Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4176
LEO W. PERRY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Leo W. Perry, through counsel appeals an April 8,
2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits for
Parkinson’s disease, including as due to herbicide exposure. Record (R.) at 4-13. This appeal is
timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision
and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty as an aviator in the U.S. Navy from July 1968 to May
- R. at 640, 1032. He trained at Naval Air Station (NAS) Pensacola beginning in September
- R. at 769. From February 14 to May 16, 1969, he participated in Basic Air and Ground
Training, and the record reflects that his duty station during that time was NAS Pensacola. R. at
638-39.
In 2009, the appellant began to show signs and symptoms of Parkinson’s disease, and the
diagnosis was confirmed in 2010. R. at 806-09, 811-14. He filed a claim for benefits for that
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condition in August 2011, asserting that it was related to exposure to Agent Orange in service.
R. at 1037; see R. at 1025-31. In support of his claim, he submitted the following statement:
While stationed at NAS Pensacola for Naval Aviation Officer School and Navy
Pilot Training, I was exposed to [Agent Orange] at Eglin Air Force Base [(AFB)]
in the Spring of 1969. All Navy pilots are sent to Eglin Air Force Base for Land
Survivor School. We were issued a knife, map[,] and compass. We were instructed
to live off the land and avoid capture. We slept on the ground, drank water from
ponds and streams, [and] ate all the snakes, frogs, fish, birds, bugs, turtles[,] etc[.,]
that we caught. In many cases hiding from the enemy was very difficult because
vegetation was very thin or sparse in some areas.
I have done research on [Agent Orange] and found out that the Air Force has
admitted to [Agent Orange] being sprayed in Florida from 1962-1970[,] and that
included Eglin Air Force Base above.
Eglin Air Force Base is one of a few locations in the USA where [Agent Orange]
is stored and tested, but also sprayed. This procedure contaminated the water, soil,
animals[,] and personnel in the area. By the time I was there[,] seven years of
spraying [Agent Orange] had accumulated in the area due to wind, water erosion,
animal movement, etc. Now, some forty[-]plus years later, areas are still fenced
off with locked gates and signs.
R. at 1018-19. He attached a copy of a March 2009 article, headlined Air Force Admits Agent
Orange Spraying in Florida in 1962-70, published online by Veterans Today magazine. R. at
1020-24.
In October 2011, the appellant underwent an environmental agents registry examination.
R. at 284-86. The examination report reflects that he “[q]ualifie[d] for Agent Orange registry
beca[]use was exposed to Agent Orange in Eglin Island, Florida.” R. at 284. Later that month,
the appellant submitted a statement in support of his claim, reiterating that he trained at Eglin AFB
and was exposed to herbicides there. R. at 964-65. He also submitted the abstract of a scholarly
article entitled Long overlooked historical information on Agent Orange and TCDD following
massive applications of 2,4,5-T-containing herbicides, Eglin Air Force Base, Florida. R. at 967.
The record contains a February 2012 VA memorandum making a “[f]ormal finding of lack
of information required to corroborate the [appellant’s] claimed exposure to herbicides (including
Agent Orange).” R. at 710. Therein, VA determined that, because there was no evidence placing
the appellant at “test area C52A” at Eglin AFB, herbicide exposure could not be conceded. Id.
A VA regional office (RO) denied the appellant’s claim in July 2012, finding “no evidence
to show exposure to herbicides during military service.” R. at 689. He filed a Notice of
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Disagreement with that decision, R. at 654-57, and, through former counsel, requested a hearing
before a decision review officer (DRO), R. at 374-77.
At a DRO hearing in May 2017, the appellant testified regarding the survival training he
participated in at Eglin AFB, R. at 155-60, and his former counsel discussed the Veterans Today
article with the DRO, R. at 160-62. Counsel and the DRO then discussed the information
necessary to enable VA to request confirmation of the appellant’s herbicide exposure from the
Joint Services Records Research Center (JSRRC). R. at 167-73.
In a June 2017 deferred rating decision, the DRO directed that VA “send a request to
JSRRC for possible verification [of] the [appellant’s] report of Agent Ora[]nge expo[s]ure.” R. at - The DRO provided the following information: “[He] is reporting exposure to Agent Orange
while at Eglin AFB in Pensacola, FL, due to Survival Training as part of pilot training. He is
reporting exposure in March of 1969. His personnel records show that he was in the Naval
Aviation Command, Training Squadron VT 1 and VT2.” Id. The record contains a September
2017 response in the form of a screen print from the Defense Personnel Records Information
Retrieval System, which reflects the following:
We have reviewed the base history for Eglin [AFB], Florida. The history reveals
that[,] as the Southeast Asia conflict increased emphasis on conventional weapons,
the responsibilities at Eglin grew. On 1 August 1968, the Air Proving Ground
Center was redesignated the Armament Development and Test Center to centralize
responsibility for research, development, test[,] and evaluation, and initial
acquisition of nonnuclear munitions for the Air Force. There is no mention of the
storage, disposal[,] or use of Agent Orange on the base.
