Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-0614
CHESTER K. MALINOWSKI, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Chester K. Malinowski, appeals through counsel a
December 3, 2015, Board of Veterans’ Appeals (Board) decision in which the Board denied him
entitlement to disability benefits for diabetes mellitus “claimed as due to exposure to herbicides,”
a heart disorder “to include as due to exposure to herbicides and as secondary to diabetes
mellitus,” and hypertension and erectile dysfunction “claimed as secondary to diabetes mellitus.”
Record (R.) at 3-30. This appeal is timely and the Court has jurisdiction over the matters on
appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate
when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.”
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
vacate the Board’s decision and remand the matters on appeal for further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from February 1971 until December
1972 and then entered the U.S. Army Reserve. R. at 542, 627. In August 1974, he spent two
weeks training at Fort Drum, New York. Id.
2
In December 2004, the appellant filed a claim for entitlement to disability benefits for
diabetes mellitus, a heart condition, hypertension, and erectile dysfunction. R. at 1260. He
alleged that he was exposed to Agent Orange at Fort Drum. R. at 1260, 1280.
In February 2007 and March 2007, the VA regional office (RO) denied the appellant’s
claims. R. at 789-92, 1038-43. In September 2012, the Board also denied his claims. R. at
330-46. He appealed to the Court and, in June 2014, the Court vacated the Board’s decision and
remanded his claims for further proceedings consistent with its decision. R. at 99-111.
In June 2015, the Board remanded the appellant’s case for additional development. R. at
51-57. On December 3, 2015, it issued the decision presently under review. R. at 3-30.
II. ANALYSIS
A. Initial Matter
The primary issue in this case is whether the appellant was exposed to harmful herbicides
while serving at Fort Drum in 1974. The record contains two pieces of evidence that are key to
the appellant’s arguments. The first is a July 1981 report prepared by the Chemical Systems
Laboratory at Aberdeen Proving Ground that assesses environmental toxicity at Fort Drum. R.
at 646-99. The report reveals that investigators discovered 10 five-gallon metal cans containing
chemicals found in Agent Orange stored in “an unheated wooden frame building with wooden
floor.” R. at 666. This and other “[p]esticide storage buildings . . . do not meet present day
requirements for storage of pesticides” and, the investigators concluded, pesticides at Fort Drum
“are improperly stored.” R. at 694, 698.
The report also reveals that (1) in about 1959, a “large quantity of herbicide . . . was
sprayed from a helicopter over the main impact area”; (2) in 1961, the Dow Chemical Company
“tested an experimental defoliant mixture” “along a road”; (3) “[a]ccording to interviewers,” a
herbicide similar to Agent Orange “was used on the range impact areas during the 1950s through
the early 70s”; and (4) “[f]rom 1969 to 1978,” herbicides similar to Agent Orange were “used to
control brush along Town Line R[oa]d and Russell Turnpike in the main impact area.” R. at
666.
These conclusions, if taken as true, reveal that the appellant served at Fort Drum during a
period when the Army was using harmful herbicides to clear vegetation from parts of the base.
3
Further findings made by investigators also indicate that the appellant may have been exposed to
the herbicides that were applied prior to his service. The investigators wrote that “geological
evidence” indicates that Fort Drum has a “high potential for migration by both surface and
subsurface waters.” R. at 692, 698. “[T]here is a possibility that residual amounts of pesticides
are present.” R. at 698.
The second key piece of evidence is a document written in February 1984 by Colonel
Peter D. Hidalgo, the commanding officer of the U.S. Army Toxic and Hazardous Materials
Agency. Colonel Hidalgo wrote that “[i]nterviews indicate that [herbicide] was utilized [at Fort
Drum] during the 1960s through the early 1970s.” R. at 397.
In its June 2014 memorandum decision, the Court discussed this evidence in detail.
