Vet.App. No. 19-6669
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
HILDA I. CALLAHAN,
Appellant,
v.
ROBERT L. WILKIE, Secretary of Veterans Affairs,
Appellee.
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
WILLIAM A. HUDSON, JR. Principal Deputy General Counsel
MARY ANN FLYNN Chief Counsel
KENNETH A. WALSH Deputy Chief Counsel
LANCE STEAHLY Appellate Attorney Office of General Counsel (027J) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 632-6809
Attorneys for Appellee
TABLE OF CONTENTS
I. ISSUE PRESENTED……………………………………………………..….1
II. STATEMENT OF THE CASE…………………………………………..…..2
A. Jurisdictional Statement………………………………………………….2
B. Nature of the Case……………………………………………………….2
C. Statement of Facts………………..……………………………………...2
III. SUMMARY OF THE ARGUMENT………………………………….……...8
IV. ARGUMENT……………………………………………….…………..…...... 9
A. Standard of Review………………………………………………………9
B. The Court should affirm the Board’s September 2019 decision because Appellant has not satisfied her burden of demonstrating that the Board failed to adequately address evidence that she may have been exposed to herbicide agents during basic training at Fort McClellan, Alabama, or clearly erred in its finding that there is no credible evidence that she was exposed to an herbicide agent during basic training.……………………………………………………………11
V. CONCLUSION……………………………………….…….……..…...... 27
ii TABLE OF AUTHORITIES
Cases Barbett v. Snyder, NO. 15-1525, 2017 U.S. App. Vet. Claims LEXIS 152 (Feb. 3, 2017) ...... 17 Block v. Sec’y of Veterans Affairs, 641 F.3d 1313 (Fed. Cir. 2011) ...... 15 Burden v. Shinseki, 25 Vet.App. 178 (2012) ...... 10 Butts v. Brown, 5 Vet.App. 532 (1993) ...... 10 Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999) ...... 11 Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) ...... 13-14 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) ...... 12 Elkins v. W., 12 Vet.App. 209 (1999) ...... 10 Env't. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) ...... 10 Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994) ...... 25 Gilbert v. Derwinski, 1 Vet.App. 49 (1990) ...... 9 Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) ...... 5, 13, 15 Hersey v. Derwinski, 2 Vet.App. 91 (1992) ...... 9 Hillyard v. Derwinski, 1 Vet.App. 349 (1991) ...... 24 Johnson v. Shinseki, 26 Vet.App. 237 (2013) ...... 4, 5 Johnston v. Brown, 10 Vet.App. 80 (1997) ...... 9 Lynch v. Gober, 11 Vet.App. 22 (1997) ...... 24, 26 Munn v. Sec’y of Dep’t of Health & Human Servs. , 970 F.2d 863 (Fed. Cir. 1992) ...... 10 Percy v. Shinseki, 23 Vet.App. 37 (2009) ...... 25 Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) ...... 13 Ramsey v. Nicholson, 20 Vet.App. 16 (2006) ...... 10 Shinseki v. Sanders, 556 U.S. 396 (2009) ...... 9-10, 11 Washington v. Nicholson, 19 Vet.App. 362 (2005) ...... 18 Zang v. Brown, 8 Vet.App. 246 (1995) ...... 17
Statutes 38 U.S.C. § 1116 ...... 21 38 U.S.C. § 1116 ...... 23, 24
iii 38 U.S.C. § 1116(a)(1)(B) ...... 17, 21 38 U.S.C. § 1116(a)(3) ...... 14-15 38 U.S.C. § 1116(f) ...... 13 38 U.S.C. § 5103A(d)(2) ...... 26 38 U.S.C. § 7252(a) ...... 2, 4 38 U.S.C. § 7261(a)(3)(A) ...... 10 38 U.S.C. § 7261(a)(4) ...... 9 38 U.S.C. § 7261(b)(2) ...... 11
Regulations 38 C.F.R. § 3.159(c)(4)(i) ...... 26 38 C.F.R. § 3.303 ...... 12 38 C.F.R. § 3.303(a) ...... 17 38 U.S.C. § 3.307 ...... 14, 27 38 C.F.R. § 3.307(a) ...... 11, 14 38 U.S.C. § 3.307(a)(6) ...... 8, 16, 27 38 C.F.R. § 3.307(a)(6)(i) ...... 14, 21 38 C.F.R. § 3.307(a)(6)(iii) ...... 13, 16 38 U.S.C. § 3.309 ...... 14 38 C.F.R. § 3.309(e) ...... 14 38 C.F.R. § 20.1303 ...... 24, 25 73 Fed. Reg. 20,566 (proposed Apr. 16, 2008) ...... 13
iv RECORD CITATIONS
R. at 4-16 (September 12, 2019, Board Decision) ...... passim
R. at 21-23 (April 2019 Written Argument to Board) ...... 8
R. at 83-212 (December 2018 Submissions) ...... 7, 19, 20
R. at 218-49 (November 2018 SOC) ...... 7
R. at 251-52 (November 2018 AFPMB Response) ...... 7, 18
R. at 300-305 (November 2017 VA Treatment Record) ...... 2
R. at 508-13 (April 2017 VA Treatment Record) ...... 2
R. at 521-677 (March 2018 Submissions) ...... passim
R. at 680-98, 702 (January 2018 Rating Decision) ...... 5
R. at 703-04 (January 2018 Compensation Service Response) ...... 4, 5, 18
R. at 708 (DPRIS Response) ...... 4, 18
R. at 710-11 (JSRRC Request) ...... 4
R. at 873 (August 2017 Compensation Service Request) ...... 4
R. at 879-99 (May 2017 Submission) ...... 3, 19
R. at 907-11 (April 2017 Notice Letter)...... 3
R. at 1343-44 (January 1983 Report of Medical History) ...... 2
R. at 1345-46 (January 1983 Report of Medical Examination) ...... 2
R. at 1411-16 (Service Records) ...... 2
R. at 1465-66 (DD 214) ...... 2
R. at 1512-16 (February 2017 Application) ...... 3, 11
R. at 1544-45 (February 2017 Intent to File Claim) ...... 3
v IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
HILDA I. CALLAHAN, ) ) Appellant, ) ) v. ) Vet.App. No. 19-6669 ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs ) ) Appellee. )
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
I. ISSUES PRESENTED
Did the Board of Veterans’ Appeals (Board) correctly deny entitlement to service connection for diabetes mellitus and peripheral neuropathy of the left and right lower extremities (peripheral neuropathy) secondary to diabetes mellitus when there is no evidence of record that Appellant was exposed to herbicide agents at Fort McClellan, Alabama?