R. at 113. Following the issuance of a Statement of the Case confirming and continuing the denial
of his claim, R. at 53-89, the appellant perfected his appeal to the Board, R. at 44. In his
Substantive Appeal, his former counsel wrote: “The response obtained from JSRRC directly
contradicts and conflicts with historical military documents that confirm the extensive testing [] of
herbicides at Eglin [AFB].” Id. Counsel argued that the DRO erred in relying on that response to
deny the appellant’s claim. Id.
The DRO issued a deferred rating decision in March 2018, in which he directed VA to
undertake the following development:
[S]end a second request to J[S]RRC regarding exposure to Agent Orange for the
[appellant]. The initial response we received on 10-27-2017[] noted that there was
no spraying of Agent Orange at E[gl]in [AFB]. However, additional documentation
reports that the Air Development Test Center (ADTC) at Eglin Air Force Base from
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1961 to 1971 conducted testing and evaluation for technical support in Operation
Ranch Hand in Vietnam. The testing area was determined to be “Test Area C-52A,”
and noted to be set aside as a research site, following the program’s termination in
1971.
The [appellant] is claiming that[,] while he was involved in Survival Training at
Eglin Air Force base in March of 1969, [] he was near this area.
R. at 34. In an email dated the same day as the deferred rating decision, an employee at the RO in
Cleveland, Ohio, asked VA’s central office to “review [the Department of Defense’s (DoD)]
inventory of herbicide operations to determine whether herbicides were used as claimed” and
summarized the appellant’s contentions regarding survival training at Eglin AFB. R. at 32. Later
that day, the VA central office responded as follows:
Regarding [the appellant], DoD information shows that testing for Agent Orange
aircraft spraying techniques was conducted from 1962 to 1971 at Eglin [AFB] on a
two[-]square-mile area of Eglin’s nearly 1000 square miles. This testing was done
at a remote forested site called C-52A, which was not located near base personnel
and was not open to base personnel. The aircraft used for testing had their own
location and did not share the runway with other aircraft. Additionally, there was
no general use of Agent Orange on the base, only commercial herbicides. As a
result, VA does not acknowledge Agent Orange exposure based solely on service
at Eglin. For exposure to be considered, the [appellant] would need to provide
evidence of working at, or being associated with[,] the test site C-52A during the
actual testing.
Therefore, Compensation Service can provide no evidence to support the claim.
R. at 30. The VA central office directed the RO to contact the JSRRC “with the [appellant’s]
military unit, location, dates at the location, military occupation, and any other relevant facts, as
shown by [his] actual military records.” Id. The Secretary does not argue, and there is no evidence
in the record to show, that such a request was made. See R. at 28 (Mar. 2018 formal finding
recording the Mar. 2018 email from VA’s central office as the last action on the issue).
Several days later, VA placed a memorandum in the appellant’s claims file reflecting that
VA “lacks the information the . . . []JSRRC[] requires to verify herbicide exposure” at Eglin AFB.
R. at 27. The memorandum also reflects a finding that there was “[n]o evidence to support [the
appellant] being at E[gl]in AFB in March (Spring) 1969.” R. at 28.
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In the April 2019 decision on appeal, the Board denied the appellant’s claim for benefits
for Parkinson’s disease, finding that there was no evidence that he was exposed to herbicides in
service. R. at 10. This appeal followed.
II. ANALYSIS
The appellant contends that the Board provided inadequate reasons or bases for its
determination that he was not exposed to herbicides in service, Appellant’s Brief (Br.) at 16-19,
and that the Board erred in finding that VA satisfied its duty to assist him in establishing that he
was present at Eglin AFB, id. at 19-21, 24-25. He further challenges the Board’s determination
that, even if he was at Eglin AFB, he was not present in the area in which tactical herbicides were
used. Id. at 21-24. The Secretary disputes these arguments and urges the Court to affirm the Board
decision. Secretary’s Br. at 5-12.
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a
nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson
v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2020). A VA regulation
provides that, “[i]f a veteran was exposed to an herbicide agent during active military, naval, or air
service,” the later development of certain conditions—including Parkinson’s disease—will be
presumed caused by such exposure. 38 C.F.R. § 3.309(e) (2020). To benefit from this
presumption, the appellant in this case must establish actual exposure to herbicides, as he is not
among the class of veterans who are entitled to a presumption of such exposure. See 38 C.F.R.
§ 3.307(a)(6)(iii), (iv), (v) (2020) (providing a presumption of exposure to herbicides for certain
veterans who served in Vietnam and the Korean demilitarized zone, or who operated, maintained,
or served onboard C-123 aircraft known to have been used to spray herbicides during the Vietnam
era).
Whether the record establishes entitlement to benefits is a finding of fact, which the Court
reviews under the “clearly erroneous” standard of review. See Russo v. Brown, 9 Vet.App. 46, 50
(1996). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence,
“is left with the definite and firm conviction that a mistake has been committed.” United States v.
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U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
As with any material issue of fact or law, the Board must provide a statement of the reasons or
bases for its determination “adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517,
527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
The Board’s decision in this case was based on two alternative factual findings: the
appellant did not have service at Eglin AFB and, if he did, he was not exposed to herbicides there.