Since that time, the Board has, in three unrelated cases, cited the Court’s decision by name and
case number, quoted from it extensively, found its discussion about the July 1981 report and
February 1984 letter sufficient to establish that herbicides potentially were stored and applied at
Fort Drum after 1959, and, applying the benefit of the doubt doctrine, determined that the
veterans whose claims were under review were exposed to herbicides while serving at Fort
Drum. See Board Docket Nos. 03-10 284, 10-40 764, 12-33 014. The Board based its
application of the benefit of the doubt doctrine in those cases largely on the Court’s description of
the 1981 report and 1984 letter.
To be clear about what has happened here, the Board used the findings made by the Court
in this veteran’s case as part of the evidence that it relied on to find that other veterans had been
exposed to herbicides at Fort Drum, but then discounted and distinguished those findings in the
decision presently on appeal. Legal or not, those results look fundamentally unfair. (They have
“bad optics,” in modern political parlance).
Pursuant to 38 C.F.R. § 20.1303, “the Board strives for consistency in issuing its
decisions.” That statement, however, is aspirational.1 The Court can enforce its precedent and
confirm that the Board doesn’t make clearly wrong factual findings and explains itself
adequately, but it cannot force the Board to make consistent factual findings. Furthermore,
1 In his brief, the Secretary wrote that “[s]ome claims will succeed, and otherw will fail, even though the
claims may appear to be substantially similar.” Secretary’s Brief at 14. That’s not terribly comforting and it doesn’t
seem as though he is all that concerned with aspiring for consistency.
4
Board decisions “in other appeals” have no precedential value but “may be considered in a case to
the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303 (2017) (emphasis
added). The Court can ensure that, once the Board does consider an unrelated case, it does so
properly, but it cannot find error if the Board refuses to consider another case even if it seems to
be directly on point. King v. Shinseki, 26 Vet.App. 484, 490 (2014) (compiling cases finding
that the word “may” in a statutory or regulatory provision means that the action required by that
provision is discretionary).
Unsure how to handle the unusual circumstances of this case, the Court asked the parties
to submit additional briefing. Both did so. Their arguments are thorough and helpful, and the
Court commends them for their efforts. After reviewing their arguments, the Court concludes
that it will not review the unrelated Board decisions at this time. As always, it is the Board, not
the Court, that should make factual findings in the first instance. See Hensley v. West, 212 F.3d
1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial
fact finding”); see also 38 U.S.C. § 7261(c). The factual question raised here is whether,
pursuant to § 20.1303, the discussion in the three Board decisions that cite the Court’s June 2014
remand decision reasonably relates to this case. If the appellant asks it to do so, the Board
should, on remand, review those decisions, answer that question, and, if it answers in the
affirmative, decide whether to review those cases, keeping in mind the Secretary’s promise to
“strive for consistency.” 38 C.F.R. § 20.1303.
The appellant raises several important arguments about the legality and constitutional
validity of the regulatory authority allowing the Board to summarily ignore prior decisions, even
ones directly on point. If the Board finds that the three decisions identified here reasonably
relate to his case, but then refuses to consider them, then the Court will be well placed to address
his arguments and the extent of its own authority to find persuasive value on factual matters in
decisions that the Board has not considered. See Hudgens v. McDonald, 923 F.3d 630, 639
(Fed. Cir. 2016) (recognizing, in the context of regulatory interpretation, this Court’s “stated
practice of looking to prior Board decisions for guidance”); see also Fountain v. McDonald,
27 Vet.App. 258, 270 (2015). At present, however, those matters are not ripe for review.
Furthermore, the Board, now on notice about the significant challenges that § 20.1303
(and, by extension, the manner in which it conducts its business) could face under precedential
5
review, should have a first opportunity to respond. See Pacheco v. Gibson, 27 Vet.App. 21,
33-34 (2014) (en banc) (Pietsch, J., concurring) (explaining that the issue before the Court should
be remanded partly on the basis of judicial economy and noting that it is in VA’s interest to
“‘protect agency administrative authority'” and that “‘even if the agency rejects the individual’s
arguments, in some instances a better record is made for appellant review of the agency
decision'”) (quoting Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000)).