II. STATEMENT OF CASE
A. Jurisdictional Statement
The United States Court of Appeals for Veterans Claims has jurisdiction over this appeal under 38 U.S.C. § 7252(a), which grants the Court exclusive jurisdiction to review final Board decisions.
B. Nature of the Case
Appellant appeals the Board’s September 12, 2019, decision that denied entitlement to service connection for diabetes mellitus and peripheral neuropathy of the left and right lower extremities secondary to diabetes mellitus. (R. at 4-16).
C. Statement of Facts
Appellant served honorably on active duty in the United States Army from
January 1977 to January 1983, including basic combat training at Fort McClellan,
Alabama, for three months from January to March 1977. (R. at 1465-66) (DD-
214); see also (R. at 1412 (1411-16)) (Record of Assignments). At separation from service, Appellant reported that she was in good health. (R. at 1343-44); see also
(R. at 1345-46) (January 1983 Report of Medical Examination). Appellant was diagnosed with diabetes mellitus, type II, in 2011, (R. at 300 (300-305)), and although it is not clear from the record when Appellant was diagnosed with peripheral neuropathy, the record shows that it is a complication of diabetes mellitus, type II. (R. at 512 (508-13)).
2 In early February 2017, Appellant submitted an intent to file a claim for compensation with the Department of Veterans Affairs (VA). (R. at 1544-45).
Later that month, she filed a formal claim for compensation for diabetes mellitus,
type II, due to environmental contaminants at Fort McClellan, including “herbicide
agents,” and “herbicide exposure,” polychlorinated biphenyl (PCBs), chemical
warfare agents, trichloroethylene (TCE), perchloroethylene (PCE), and
“radioactive isotopes, etc.” (R. at 1514 (1512-16)). She also sought service
connection for peripheral neuropathy secondary to diabetes mellitus, type II. (R. at
1514 (1512-16)). In an April 2017 development letter, the VA Regional Office (RO)
requested details of Appellant’s alleged exposure and how her military duties
exposed her to “herbicides.” (R. at 907-08 (907-11)).
In May 2017, Appellant, through counsel, continued to assert that exposure
to toxins at Fort McClellan, including herbicide agents, caused her diabetes
mellitus, type II. (R. at 879 (879-99)). Appellant submitted a “Combined
Environmental Exposure Report” from August 2015 providing general background
information on environmental contamination in Anniston, Alabama, and Fort
McClellan. (R. at 881-97). Appellant also provided an April 2017 statement
asserting that she spent most of her time on base during basic training from
January to April 1977. (R. at 898). She reported that basic training took her all
over Fort McClellan, including the woods, the firing range, and a “chemical school
as well for chemical training,” and a facility for gas chamber training. (R. at 898).
She also reported seeing individuals spraying “certain areas on a few different
3 occasions.” Id. She stated that her diabetes mellitus, type II, diagnosed in 2011,
and her peripheral neuropathy were due to the exposure to herbicides and other chemicals while stationed at Fort McClellan. Id.
The RO requested information from the Compensation Service on the
Department of Defense’s (DoD) “inventory of herbicide operations” to determine if
“herbicides” were used or tested at Fort McClellan and if there were any “remnants” of Agent Orange in January 1977. (R. at 873); see also (R. at 710-11) (Joint
Services Records Research Center (JSRRC) requesting information relating to
Agent Orange and Company B, 1st Basic Training Battalion, Fort McClellan,
Alabama)).
A December 2017 response through the Defense Personnel Records
Information Retrieval System (DPRIS) was negative because of a lack of unit records. (R. at 708). The response suggested contacting the Armed Forces Pest
Management Board (AFPMB). Id.
In January 2018, an individual, on behalf of the VA Compensation Service reported that the DoD did not use, test, or store Agent Orange at Fort McClellan and that there was no evidence associating Agent Orange with the U.S. Army
Chemical School or Chemical-Biological-Radiological (CBR) Agency located at
Fort McClellan.1 (R. at 703-04). It also reported that Agent Orange would not have
1 The VA Compensation and Pension Service is now two separate entities: Compensation Service, and Pension and Fiduciary Service, each of which has its own Director. See Johnson v. Shinseki, 26 Vet.App. 237, 242 n. 4 (2013). For the
4 otherwise been at Fort McClellan because it was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi, to South Vietnam by merchant ships. (R. at 703). It noted that, “[a]ll evidence shows that any herbicide use that the claimant or others observed or were associated with, was the commercial variety, and not Agent Orange.” Id.
