CCK Successfully Argues on Behalf of Appellant Seeking Service Connection for Late Veteran’s Ischemic Heart Disease
Veteran’s Heart Condition Claim Reopened Under Nehmer
The late Veteran served on active duty in the United States Army from January 1969 to January 1975, during the Vietnam era. In April 1988, VA denied his claim for benefits for aortic insufficiency. The Regional Office (“RO”) continued this denial in a June 1989 decision. Subsequently, VA identified the Veteran as a Nehmer class member and reopened his claim as seeking service connection for ischemic heart disease based on exposure to herbicides. However, VA ultimately denied this claim in a July 2011 RO decision. The Veteran filed a Notice of Disagreement and stated that he spent between 6-12 days on standby at Cam Ranh Bay, Vietnam, waiting for a unit assignment. Finally, he received his assignment and reported to Thailand. Nonetheless, VA continued to deny his claim and he eventually appealed to the Board of Veterans’ Appeals.
Board Denied Service Connection for Ischemic Heart Disease Based on Herbicide Exposure
On appeal, the Board remanded the Veteran’s claim instructing VA to obtain his personnel records and any other information concerning his location between July 31, 1969 and August 30, 1970, when he alleged that he stopped in Vietnam waiting for a unit assignment. The Board found that his service records and other evidence of record did not document that he had served or had otherwise been sent to Vietnam. As a result, the Board denied his claim for benefits for ischemic heart disease based on exposure to herbicides in May 2017.
CCK Appeals to the CAVC and Files for Substitution
In August 2017, CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for the Veteran’s ischemic heart disease as due to herbicide exposure. However, the Veteran passed away later that month. CCK then filed to have the late Veteran’s spouse substituted in to the claim for benefits. The Court granted this motion for substitution and CCK argued on her behalf. Specifically, CCK argued that the Board erred in failing to address favorable evidence supporting the late Veteran’s claim that he was in Cam Ranh Bay for 6-12 days on standby waiting for a unit assignment and that he also had temporary duty assignments in Long Binh, Vietnam. Here, the Board relied on the fact that the Veteran’s DD Form 214 (i.e. Certificate of Release or Discharge from Active Duty) did not indicate service in Vietnam, and that his campaign medals were not enough to prove service in Vietnam under VA’s Adjudications Manual (“M21 Manual”). However, the Board did not adequately address the Veteran’s DA Form 20 (i.e. military and campaign history), which noted “Vietnam Summer-Fall”. CCK pointed out that under the M21 Manual, the DA Form 20 is listed as one of the pieces of evidence that can establish in-country service.
CCK also argued that the Board improperly rejected the Veteran’s lay statements for lack of corroborating evidence. It gave his statements indicating that he set foot in Vietnam less probative weight because the other evidence failed to confirm his assertions.
Court Agrees with CCK’s Arguments
CCK argued, and the Court agreed, that the Board’s failure to discuss all relevant M21 Manual provisions frustrated judicial review. Furthermore, in regards to giving the Veteran’s statements less probative weight, the Court found that the Board failed to establish the necessary foundation for drawing such inferences against his credibility. Accordingly, the Court vacated and remanded the matter back to the Board for readjudication.
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