B. Board’s Analysis
Review of the Board’s decision reveals that it is not in accordance with the Court’s June
2014 memorandum decision. Indeed, rather than fairly respond to the Court’s observations and
criticisms, the Board seems to have taken pains to avoid the Court’s conclusions. Consequently,
it produced a decision that compounded the errors that the Court identified in June 2014 and that
decision is deficient for a number of reasons.
First, in its June 2015 remand decision, the Board ordered the RO to “seek an opinion,
report, or other appropriate evidence from an environmental toxicologist specializing in Agent
Orange and related chemicals to address the issue of whether the [appellant] was exposed to
Agent Orange during service at Fort Drum in August 1974.” R. at 56. It further stated that the
environmental toxicologist should “address the question of whether it is at least as likely as not
that the [appellant] was exposed to Agent Orange.” R. at 56-57.
In response, the RO forwarded to the Board a report prepared for VA’s compensation
service in February 2014 by a consultant working under VA contract titled “Investigation into the
Environmental Fate of TCDD/Dioxin” (February 2014 report). R. at 58-80. That document
was prepared more than a year before the Board issued its remand decision, contains no
information about Fort Drum, and does not discuss the appellant’s case or any other.
In the decision presently on appeal, the Board wrote that “[w]hile the February 2014
Report does not address the specifics involved in the [appellant’s] case, the Board finds that
substantial compliance with the June 2015 Remand directives has been achieved.” R. at 22.
That is absurd. The Board believed that it could not reach a decision until an expert opined
about whether the appellant was exposed to Agent Orange. The RO did not obtain that opinion.
It doesn’t seem like it even tried. The Board’s conclusion that the RO substantially complied
6
with its remand instructions is clearly erroneous.2 See Stegall v. West, 11 Vet.App. 268, 271
(1998) (holding “that a remand by this Court or the Board confers on the veteran or other
claimant, as a matter of law, the right to compliance with remand orders”).
Second, in January 2009, James Sampsel, a member of VA’s C&P Policy Staff, wrote that
a “list of herbicide use and test sites outside Vietnam” created by the Department of Defense
“contains 71 sites within the U.S. and in foreign countries where herbicide/Agent Orange use or
testing is acknowledged.” R. at 433. That list, however,
does not contain any references to routine base maintenance activities such as
range management, brush clearing, weed killing, etc. We have been advised by
[the Department of Defense] that such small scale non-tactical herbicide
applications have not been compiled into a list and records of such activity have
not been kept.
Id.
Mr. Sampsel stated that Agent Orange “was used and tested at Fort (Camp) Drum, New
York, in the spring of 1959. Its application was tested with helicopter spraying of 13 drums
over a 4 square mile artillery range. . . . There is no record of testing during 1974 or any other
year.” Id. He stated that “there is no way to verify” whether “small-scale brush clearing
herbicide use along roads from the 1960s to early 1970s” occurred “or know the extent of it or
the chemical content of it.” Id.
In July 2009, unidentified officials at the United States Armed Services Center for
Research of Unit Records (USASCRUR) wrote that “U.S. Army historical records available to us
do not document the spraying, testing, transporting, storage or usage of Agent Orange at Fort
Drum . . . during the period August 17, 1974-August 30, 1974.” R. at 421. The official stated
that
we reviewed the Department of Defense . . . listing of herbicide spray areas and
test sites outside the Republic of Vietnam. The report documents that in 1959 at
Fort Drum, thirteen drums of Agent Orange were sprayed on four square miles
from a helicopter spray device. However, we are unable to document that [the
2 Even if the Court had not found clear error, this case would be subject to remand for reasons or bases
error. The Board’s Stegall conclusion is accompanied by no explanation whatsoever, and the lengthy statement that
the Secretary gave supporting the Board’s determination cannot fill the void left by its inattention to its reasons or
bases responsibilities. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)
(“‘[L]itigating positions’ are not entitled to deference when they are merely appellant counsel’s ‘post hoc
rationalizations’ for agency action, advanced for the first time in the reviewing court.”).