The RO denied service connection for diabetes mellitus, type II, and left and
right lower extremity peripheral neuropathy as secondary to diabetes mellitus, type
II, in a January 2018 rating decision. (R. at 694 (680-98, 702)).
Appellant filed a Notice of Disagreement with attachments in March 2018.
(R. at 671-72 (629-72)). Appellant, through counsel, argued that there is no difference between commercial herbicides and tactical herbicides and that she was therefore exposed to the same herbicide agents and contaminants found in tactical herbicides, specifically: 2,4-D; 2,4,5-T and its TCDD.2 (R. at 674). In addition to
written argument, (R. at 629-43, 673-77), counsel for Appellant resubmitted the
August 2015 Combined Environmental Exposure Report, (R. at 644-60), a
September 1968 Army Supply Bulletin, (R. at 661-64), a September 1958 “Federal
Specification,” (R. at 665-69), and a resubmission of Appellant’s April 2017 statement, (R. at 670).
sake of consistency, the Secretary will refer to Compensation Service throughout this brief, which is the entity within VA that now responds to these requests. 2 TCDD is the common name for 2,3,7,8-tetrachlorodibenzo-para-dioxin, or simply, “dioxin.” Haas v. Peake, 525 F.3d 1168, 1171 (Fed. Cir. 2008).
5 Appellant submitted a second NOD with additional argument and additional evidence in March 2018. (R. at 521-643). Appellant, through counsel, argued that,
“this claim is based, in part, on exposure to ‘herbicide agents’ as expressly defined in VA’s regulation” and that that the commercial herbicides used at Fort McClellan were no different than the herbicide agents in tactical herbicides. (R. at 630, 638).
Notably included among March 2018 submissions is a report titled, “The
History of the U.S. Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides,” by Alvin Young, Ph.D. (593-627)). Dr. Young discussed the difference between tactical herbicides and commercial herbicides, and he commented that there is “significant confusion” between commercial herbicides used by the Department of Defense (DoD) and “tactical herbicides” used by the DoD in the past. (R. at 593, 596)
The other March 2018 submissions include: a September 1960 “Federal
Specification,” (R. at 522-27); a largely illegible November 1996 document that may pertain to environmental contamination in Anniston, Alabama, from a
Monsanto plant, (R. at 528-34); various documents relevant to commercial herbicides such as “Ded-Weed,” (R. at 536-38, 566-67); an undated excerpt from an environmental consultant, (R. at 539-40); notes from interviews of former civilian Fort McClellan employees, (R. at 541-42, 568); a June 1994 environmental assessment of Fort McClellan, (R. at 544-48); another report by Alvin L. Young,
Ph.D., on the use of herbicides in South Vietnam from 1961-71, (R. at 549-64); a journal article examining hypertension risk in Army Chemical Corps (ACC)
6 veterans who sprayed defoliant in Vietnam, (R. at 569-76); multiple documents
circa 1977 pertaining to the storage of drums of tactical herbicide Agent Blue
stored at Davis-Monthan Air Force Base, Arizona, (R. at 577-86); and an undated letter from Alvin L. Young, Ph.D. pertaining to the aerial spraying of tactical herbicides in Southeast Asia between January 1962 and December 1967, (R. at
588-92).
In October 2018, the Armed Forces Pest Management Board (AFPMB) reported that the DoD performed thorough searches of its records and the records of other Federal agencies for information on Agent Orange. (R. at 252). It noted that none of the extensive records show that Agent Orange and other tactical herbicides were ever used, tested, disposed of, transported through, or stored at
Fort McClellan. (R. at 251-52).
The RO issued a November 2018 Statement of the Case (SOC) that continued the denial of service connection for diabetes mellitus, type II, and bilateral lower extremity peripheral neuropathy. (R. at 243 (218-49)). Appellant perfected her appeal in December 2018. (R. at 205-12) (83-212). With her substantive appeal , Appellant submitted a report by Hannah Mathers, Ph.D., (R. at
83-98), and her curriculum vitae (R. at 98-204). In summary, Dr. Mathers argued that, in the abstract, those living or serving at Fort McClellan were exposed to herbicides and that there is no difference between commercial herbicides and tactical herbicides because they both contain : 2,4-D; 2,4,5-T and its contaminant
TCDD; cacodylic acid; and picloram. See, e.g. (R. at 92, 94) (“[T]hose serving
7 and/or living at [Fort McClellan] between 1974-76 were exposed to the herbicide agents discussed herein—the same ones used in Vietnam.”).
In April 2019, Appellant, through counsel, submitted argument to the Board stating that the fundamental question is, “whether herbicide agents were ever used on [Fort McClellan].” (R. at 21 (21-23)).
In September 2019, the Board denied entitlement to service connection for diabetes mellitus and secondary service connection for peripheral neuropathy of the left and right lower extremities. (R. at 4-16). The Board determined that the herbicides used at Fort McClellan, Alabama were commercial herbicides and that the evidence of record did not support Appellant’s contention that exposure to herbicide agents during basic combat training at Fort McClellan, Alabama, caused or aggravated her conditions. This appeal followed.
