Veteranclaims’s Blog

March 11, 2022

Single Judge Application; record sources; Defense Technical Information Center website, VA Compensation Services Intranet Stressor Verification website, and the Air Force Historical Research Agency website, but “no historical documents were identified to substantiate the claimed herbicide exposure;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7469
WILLIAM J. IGYARTO, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: Air Force veteran William J. Igyarto appeals, through counsel, an August 6, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for a prostate disability. Because the Board’s statement of reasons or bases for that decision is inadequate and the Board failed to address VA’s duty to assist, the Court vacates the decision and remands it for readjudication consistent with this decision.
I. INTRODUCTION
The appellant served on active duty in the U.S. Air Force from June 1966 to June 1970. Record (R.) at 32, 961. He was diagnosed with prostate cancer in 2012 and was treated with a prostatectomy. R. at 546, 587-89.
In November 2015, Mr. Igyarto sought service connection for a prostate disability due to Agent Orange exposure. R. at 988-91. That same month, a VA regional office (RO) submitted a request to the National Personnel Records Center (NPRC) for the veteran’s complete service treatment records and personnel file, which was completed in December. R. at 985, 960. Also in December 2015, the RO requested that Mr. Igyarto submit evidence relating to his service in Southeast Asia and his exposure to herbicides. R. at 847-49. He submitted a job performance
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evaluation showing travel to and from Thailand in 1967 for his position as a cryptographic equipment installer.1 R. at 845.
VA denied appellant’s service-connection claim in January 2016. R. at 834-36. The veteran disagreed. R. at 814-15. Along with his Notice of Disagreement, the veteran submitted an AF Form 626, temporary duty (TDY) order, indicating that he was a part of the 2865th Ground Electronics Engineering Installation Agency (GEEIA) squadron and that he had a security clearance. R. at 816-17.2
In July 2017, the veteran submitted a statement and supporting documentation that he spent time at multiple Royal Thai Air Force Bases (RTAFBs). R. at 808. Specifically, appellant said: “While at Nakhon Phanom [NKP] RTAFB we were establishing communications to the newly built base that required us to be around the perimeter to establish areas for communication links” and that he recalled “brown dead trees and foliage around the perimeter, as well as inside the base.” R. at 808. In November 2017, the veteran submitted a statement in support of claim, describing his service in Thailand in 1967. R. at 799-801. The veteran wrote that he stayed a few days at Utapao Air Base, about a week at Udorn Air Base, where “the vegetation was brown and dead all around us,” and then for an unspecified time at NKP, where he landed on a runway “in a clearing that had dead or dying vegetation all around,” worked in and outside of a building “in a large clearing devoid of all vegetation,” and walked through an area outside the front gate with dead vegetation, “sometimes green one day and brown the next.” R. at 799-800. He included with his statement information from VA regarding Thailand military bases and Agent Orange exposure. R. at 797. The VA information said that Air Force veterans who served on RTAFBs at Utapao, NKP, and Udorn may have been exposed to herbicides and, to receive benefits for diseases associated with herbicide exposure, had to “show on a factual basis that they were exposed to herbicides during their service as shown by evidence of daily work duties, performance evaluation reports, or other
1 “Cryptography” refers to “the enciphering and deciphering of messages in secret code or cipher.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/cryptography (last visited Apr. 21, 2021).
2 Throughout the record, there is discussion about whether this Air Force Form 626 was verified. See R. at 136 (Veterans law judge expressing concern that this form was not included in the veteran’s records), 765 (military records specialist’s memorandum highlighting that this form was “not a part of the records received from the National Personnel Records Center”), 728-79 (VA referring to an “uncertified AF Form 626”). Given that the Board conceded that Mr. Igyarto served in Thailand, the Court need not further address the verification of this form.
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credible evidence.” R. at 797. The VA information also said VA would help veterans determine exposure to herbicides during military service after they filed benefits claims. Id.
