Board Erred in Denying Service Connection for Diabetes as Due to Agent Orange Exposure
CCK Law: Our Vital Role in Veterans Law
Summary
The Veteran served in the United States Air Force from February 1962 to September 1982. From 1973 to 1974, he served as a missile maintenance shift supervisor and crew chief at Korat Royal Thai Air Force Base in Thailand. The Veteran stated that while serving at Korat, he frequently traveled over and near the perimeter of the base and saw Agent Orange being stored at the base, including in some facilities he worked at. The Veteran’s former superior officer stated their squadron had stored Agent Orange and that the Veteran may have come in contact with it. In September 2001, the Veteran filed a claim for service connection for diabetes mellitus type II and the VA denied in March 2002. He appealed the denial to the Board in January 2003.
Board Remanded Agent Orange Diabetes Claim
The Board remanded the case in November 2004, May 2009, and August 2011 for additional information on the Veteran’s claim. In January 2013, VA requested that the Veteran provide a 60-day time frame and the circumstances under which he was exposed to herbicides while serving at Korat. The Veteran stated the entire bomb dump was within 600 yards of the perimeter fence, but he did not provide the requested 60-day exposure window. VA continued to deny service connection for diabetes. The Board remanded the case again in April 2015. The following May, the Board denied service connection for diabetes based on herbicide exposure.
CCK Appeals to the Court
CCK successfully appealed to the Court the Board’s denial of service connection for diabetes. In its decision, the Board determined that the Veteran’s failure to respond to VA’s request for a 60-day exposure window relieved VA of further obligation to assist him in verifying the claimed Agent Orange exposure. The Board also concluded that despite the Veteran’s many statements regarding his Agent Orange exposure, he had not offered any other credible evidence to support his statements.
CAVC agrees with CCK’s arguments
CCK argued, and the Court agreed, that the Board failed to satisfy its duty to assist because it did not make all necessary efforts to verify the Veteran’s claims of exposure to herbicides. The Court held that VA can only discontinue its search when it becomes futile. On remand, the Board must consider and address whether the duty to assist requires further requests for information on the Veteran’s claimed Agent Orange exposure. The Court also agreed that the Board did not properly support its rejection of the Veteran’s lay statements based on the lack of supporting Department of Defense records. On remand, the Board must either point to actual negative evidence showing exposure did not occur or provide a sufficient explanation for determining the Veteran’s statements are not credible.