III. SUMMARY OF THE ARGUMENT
The Court should affirm the Board’s September 2019 decision that denied entitlement to service connection for diabetes mellitus and secondary service connection for peripheral neuropathy of the left and right lower extremities. There may have been broad use of commercial herbicides at Fort McClellan and
Appellant may have experienced some level of exposure to commercial herbicides, but this does not mean that she is entitled to presumptive service connection under
38 C.F.R. § 3.307(a)(6). Presumptive service connection under section
3.307(a)(6) is based on exposure to certain specified “herbicide agents” and not based on exposure to herbicides generally; the use of and exposure to herbicides
8 does not equate to the use of or exposure to “herbicide agents,” as that term is defined in the regulation. Even if herbicide agents were applied at Fort McClellan either before or after Appellant’s basic training, which the Secretary does not concede, it does not necessarily follow that she was exposed to those herbicide agents, and there is no evidence that she would have or did come into contact with those herbicide agents.
IV. ARGUMENT
A. Standard of Review
The Board's determination of service connection is a question of fact that
the Court reviews under the deferential clearly erroneous standard. 38 U.S.C.
§ 7261(a)(4); Johnston v. Brown, 10 Vet.App. 80, 84 (1997). The Board’s
findings of material fact adverse to the claimant are also subject to the clearly
erroneous standard of review. 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1
Vet.App. 49, 52 (1991). “A factual finding ‘is “clearly erroneous” when . . . the
reviewing court . . . is left with the definite and firm conviction that a mistake has
been committed.’” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Unless the Court finds
that Appellant has demonstrated that the Board had no plausible basis for that
decision, or otherwise identified clear and prejudicial error in the Board’s
decision, it should affirm the decision on appeal. See Shinseki v. Sanders, 556
U.S. 396, 409-10 (2009) (explaining an appellant must not only demonstrate
error in a Board decision but must demonstrate the harmful and prejudicial effect
9 of that error).
The Court reviews the Board's ultimate determination that a VA medical
opinion is not warranted, for whether it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See 38 U.S.C.
§ 7261(a)(3)(A); McLendon v. Nicholson, 20 Vet.App. 20 Vet.App. 79, 81, 83
(2006). Under the “arbitrary and capricious” standard of review, which is “highly
deferential,” the Board’s decision is presumptively valid and will be affirmed “if a
rational basis for [its] decision is presented.” Envtl. Def. Fund v. Costle, 657 F.2d
275, 283 (D.C. Cir. 1981) (internal citations omitted); see also Butts v. Brown, 5
Vet.App. 532, 539 (1993).
This Court has acknowledged that the line between the clearly erroneous and arbitrary and capricious standards of review can be “blurred.” Burden v.
Shinseki, 25 Vet.App. 178, 187 (2012); see also Munn v. Sec’y of Dept. of Health and Human Servs., 970 F.2d 863, 871 (Fed. Cir. 1992) (noting that the difference
between the “arbitrary and capricious” standard versus the “clearly erroneous”
standard “is a matter for academic debate”). Still, the Court has held that both
standards are deferential. Elkins v. West, 12 Vet.App. 209, 217-18 (1999).
10 B. The Court should affirm the Board’s September 2019 decision because Appellant has not satisfied her burden of demonstrating that the Board failed to adequately address evidence that she may have been exposed to herbicide agents during basic training at Fort McClellan, Alabama, or clearly erred in its finding that there is no credible evidence that she was exposed to an herbicide agent during basic training.
The Court should affirm the Board’s September 2019 decision that denied
entitlement to service connection for diabetes mellitus and secondary service
connection for peripheral neuropathy of the left and right lower extremities because
Appellant fails to show that she was exposed to herbicide agents as that term is
defined in 38 C.F.R. § 3.307(a). Merely being present at Fort McClellan is not
sufficient evidence of exposure to an herbicide agent. In this Court, Appellant
bears the burden of first demonstrating the existence of an error, and generally,
resulting prejudice. 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396,
409 (2009). Here, she fails to carry that burden and the Court should affirm the
Board’s September 2019 decision that denied entitlement to service connection for
diabetes mellitus and secondary service connection for peripheral neuropathy of
the left and right lower extremities. The evidence does not support her contention
that she is entitled to service connection for diabetes mellitus because of actual
exposure to herbicide agents during her three months of basic training at Fort
McClellan, Alabama.3 Appellant appears to impute a presumption of exposure to
3 Appellant argues that her service connection claim, “rests on her assertion that that she was exposed to qualifying herbicides” and so she does not present any argument regarding exposure to PCBS, chemical warfare agents, TCE, PCE, and “radioactive isotopes, etc.,” as alleged in her February 2017 service claim, (R. at
11 herbicide agents for veterans stationed at Fort McClellan, but there is no
presumption of exposure to herbicide agents that arises from being generally in a
location where herbicides were used or stored.
This case hinges on the distinction between tactical herbicides and
commercial herbicides and there is no presumptive service connection due to
exposure to commercial herbicides, even if both contain 2,4- and 2,4,5-T. AB at
17. Tactical herbicides were developed by the U.S. Department of Defense
specifically to be used in combat operations and they contain “herbicide agents,”
exposure to which is presumed based on service on the landmass, inland
waterways, and territorial waters of Vietnam. Non-tactical, commercial grade
herbicides were purchased from chemical companies and do not contain
“herbicide agents” and the presumption of exposure does not apply to them.
Establishing service connection generally requires medical or, in certain
circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury; and (3) a link between the claimed in-service
disease or injury and the present disability. 38 C.F.R. § 3.303; Davidson v.
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Veterans seeking disability
compensation based on in-service exposure to certain herbicide agents may be
able to establish the second and third elements because of certain presumptions.
1514), and thus has abandoned any such argument or issues. AB at 16; See Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999).
