus, it is unclear to the Court why the Board relied on these parameters to deny service connection when they are not required in the M21-1 provision.
Although the M21-1 is nonbinding on Board members, the Board must, as part of its duty to provide adequate reasons or bases supporting its decision, present a reasoned, independent determination for when it substantively relies on a provision.16 The Board failed to do so here when it relied on a provision in the M21-1 but denied service connection based on a standard—regular, sustained exposure—not set forth in the M21-1.
Although Mr. Baker argues for reversal because the Board applied a stricter standard to establish herbicide exposure than what is provided in the M21-1, the Court finds that remand is the appropriate remedy. Reversal is limited to cases “where the only permissible view of the evidence is contrary to the Board’s decision,” and the Board “has performed the necessary fact-finding and explicitly weighed the evidence.”17 Given the Board’s lack of explanation for why it applied a standard not clearly set forth in the M21-1, the Court will remand for the Board to provide its reasons or bases for doing so.
Accordingly, the Court VACATES the June 1, 2020, Board decision and REMANDS the matter for readjudication consistent with this decision.
DATED: November 15, 2021
14 R. at 6.
15 Id.; see Andrews v. McDonough, 34 Vet.App. 216, 224 (2021) (“‘[T]he VA may [not] tell a veteran how to establish 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, 1007 (Fed. Cir. 2018))).
16 See Overton v. Wilkie, 30 Vet.App. 257, 321 (2018).
17 Patricio v. Shulkin, 29 Vet.App. 38, 46 (2017); Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004).
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Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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