Veteranclaims’s Blog

August 4, 2022

Single Judge Application; Thailand; Korat Royal Thai Air Force Base (Korat RTAFB or Korat); Generally, the M-21 is not binding on the Board, but it is here because “the Board relie[d] on the manual for guidance in analyzing this case.” R. at 8. Thus, the M-21 exposure provision frames the issue in this appeal; The error Mr. Waugh identifies is nearly identical to the Board’s error in Stover v. McDonough, a recently issued precedential decision from this Court. _ Vet.App. , __, No. 20-5580, 2022 U.S. App. Vet. Claims LEXIS 1099 (Jul. 11, 2022). In that case, the Court first held that the Board bound itself to the M-21’s provision about herbicide exposure in Thailand “because the Board adopted the provision as the rule of decision it would apply to assess the appellant’s” claimed condition. Stover, 2022 U.S. App. Vet. Claims LEXIS 1099, at *21. Here, too, the Board bound itself to the M-21 in no uncertain terms when it “relie[d] on the manual for guidance in analyzing this case.” R. at 8.;

Filed under: Uncategorized — veteranclaims @ 9:00 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1448
GLENN S. WAUGH, APPELLANT,
V.
DENIS MCDONOUGH,
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: Air Force veteran Glenn S. Waugh served from September 1970 to April
1974, including overseas in Thailand on Korat Royal Thai Air Force Base (Korat RTAFB or
Korat)
. Mr. Waugh claims that he was exposed to herbicides while serving at Korat and that his
currently diagnosed peripheral neuropathy is related to that exposure. Notably, if Mr. Waugh
successfully proves that he was exposed to herbicides while serving in Thailand, his peripheral
neuropathy and prostate condition could be related to that exposure on a presumptive or direct
basis. See 38 C.F.R. §§ 3.303(a) (2022), 3.309(e) (2022).
As the Board noted in this case, there are no statutes or regulations directly addressing
herbicide exposure in Thailand. However, VA’s Adjudication Procedures Manual (the M-21)
states that, if an Air Force Veteran served on Korat as a “security policeman, security patrol dog
handler, member of the security police squadron, or otherwise near the air base perimeter as shown
by evidence of daily work duties, performance evaluation reports, or other credible evidence,” then
the adjudicator should recognize herbicide exposure. M21-1, VIII.i.1.A.4.b. Generally, the M-21
is not binding on the Board, but it is here because “the Board relie[d] on the manual for guidance
in analyzing this case.” R. at 8. Thus, the M-21 exposure provision frames the issue in this appeal
.
2
To support his claim of herbicide exposure at Korat, Mr. Waugh submitted statements
regarding his proximity to the base perimeter, asserting that he worked as an “inventory
management specialist as a war readiness spares kit (WRSK) monitor in an outside storage area
close to the end of the runway and aircraft parking area.” R. at 469 (capitalization changed).
Moreover, he submitted a picture and a map of Korat RTAFB to help illustrate his assertion that
his work brought him near the base perimeter.
In its February 2021 decision, the Board found that, although Mr. Waugh served at Korat
RTAFB beginning in April 1972, he did not serve near the perimeter of the base and, therefore,
had not been exposed to herbicides while there. As noted above, the Board relied on the M-21
provisions regarding herbicide exposure in Thailand to reach that conclusion.
The Board went on to explain that “the information supplied by the Veteran does not reflect
that [his] service would result in his exposure to herbicide agents.” It provided two reasons:
• The veteran’s military occupational specialty did not include “military police, security,
or dog handlers”—occupational specialties that the M-21 provides as “examples of
military occupational specialties that are subject to the presumption” of exposure. R. at
9.
• Mr. Waugh’s “description of his duties did not reflect that he had duties at or near the
perimeter of Korat RTAFB.” Id.
On appeal, he raises several challenges to the Board’s statement of reasons or bases. Most
persuasively, he argues that VA failed to “ascertain the location of [his] barracks and commute
routes to his location on the flight line from the barracks and whether these items, performed in
conjunction with his routine service, placed him near the base perimeter.” Appellant’s Br. at 8. The
error Mr. Waugh identifies is nearly identical to the Board’s error in Stover v. McDonough, a
recently issued precedential decision from this Court. _ Vet.App. , __, No. 20-5580, 2022
U.S. App. Vet. Claims LEXIS 1099 (Jul. 11, 2022).
In that case, the Court first held that the Board bound itself to the M-21’s provision about
herbicide exposure in Thailand “because the Board adopted the provision as the rule of decision it
would apply to assess the appellant’s” claimed condition. Stover, 2022 U.S. App. Vet. Claims
LEXIS 1099, at *21. Here, too, the Board bound itself to the M-21 in no uncertain terms when it
“relie[d] on the manual for guidance in analyzing this case.” R. at 8.

