Morrow v. McDonough
| Docket Number | 21-3237 |
| Decision Date | 23 August 2022 |
| Parties | Richard D. Morrow, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Douglas J. Rosinski, Esq.
Before MEREDITH, Judge.
The appellant, Richard D. Morrow, through counsel appeals an April 13, 2021, Board of Veterans' Appeals (Board) decision that denied entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status, Record (R.) at 17-22; and a May 10 2021, Board decision that denied entitlement to benefits for prostate cancer and Parkinson's disease, both including as due to herbicide exposure, R. at 4-13.[1]This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate both Board decisions and remand all matters for further proceedings consistent with this decision. The Court will also deny the appellant's motion for initial review by panel.
The appellant served on active duty in the U.S. Air Force from August 1969 to August 1973, including service at Korat Royal Thai Air Force Base (RTAFB). R. at 4399; see R. at 4450.
His DD Form 214 reflects that his military occupational specialty (MOS) was aircraft maintenance specialist. R. at 4399.
The record contains an unsigned, undated "Memorandum for the Record" with the subject heading "Herbicide use in Thailand during the Vietnam Era." R. at 4393; see R. at 4393-95. The memorandum provides as follows:
Regarding your [v]eteran claimant with Thailand service, the [Department of Defense] list indicates only that limited testing of tactical herbicides was conducted in Thailand from 2 April through 8 September 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. The [r]eport of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland[,] conducted the spray operations and subsequent research. This location was not near any U.S. military installation or Royal Thai Air Force Base.
R. at 4393. Additionally, the memorandum reflects that "[t]actical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand," and that, although "[t]here are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, . . . all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer." Id. The memorandum reveals "sporadic use of non-tactical (commercial) herbicides within fenced perimeters" of air bases in Thailand and contains advice to VA to consider whether a claimant's MOS was one that "regularly had contact with the base perimeter." R. at 4394. Finally, the memorandum contains the following statement: "The Compensation Service cannot provide any additional evidence beyond that described above to support the [v]eteran's claim," id., and directs the Agency to "send a request to [the Joint Services Records Research Center] for any information that this organization can provide to corroborate the [v]eteran's claimed exposure," R. at 4395.
The appellant filed a claim for benefits for prostate cancer in January 2013, R. at 4573-78, which a VA regional office (RO) denied in January 2014, R. at 4383-91. He sought to reopen that claim in February 2016, R. at 4330-33, asserting that he was exposed to herbicides while "working on the flight line[,] which cover[ed] the per[]imeter of the base," R. at 4318. The RO, in April 2016, found that new and material evidence had not been submitted but appeared to nevertheless deny the claim on the merits. R. at 4305 ( ).
In February 2017, the appellant filed a claim for benefits for Parkinson's disease. R. at 4282-85. The RO denied that claim in April 2017, finding that neither direct nor presumptive service connection was warranted. R. at 3000-02.
The appellant filed a supplemental claim for benefits for prostate cancer and Parkinson's disease in January 2019. R. at 2839-44. Later that month, the RO determined that the appellant had not submitted new and relevant evidence-namely, no evidence of herbicide exposure-and therefore the claims "remain[ed] denied." R. at 1793. In September 2019, through current counsel, the appellant appealed, asking for a hearing before a Board member and the opportunity to submit additional evidence within 90 days following the hearing.[2] R. at 1786. In July 2020, however, the appellant advised VA that he had "obtained directly relevant government documents that ha[d] not been previously available to him or made part of the record in this matter." R. at 1652 (emphasis omitted). He therefore requested that VA permit him to change his adjudication lane from the hearing docket to the evidence submission docket. See id.; R. at 1656. He asserted his desire to withdraw his request for a Board hearing and asked VA "to resolve his appeal on the basis of the record," R. at 1655, including an attached excerpt from a "Working Paper" titled "Herbicide Use at Thailand's Base Perimeters: Base by Base Analysis[,] [a]s [D]ocumented in the Air Force Historical Research Agency Collection 1964 through 1976," R. at 1659-77, and a November 2019 affidavit and curriculum vitae from Robert L. Zimdahl, Ph.D., R. at 1678-88, who identified himself as an expert in "the nature and chemical composition of herbicides available to the [U.S.] military during the 1960s and 1970s," R. at 1679.
In October 2020, the appellant sought entitlement to SMC based on the effects of his Parkinson's disease and prostate cancer. R. at 187-92. The RO denied his request the following month, finding that, although he was in need of aid and attendance, that need was due to non- service-connected disabilities. R. at 151. The appellant sought direct review of that decision, arguing that the RO's denial was premature given that his appeal of his claims for benefits for prostate cancer and Parkinson's disease had not been addressed by the Board. R. at 130-31.
The Board denied entitlement to SMC in the April 2021 decision on appeal, finding that the appellant did not have a service-connected disability upon which an award of SMC could be based. R. at 19. In the May 2021 decision on appeal, the Board first found that new and material evidence had been submitted and reopened the appellant's claims[3] for benefits for prostate cancer and Parkinson's disease. R. at 6. The Board, however, denied those claims on the merits, finding no evidence that the appellant was exposed to herbicides while stationed at Korat RTAFB and no evidence that either condition was otherwise related to service. R. at 7-10. This appeal followed.
The appellant first contends that the Board ignored controlling law that entitles veterans who served at Thai air bases to the presumption of service connection for certain conditions where herbicide exposure is established. Appellant's Brief (Br.) at 12. Next, he argues that the Board erred by failing to ensure that VA satisfied its duty to assist him because VA failed to attempt to obtain the complete Working Paper on herbicide use in Thailand and the records cited in that document. Id. at 13-14. He further asserts that the Board did not adequately support its conclusion that, essentially, only non-toxic commercial herbicides, as opposed to tactical herbicides, were used on Thai air bases and inappropriately imposed a burden on him "to prove that the unnamed 'commercial' herbicides were not 'non-toxic.'" Id. at 15. In this regard, he also argues that "[t]he distinction between 'commercial' and 'tactical' herbicides is a VA-created myth" without "factual or legal basis." Id. at 16; see id. at 16-22. In support of this contention, he cites numerous articles, websites, and reports that are not contained in the record of proceedings. Id. at 19-21.
Regarding the evidence he submitted in conjunction with his Board appeal, the appellant contends that (1) the Board mischaracterized the Working Paper and Dr. Zimdahl's opinion as lay evidence, id. at 24-26; (2) VA is charged with imputed knowledge of and had, at a minimum, constructive possession of the complete Working Paper and the records cited therein, id. at 22-24; and (3) the Working Paper "repudiates" the undated memorandum regarding herbicide use in Thailand, id. at 27-28. Finally, the appellant argues that the Board did not provide an adequate foundation for concluding that he did not serve "near" enough to the perimeter of Korat RTAFB and did not have "'actual, consistent service at the border of'" Korat RTAFB sufficient to warrant a concession that he was exposed to herbicides. Id. at 28-29 (quoting R. at 9); see id. at 28-30. In that regard, he asserts in part that the Secretary has not "defined a distance 'near enough' to warrant a concession of exposure" and the Board did not discuss what the term meant. Id. at 29.
The Secretary concedes that vacatur of both Board decisions is warranted and he asks the Court to remand all matters to the Board for readjudication. Secretary's Br. at 23-24. More particularly, the Secretary asserts that the Board in April 2021 denied entitlement to SMC prematurely because the...
To continue reading
Request your trial