12 Regarding the second element, VA has provided by regulation that veterans serving during active military, naval, or air service in the Republic of Vietnam from
January 9, 1962, to May 7, 1975, are presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.
§ 1116(f), 38 C.F.R. § 3.307(a)(6)(iii); To receive the regulatory presumption of exposure to an herbicide agent, the service member must have been present during the Vietnam era on the landmass, on the inland waters, or within the 12- nautical-mile territorial sea of the Republic of Vietnam. See Procopio v. Wilkie,
913 F.3d 1371, 1380-81 (Fed. Cir. 2019); see also Haas, 525 F.3d at 1168 (Fed.
Cir. 2008). This presumption serves to satisfy the second of the three service connection elements. See Definition of Service in the Republic of Vietnam, 73
Fed. Reg. 20,566, 20,568–69 (proposed Apr. 16, 2008) (“[T]he purpose of the presumption of exposure was to provide a remedy for persons who may have been exposed to herbicides because they were stationed in areas where herbicides were used, but whose exposure could not actually be documented due to inadequate records concerning the movement of ground troops.”).
Veterans who are not entitled to that presumption who seek service connection for disability due to herbicide agent exposure must provide evidence of actual exposure. See Haas, 525 F.3d at 1197 (holding that, even though the veteran did not serve in Vietnam, he remains “free to pursue his claim that he was actually exposed to herbicides while” on active service), overruled on other grounds, Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc); Combee v.
13 Brown, 34 F.3d 1039 (Fed. Cir. 1994) (unavailability of a presumption does not foreclose service connection on a direct basis). At most, Appellant may only show
exposure to the commercial herbicides that were routinely applied at DoD
installations worldwide.
Veterans who were exposed to an herbicide agent during active military,
naval, or air service are entitled to a second presumption which satisfies the third
element required for service connection. For veterans who successfully
established the presumption of exposure to an herbicide agent and who seek
benefits for type 2 diabetes mellitus, VA will also grant a presumption of nexus to
service “even though there is no [contemporaneous] record of such disease during
service.” See 38 C.F.R. § 3.309(e) (specifying certain diseases for which a nexus
to service will also be presumed in the event the presumption of exposure is
successfully applied). Therefore, regulatory section 3.307 provides in relevant part
that “a disease associated with exposure to certain herbicide agents” and listed in
section 3.309 will be considered to have been incurred in or aggravated by service
despite the lack of evidence of such disease within the period of service. 38 C.F.R.
§ 3.307(a).
The regulation defines “‘herbicide agent” to exclusively mean “a chemical in
a herbicide used in support of the United States and allied military operations in the
Republic of Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD;
cacodylic acid; and picloram.” 38 C.F.R. § 3.307(a)(6)(i) (2016); see also 38 U.S.C.
14 § 1116(a)(3) (defining an herbicide agent as a “chemical in an herbicide used in support of the United States and allied military operations in the Republic of
Vietnam during the period beginning on January 9, 1962, and ending on May 7,
1975”). The term “Agent Orange” refers to a tactical herbicide widely used during the Vietnam War. Block v. Sec’y of Veterans Affairs, 641 F.3d 1313, 1314 (Fed.
Cir. 2011). Agent Orange contained the chemicals 2,4-D and 2,4,5-T, and trace amounts of dioxin and the military phased out its use in Vietnam by 1971. Haas,
525 F.3d at 1171. The regulation therefore makes clear that it is not exposure to herbicides generally that triggers the presumption of service connection, but exposure to specific chemicals used in tactical herbicides, such as in Agent
Orange and the other so-called rainbow herbicides.
On the other hand, an herbicide is simply any substance that is toxic to
plants and used to manipulate or control unwanted vegetation.4 Commercial herbicides have used 2,4-D since the 1940s, although 2,4,5-T is no longer used.5
As the United States Environmental Protection Agency stated, “2,4-D is not Agent
Orange. Agent Orange was a mixture of two different herbicides: 2,4,5-T and 2,4-
D (as well as kerosene and diesel fuel).” Id. Thus, there is a distinction between tactical herbicides containing herbicide agents, which were used in combat operations, and commercial herbicides, which were and continue to be routinely
4 https://www.epa.gov/caddis-vol2/caddis-volume-2-sources-stressors- responses-herbicides (last visited August 29, 2020). 5 https://www.epa.gov/ingredients-used-pesticide-products/24-d (last visited August 29, 2020).
15 used by the military on military installations worldwide.6 While herbicides,
regardless of their active chemical ingredients, may be poisonous or toxic as Dr.
Mather argues, it does not mean that they contain herbicide agents as that term is
defined by regulation and as is required to establish entitlement to presumptive
service connection. There may have been broad use of commercial herbicides at
Fort McClellan and Appellant may have experienced some level of exposure to
commercial herbicides, but this does not mean that she is entitled to presumptive
service connection under § 3.307(a)(6). Presumptive service connection under
section 3.307(a)(6) is based on exposure to certain specified “herbicide agents”
and not based on exposure to herbicides generally; the use of and exposure to
herbicides does not equate to the use of or exposure to “herbicide agents,” as that
term is defined in the regulation. AB at 19.
