Client Win: CAVC No. 20-3671, Pierrel v. Wilkie (Duty to Assist in claims alleging Agent Orange exposure outside of the RVN)
This case involves a US Navy veteran's (1966 to 1981) appeal to the BVA seeking seeking service connection for his Parkinson's disease and Type 2 Diabetes based on exposure to Agent Orange during his service in the Philippines and Guam.
ISSUE ON APPEAL TO THE CAVC: Duty to Assist in claims alleging exposure to agent orange outside of the Republic of Vietnam.
When a veteran alleges exposure to herbicides, the Secretary is required to fulfill his duty to assist the veteran in obtaining evidence. 38 U.S.C. §5103A(c)(2).
The VA has special procedures to follow when the veteran alleges herbicide exposure to places outside of the RVN, such as the Korean DMZ, Thailand, or Johnston Island. M21-1, Part IV, Subpart ii, Chapter 1, Section H, Subsection 6.
Specifically, the VA is required to ask the Dept of Defense to review its inventory of herbicide operations to determine whether herbicides were used as claimed. If exposure to Agent Orange cannot be confirmed through this DoD review, the VA must ask the Joint Services Records Research Center (JSRRC) to verify the veteran's exposure to herbicides. In this case, the VA did review the DoD inventory with regard to the veteran's claim of exposure to Agent Orange in the Philippines, but did not discuss the veteran's service in Guam.
The issue before the Court was whether the BVA failed to fulfill its duty to assist when it fails to contact the DoD or JSRRC regarding a veteran's allegation of exposure to agent orange outside the Republic of Vietnam?
RESOLUTION AT THE CAVC.
The appeal was resolved through a joint motion to remand.
The VA’s Office of General Counsel agreed that the BVA committed error, and that the decision needed to be vacated and remanded to the BVA to fix those errors.
The parties agreed that the Board of Veterans Appeals provided an inadequate statement of reasons or bases that reflects consideration of the VA's own "rater's manual." Although the Federal Circuit has held that the M-21 (the VA's rater's manual) is not binding on the Board of Veterans Appeals, the Veterans Court has held that the BVA cannot ignore relevant provisions of the M-21 either.
The parties reminded the BVA, through the Joint Motion to Remand, that "the Board must independently review the matter and 'discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21- 1 provision as a factor to support its decision.' ”
If your claim to service connect a disability based on Agent Orange exposure outside of the Republic of Vietnam has been denied by the VA or BVA, and you would like help appealing to either the Board of Veterans Appeals or the US Court of Appeals for Veterans Claims (CAVC), click here to ask an attorney at the law firm of Attig | Curran | Steel to take a look at your case.
OGC Attorney: Brandon Callahan (link to Brandon Callahan's cases against our firm)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: C. Trueba (Link is to Judge Claudia Trueba's LinkedIn bio)
Attorney for the BVA: Brian P. Keeley (link to attorney's bio on OpenPayroll.org)
Vets’ Rep at BVA: Carol Ponton (Link to our appeals for Carol Ponton)
Date of BVA Decision: February 5, 2020
Date of CAVC Joint Motion to Remand: December 15, 2020
Link to Joint Motion to Remand at Veterans Court