7
appellant] was exposed to Agent Orange or other herbicides while stationed at
Fort Drum.
Id.
The Board compared these two pieces of evidence to the 1981 report and 1984 letter and
concluded that the evidence in the record is “conflicting.” R. at 24. That is not correct. The
evidence that Mr. Sampsel reviewed contained no information about the kind of herbicide usage
that the 1981 report and 1984 letter indicate occurred at Fort Drum in the 1970s. He, therefore,
had no way to determine whether those reports are accurate. His statement is not “conflicting”
because he could not offer an opinion about the key issue in this case. Id.
The Board exacerbated that error by finding that Mr. Sampsel “indicated no
documentation of use of Agent Orange (or other tactical herbicides) at Fort Drum subsequent to
1959.” Id. The Board apparently took this to be proof that the herbicide use that the appellant
alleged did not happen. It is not. Once again, it shows nothing more than that Mr. Sampsel
could not say whether the 1981 report and 1984 letter are accurate because the document that he
reviewed did not contain evidence about small-scale herbicide use.
The researchers who prepared the July 2009 USASCRUR report relied on the same
Department of Defense report that was unhelpful to Mr. Sampsel. Those officials also referred
to “U.S. Army historical records” without identifying them. R. at 421. It is entirely unclear
what those records contained. Furthermore, the 1981 report and 1984 letter certainly classify as
“U.S. Army historical records” and they plainly support the appellant’s assertions. It is unclear
why the researchers did not discover or review those documents, and the fact that they did not
shows that their efforts were incomplete. In any event, the July 2009 USASCRUR report shows
only that the researchers who prepared that report could not confirm the information contained in
the 1981 report and 1984 letter. It does not show, as the Board seemed to assume, that the
herbicide use alleged in those reports did not happen.
Third, the Board’s attempts to discount the 1981 report and 1984 letter are unconvincing.
The Board first noted that those reports indicate that “use of herbicides was primarily reported
during interviews; however, the sources of these interviews were not reported. A such, the
Board is unable to make conclusions regarding the competency and credibility of those
individuals who provided such information.” R. at 24.
8
The only statement in the 1981 report (attributed to “interviewers” rather than, as the
Board assumed, persons interviewed) that matches with the Board’s analysis is that herbicide was
used on “range impact areas” from the 1950s until the 1970s. R. at 666. The officials who
wrote the 1981 report also described herbicide use along roadways and fences. They identified
the roadways by name, gave the precise chemical composition and locations of the herbicides
used, and gave the precise mixture concentration.3 Id. They did not say that the source for that
information came from “interviews.” Also, the Board failed to note that the investigators may
have witnessed improper storage of herbicides with their own eyes.
Furthermore, it is unclear why, given the benefit of the doubt doctrine that the Board is
required to apply, it concluded that its inability to identify the source of a report allows it to
summarily deem that report to be unverified and unworthy of probative value. Indeed, the
Board did not explain why it had no trouble accepting a document based on unidentified “U.S.
Army historical records” but then refused to accept the conclusions found in a U.S. Army
document prepared by officials who work for the Chemical Systems Laboratory because the
officials did not identify their sources.
The Board next turned to the sentence in the July 1981 report that seems most likely to tip
this case in the appellant’s favor – investigators’ notation that harmful herbicides were used to
control vegetation at Fort Drum “until 1978.” R. at 24. The Board dismissed this evidence
because it is not corroborated by other sources. The Board failed to note that it was also not
contradicted by other sources. The Board made no effort to explain why officials from the
Chemical Systems Laboratory are not competent to render the opinion that they gave.
Fourth, reviewing the appellant’s lay statements, the Board found that “it has not been
demonstrated that [he] is competent to identify the difference between tactical and non-tactical
herbicides or that the areas where he was located [at Fort Drum were] compromised by Agent
Orange.” R. at 25. The Board did not fully consider the appellant’s account of his time at Fort
Drum. He stated that he worked “along the edge of roads” and that he “worked with those
areas” that were treated with Agent Orange. R. at 352. By the time that the appellant made
those statements, the 1981 report was in the record. That report specifically names the roads
3 The Court notes without further comment that the investigators included a chart containing similar
information for 1980 that it obtained from a DD Form 1532 pest management report. R. at 668.
