West v. Wilkie
| Decision Date | 19 November 2019 |
| Docket Number | 18-6791 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Franklin L. West, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Before FALVEY, Judge.
Air Force veteran Franklin L. West appeals through counsel a September 26, 2018, Board of Veterans' Appeals decision denying service connection for kidney cancer and denying reopening of claims for service connection for diabetes mellitus, type II (diabetes) and coronary artery disease (CAD) because new and material evidence had not been submitted. Record (R.) at 3-10. The appeal is timely; the Court has jurisdiction to review the Board decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v Derwinski, 1 Vet.App. 23, 25-26 (1990).
First we are asked to decide whether the Board failed to discuss favorable evidence regarding the kidney cancer claim. As the parties agree, because the Board did not address a service treatment record noting a possible in-service kidney infection, the Court will set aside the portion of the September 2018 Board decision denying service connection for kidney cancer and remand that matter for readjudication. Second, we are asked to decide whether the Board provided adequate reasons or bases for declining to reopen the diabetes and CAD claims. Because the Board adequately explained why evidence was not new and material, the Court will affirm the portions of the September 2018 Board decision denying reopening of the claims for service connection for diabetes and CAD.
Mr. West served on active duty from 1965 to 1969. R. at 1130, 1231. The veteran's DD-214 noted that his last duty assignment was with the 346th Tactical Airlift Squadron (TAS). R. at 1130. His corrected DD-214 indicates 6 months of foreign service. R. at 1130, 1231; see R. at 1186. A December 1968 service treatment record noted a possible kidney infection. R. at 843.
In October 2003, Mr. West filed a claim for service connection for diabetes, see R. at 1529, which a VA regional office (RO) denied in February 2004, R. at 1531. In December 2004, the veteran filed a Notice of Disagreement (NOD), stating that he "flew TDY's [temporary duty assignments] and was definitely in country Vietnam." R. at 1503. In a June 2005 Statement of the Case (SOC), the RO continued to deny service connection for diabetes, finding that the veteran was not entitled to presumptive service connection based on herbicide exposure in Vietnam because his records did not show that he served in Vietnam. R. at 1478-79 ( that his TDYs were in England and the Philippines). The veteran never perfected his appeal and it became final.
In October 2009, Mr. West requested that VA reopen his diabetes claim. R. at 1454. He stated that in 1967 and 1968, as part of the 346th TAS, he was in Cam Ranh Bay, Da Nang, and Chu Lai, Vietnam, as a crew chief on C-130 aircrafts. Id. He asserted that he transported drums of Agent Orange and other herbicides. Id. In November 2009, he amended his claim to include service connection for a heart condition as secondary to diabetes. R. at 1435. In a November 2009 statement, Mr. West's sister stated that his parents had had a picture of the veteran standing by the sign at Cam Ranh Bay, Vietnam, but she was unable to now find that picture. R. at 1408. In December 2009, the National Personnel Records Center (NPRC) indicated that there was no evidence to substantiate any service in Vietnam. R. at 1393.
In February 2010, the RO declined to reopen the diabetes claim because new and material evidence had not been submitted and denied service connection for CAD, including on a secondary basis, because diabetes was not service connected. R. at 1286. The RO considered Mr. West's October 2009 statements regarding service in Vietnam, his sister's statement regarding a lost picture, and the NPRC response, as well as noted that his corrected DD-214 still did not mention Vietnam service. R. at 1287, 1290.
In July 2010, Mr. West filed an NOD, stating that as part of the 346th TAS, he was on TDY in support of Operation Ranch Hand (an operation involving extensive defoliation of Vietnam), daily flying troops and herbicides into Vietnam. R. at 1271; see R. at 1256 (). He provided a March 1968 letter he wrote to his parents from Clark Air Force Base (AFB) in the Philippines in which he stated that he was "suppose[d] to go to Cam R[anh] Bay next week." R. at 1242. In December 2011 and April 2012, he made additional statements regarding going to Vietnam on TDY orders. R. at 1124, 1136.
