Stover: Board must define terms in order for the Court to review its decisions

Stover v. McDonough, 35 Vet.App. 394 (2022)

HELD: Board must define “near” before the court can review its decision that a veteran was not “on or near the perimeter of the base.” And the board must apply the m21-1 when it adopts it as a rule in its decision.

Summary: Thailand Veteran who served at Takhli Royal Thai Air Force Base claimed service connection based on herbicide exposure, stating that he worked 100 years from the base perimeter and slept near the perimeter. The Board determined that he was not “near the perimeter” and thus could not be found to have been exposed to herbicides.

The Court held that because the Board adopted a provision of the M21-1 regarding herbicide exposure for Thailand veterans, it was bound by that provision. However, because the Board did not define or explain “near the perimeter,” the Court remanded for the Board to do so. The Court rejected the Secretary’s proposed definition - that “near the perimeter” means “ON the perimeter” - not because the definition is ridiculous, but because it was not the Board’s definition.

Advocacy note: The PACT Act created a presumption of herbicide exposure for these Thailand veterans - but this case is still useful, for effective date purposes, for those who had claims/appeals pending prior to the PACT Act.