9
where harmful herbicides were applied and includes maps that identify the locations where
spraying occurred. The appellant is certainly competent to review those documents and
determine whether he was in one of the areas where herbicides were used. The Board should
have considered whether he did so.
Fifth, the Board noted that the record contains evidence “indicating that dioxin may linger
in the topsoil for many years after application.” R. at 26. This evidence did not convince the
Board that the appellant is entitled to disability benefits because “there is no direct evidence that
[he] came into contact with those areas where Agent Orange was sprayed or stored and no direct
evidence that [he] came into contact with any potentially contaminated soil.” Id. There is also
no direct evidence that he did not.
The Board found that it is “unclear” whether herbicides were stored at Fort Drum in
August 1974. Id. The Board then found that the “use of herbicides was primarily limited to the
range impact areas and surrounding fences and roads to improve the line of vision of the range
impact areas. There is no evidence that the [appellant] was present in the range impact areas.”
R. at 26. Again, there is no evidence that he was not. More importantly, he did clear brush
near roads and participated in field maneuvers. Once more, the Board should more carefully
explain the manner in which it applied the benefit of the doubt doctrine on remand.
Sixth, the Board did not correctly apply the February 2014 report.4 The consultant
reached two conclusions. He first stated that the chemical components of herbicides like Agent
Orange “rapidly b[ind] to soil and organic particles. Its low water solubility and low vapor
pressure resulted in its failure to move in the soil profile, while at the same time these properties
enhanced its long-term persistence.” R. at 59. That means that harmful chemicals sprayed on
Fort Drum during intensive herbicide testing in 1959 and 1961 may have had remained in the soil
long after testing ended. The consultant further concluded, however, that “handling
contaminated soil resulted in negligible contamination since the skin acted as an effective barrier
to the uptake of” the chemicals. Id.
4 The Court notes, without further comment, that the veterans law judges who wrote the three decisions
discussed in Part II.A of this decision chose not to rely on this report, even though it obviously was in VA’s
possession.
10
The appellant essentially has raised two theories about how he was exposed to herbicides
during his service. He asserted that he was directly exposed because he was present at Fort
Drum while personnel were using harmful herbicides. He also has suggested that past intensive
testing of herbicides left residual chemicals in the environment that remained extent and potent
when he arrived more than a decade later.5
The Board found the February 2014 report to be evidence against the appellant’s claim
because it “indicated that only about one percent of the amount of dioxin sprayed or spilled
remained in the topsoil hours after deposition, whereas the remaining 99 percent became
photodegradated due to exposure to sunlight.” R. at 26. Review of the February 2014 report
demonstrates that the Board removed the numerical figures in the statement quoted above from
their context and thus manufactured probative value that it applied toward the conclusion that it
wished to support.
The figures quoted by the Board are taken from the consultant’s review of a study
conducted at Eglin Air Force Base on an open range where extensive herbicide testing was
conducted. The consultant wrote that “in the Eglin Studies, 99% of the TCDD was
photodegraded within hours of its areal deposition on to the bare sands of the test area.” R. at
74 (emphasis added). The area had “high solar exposures” that were “independent of canopy
interception.” Id. By excluding this detail, the Board misrepresented the report’s conclusions.
The Board next found that the “February 2014 Report further indicated that the skin is an
effective barrier to transmission, thus making contamination via contaminated soil unlikely.” R.
at 26. The Board did not explain why that makes any difference to this case. According to the
regulation that it applied, the appellant need only prove exposure to obtain the benefits that he
seeks. 38 C.F.R. § 3.309(e) (2017). (Disease associated with exposure to certain herbicide
agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service,
the following diseases shall be service-connected if the requirements of [38 C.F.R.] § 3.307(a)(6)
5 One of the studies cited by the consultant revealed that toxic chemicals were still present at spray and
storage locations in Vietnam in “the late 1990s and early 2000s.” R. at 69.