In May 2012, the RO issued a "[f]ormal [f]inding of inability to verify in-country Vietnam service," indicating all steps VA had taken to corroborate service in Vietnam. R. at 1120-21. The RO noted that the photocopied TDY orders received from the veteran in April 2004 did not show Vietnam service and the March 1968 letter to his parents did not indicate that he had gone to Vietnam. R. at 1120. After review of his record and several unsuccessful document requests, the RO concluded that any further attempts to verify in-country service would be futile. R. at 1121.
In a May 2012 SOC, the RO continued to deny the CAD claim. R. at 1109, 1111 (). It noted that since it received this claim, laws had changed such that service connection for CAD could also be granted on a presumptive basis; but, after reviewing the record, determined that the evidence did not show that Mr. West had the required Vietnam service. R. at 1110-11 (). The veteran did not perfect his appeal.
In December 2012, Mr. West requested that VA reopen the diabetes and CAD claims and filed a claim for service connection for kidney cancer. R. at 1071. In November 2103, he again stated that his flight route was from Clark AFB to Cam Ranh Bay, Chu Lai, and Da Nang, and that he was on the ground at each stop. R. at 1046. In January 2014, the RO denied these claims, R. at 1003, 1006, and in February 2014, the veteran filed an NOD, R. at 999. In a January 2016 SOC, the RO continued to deny service connection for kidney cancer and to decline reopening of the diabetes and CAD claims. R. at 799. In March 2016, Mr. West requested an RO hearing, rather than a Board hearing. R. at 773.
In April 2016, the veteran submitted an article from www.reportnews.com indicating that in the 1960s, C-130 aircraft were used to fly troops and supplies from Clark AFB and Japanese bases to Cam Ranh Bay, Vietnam. R. at 669. He also submitted a www.wikopedia.com article regarding the 346th TAS, which noted that C-130 operations were moved to a Chinese base and, although the squadron was not stationed in Vietnam, it augmented task forces and other operational organizations until 1971. R. at 687.
During an April 2016 decision review officer (DRO) hearing, Mr. West testified that in March and April 1968, as part of the 346th TAS, he flew troops and supplies to Cam Ranh, Chu Lai, and Da Nang and set foot in Vietnam about four times, noting that the squadron commander "was trying to get everybody to get in country to at least see what's going on." R. at 25-29 (), 42. He stated that he was stationed in England and the Philippines, and that "a lot of times we didn't know where we [were] going until we were in the air…then they'd tell us." R. at 28. Mr. West and the DRO discussed pictures that he had brought to the hearing, stating that there was one of him on a beach in Cam Ranh and three of the pictures had Cam Ranh written on the back.[1] R. at 35-38. They also discussed his sister's statement about a picture of him in front of a Cam Ranh Bay sign, but he stated that he was unable to find that picture. R. at 38-39. Finally, the veteran stated that, although his DD-214 was corrected to reflect foreign service, the correction from 0 to 6 months was still incorrect because he was in England for 4 months and the Philippines for almost 4 months. R. at 44.
In September 2018, the Board issued the decision on appeal, denying service connection for kidney cancer and declining to reopen the diabetes and CAD claims because new and material evidence had not been submitted. R. at 4.
Mr. West argues that the Board provided inadequate reasons or bases for denying kidney cancer because, although it found that there was no evidence of kidney cancer during service, there was a December 1968 service treatment record indicating an in-service kidney infection. Appellant's Brief (Br.) at 18-20. The Secretary concedes that remand is warranted because the Board did not address this service treatment record. Secretary's Br. at 20-21. As the parties agree, the Board provided inadequate reasons or bases for denying the kidney cancer claim because it failed to discuss this record. R. at 843. Accordingly, the Court will remand the kidney cancer claim. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ().
The veteran is free on remand to submit additional evidence and...
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