In a July 2018 deferred rating decision, VA referred appellant’s case to the appeals military records specialist (MRS). R. at 784. The decision reflected that the veteran had a top secret clearance and had been on TDY in Thailand from August 4 to October 14 in 1967, and then back again on December 2 of that year. Id. The MRS was instructed to “attempt to verify if the Veteran was assigned to one [of] the Air Force bases in Thailand” and to obtain more information to determine whether his duties placed him at a base perimeter. Id.
The Joint Services Records Research Center’s (JSRRC) response confirmed that GEEIA members, including 2865th GEEIA squadron members, were sent to Southeast Asia. R. at 770. The unit history did not identify specific personnel, locations where personnel served, or members’ daily duties. R. at 770. As a result, JSRRC concluded: “[W]e cannot document that the veteran or 2865th GEEIA Squadron personnel performed daily duties in close proximity to the base perimeters at Thailand Royal Thai Air Force Bases during the specified time periods.” R. at 770. In October 2018, the MRS issued a detailed memorandum chronicling the evidence obtained from official records and the veteran that reflected that the veteran had served in Thailand in 1967, R. at 762-69, but found that: “All efforts to concede exposure to herbicides have been exhausted; further attempts are futile and that, based on these facts, herbicide exposure cannot be conceded.” R. at 762. The MRS noted that such efforts included the RO conducting a search of the Defense Technical Information Center website, VA Compensation Services Intranet Stressor Verification website, and the Air Force Historical Research Agency website, but “no historical documents were identified to substantiate the claimed herbicide exposure.” R. at 764, 768.
VA continued to deny service connection for a prostate condition, relying on the evidence neither showing a prostate cancer diagnosis during active duty, nor within 1 year of active duty, nor that the veteran had been exposed to herbicides during military service. R. at 706-29. Appellant appealed to the Board. R. at 680.
At a Board hearing in March 2019, Mr. Igyarto testified about his time in Thailand: “I went through Korat. I went through Udorn. I went through U-Tapao and we stopped there for a couple of days at each one of those to pick up supplies and people on our way to Nakhon Phanom.” R. at 128. The veteran said that at the bases he was at for a few days his quarters were hooches—tents on pallets—”right on the flight line, usually,” which was probably within 500 meters, but “I can’t
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really address that because I wasn’t familiar with those bases and where the perimeters were.” R. at 133-34. The veteran also said that he was at NKP for about 3 months and although he “never sa[w] anybody spraying,” he “notice[d] a lot of dead vegetation around.” R. at 131. He testified that his work at NKP was installing communications equipment to turn an empty building in the middle of the jungle into a communications center, so they went back and forth each day from the small base being established, which was then only about 1 kilometer by 1 kilometer, and thus he was near its makeshift perimeter. R. at 128-30.
In the August 2019 decision now on appeal, the Board denied service connection for a prostate disability. R. at 7-15. The Board conceded that Mr. Igyarto served in Thailand in 1967. R. at 11. However, the Board found that apart from the veteran’s assertions, “there is no evidence of record naming which specific RTAFB the Veteran was stationed at or assigned to” and “there is no objective evidence of record to demonstrate that the Veteran was physically at a base perimeter or that he served any type of duty that would have brought him near the perimeter of a RTAFB.” R. at 11, 12. The Board ultimately concluded that he was not entitled to service connection based on herbicide exposure. R. at 13.
II. ANALYSIS VA “has determined that a special consideration of herbicide exposure on a factual basis should be extended to [v]eterans whose duties placed them on or near the perimeters of Thailand military bases.” VA ADJUDICATION PROCEDURES MANUAL, M21-1 (Manual), pt. IV, subpt. ii, ch. 1, § H.4.a., http://www.knowva.ebenefits.va.gov (last visited June 29, 2021); see Chavis v. McDonough, Vet.App. , _, No. 18-2928, 2021 WL 1432578, at *13 (Apr. 16, 2021) (highlighting that although the Board is not bound by the Manual, the standards provide “‘relevant guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims'” (quoting Healey v. McDonough, 33 Vet.App. 312, 321 (2021))). The Manual provides that VA should concede herbicide exposure “on a direct/facts-found basis” for Air Force veterans who served at NKP, among other RTAFBs, during the Vietnam era as security policemen, security patrol dog handlers, members of the security police squadron, or who were “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.” Id. at § H.4.b; see also R. at 797.
