Veteranclaims’s Blog

September 30, 2020

Single Judge; lay statements establish exposure to Agent Orange; AO; A veteran who is ineligible for presumptive herbicide exposure may nonetheless show entitlement to benefits if the veteran can establish actual or direct herbicide exposure. See McKinney v. McDonald, 796 F.3d 1377, 1379 (Fed. Cir. 2015). Once exposure has been established, certain listed medical conditions, including heart disease, are presumptively service connected. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e) (2020);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-2500
ARNOLD W. WINSTON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: Arnold W. Winston appeals through counsel a December 20, 2018,
Board of Veterans’ Appeals (Board) decision that, among other dispositions, denied entitlement to
VA benefits for ischemic heart disease and hypertension.1 This appeal is timely, and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Singlejudge
disposition is appropriate as the issue is of “relative simplicity” and “the outcome is not
reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will vacate the part of the Board’s December 20, 2018, decision on appeal and
remand the matters for readjudication consistent with this decision.
I. FACTS
Mr. Winston served on active duty in the United States Navy from November 1962 to
November 1966. Record (R.) at 1251. From March 1963 to August 1964, he served at the Naval
Air Station Agana in Guam. R. at 1222.
1The Board also denied several other claims, but Mr. Winston does not raise any argument as to these matters.
Thus, any appeal of these issues is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (arguments
not raised before the Court are considered abandoned on appeal). The Board also granted entitlement to higher
disability ratings for certain conditions, which are favorable findings that the Court will not disturb. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007).
2
In August 2015, Mr. Winston submitted a claim for VA benefits for ischemic heart disease,
which he attributed to in-service exposure to Agent Orange. R. at 1310-13. In a letter supporting
his claim, Mr. Winston asserted that he worked as an aircraft mechanic during service, working on
C-123 planes that brought wounded service personnel back from Vietnam. R. at 1222. He stated
that in this role he would unload injured military personnel from the aircraft, assist in power
washing the exterior of the aircraft while he wore fire retardant protective clothing, and inspect
and service the aircraft. R. at 1222-23. He also noted that he and his fellow service members “had
to spray wash each other prior to taking off our protectant clothing.” R. at 1223. At this time, he
also submitted a letter from his private physician stating: “It is my medical opinion that Arthur
Winston’s exposure to the Chemical Agent Orange while stationed there at Naval Air Station
Agana, Guam from 1963 thru 1964, was one of the main contributing factors that gave rise to the
hardening of his arteries.” R. at 1301.
In February 2016, Mr. Winston sought VA benefits for hypertension. R. at 1180. In March
2016, he submitted a letter that he had received from the National Museum of the United States
Air Force regarding flight records for the C-123 aircraft used at the Naval Air Station Agana in
Guam. R. at 92. The letter stated that from 1963 to 1966 “this aircraft was used in ferrying injured
service personnel to the Naval Air Station located there in Guam. Our flight records show those
flights originated in Vietnam with an ultimate flight destination to the Naval Air Station Agana, Guam.” Id.
In July 2016, Mr. Winston submitted additional medical evidence to support his claim. R.
at 788-89. His private physician submitted a letter stating that “it is more likely than not that [Mr.
Winston’s] heart condition was caused by his exposure to the chemical Agent Orange while
stationed at the Naval Air Station on Guam.” R. at 789. Another private physician, who performed
Mr. Winston’s coronary artery bypass surgery after his initial diagnosis in 2005, stated that,
because of the progressive nature of coronary artery disease, Mr. Winston’s exposure to Agent
Orange during service can still be a factor contributing to the development of the disease even
though the condition did not manifest until years later. R. at 788.
In February 2017, VA requested a review of the Department of Defense’s inventory of
herbicide operations to determine whether herbicides were used at the Naval Air Station Agana in
Guam during the time Mr. Winston served there. R. at 749-50. A response indicated that the
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Department of Defense had not identified any location on the island of Guam, including the Naval
Air Station Agana, where Agent Orange was used, tested, stored, or transported. R. at 747. The
response also stated that “there is no scientific evidence available to VA showing that being in the
vicinity of aircraft, equipment, or living or deceased personnel from Vietnam can be considered as
exposure to active Agent Orange or can result in long-term health effects.” Id.
In April 2017, VA also requested verification of Mr. Winston’s Agent Orange exposure
from the Joint Services Records Research Center (JSRRC). R. at 743-45. In response, VA was
informed that, based on a review of the available Aviation Historical Summaries submitted by
Naval Air Station Agana in Guam and the history of Anderson Air Force Base in Guam, there was
no documentation that aircraft returned from the Republic of Vietnam contaminated with Agent
Orange or other tactical herbicides. R. at 708.
In July 2018, Mr. Winston submitted additional argument in support of his claims, arguing
that his hypertension was related to his heart disease. R. at 76-77. At this time, Mr. Winston also
submitted a statement from his fellow service member, David Drakeford, in which Mr. Drakeford
reiterated that he and Mr. Winston had unloaded wounded soldiers and cleaned planes that were
“contaminated with Agent Orange.” R. at 74. Mr. Winston submitted another statement on his own
behalf, stating that he had participated in towing the C-123 aircraft to a special location a mile
away from the hangar, during which they did not wear protective clothing. R. at 73. He stated that
they would touch the planes during this time. Id. He also confirmed that, while washing the planes,
they did wear special clothing and face masks. Id. He stated that he was told that the planes “had
to be washed prior to any maintenance work because of the [A]gent [O]range dust that had
collected on the exterior of the aircraft.” Id. He stated that the clothing they wore to clean the
planes was burned after it was worn. Id.
