Case: 21-2923 Remand for Thailand Air Force Veteran Exposed to Agent Orange During The Vietnam War

Case Number: 21-2923

Facts of Case

The Veteran served honorably in the United States Air Force between August 26, 1964, and August 3, 1968. His Military Occupational Specialty (MOS) was a cook. During this time, he was stationed at the U-Tapao Royal Thai Air Force Base (RTAFB) between August 3, 1967, and August 3, 1968, during the Vietnam War.

The Veteran filed a claim for diabetes mellitus type II and ischemic heart disease caused by exposure to herbicidal agents, such as Agent Orange. The herbicides were alleged to be sprayed around the Thailand base perimeter of U-Tapao, and he claimed that he was exposed while walking back and forth from his living quarters and dining facilities.

The Department of Veterans Affairs Regional Office and Board of Veterans’ Appeals denied his claims and argued that the distance between his daily duty activities and the perimeter fence were not meaningfully quantified enough on his submitted map to show that he was close enough to the base perimeter. Paradoxically, it also used this logic to establish that there was “notable gap” between the dining hall or living quarters and the base perimeter, which “contradict[ed] the notion of close proximity.”

The Board also indicated that “highly probative and competent evidence of record indicated that herbicide agents were not sprayed on the installations in Thailand.”

Alex Argued that the Board’s Phrase of a “Notion of Close Proximity” was Vague and that the Board Failed to Explain why VA Guidelines in the M-21 Manual Were Not Applicable in the Veteran’s Case. The Guidelines Instructed that Special Consideration Should be Applied to Thailand Air Force Veterans During the Vietnam War Because of Herbicidal Use

The law says that the Board must base its denial on objective, disclosed standards, which is necessary for judicial review. See Tedesco v. Wilkie, 31 Vet.App. 360, 366-67 (2019); Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017). Therefore, denying a claim based on mere “notions” of close proximity and not objective, disclosed criteria for how close is close enough to the base perimeter would be an inadequate basis to deny.

Moreover, even where the Board is not bound by the M-21 Manual, the Court has required the Board to provide an adequate statement of reasons or bases for not relying on any Manual provision favorable to the Veteran. National Org. of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 981 F.3d 1360, 1376 (Fed.Cir. 2020); see also Overton v. Wilkie, 30 Vet.App. 257, 259 (2018). It then follows then that if the Board chooses not to follow a Manual provision that favors the veteran it must also support its decision with an adequate statement of reasons or bases for rejecting such guidelines.

VA’s Secretary Conceded the Errors

The Secretary’s representative moved to vacate the Board’s decision dying service connection for diabetes mellitus type II and ischemic heart disease and issued a Joint Motion for Remand to re-assess the evidence based on Alex's arguments.

.

Contact Me Today for a Free Veterans' Benefits Case Evaluation