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Court Wins

Court Overturns Board Denial of Herbicide Exposure at Fort McClellan

Kaitlyn Degnan

August 18, 2021

Updated: November 20, 2023


Summary of the Case

The Veteran served as a material storage and handling specialist in the United States Army from July 1987 to July 1990.  He spent his first few months of service at Fort McClellan, an Army Chemical School in Alabama known for testing herbicide agents and other chemicals for military use.

In January 2017, he filed a claim for U.S. Department of Veterans Affairs (VA) disability benefits for type 2 diabetes related directly to his service, with secondary conditions of chronic renal impairment, peripheral neuropathy in all extremities, and senile nuclear cataracts.  The Veteran asserted that exposure to environmental toxins at Fort McClellan, including herbicide agents with traces of TCDD, either directly or secondarily led to his conditions.  VA denied him service connection in June 2017, citing a lack of research proving herbicide use at Fort McClellan in 1987.

The Veteran filed an additional claim in February 2018 for anxiety and depression acquired during service following a positive depression screening.  Within days, VA denied him service connection for this claim as well.  The Veteran filed a Notice of Disagreement with the Board of Veterans’ Appeals (Board) for both VA decisions.

Board Upholds VA Denial of Service Connection

On April 29, 2019, the Board of Veterans’ Appeals reviewed the case and denied the Veteran service connection for his conditions.  The Board determined that Fort McClellan ceased herbicide use nearly a decade before the Veteran arrived, making his claim unsubstantiated.  They also stated that his mental health issues were related to his recent job loss rather than his time in service.

CCK Argues Board Error in Rejecting Favorable Evidence

On December 9, 2020, Chisholm Chisholm & Kilpatrick LTD challenged the Board’s decision in front of the U.S. Court of Appeals for Veterans Claims (Court) on behalf of the Veteran.  CCK argued that the Board did not provide adequate reasons for denial and instead resorted to conjecture.

According to CCK, the Board failed to appreciate the environmental persistence of the chemicals used at Fort McClellan.  Evidence clearly indicated that soil samples collected in 1985 and 1998 at Fort McClellan contained multiple dangerous toxins, including TCDD, a known Agent Orange contaminant.  A 1992 herbicide inventory list showed that pesticides containing 2,4-D were still in use until 1991.

CCK argued that the Board erred in asking the Veteran to bear the standard of proof when he only needed to raise enough reasonable doubt.  Herbicide exposure was clearly within the “range of probability,” but the Board rejected any documentation in favor of the Veteran.

The Board also determined that his current acquired psychiatric disability was unrelated to his service, overlooking the evidence suggesting otherwise.  The Veteran had first sought mental health treatment for his “nerves” and interpersonal problems during his time in the military, indicating the possibility of a nexus.

Court Agrees with CCK, Vacates Board Decision

After hearing CCK’s arguments and considering the evidence, the Court overturned the April 29, 2019 Board decision.  The Veteran’s appeal was remanded for further proceedings consistent with the Court’s decision.

For more details, please review the full Court decision

About the Author

Bio photo of Kaitlyn Degnan

Kaitlyn joined CCK in September of 2017 as an Associate Attorney. Her practice focuses on representing disabled veterans before the United States Court of Appeals for Veterans Claims.

See more about Kaitlyn