On December 20, 2018, the Board issued the decision on appeal. The Board stated that it
considered Mr. Winston’s and Mr. Drakeford’s statements, but it found that neither man was
competent to link Mr. Winston’s ischemic heart disease to service or to herbicide exposure because
neither possessed the requisite medical expertise. The Board also rejected the private medical
opinions after finding that they were based on an inaccurate factual predicate–that Mr. Winston
was exposed to Agent Orange during service. Thus, the Board concluded that Mr. Winston’s
ischemic heart disease was diagnosed many years after service and the preponderance of the
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evidence is against a finding that it is related to his service, including his claimed exposure to
Agent Orange.
On appeal, Mr. Winston argues that the Board erred by failing to properly consider the lay
statements for the purpose for which they were submitted, namely to establish exposure to Agent
Orange during service, not to establish the etiology of his condition. He argues that this error led
to several other reasons or bases errors.
The Secretary argues that the Board fully addressed the evidence of record, including the
lay evidence. The Secretary states that the Board found that the lay statements of record were of
diminished probative value because neither Mr. Winston nor Mr. Drakeford is competent to link
Mr. Winston’s heart condition to herbicide exposure.
II. ANALYSIS
A veteran who is ineligible for presumptive herbicide exposure may nonetheless show
entitlement to benefits if the veteran can establish actual or direct herbicide exposure. See
McKinney v. McDonald, 796 F.3d 1377, 1379 (Fed. Cir. 2015). Once exposure has been
established, certain listed medical conditions, including heart disease, are presumptively service
connected. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e) (2020)
.
When considering lay evidence supporting a claim for disability compensation, the Board
must consider, on a case-by-case basis, the competence and sufficiency of lay evidence. Davidson
v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) Lay testimony may be competent to establish
facts capable of observation. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); Layno v. Brown,
6 Vet.App. 465, 469 (1994); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)
(holding that whether lay evidence is competent and sufficient in a particular case is a factual issue
to be addressed by the Board); but see Washington v. Nicholson, 19 Vet.App. 362, 368 (2005)
(explaining that an appellant may not be competent to testify about the etiology or diagnosis of a
disability).
If the issue is of the type for which lay evidence is competent, the Board must weigh that
evidence against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-
37 (Fed. Cir. 2006). It is the Board’s responsibility to determine the credibility and probative value
of evidence, including lay evidence. See Owens v. Brown, 7 Vet.App. 429, 433 (1995); Wood v.
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Derwinski, 1 Vet.App. 190, 193 (1991). As with all its decisions, the Board must provide a
statement of the reasons or bases for its determinations, adequate to enable an appellant to
understand the precise basis for the Board’s decision as well as to facilitate review in this Court.
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990).
Mr. Winston argues that the Board erred by rejecting his and Mr. Drakeford’s statements
as not competent to establish etiology without discussing whether they were sufficient to establish
exposure to Agent Orange, a fact capable of lay observation. The Secretary argues that the Board
did not have to consider the lay statements to the extent they sought to establish that Mr. Winston
was exposed to Agent Orange because “the facts alleged in the lay statements, even if credited, did
not assert facts that would constitute ‘exposure to Agent Orange’ in the Board’s view.” Secretary’s
Brief at 16. However, the Court notes that the Board did not make any such finding.
In its decision, the Board rejected the lay evidence of record as not competent to establish
a link between Mr. Winston’s heart disease and his service or herbicide exposure. However, the
lay statements do not discuss the etiology of his heart disease, but instead note herbicide exposure
during service. As discussed above, lay evidence is competent to establish the occurrence of
observable events and medical symptoms. Davidson, 581 F.3d at 1316; Barr, 21 Vet.App. at 307
(veteran is competent to report on observable symptomatology). Thus, Mr. Winston and Mr.
Drakeford are competent to state that Mr. Winston was exposed to what they believed to be Agent
Orange on planes. Id. The Court, therefore, agrees that the Board erred by failing to adequately
assess the competence, credibility, and probative value of the lay statements for purposes of
establishing exposure to herbicides. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337
(“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay
evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”).
Therefore, the Court will vacate the Board’s decision and remand the claims on appeal for
the Board to adequately assess the lay statements of record and provide an adequate statement of
reasons or bases in this regard. See Allday, 7 Vet.App. at 527; Caluza v. Brown, 7 Vet.App. 498,
506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (“[T]he Board must analyze the
credibility and probative value of the evidence, account for the evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
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favorable to the veteran”); see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is
appropriate where the Board has, inter alia, failed to provide an adequate statement of reasons or
bases).
Based on this outcome, the Court will not consider Mr. Winston’s other arguments. See
Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (holding that “if 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, he is free to present additional argument and
evidence to the Board in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109 and 7112 (requiring the Secretary to provide
for “expeditious treatment” of claims remanded by the Board or the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the part of the December 20, 2018, Board decision that denied VA
benefits for ischemic heart disease and hypertension is VACATED and the matters are
REMANDED for readjudication consistent with this decision.
DATED: September 30, 2020
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)

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