CAVC Remands Veteran’s Claim for Service Connection for Diabetes Based on Exposure

CCK Law: Our Vital Role in Veterans Law

Factual and Procedural History

The Veteran served honorably in the U.S. Air Force as a jet engine mechanic from June 1970 to September 1979, including service at the Udorn Royal Thai Air Force Base (RTAFB).  In September 2010, the Veteran was diagnosed with diabetes.  He then filed a claim for service connection based on herbicide exposure in November 2010.  In August 2018, the Veteran alleged that his work area was 50 to 75 yards from the perimeter of the RTAFB.  He also referenced the Army’s Field Manual: Tactical Deployment of Herbicides to show that his work area was within a “500-meter drift zone” that was expected during ground spraying of herbicides.

Board Denies Service Connection for Diabetes

In September 2018, the Board issued a decision denying entitlement to service connection for diabetes mellitus type II, including as due to herbicide exposure.  In its decision, the Board conceded that the Veteran worked approximately 50 to 75 yards from the perimeter of the base, but determined that service connection based on presumptive exposure to herbicides was not warranted because the Veteran’s “duties roughly 50-75 yards from the base perimeter did not constitute service “on or near” the base perimeter.”  However, the Board did not address whether the Veteran was directly exposed to herbicides as a result of the drift zones identified by the Army.

CCK Submits Arguments to Court

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied entitlement to service connection for diabetes mellitus type II, including as due to herbicide exposure.  CCK argued that (1) the Board clearly erred when it equated “near” with “on” in determining that the Veteran was not “near” the perimeter of the RTAFB, and in the alternative, (2) the Board erred when it provided an inadequate statement of reasons or bases for determining that 50 to 75 yards was not near the perimeter of the RTAFB.  

Court Concluded in Favor of CCK’s Arguments

CCK successfully argued, and the Court agreed, that the Board erred when it failed to address favorable evidence.  Specifically, CCK presented evidence that the Veteran’s work area was inside the drift area described in the Field Manual, but the Board did not address that evidence.  As such, the Court determined that remand was warranted for the Board to address this evidence in the first instance and to provide an adequate statement of reasons or bases for its decision.