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A. Duty to Assist As part of VA’s duty to assist, the Secretary needs to “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.” 38 U.S.C. § 5103A(a)(1). This duty includes “other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.” 38 U.S.C. § 5103A(c)(1)(C) (emphasis added). This duty is not boundless, it is “limited to specifically identified documents that by their description would be facially relevant and material to the claim.” Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992).
The Court uses the “clearly erroneous” standard to review Board determinations that VA satisfied its duty to assist. Molitor v. Shulkin, 28 Vet.App. 397, 404 (2017). A factual finding is “clearly erroneous” when the Court, after reviewing all the evidence, “‘is left with the definite and firm conviction that a mistake has been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As always, the Board must support its determination that VA satisfied its duty to assist with an adequate statement of reasons or bases. Molitor, 28 Vet.App. at 404. Appellant maintains the burden to demonstrate error. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
The parties disagree regarding whether VA fulfilled its duty to assist. Appellant’s Brief (Br.) at 8-10, 14-16; Secretary’s Br. at 8-11, 15-16. However, the Board did not address that issue at all. The determination of whether VA satisfied its duty to assist involves factfinding that should be done by the Board in the first instance, so remand is appropriate for the Board to consider the appellant’s duty to assist arguments. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
B. The Credibility and Weight of the Evidence
In determining service connection for any disability, “due consideration shall be given to the places, types, and circumstances of [the] veteran’s service as shown by [the] veteran’s service record, the official history of each organization in which such veteran served, [the] veteran’s medical records, and all pertinent medical and lay evidence.” 38 U.S.C. § 1154(b). “Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.” 38 C.F.R. § 3.159(a)(2) (2020).
As the factfinder, the Board is responsible for assessing the credibility and weight of the evidence. Spellers v. Wilkie, 30 Vet.App. 211, 221 (2018). We review the Board’s assessment for
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clear error. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). In assessing the credibility of lay evidence, the Board may consider facial plausibility, internal consistency, consistency with other evidence, and, in the case of oral testimony, the demeanor of the witness. Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board may weigh a claimant’s statements against the lack of documentary evidence but must first establish a proper foundation for drawing adverse inferences from the absence of documentation. Fountain v. McDonald, 27 Vet.App. 258, 272 (2015). Similarly, “the absence of evidence is not substantive negative evidence” without a proper foundation for considering it otherwise. Horn v. Shinseki, 25 Vet.App. 231, 240 n.7 (2012). “As with all its material determinations of law or fact, the Board’s determination as to credibility must be supported by an adequate statement of reasons or bases”—which “must explain the Board’s reasons for discounting favorable evidence.” Spellers, 30 Vet.App. at 221. The Board failed to meet these standards.
C. Inadequate Statement of Reasons or Bases
The appellant argues that the Board failed to provide an adequate statement of reasons or bases for whether the veteran’s statements—that he served at an RTAFB and that his duties brought him near the perimeter—were sufficient to establish exposure. Appellant’s Br. at 10-14. The Secretary disagrees, asserting that the Board supported its finding with an adequate statement. Secretary’s Br. at 11-14.