Congress has chosen to extend a presumption of herbicide agent exposure
to certain Veterans—for example, those who served in the Republic of Vietnam
during the Vietnam era—which serves to relieve those Veterans of presenting
evidence of actual exposure. 38 C.F.R. § 3.307(a)(6)(iii). Yet Congress has not
passed any legislation recognizing a presumption of exposure at Fort McClellan to
Agent Orange or herbicidal agents 2,4-D; 2,4,5-T and its contaminant TCDD;
cacodylic acid; and picloram. (R. at 9). In the absence of a presumption of
exposure to herbicide agents, evidence of actual exposure to herbicide agents
6See, e.g. Armed Forces Pest Management Board https://www.acq.osd.mil/eie/afpmb/afpmb.html
16 during service is required. See 38 U.S.C. § 1116(a)(1)(B); 38 C.F.R. §§ 3.303(a)
(2016), 3.307(a)(6)(i), (ii). Therefore, the Board did not impose on Appellant an extra requirement or an extra criterion by demanding that she show actual exposure to herbicide agents and not mere exposure to commercial herbicides--the two of which are not the same, as discussed below. AB at 19.
The crux of Appellant’s argument appears to be that merely being present at Fort McClellan is sufficient evidence of exposure to an herbicide agent. This argument is tantamount to imputing a presumption of exposure to herbicide agents for veterans stationed at Fort McClellan. See Barbett v. Snyder, No. 15-1525, 2017
U.S. App. Vet. Claims LEXIS 152, at *8-9 (Vet.App. Feb. 3, 2017).7 Appellant’s argument would lead to an absurd result. If Appellant’s logic is logically extended, any service member serving at any military installation where commercial herbicides containing 2,4-D and 2,4,5-T were used, could be eligible for presumptive service connection. See Zang v. Brown, 8 Vet.App. 246, 252-53
(1995) (recognizing the affirmative duty to avoid a literal interpretation of regulatory
language that would produce “an illogical and absurd result.”).
In this case, the Board made two findings pertinent to the issue of whether
Appellant was exposed to an herbicide agent during service. First, the Board found
7 Pursuant to R. 30(a), the Secretary cites to this nonprecedential Memorandum Decision by the United States Court of Appeals for Veterans Clams for the persuasive value of its logic and reasoning where the Court declined to impute a presumption of exposure to herbicide agents to Veterans stationed at Fort McClellan.
17 that Appellant was not entitled to the presumption of herbicide exposure because she did not serve in the Republic of Vietnam. (R. at 8). Second, the Board found that Appellant had not provided probative evidence of actual exposure to herbicide agents during basic training at Fort McClellan. (R. at 8-12). Instead, the Board found that the herbicides used at Fort McClellan were commercial herbicides and not herbicide agents, and that Appellant had not provided probative evidence of actual exposure. (R. at 12). The Board adequately explained this assessment, and its determination, as discussed below, is plausibly based on the very evidence
Appellant submitted to the Agency and on the records obtained by the Agency that show tactical herbicides containing herbicide agents were not used, stored, or tested at Fort McClellan. AB at 17; see (R. at 708) (DPRIS response); (R. at 703)
(January 2018 Compensation and Pension response); (R. at 251-52) (October
2018 AFPMB response); and (R. at 593-627) (Report by Alvin L. Young, Ph.D., submitted by Appellant). The Board did not err by relying on these documents when it determined that the preponderance of the evidence shows that commercial herbicides were used at Fort McClellan and that Appellant was not exposed to herbicide agents. (R. at 9, 13). See Washington v. Nicholson, 19 Vet.App. 362,
367-68 (2005) (explaining that it is the Board's duty, as factfinder, to determine the credibility and weight to be given to the evidence).
Because there is no such presumption, the Board was required to review the evidence of record and determine whether Appellant was actually exposed to herbicides in service. To do so, the Board looked for credible evidence of actual
18 exposure to tactile herbicides. Appellant has not described applying herbicides, contacting containers of herbicides or equipment used to apply herbicides, or descriptions of using herbicides herself or seeing herbicides used. See (R. at 898)
At most, there is a generic statement that Appellant, “remembers seeing individuals spraying certain areas on a few different occasions.” (R. at 898) (April
2017 statement). The Board acknowledged the May 2017 submissions through
Appellant’s counsel of written argument broadly asserting that the military tested herbicide agents from at least the 1950s. (R. at 8); See (R. at 888 (879-99)). The
Board also discussed the August 2015 Combined Environmental Exposure Report showing soil contamination at Fort McClellan, (R. at 881-97), and the account from the retired forester, (R. at 541), but, as the Board observed, these documents did not show that Appellant was exposed to herbicide agents or even commercial herbicides. (R. at 8). The Board stated, that, “there is no information in this account indicating that the Veteran was so exposed, nor[,] if so[,] the location, amount, timing, or any circumstances of such exposure.” (R. at 8). Although the
Board was referring specifically to Appellant’s May 2017 submissions, (R. at 879-
99), its statement is broadly applicable to the March 2018 submissions, (R. ta 521-
627), and December 2018 submissions, (R. at 83-212).
To support her argument, Appellant relies on a report prepared by Hannah
Mathers, Ph.D., titled “Likelihood of exposure to herbicide agents used in the
Vietnam War by the Veterans who served on Fort McClellan (FTMC) in Anniston,
Alabama.” AB at 17-20; (R. at 83-98). In summary, Dr. Mathers argued that, in
19 the abstract, those living or serving at Fort McClellan were exposed to herbicide agents because commercial herbicides and tactical herbicide contain similar chemicals, namely, 2,4-D and 2,4,5-T, and the health and well-being of those serving and living at Fort McClellan was jeopardized because those herbicides were applied well-beyond the manufacturer’s specifications. See, e.g. (R. at 89,
92, 93-94) (“[T]hose serving and/or living at [Fort McClellan] between 1974-76 were exposed to the herbicide agents discussed herein—the same ones used in
Vietnam.”). Noticeably absent from Dr. Mather’s report is any analysis or report on the environmental disposition of the herbicides containing 2,4,5-T after they supposedly entered the soil at Fort McClellan and the amount of remaining dioxin.
