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Board Does Not Fulfill its Duty to Assist in Herbicide Exposure Claim

Board Does Not Fulfill its Duty to Assist in Herbicide Exposure Claim

Summary of the Case: DMZ Veteran and Herbicide Exposure

The Veteran served in the United States Air Force from August 1968 to August 1972, including service in Korea during the Vietnam War. He served as a security policeman and stated that he was exposed to Agent Orange while stationed at the Korea Demilitarized Zone (DMZ) for training.

In April 2002, the Veteran filed a claim for service connection for diabetes mellitus type 2, and the Regional Office (RO) denied his claim in March 2003. In August 2006, the Veteran filed a claim to reopen his claim for service connection for diabetes. The Veteran later submitted a statement in January 2007 stating that he was stationed in the DMZ in 1969 and 1970. The RO denied the Veteran’s claim to reopen in February 2009. The Veteran appealed this decision to the Board of Veterans’ Appeals.

In its decision, the Board granted the Veteran the reopening of his claim, but denied the claim for service connection on the merits. VA indicated that the Veteran indicated serving at the DMZ during “April 1968 and July.” The Board only required VA to obtain service records for March and April of 1968 in order to try to corroborate the veteran’s DMZ service. However, the Veteran and VA both stated that the Veteran had service in the DMZ beyond that two-month period.  CCK appealed the Board’s denial to the Court of Appeals for Veterans Claims (CAVC).

 

Court Rules that the Board did not Fulfill its Duty to Assist and Remands the Case

CCK successfully appealed to the CAVC the Veteran’s Board decision that denied him service connection for diabetes mellitus type 2, including as due to herbicide exposure.  The Court found that the Board erred in only requiring VA to search for records during March and April of 1968. The Court ruled that the duty to assist required VA to request records for multiple two-month windows within the time that the veteran indicated he was at the DMZ in order to attempt to verify this service. Due to these rulings, the Court vacated the Board’s decision and remanded the case back to the Board with an order that it require VA to obtain service records for the entire period that the veteran indicated he served at the DMZ.

To read the Court’s decision, click here.

Category: Court Wins

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