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Court Wins

Vietnam Veteran Denied Service Connection Based on Herbicide Exposure

June 9, 2021
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Summary of the Case

The Veteran served on active duty in the U.S. Air Force from January 1966 to December 1969.  He was stationed at Clark Air Force Base (AFB) from June 1968 to December 1969, assigned to the 604th Military Airlift Support Station (MASS), and served as an aircraft maintenance specialist.  He performed “duties on all MAC jet and turbo-jet aircraft transiting” at Clark AFB, including “unscheduled maintenance, thru-flight, servicing, minor maintenance inspection, jacking, towing, and reconfiguration of aircraft.”  Furthermore, the Veteran asserted that although he was not assigned to the 405th Fighter Wing, which is known to have serviced C-123 aircraft, he worked on many planes from various units, including C-123 aircraft from Operation Ranch Hand.

In January 2016, the Veteran filed claims for prostate cancer and coronary artery disease, both of which were denied by his VA regional office (RO).  Disagreeing with this denial, the Veteran asserted that during service he boarded many aircraft that had traveled in and out of Vietnam.  The RO issued a Statement of the Case, which continued the prior denial on a direct and presumptive basis, at which point the Veteran appealed to the Board of Veterans’ Appeals.

Board Upholds Denial of Service Connection for Cancer and CAD

In July 2019, the Board denied entitlement to disability compensation for coronary artery disease and prostate cancer.  This denial was based on the argument that C-123 herbicide exposure presumption did not apply in this case, as the Veteran’s specific unit was not identified by VA as being affected by herbicide-spraying.  Additionally, the Board determined that the Veteran did not have “competent evidence” to support his claim for exposure.

As part of its efforts to recognize herbicide exposure, VA has conceded that that C-123 aircraft used to spray Agent Orange in Vietnam as part of Operation Ranch Hand continued to have herbicide residue on their interior surfaces after the operation.  As a result, VA presumes that Air Force members who were assigned to certain units “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” were exposed to herbicides.

Court Remands Case Based on Board Errors

The veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (CAVC) with the help of CCK.  We asserted that the Veteran served at Clark AFB during the time VA concedes that contaminated C-123 aircraft were at the base.  However, we did acknowledge that he was not assigned to a unit that VA presumes regularly operated contaminated C-123s, so he is not entitled to service connection on a presumptive basis.

We argued that the Veteran competently reported working on C-123 aircraft during this time period.  He also reported that he worked on planes regardless of his unit and worked on many planes outside his unit.  As a result, the duty to assist required that VA retrieve additional records, such as the Veteran’s unit records and the records from the 405th Fighter Wing, before denying his claim.  The Court found that it could not address whether the Board erred in adjudicating  the Veteran’s claim without requiring VA to search for unit records from the 604th MASS and the 405th Fighter Wing because the Board made no findings concerning VA’s duty to assist.  In the end, the Court concluded that remand is warranted for the Board to make the necessary factual findings in this case.