In sum, Dr. Mathers argued that there is no difference between off-the-shelf commercial herbicides used at Fort McClellan and tactical herbicides used in
Vietnam and that massive amounts of those herbicides were applied at Fort
McClellan such that the well-being of those living and serving there was jeopardized. She argued that, “[i]f it is presumed that those with service in Vietnam were exposed to herbicide agents, then the evidence supports that the same concession should be afforded those who served at [Fort McClellan].” (R. at 94).
And that is essentially what Appellant argues in her brief, but as the Board correctly noted, Congress has not passed any legislation recognizing a presumption of exposure at Fort McClellan to herbicidal agents 2,4-D; 2,4,5-T and its contaminant
TCDD; cacodylic acid; and picloram. (R. at 9). In the absence of a presumption of exposure to herbicide agents, evidence of actual exposure to herbicide agents
20 during service is required, but VA does not recognize Fort McClellan as an exposure site, there is no documentation from the JSRRC, and there was no reason for tactical herbicides to be on base because Fort McClellan was not on the Agent
Orange shipping lane. (R. at 9-10); see 38 U.S.C. § 1116(a)(1)(B); 38 C.F.R. §
3.307(a)(6)(i), (ii).
Contrary to Appellant’s assertion, the Board adequately discussed Dr.
Mathers’s opinion and acknowledged her finding that the soil at Fort McClellan was
contaminated, but it determined that the preponderance of the evidence shows
that the herbicides used there were commercial herbicides and not herbicide
agents. AB at 17, 19; (R. at 9). It noted that the Department of Defense developed
herbicide agents for use in Vietnam for combat operations. Id. The tactical
herbicides were simply not commercial grade herbicides—like the sort used at Fort
McClellan—and purchased off-the-shelf from chemical companies. Id. For sake
of argument, even if herbicide agents were applied at Fort McClellan either before
or after Appellant’s basic training, which the Secretary does not concede, it does
not necessarily follow that she was exposed to those herbicide agents, and there
is no evidence that she would have or did come into contact with those herbicide
agents. Section 1116 and regulation 3.307(a)(6) entitle a veteran to presumptive
service based on exposure to certain specified “herbicide agents” and not based
on exposure to herbicides generally and therefore does not support Dr. Mathers’s
opinion that commercial herbicides used on military installations and herbicide
21 agents developed by the DoD for use in tactical herbicides denude jungle canopy are same. AB at 19.
Other evidence discussed by the Board goes against Dr. Mathers’s opinion,
Appellant’s argument of actual exposure, and her assertion that herbicide agents were present at Fort McClellan. The Board discussed the VA Public Health section’s recognition that veterans may have been exposed to herbicide agents at
numerous locations inside the United States. (R. at 9). VA acknowledged that
herbicide agents used in Vietnam were tested or stored at some military bases in
eleven states in the continental United States—but Alabama and Fort McClellan
are not included on that list.8 (R. at 9). The Board also discussed VA’s acknowledgment that members of the Women’s Army Corps may have been exposed, likely at low levels, during service at Ft. McClellan to the radioactive compounds cesium-137 and cobalt-60, mustard gas and nerve agents, and airborne polychlorinated biphenyls (PCBS) from a Monsanto plant in Anniston,
Alabama. (R. at 10). While Appellant complains that the residuals for commercial herbicides linger in the soil, the Public Health section determined that there was no evidence of exposure at levels capable of producing adverse health effects and that there are no conditions currently associated with service at Fort McClellan and
8 https://www.publichealth.va.gov/exposures/agentorange/locations/tests- storage/usa.asp (last visited August 20, 2020).
22 that VA does not presume that any adverse health conditions are associated with service there.9 AB at 20-22; (R. at 10).
Appellant’s own March 2018 submission provides evidence against
Appellant’s argument that she was exposed to herbicide agents at Fort McClellan.
In a report titled, “The History of the U.S. Department of Defense Programs for the
Testing, Evaluation, and Storage of Tactical Herbicides,” Alvin Young, Ph.D. discusses the difference between tactical herbicides and commercial herbicides.
(R. at 600-03 (593-627)). The report that there is “significant confusion” between commercial herbicides used by the Department of Defense (DoD) and “tactical herbicides” used by the DoD in the past. R. at 593, 596. Dr. Young wrote that,
“[t]he belief that commercially available herbicides were simply purchased from the chemical companies and deployed directly to Vietnam is incorrect and contrary to historical records.” Id. He explained that DoD developed, tested, evaluated, and
deployed tactical herbicides to be used in “combat operations.” R. at 596, 600.
The report noted that the first tactical herbicides selected for evaluation in Vietnam
were not commercially available, and met “military specifications” for the
formulation, packaging, labeling of drums, and shipping. (R. at 601). The report
also listed 40 locations outside of Vietnam where tactical herbicides were tested,
evaluated, stored, used, and disposed of from 1943 to March 1977—Fort
McClellan is not one of those sites. (R. at 596).
9 https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp (last visited August 20, 2020).
