Court Finds Board Deviated from Manual Guidance in Denial related to Herbicide Exposure in Thailand

Court Finds Board Deviated from Manual Guidance in Denial related to Herbicide Exposure in Thailand

Veteran’s service in Thailand

The Veteran served honorably on active duty in the Marine Corps from October 1959 to July 1963, including service in Thailand at Udorn Royal Air Force Based in 1962.  His official military occupational specialty was jet engine mechanic.  The Veteran reported that he also performed guard duties around the perimeter at night.

Board denies service connection for diabetes as due to Agent Orange Exposure

The Board denied service connection for diabetes in 2013.  The Veteran appealed this decision to the Court and the parties filed a joint motion for remand in 2014.  The Board remanded the Veteran’s claim for service connection for diabetes in 2015.  It sought additional development to verify the Veteran’s service in Thailand and his possible exposure to herbicides.

In April 2016, the Board again denied the Veteran entitlement to service connection for diabetes.  The Board concluded that the preponderance of the evidence was against the Veteran’s claim that he was exposed to herbicides in service.

CCK appeals to the Court of Appeals for Veterans Claims

CCK successfully appealed the Board’s denial of service connection to the Court of Appeal for Veterans Claims.  In its decision, the Board relied on a February 2011 VA finding that the Veteran’s Marine Corps unit had no records verifying exposure to herbicides.  It also determined that the Veteran’s military occupational specialty as an aircraft mechanic did not fit the examples listed in the VA Adjudication Manual as those warranting a concession of herbicide exposure.

CCK argued, and Court agreed, that the Board erred when it ignored the Veteran’s lay statement about the duties he performed on the perimeter. Pursuant to the VA Adjudication Manual, the Board should have determined if those duties warranted a concession of herbicide exposure. Instead, the Board erroneously limited its reading of the Manual Provisions to only consider the Veteran’s official occupational specialty as an aircraft mechanic.

Additionally, the Court rejected VA’s suggestion that the Manual Provisions did not apply to the Veteran’s service.  VA argued that the Manual Provisions only applied to veterans who served in Thailand from August 1964 to May 1975.  Because the Veteran served in Thailand in 1962, VA argued the Board did not need to follow the Manual’s guidance.  The Court found VA’s argument “nonsensical” because VA has already conceded that herbicides were used prior to August 1964.

Accordingly, the Court vacated the Board’s decision denying service connection for diabetes based on herbicide exposure.  The Court remanded the Veteran’s claim for readjudication.

Category: Court Wins