3
However, just as in Mr. Stover’s case, the Board relied on the M-21 provisions to find that
Mr. Waugh was never exposed to herbicides without explaining “what it understood the phrase
‘near the perimeter[]’ as used in the adopted M-21-1 provision to mean” or assessing the veteran’s
proximity to the base perimeter based on the evidence he submitted, including lay statements,
photos, and maps. Stover, 2022 U.S. App. Vet. Claims LEXIS 1099, at *29.
As to what “near the perimeter” means, Stover held that the Board failed to define the term,
noting that “the closest the Board [came] to providing a definition . . . is by stating what it
understood was not near the perimeter.” Id. at *32. This Court explained that providing such a
definition is an important reasons or bases requirement as it allows the claimant to know the
standard VA employed to decide the claim. Because the Board did not provide any definition for
“near the perimeter,” the Court remanded.
Stover further noted that the Board failed to make any findings regarding Mr. Stover’s
proximity to the base perimeter and failed to discuss potentially favorable evidence. Specifically,
the Board found that Mr. Stover’s evidence did not demonstrate that he was placed at or near the
perimeter “without making any specific findings” as to whether his purported duties and locations
“could satisfy the [M-21] standard and, if so, how frequently or for how long appellant may have
been in those facilities.” Id. at *36-37.
The Board made nearly identical errors here, thus requiring remand of this case. First, it
did not explain what it understood “near the perimeter” to mean or how it applied that definition
to Mr. Waugh’s case. Instead, it concluded that Mr. Waugh’s duties didn’t bring him near the base
perimeter. The Court is unable to review that finding without understanding what the Board
understood “near the perimeter” to mean. The Board must explain what it means by “near the
perimeter” before reevaluating whether Mr. Waugh’s military duties brought him there.
Relatedly, the Board “failed to make findings regarding appellant’s proximity to the base
perimeter during his time serving at the [Korat] RTAFB.” Id. at *35. The Board recited the
evidence regarding Mr. Waugh’s duties while serving at Korat, including his 2019 lay statement
that described his duties on the runway and aircraft parking areas, and the provided map showing
the location of the runways and storage area. But just as in Stover, the Board never made findings
as to “how close in terms of feet, yards, or meters appellant actually was to the base perimeter and
how frequently and for how long he was within that distance based on the evidence.” Id. at *36.
On remand, the Board must resolve these factual findings after it defines “near the perimeter.”
4
Moreover, the Court observes that Mr. Waugh also submitted a photograph of Korat
RTAFB that was never mentioned by the Board but that should be discussed on remand. Id. at
*36-37 (remand is appropriate where the Board fails to address material and potentially favorable
evidence).
The Secretary asks this Court to affirm, arguing that the Board didn’t need to address the
veteran’s proximity to the base perimeter because he never asserted that he went near the base
perimeter. He contends that the veteran “did not, at any time during the appeal, indicate that he
was near the perimeter of the base,” and, further, the veteran never said he exited the perimeter, so
VA issued a formal finding that his duties were contained within the perimeter. Thus, the Secretary
argues, the Board did not need to address the veteran’s argument because he failed to raise the
argument to VA and it was not “reasonably raised by the record.” Secretary’s Br. at 8-9.
The Secretary’s argument in this regard is puzzling. From the outset, this case has been
about whether Mr. Waugh was exposed to herbicides in Thailand, specifically near the perimeter
of the Korat RTAFB. VA’s formal finding to that effect demonstrates as much. Moreover, Mr.
Waugh appealed VA’s denial of his claim to challenge expressly its finding that he was not exposed
near the perimeter of the base. And when the Board evaluated Mr. Waugh’s claim, it did so under
the “near the perimeter” standard for presumption to herbicide exposure in Thailand. So, herbicide
exposure is not merely a reasonably raised argument as the Secretary suggests but stands as the
main issue in dispute in this case, and the Board was required to adequately explain whether Mr.
Waugh’s duties brought him near the base perimeter.
One final matter. In both Stover and this case, the Board concluded that a “preponderance
of the evidence” weighed against the veteran’s claims. See R. at 10. But since the issuance of the
Board’s decision here, the Federal Circuit and this Court have noted that such “language could be
read out of context to impose a burden on claimants that is higher than Congress required.” Stover,
2022 U.S. App. Vet. Claims LEXIS 1099, at *40 (citing Lynch v. McDonough, 21 F.4th 776, 781-
82 (Fed. Cir. 2021) (en banc)). On remand the Board is reminded to follow the benefit-of-thedoubt
standard, which means evaluating whether the evidence is nearly equal or in approximate
balance on each issue and, if so, finding in favor of the veteran. Id.
Finally, Mr. Waugh raises two other reasons-or-bases arguments that the Court will briefly
touch on. He first contends that the Board did not adequately address his DD Forms 215, which
show that his DD Form 214 was revised to reflect that he received the Air Force Outstanding Unit
5
Award with Valor, the Republic of Vietnam Gallantry Cross with Palm medal, and a Vietnam
Service Medal with One Bronze Service Star. He argues that the Board never addressed whether
those medals were awarded for activities that involved herbicide exposure. Indeed, the Board never
made such an assessment, and it should do so on remand.
Second, Mr. Waugh argues that the Board provided an inadequate reasons or bases for
concluding that the agency of original jurisdiction (AOJ) did not commit a duty to assist error. He
says the AOJ erred in not “requesting the approved herbicides and pesticides used within the base
perimeter at Korat RTAFB or ordering a VA examination to determine whether his claimed
conditions were related to the herbicides and pesticides.” Appellant’s Br. at 7. However, these dutyto-
assist arguments are too vague for the Court to evaluate. See Locklear v. Nicholson, 20 Vet.App.
410, 416-17 (2006) (noting that the Court need not consider vague and unsupported arguments).
The appellant does not explain where the AOJ should have requested information from. Moreover,
the appellant did not explain why the AOJ was required to get an exam in the first instance. See
38 U.S.C. § 5103A(d) (listing the requirements to trigger the AOJ’s duty to obtain a medical exam).
Mr. Waugh is free to develop these arguments on remand, however.
Therefore, the Board’s February 17, 2021, decision is VACATED and REMANDED in
accordance with the foregoing opinion.
DATED: July 22, 2022
Copies to:
Adam R. Luck, Esq.
VA General Counsel (027)

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