23 Dr. Young juxtaposed the development of tactical herbicides by the U.S.
Army and U.S. Air Force with the establishment in 1956 of the Armed Forces Pest
Control Board (AFPCB), later the Armed Forces Pest Management Board
(AFPMD). R. at 603-05. This organization provided oversight of the DoD’s pest management programs military installations, which at that time numbered 600 plus worldwide, and any use of herbicides must have met the United States Department of Agriculture’s regulatory requirements, and all the requirements of FIFRA. (R. at
603, 605) (referencing DoD Directives 5154.12 and 4150.7). All herbicides used on military installations domestically were commercially available and approved by the AFPCB. (R. at 605). The AFPCB selected and approved the herbicide used on every DoD military installation and the application was done an applicator certified and trained by the AFPCB. Id. The Tactical herbicides were solely the responsibility of the
Defense Supply Agency. (R. at 604).
Appellant’s reliance on the Board decision in another case involving another
Veteran is also misplaced. AB at 26. Board decisions are non-precedential, and
the Court has long recognized this concept. Lynch v. Gober, 11 Vet.App. 22, 27
(1997) (vacated on other grounds); Hillyard v. Derwinski, 1 Vet.App. 349, 359
(1991). The Board’s own Rules of Practice recognize the “nonprecedential nature”
of its decisions. 38 C.F.R. § 20.1303. In its entirety, that Rule provides:
Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on
24 the basis of the individual facts of the case in light of applicable procedure and substantive law.
38 C.F.R. § 20.1303 (emphasis added).
Although the Rule permits the Board to “consider” other Board decisions when adjudicating a particular case, the choice to do so is entirely within the
Board’s discretion, as indicated by use of the word “may.” Percy v. Shinseki, 23
Vet.App. 37, 44 (2009) (“The word ‘may’ clearly connotes discretion.”) (citing
Fogerty v. Fantasy Inc., 510 U.S. 517, 533, 114 S. Ct. 1023, 127 L.Ed.2d 455
(1994)). The Board’s discussion of the other decisions shows that they do not reasonably relate to the case at hand. In one case, the Board found that a Veteran, a chemical equipment repairman, was exposed to herbicide agents when repairing combat equipment that returned uncleaned from Vietnam. (R. at 11). In another case, the Board found the veteran was exposed to herbicide agents during a training exercise involving a mock-up village in Vietnam. Id. In other cases, the
Board granted service connection based on blood samples showing exposure to dioxin or that a veteran’s duties required him to clean old chemical training areas.
Id. As the Board noted here, Appellant has not made similar allegations of exposure and these other cases do not show that herbicide agents were present at Fort McClellan. AB at 26.
Regardless, the Board’s decision to award benefits to another Veteran in another case, even presuming the prior case “reasonably relates” to Appellant’s case, does not provide evidence of any established policy, and is not pertinent
25 here. In Lynch, an appellant argued that the Board “deviated from a clear pattern of BVA decisions” recognizing and applying a constructive notice doctrine, and that such a deviation was arbitrary and capricious. 11 Vet.App. at 27. The Court rejected that argument, finding that it was “but another way of trying to import
precedential value to nonprecedential BVA decisions . . . .” Id. Appellant’s reliance
here on a prior Board decision is nothing more than an attempt to demonstrate that
the Board deviated from an established practice. The Court rejected such an
attempt in Lynch and should reject that attempt here.
Finally, the Board determined that VA was not obligated to provide an
examination because the evidence did not show that Appellant was exposed to
herbicide agents and that Appellant had not alleged any other theory of service
connection beyond herbicide agent exposure. (R. at 12). This Court has held that
VA must provide a medical examination in disability compensation claim cases
when there is (1) competent evidence of a current disability or persistent or
recurrent symptoms of a disability; (2) evidence establishing that an event, injury,
or disease occurred in service or establishing certain diseases manifesting during
an applicable presumptive period for which the veteran qualifies; (3) an indication
that the disability or persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another service-connected disability;
and (4) insufficient competent evidence on file for the Secretary to make a decision
on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (U.S. 2006); see 38
U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).
26 Appellant argues that the Board erred in its determination because she satisfies the McClendon elements, in part, because she was exposed to “harmful herbicides” while stationed for three months at Fort McClellan. AB ta 28. The argument is tantamount to a house of cards because the argument that the commercial herbicides used at Fort McClellan are the same sort of “harmful herbicides” as herbicide agents used in tactical herbicides is not supported by the preponderance of the evidence or the historical record. As the Board determined,
VA was not required to provide an examination because Appellant failed to satisfy the second and third elements because she was not exposed to herbicide agents and she has only asserted that her conditions are due to herbicide agent exposure.
(R. at 12).
Regardless of any assumed or conceded exposure to herbicides generally, because the application of the presumptive provisions of section 3.307(a)(6) is conditioned on exposure to “herbicide agents”—and not simply exposure to herbicides or other poisonous or toxic chemical substances not listed in paragraph
(i)—the Board’s explicit determination that Appellant was not exposed to “herbicide agents” indisputably prohibits the grant of service connection under section 3.307.
V. CONCLUSION
Wherefore, for the foregoing reasons, Appellee, the Secretary of Veterans
Affairs, respectfully submits that the Court should affirm the Board’s September
2019 decision that denied entitlement to service connection for diabetes mellitus
27 and secondary service connection for peripheral neuropathy of the left and right lower extremities.
Respectfully submitted,
WILLIAM A. HUDSON, JR. Principal Deputy General Counsel
MARY ANN FLYNN Chief Counsel
/s/ Kenneth A. Walsh KENNETH A. WALSH Deputy Chief Counsel
/s/ Lance Steahly LANCE STEAHLY Appellate Attorney Office of General Counsel (027J) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420 [email protected] (202) 632-6809
Counsel for the Secretary of Veterans Affairs
28