The Board recounted the veteran’s detailed statements about the locations and nature of his service and the condition of the vegetation he observed but discounted them for reasons that are not adequately explained. It acknowledged that credible evidence of a veteran’s service near the perimeter of a RTAFB garners special consideration of exposure to herbicide agents, then declined to extend that special consideration to Mr. Igyarto without making any finding as to his credibility. When something as fundamental as the veteran’s credibility is at issue, we would expect the Board to address it head-on. See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020). That is particularly true when the Board conducted an in-person hearing at which the veteran testified and the Board’s functions included asking questions to explore fully the basis for the claim and fulfilling its responsibility “to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” 38 C.F.R. § 3.103(d)(2) (2020). See Procopio v. Shinseki, 26 Vet.App. 76, 81-83 (2012). In the absence of an adverse credibility determination by the Board, “we may reasonably conclude that
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it implicitly found the veteran credible.” Miller, 32 Vet.App. at 261. Instead of assessing the veteran’s credibility, the Board appears to substitute a formulaic comparison of his statements with the sparse record–with little attention to the shared responsibility of the veteran and VA to develop it and the impediments to the veteran in doing so. See Skoczen v. Shinseki, 564 F.3d 1319, 1323-25 (Fed. Cir. 2009).
For example, the Board noted that “apart from the Veteran’s own statements, there is no evidence of record naming which specific RTAFB the Veteran was stationed at or assigned to.” R. at 11. That notation is not completely true; a military order from August 1967 specified that the veteran’s TDY would be (or begin) at “Korat Air Base, Thailand.” R. at 728, 768. Moreover, the Board failed to add that the veteran’s statements are uncontroverted and consistent with the general information in the military records cobbled together here–seemingly mostly by the veteran. The Board did not explain how the veteran’s description of events was not consistent with the circumstances of his service. Because service records that should have been retrievable from the Air Force are missing, VA had a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Shaw v. Principi, 3 Vet.App. 365, 367 (1992). It failed to do so.
The Board’s statement regarding the veteran’s security clearance is similarly puzzling. The Board said: “At the March 2019 Board hearing, the Veteran stated that his work at the RTAFB was top secret, but this does not change the fact that there is no objective evidence of record naming a specific RTAFB at which the Veteran was assigned or stationed.” R. at 11. First, the veteran did more than state that his work was top secret; his evidence established that he received a top secret clearance because his work with communications equipment required access to top secret classified matter. R. at 545, 766, 784, 859, 903-04. Second, the record does not reflect any attempt by VA to obtain any classified records that might confirm details of the veteran’s service, notwithstanding the veteran highlighting its classified nature (which was verified–in the MRS memo–by the notation in the veteran’s 1967-68 performance report that his duties included maintaining “strict accountability of all classified documents in his possession during installation of COMSEC equipment.”). See R. at 762-69. And the records search could not have been helped by VA misspelling the veteran’s last name–as Tgyarto–in the request. R. at 985. Though the lack of success in VA’s records search led the MRS to conclude that “herbicide exposure cannot be conceded,” R. at 762, the Board may not outsource to an MRS its responsibility to make an
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adjudicative determination based on the totality of the evidence. See generally Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (holding that “the Board cannot uncritically adopt an examiner’s assessment of the veteran’s level of disability as its own without reconciling that assessment with the other evidence of record,” nor “outsource to a medical examiner its independent responsibility to make an adjudicative determination as to entitlement to a claimed disability evaluation”).
The Board once again invoked the sparse record in discounting the veteran’s statements regarding his service near, at, and through the air base perimeters, saying:
Aside from his own assertions, there is no objective evidence of record to demonstrate that the Veteran was physically at a base perimeter or that he served any type of duty that would have brought him near the perimeter of a RTAFB. Thus, the Veteran’s statements that he performed work along a RTAFB perimeter are not borne out by the other evidence of record.
R. at 12. As with identifying the places of his temporary duty, the veteran’s descriptions of his contact with their perimeters was not contradicted and is consistent with and generally corroborated by the record evidence. For example, the deferred rating decision declared: “The Veteran’s duties suggest the possibility of duty near and around the perimeter of the base,” in instructing the MRS to seek more information. R. at 784. It also acknowledged the veteran’s deployment as an augmentee to Thailand, records of his TDY to Thailand twice in 1967, his responsibility for cryptographic equipment, and his possession of a verified top secret clearance, which “supplies some more detail about his duties.” Id. Another official document reflected that the veteran required access to top secret classified matter to perform his duties with communications equipment. R. at 904.
