Parseeya-Picchione v. McDonald, docket no. 15-2124 (July 11, 2016)
HELD: Even if the Board determines that a veteran’s testimony is not credible, it must still review the other evidence of record and provide an adequate statement of reasons or bases for rejecting it.
Advocacy note: Evidence relevant to this appeal – and to other Thailand veterans with appeals related to herbicide exposure – includes (1) third-party evidence showing that most flights from the U.S. to Thailand stopped in Vietnam en route to Thailand; (2) VA’s C&P Bulletin stating that “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides”; and (3) the Project CHECO report, describing the air base locations.
SUMMARY: The veteran in this case served in the U.S. Army from 1966 to 1977, including a deployment to Thailand from January 1968 to January 1970. In Thailand, he was assigned Camp Friendship at Korat Royal Thai Air Base.
In 2005, he filed a claim for service connection for diabetes based on exposure to herbicides. He testified that he was in Vietnam in January 1968 during a layover between Hawaii and Thailand. He also asserted that he was exposed to herbicides when he was stationed at Camp Friendship. VA denied his claim, and he appealed up to the Veterans Court, which remanded the appeal in 2011.
Two months after the Court’s remand, the veteran died, and his wife substituted for him in his appeal. She provided a copy of the Project CHECO report, a declassified Air Force report, which described Camp Friendship as “bordering the perimeter of the Korat Air Force base.” She also provided evidence of flight paths from the U.S. to Thailand, showing that these flights had to make several stops, including in Vietnam. The Board continued to deny benefits, and she appealed to the Court. The Court remanded again because the Board failed to provide any explanation for its determination that the evidence did not show that the veteran was exposed to herbicides.
In May 2015, the Board denied the claim again, finding that the preponderance of the evidence was against the veteran’s assertion that he “had set foot in Vietnam.” The Board rejected the veteran’s statements as inconsistent and rejected the evidence regarding the flight paths because it did not corroborate that the veteran spent time in Vietnam. The Board also noted that while Camp Friendship was located “near the outer edge of [Korat]” it was “not located on the perimeter” of the base, as required by VA policy. The Board added that the veteran’s military occupational specialty (MOS) as “clerk” would not require his presence on or near the perimeter of the base.
The veteran’s widow appealed to the Court again. The Court first determined that there was no error in the Board’s determination that the veteran’s testimony was not credible regarding his layover in Vietnam. However, the Court noted that the Board is required to review and explain its rejection of the other evidence of record.
Specifically, the Court noted that the appellant submitted third-party evidence stating that “it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air base in Vietnam, where the veteran’s alleged layover took place].” Also in the record: “An email from James S. Howard, an archivist from the Air Force Historical Research Agency, reports that ‘[a]s a general rule, military cargo aircraft, especially those engaged in “airlines” would stop over at Ton Son Nhut Air Base, Republic of Vietnam enroute to bases in Thailand. Very few of this sort of flight were made “direct” to bases in Thailand from bases outside Southeast Asia.’” In addition, the record contained a letter from a retired Air Force major, asserting that “[b]ased on my experience, it was common for military aircraft flying to and from airbases in Thailand to land at Ton Son Nhut [Air Base] and other Vietnam airbases.” Id.
The Board had rejected this evidence because it was only “general information” and did not support the claim “that the veteran himself stopped in Vietnam over-night during his trip to Thailand.” The Court found that this was not an adequate statement of reasons or bases because “[t]he Board failed to specifically discuss any of this evidence.”
Advocacy note: I believe this portion of the decision is important because it strengthens the requirement that the Board expressly discuss favorable evidence before rejecting it. I believe this is also important because advocates can now use THIS Court decision to point to evidence of layovers in Vietnam.
The Court rejected the Board’s reasons or bases for its determination that the veteran was not exposed to herbicides in Thailand because the Board acknowledged that Camp Friendship “was located near the perimeter of Korat,” yet found that “Camp Friendship is not located on the perimeter as contemplated by the M21-1MR.” The Court determined that “[t]his discussion of the two locations conflicts with how both the Project CHECO report and the veteran described the locations.”
Advocacy note: I believe this portion of the decision is important because the Court is forcing the Board to reconcile its inconsistent statements with the Project CHECO report. Advocates can now cite to THIS decision to show that the Court has recognized the validity of the Project CHECO report and that the Board has to explain its determinations that conflict with this report.
Finally, the Court rejected the Board’s determination that “the only tactical herbicides used in Thailand were used four years before the veteran arrived and in a wholly separate location than where the veteran served.” The Court found this determination to be in conflict with the C&P Bulletin that acknowledged that there was “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.” The Court found this error prejudicial because “[a] VA finding that the veteran did serve near the perimeter of the base may be significant because the perimeter was the only area where herbicides of a type similar to Agent Orange may have been used.”
Advocacy note: I believe this language is important because it forces the Board to comply with the findings in VA’s C&P Bulletin. Advocates can now cite to THIS decision, in addition to the C&P Bulletin, to support the use of tactical-strength herbicides – as opposed to your garden-variety weed killer – on Thailand base perimeters.