R. at 8-10. The Board conceded that herbicides were used at Eglin AFB, R. at 9, but found that
“[t]he [appellant’s] military personnel records do not support his report of land survivor training at
Eglin AFB in spring 1969,” R. at 8. Although the Board found the appellant’s statements regarding
the location of his service both competent and credible, it nevertheless found them “insufficient to
show that he served there.” Id. The Board explained:
The Board acknowledges that the [appellant] has been consistent in his assertion
that he served at Eglin AFB and that it is facially plausible that he may have traveled
there. These factors weigh in his favor. On the other hand, his service records
show that he completed training at another location, [NAS] Pensacola, Florida.
These records do not refer to E[gl]in AFB, provide any indication that the training
may have been split between [NAS Pensacola] and E[gl]in AFB, or that the
[appellant] was ever required to travel to E[gl]in AFB.
Id.
The Board then stated that the March 2009 Veterans Today article the appellant submitted
in September 2011 corroborated his lay statements, but found that, even if it were conceded that
he “underwent training at Eglin AFB as asserted, the preponderance of the evidence is against
finding that [he] was exposed to herbicide agents there.” R. at 9. In that regard, the Board relied
on VA’s March 2018 formal finding that the Agency lacked the information the JSRRC required
to verify the appellant’s exposure to herbicides at Eglin AFB. Id. The Board explained its reliance
on the formal finding as follows:
The formal findings make clear that Agent Orange was not used in populated areas.
As such, the formal finding counters the [appellant’s] assertion that the toxin was
sprayed into the environment, ground, or water at Eglin AFB where personnel were
located. The Board acknowledges the [appellant’s] reports that vegetation was very
thin or sparse in some areas where he trained; however, the notion that his seeing
sparse crops establishes that he was exposed to an area where Agent Orange was
used is outweighed by the findings that the toxin was used in controlled
environments accessed only by specific personnel.
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. . . .
[T]he Board finds the March 2018 formal finding report highly probative,
especially as it comes from a source that is competent to report on the nature and
substance of toxic herbicides. The report acknowledges that herbicide agents were
used during the period the [appellant] asserts he was at Eglin AFB but explains why
[he] could not have been exposed to the toxin. The report directly corresponds to
the time the [appellant] has indicated that he was exposed, specifically March 1969.
The findings are also based on research and documentation pertaining specifically
to [his] contentions and to the parameters within which herbicide agents were used
at Eglin AFB.
R. at 9-10.
The Court concludes that the Board’s determination that the appellant did not serve at Eglin
AFB is based on inadequate reasons or bases, as the appellant argues. Appellant’s Br. at 19-21,
24-25. Specifically, the Board did not address whether VA had obtained from the JSRRC or the
Navy any information addressing the question of the appellant’s presence at Eglin AFB and, if not,
whether VA had an obligation to seek that information. Nor did the Board discuss the March 2018
email from VA’s central office, which appears to indicate that further attempts to verify the
appellant’s service were required. R. at 30.
With respect to the Board’s alternative conclusion that, even if the appellant’s presence on
Eglin were conceded, he could not have been exposed to herbicides, id., the Court also finds the
Board’s reasons or bases inadequate. The Board did not explain how it definitively concluded that,
despite known spraying of tactical herbicides at Eglin, the appellant would not have come in
contact with the substance. See Appellant’s Br. at 23. Of note, the Board acknowledged the
appellant’s statements that he was “instructed to live off the land and hide from the enemy” while
training at Eglin, R. at 7, but did not explain where any such training would have taken place or
how the March 2018 VA formal finding could be construed as “explain[ing] why the [appellant]
could not have been exposed to the toxin.” R. at 10; see R. at 27-28 (“Formal finding that [VA]
lacks the information [JSRRC] requires to verify herbicide exposure.”).
Because the Board found that the appellant suffers from a condition presumptively related
to herbicide exposure; that herbicides were used at Eglin AFB during the time when he alleges to
have been present; and that his testimony as to conducting training at Eglin was competent,
credible, and supported by corroborating evidence, R. at 7-9, the Court cannot conclude that the
Board’s failure to provide adequate reasons or bases for its decision was harmless. See 38 U.S.C.
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§ 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki
v. Sanders, 556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies to the
Court’s review of Board decisions and that the burden is on the appellant to show that he or she
suffered prejudice as a result of VA error). Accordingly, remand is warranted. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate statement of
reasons or bases for its determinations, . . . a remand is the appropriate remedy.”). Given this
disposition, the Court will not now address the remaining arguments and issues raised by the
appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court will not
ordinarily consider additional allegations of error that have been rendered moot by the Court’s
opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, including the specific arguments raised here on appeal, and the Board is required
to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534
(2002) (stating that, on remand, the Board must consider additional evidence and argument in
assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73
(1999) (per curiam order). The Court reminds the Board 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), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s April 8,
2019, decision is VACATED and the matter is REMANDED for further proceedings consistent
with this decision.
DATED: July 28, 2020
Copies to:
Michael E. Wildhaber, Esq.
VA General Counsel (027)
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