In one instance, the Board mischaracterized the perimeter evidence. The Board decision says: “When asked to guess how close he was to the perimeter while working at the RTAFB, he stated that he really could not address that because he was not familiar with those bases or where the perimeters were.” R. at 13. In reality, the veteran’s response was to a question about where his sleeping quarters were on the bases he’d stayed at only for a couple of days, not how close he got to the perimeter while working there. R. at 133. The Board also emphasized that the veteran’s service records “simply do not document that he ever had any guard duty or other service as a security policeman, security patrol dog handler, or was otherwise a member of the security squadron” at any RAFTB. R. at 12. But the veteran never contended otherwise, and the Board failed to address the rest of the VA’s test–credible evidence that he served near an air base perimeter.
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Without asking any questions about the veteran’s memory at the hearing or noting any evidence suggesting that the veteran’s ability to recall events was flawed or failing, the Board also declared: “Considering the passage of time since his service at a RTAFB, the Board finds the Veteran’s memory of activities that places him near the perimeter to be too tenuous to be persuasive, and it is outweighed by the Veteran’s service department records.” R. at 12. Once again, not one contrary service record supporting the Board’s declaration is cited or evident.
This pattern extends to the veteran’s statements regarding his observations of dead vegetation and belief that it resulted from herbicides:
[T]he Veteran has stated several times that he saw dead brown vegetation around where his squadron was, and he asserts that this was because of herbicides; however, he never states that he witnessed the vegetation being killed, and he never presented objective proof of how the vegetation was killed. As such, the more probative evidence of record is against finding the Veteran was exposed to herbicide agents.
R. at 13. The veteran’s statements about dead vegetation included:
■ “While at Nakhon Phanom RTAFB we were establishing communications to the newly built base that required us to be around the perimeter to establish areas for communication links. I remember there being brown dead trees and foliage around the perimeter.” R. at 808;
■ “I was TDY [in Thailand] to set up the communications system for a newly formed base. We were transporting communications gear all around the base, as well as outside of it where we would pass throug[h] the perimeter of the base. There was use of agent orange to initially clear the jungle for the landing strip, as well as used around the perimeter which we were around while setting up the comms for the base.” R. at 815; and
■ “We lived in hooches on the base and every day we either walked or were driven thru the jungle to our supply location, a giant ‘bubble’ where we loaded up supplies and equipment. From there we went out to the Comm. Center which was a new building in a large clearing devoid of all vegetation. We were required to work inside and outside where some digging was involved to install various things.” R. at 800.
The veteran also observed that the vegetation around the area was “sometimes green one day and brown the next.” Id. The veteran’s statements were generally corroborated by the VA Public Health page he submitted, R. at 797, which cites a Department of Defense report reflecting “that there was a significant use of herbicides on the fenced-in perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces.”
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It is illogical to dismiss a veteran’s description of observed events because they are not specifically corroborated by military records that are missing or nonexistent. The Board’s inadequate statement of reasons or bases for rejecting the lay evidence here frustrates judicial review and necessitates remand. Spellers, 30 Vet.App. at 222. Because Mr. Igyarto’s service-connection claim is being remanded, the Court need not address the veteran’s other arguments further, including whether VA should have assisted him in obtaining restricted/secret records, RTAFB maps, and other documentation that could establish in-service exposure to herbicides and where the veteran served on the base. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). On remand, appellant may submit any additional argument and evidence. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). Any such argument or evidence must be expeditiously considered by the Board. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
III. CONCLUSION
On consideration of the foregoing, the August 6, 2019, Board decision is VACATED and the matter REMANDED for further consideration consistent with this opinion.
DATED: June 30, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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