from decision below:
” Alternatively, if a veteran was actually or presumptively exposed to herbicides such as Agent Orange, he may obtain service connection for certain diseases
2
without the need to demonstrate a nexus to service. See 38 C.F.R. § 3.307(a)(6) (2019). Type II diabetes mellitus is among those diseases. 38 C.F.R. § 3.309(e) (2019). The law in this area significantly changed following Procopio v. Wilkie, 913 F.3d 1371,
1381 (Fed. Cir. 2019) (en banc), which overruled earlier precedent and held that veterans of the Vietnam era who served within the 12-nautical-mile limit of Vietnam’s territorial sea are entitled to a presumption of exposure to herbicides such as Agent Orange. Following Procopio, Congress enacted, and the President signed, the Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 (“the Act”)). The Act further clarified “presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam.” Procopio v. Secretary of Veterans Affairs, 943 F.3d 1376, 1378 (Fed. Cir. 2019) (quotes omitted).
================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3779
BILLY R. EDWARDS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Billy R. Edwards served in the U.S. Navy from May 1966 to September In 2008, he filed a claim for service connection for diabetes. He alleged exposure to
herbicides, including Agent Orange, while serving aboard the aircraft carrier U.S.S. Hancock.
After VA denied his claim, he argued before the Board that his ship came within 12 nautical miles of the Republic of Vietnam and that, at various times, he could see the shoreline.
In a July 2017 decision, the Board noted that a presumption of exposure to herbicides was
available to veterans who had set foot in Vietnam or who had served in its inland waterways. But Mr. Edwards never claimed to have set foot in Vietnam, and no records showed that his ship had ever entered inland waterways. For these reasons, the Board concluded that Mr. Edwards wasn’t entitled to the presumption.
Entitlement to disability compensation is most commonly determined on a direct basis.
Direct service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a competent opinion linking the two. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). Alternatively, if a veteran was actually or presumptively exposed to herbicides such as Agent Orange, he may obtain service connection for certain diseases
2
without the need to demonstrate a nexus to service. See 38 C.F.R. § 3.307(a)(6) (2019). Type II diabetes mellitus is among those diseases. 38 C.F.R. § 3.309(e) (2019).
The law in this area significantly changed following Procopio v. Wilkie, 913 F.3d 1371, 1381 (Fed. Cir. 2019) (en banc), which overruled earlier precedent and held that veterans of the Vietnam era who served within the 12-nautical-mile limit of Vietnam’s territorial sea are entitled to a presumption of exposure to herbicides such as Agent Orange. Following Procopio, Congress enacted, and the President signed, the Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 (“the Act”)). The Act further clarified “presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam.” Procopio v. Secretary of Veterans Affairs, 943 F.3d 1376, 1378 (Fed. Cir. 2019) (quotes omitted).
As the Board decision in this case was issued in 2017, prior to these developments, the
Secretary concedes that the Board misapplied the law when it failed to assess whether the veteran’s
service aboard the U.S.S. Hancock was within the 12-nautical-mile territorial sea of Vietnam.
Accordingly, he argues that the claim should be remanded to allow the Board to consider the
relevant maps and specific evidence submitted by the veteran to illustrate the proximity of the
U.S.S. Hancock to the landmass of Vietnam, including records showing the ship’s movements and
coordinates at various points in time.
Mr. Edwards asks the Court to conduct this assessment on its own without the benefit of
the Board’s consideration and expertise. He contends that the issue of whether the ship’s position
entitled the veteran to the presumption of exposure to herbicides is a question of law to be decided
by the Court. He emphasizes that the necessary evidence is already of record and that the Court
can merely take the coordinates and plot the ship’s position on a map.
But even if it were that simple, and the Court does not concede that it is, there is no
exception to the law’s prohibition against this Court making factual findings. See Deloach v.
Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that reversal is appropriate only “where
the Board has performed the necessary factfinding and explicitly weighed the evidence”);
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board, as factfinder, is
responsible for assessing the credibility, competence, and probative value of evidence). On review,
the Court can consider evidence to see if the Board’s findings are supported, but it can’t jump the
gun and make those findings in the first instance.
3
The veteran also alleges that the Board erred by failing to address reasonably raised issues
of ischemic heart disease and erectile dysfunction. As the sole support for this argument, he alludes
to a 2012 Board hearing where these issues were discussed, but he doesn’t acknowledge that he
filed claims for these conditions in 2014, which VA denied in 2015. R. at 316. He never appealed
those decisions, and he doesn’t explain how, in light of that fact, the Board would have had
jurisdiction over these issues. See Jarrell v. Nicholson, 20 Vet.App. 326, 331–32 (2006) (en banc).
Mr. Edwards candidly admits that the Act authorizes an effective date for disability
compensation retroactive to the time he first sought benefits for these conditions as long as he
submits a (successful) supplemental claim. Reply Br. at 6 (citing 38 U.S.C. § 1116A(c)(2)(B)).
The fact that he does not wish to utilize this option because he thinks it “a useless paperwork
exercise,” Reply Br. at 6, is not a persuasive argument. The Board did not err in this regard.
There is a hint in his reply brief that suggests he might be arguing that the Board should
have considered these conditions as secondary to his diabetes. See Reply Br. at 5 (“Requiring a
second notice of disagreement for items secondary to the primary issue is merely bureaucracy gone
wild.”). Ultimately, the Court need not decide this issue. Mr. Edwards’s claim for diabetes is being
remanded, so to the extent he believes related claims were overlooked by the Board, he will have
the opportunity to expressly raise these issues on remand.
Accordingly, the July 14, 2017, Board decision is VACATED and the matter REMANDED
for further consideration consistent with this opinion.
DATED: February 25, 2020
Copies to:
John B. Wells, Esq.
VA General Counsel (027)