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CCK Delivers Oral Argument at Federal Circuit Regarding Herbicide Exposure in Thailand

Factual and Procedural History

Mr. Hudick served honorably in the United States Air Force from September 1962 to July 1983.  During his service, he was stationed at the Udorn Royal Thai Air Force Base (“Udorn”) in Thailand from January 1967 to January 1968.  In April of 2006, he was diagnosed with prostate cancer and filed a claim for service connection shortly thereafter.   Mr. Hudick claimed that his prostate cancer was due to herbicide exposure in Vietnam, explaining that while he was stationed at Udorn, he regularly traveled to Tan Son Nhut Air Base in Vietnam.  In July of 2006, VA requested records from the National Personnel Records Center showing that he had physically set foot in Vietnam.  The records were unable to verify his presence in Vietnam, and his claim was then denied in November of 2006.  Mr. Hudick appealed this denial to the Board of Veterans’ Appeals.

Following his appeal, VA issued a new Compensation and Pension Service Bulletin (“Compensation Bulletin”) acknowledging that between February 28, 1961 and May 7, 1975, there was significant use of herbicides on the fenced perimeters of military bases in Thailand.  VA concluded it would concede herbicide exposure on a facts-found basis where a veteran could establish by “credible evidence” that he had served near the perimeter of particular Air Force bases, including Udorn, during this time period.  Additionally, VA revised its Adjudication Procedures Manual M21-1 (“M21 Manual”).  The revision recites steps for evaluating claims of herbicide exposure for veterans with service in Thailand during the Vietnam Era.  Specifically, adjudicators must “determine if a veteran served at one of the enumerated airbases in Thailand during the Vietnam Era as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of the security police squadron, or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence”.  If the above is established, then exposure should be conceded on a direct, facts-found basis.

*Disclaimer: The audio recording included above begins midway through the oral argument. 

Board of Veterans’ Appeals Decisions

In May of 2012, the Board remanded Mr. Hudick’s claim for further consideration based on the new Compensation Bulletin and M21 Manual revisions.  In doing so, the Board directed the Regional Office to inform Mr. Hudick of the evidence required to establish service connection for his claim based on herbicide exposure and explain the manual procedures for Thailand veterans.  Additionally, the Board told the Regional Office to request additional information from the Department of Defense or Joint Services Records Research Center and then adjudicate his claim for service connection for prostate cancer.  The records obtained were still unable to verify whether Mr. Hudick was exposed to herbicides while at Udorn.  However, Mr. Hudick submitted additional statements explaining his duty location at the munitions storage area two miles from the main support base on the outer perimeter, and his job responsibilities which involved frequent contact with aircrafts that had direct exposure to herbicides.

In September of 2015, the Board issued a second decision in which it determined the initial remand was unnecessary and denied Mr. Hudick’s claim.  In its decision, the Board acknowledged his assertions that he had served temporary duty assignments in Vietnam, but determined there was no evidence to confirm that he had in-country service.  As to herbicide exposure in Thailand, the Board found that Mr. Hudick was competent to report his work-related duties, but such evidence was outweighed by review of his service records and exhaustive research efforts, which resulted in conclusions that contradicted his own.  The Board concluded the latter was the most probative evidence in the appeal and therefore found that Mr. Hudick was not near the base perimeter at Udorn on a regular basis.  Furthermore, the Board asserted that regardless of if he placed himself at the perimeter, the historical data showed that herbicides were not used in Thailand until long after he was at Udorn.

CCK Appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied entitlement to service connection for prostate cancer due to herbicide exposure.  CCK argued that the Board committed prejudicial legal error by failing to analyze the credibility of Mr. Hudick’s lay statements. CCK further asserted that the Board erroneously required him to provide corroborating evidence to establish that he served near the perimeter of Udorn.  As to both arguments, CCK contended that the Board failed to adequately explain its conclusions.

CAVC Affirms the Board’s Denial

The Court disagreed with CCK’s arguments and instead affirmed the Board’s decision that denied Mr. Hudick entitlement to service connection for prostate cancer due to herbicide exposure.  The Court concluded that because the Board weighed Mr. Hudick’s statements against the other evidence of record, this implied that the Board found his statements to be credible.  However, the Court held that he was not entitled to any presumption of exposure based on service in Vietnam or Thailand.  While he insisted that he performed temporary assignments in Vietnam, the Court credited the Board’s contrary finding.  Moreover, although Mr. Hudick credibly placed himself along the perimeter at Udorn, veterans who served in Thailand during the Vietnam Era are not entitled to any presumptive service connection.  The Court also determined that the M21 Manual is not binding on the Board and the Board found evidence that clearly demonstrates that herbicides were not used on any United States Air Force base in Thailand until April 1969, after he was at Udorn.

CCK Delivers Oral Argument at the Federal Circuit

CCK continued to appeal to the next highest court: the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), where CCK partner, Zachary Stolz, delivered an oral argument on October 3, 2018.  Here, CCK argued that the Court violated Mr. Hudick’s due process rights by allowing VA to ignore its own internal policies and rules providing a presumption of service connection in the circumstances at issue here.  CCK did not suggest the Federal Circuit consider how the Board weighed evidence, but asked the Circuit to consider whether the Board and the Court erred by ignoring the M21 Manual.

Federal Circuit Agrees with CCK’s Arguments

CCK argued, and the Federal Circuit agreed, that both the Board and the Court violated Mr. Hudick’s due process rights.  Specifically, the process followed was defective and unfair because the Board, and the Court, ignored specific procedural rules.  The Federal Circuit held that VA cannot ignore its own rules, in this case the M21 Manual.  The Board’s first remand was for Mr. Hudick’s claim to be readjudicated according to the procedures of the M21 Manual.  However, the Board never finalized its remand order as the second Board decision concluded remand was unnecessary and adjudicated the claim without resort to the M21 Manual.  Therefore, the Federal Circuit determined that the Veteran did not receive a fair review of his appeal because the Board refused to apply the very rules it told Mr. Hudick would govern his adjudication.

Additionally, the Federal Circuit determined that the M21 Manual concedes herbicide exposure if a veteran provides credible evidence showing that they were otherwise near the air base perimeter of Udorn in Thailand, which Mr. Hudick clearly did.  Therefore, the Federal Circuit concluded that VA should have conceded exposure based on the M21 Manual as it does not require him to provide corroborating evidence, just credible evidence, which he did.  Furthermore, Mr. Hudick fell within VA’s timeline of herbicide exposure as indicated in the Compensation Bulletin, which should have been considered as well.  The Federal Circuit found that Mr. Hudick should have prevailed under the proper adjudicatory framework based on the facts already found by the Board.  Accordingly, remand for further consideration of the facts relating to his service was not necessary.  The Federal Circuit reversed the Board’s denial of Mr. Hudick’s claim and remanded his case for purposes of finalizing an appropriate award of benefits.

To read the Federal Circuit’s full decision, click here.    

 

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Category: Oral Arguments

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