11
are met even though there is no record of such disease during service, provided further that the
rebuttable presumption provisions of § 3.307(d) are also satisfied) (emphasis added).6
Lastly, as the above discussion reveals, the Board strongly insinuated that the appellant
could not possibly have been in the parts of Fort Drum where herbicide was applied. It, of
course, has no way of knowing for sure whether the appellant entered areas where herbicides had
been used. More importantly, the Board assumed (at least when convenient) that herbicides
stay right where they are sprayed. It should have discussed a portion of the February 2014
consultant’s report, based on the Eglin study, that suggests that wind and water can cause
contaminated soil to migrate. R. at 72.
Seventh, in its June 2014 memorandum decision, the Court noted that the “Board
acknowledged that the record reveals that herbicides were used at Fort Drum during a period of
time that includes August 1974″ and “did not dispute the appellant’s assertion that his training
took him to locations at Fort Drum where herbicides were applied at some point during the 1960s
and 1970s.” R. at 103. Those were favorable findings, and the Court consequently did not
disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
In the decision presently on appeal, the Board contradicted its prior decision and refused
to renew the favorable findings listed above. It should have explained why it felt that it had the
authority to do so. See Stegall, 11 Vet.App. at 271.
Finally, the record contains a June 2004 Board decision from an unrelated veteran’s case
in which, like the three decisions discussed in Part II.A above, the Board reached a conclusion
that seems to be plainly contrary to the conclusion that the Board has reached in this case. The
Court reviewed that decision in is prior memorandum decision. It found that for “present
purposes, the factual background in the June 2004 case and this case are comparable.” R. at 105.
It further noted that, in the June 2004 decision, “the Board found that the 1984 U.S. Army
Toxic and Hazardous Materials Agency letter was by itself sufficient to demonstrate that the
veteran was actually exposed to herbicides while serving at Fort Drum.” Id.
6 The Board quoted the consultant’s definition of exposure and, in effect, turned it into the legal definition
of exposure for the purposes of this case. R. at 22. The consultant is not a legal expert and the Board should not
convert his scientific pronouncements into de facto regulations.
12
In the decision then under review, the Board concluded that the June 2004 decision was
not “reasonably related” to the appellant’s case and refused to consider whether it is persuasive.
Id.; 38 C.F.R. § 20.1303. The Court concluded that it did “not adequately explain” its
conclusion. R. at 105.
In the decision presently under review, the Board noted that “the record includes a copy
of a June 2004 Board Decision submitted” by the appellant. R. at 27. It followed that
observation with extensive boilerplate quoting § 20.1303 and citing to the caselaw that has
developed around that provision. At the end of that boilerplate paragraph, it concluded:
“Therefore, the Board affords the June 2004 Board Decision no probative weight in the current
appeal.” Id. That is no answer at all to the findings that the Court made in its prior decision.
See Stegall, 11 Vet.App. at 271. On remand, the Board should provide the analysis that the
Court requested in its earlier decision.7
The Court need not at this time address any other arguments that the appellant has raised.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow
decision preserves for the appellant an opportunity to argue those claimed errors before the Board
at the readjudication, and, of course, before this Court in an appeal, should the Board rule against
him”). On remand, the appellant is free to submit additional evidence and argument on the
remanded matters, and the Board is required to consider any such relevant evidence and
argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand is meant
to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with
38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims
remanded by the Court).
7 The Board may wish to note that in two of the decisions discussed in Part II.A of this decision, the Board
found that its June 2004 decision does have persuasive value and used it to support its conclusions that the veterans
in those cases were exposed to herbicides while serving at Fort Drum.
13
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s December 3, 2015, decision is VACATED and the matters on appeal are
REMANDED for further proceedings consistent with this decision.
DATED: October 31, 2017
Copies to:
Patrick Berkshire, Esq.
VA General Counsel (027)
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