Vet. App. No. 20-1424 ______
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS ______
MARY STANLEY,
Appellant,
v.
DENIS MCDONOUGH, Secretary of Veterans Affairs,
Appellee. ______
ON APPEAL FROM THE BOARD OF VETERANS' APPEALS ______
BRIEF OF APPELLEE SECRETARY OF VETERANS AFFAIRS ______
RICHARD A. SAUBER General Counsel
MARY ANN FLYNN Chief Counsel
DUSTIN P. ELIAS Deputy Chief Counsel
AUDREY L. LOZUK-LAWLESS Appellate Attorney U.S. Department of Veterans Affairs Office of General Counsel (027E) 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 632-6789
Attorneys for Appellee ______TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... 1
I. ISSUE PRESENTED ...... 1
II. STATEMENT OF THE CASE ...... 1
A. Jurisdictional Statement ...... 1
B. Nature of the Case ...... 1
C. Statement of Facts and Procedural History ...... 2
III. SUMMARY OF THE ARGUMENT ...... 5
IV. ARGUMENT ...... 6
V. CONCLUSION ...... 16
TABLE OF AUTHORITIES
CASES
Burger v. Brown, 5 Vet.App. 340 (1993)…………………………………………….14 Chudy v. O’Rourke, 30 Vet.App. 34 (2018)………………………………………….15 Fisher v. West, 11 Vet.App. 121 (1998)………………………………………………11 Gilbert v. Derwinski, 1 Vet. App. 49 (1990)………………………….……………7, 16 Hersey v. Derwinski, 2 Vet.App. 91 (1992)…………………………………………..7 Hilkert v. West, 12 Vet.App. 145 (1999) …………………………………………....16 Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019)……...……………………..…12 Rogozinski v. Derwinski, 1 Vet.App. 19 (1990)………….…………………………12 Shinseki v. Sanders, 556 U.S. 396 (2009)……………….…………………………16 United States v. United States Gypsum Co., 333 U.S. 364 (1948)………………..7 Vargas-Gonzalez v. West, 12 Vet.App. 321 (1999)…………………………………7
FEDERAL STATUTES
38 U.S.C. § 101 ...... 7, 11 38 U.S.C. § 1116 ...... 12 38 U.S.C. § 1521 ...... 6, 7 38 U.S.C. § 1541 ...... 7 38 U.S.C. § 5103 ...... 9 38 U.S.C. § 7261 ...... 7 38 U.S.C. § 7252 ...... 1, 12
FEDERAL REGULATIONS
38 C.F.R. § 3.2 ...... 11 38 C.F.R. § 3.3 ...... 7
RECORD CITATIONS
R. at 1-12 (January 2020 Board decision) ...... passim R. at 22-33 (October 2019 Supplemental Statement of the Case) ...... 5 R. at 34 (DPRIS response) ...... passim R. at 35-36 (August and September 2019 DPRIS request) ...... 4, 8 R. at 41-46 (April 2018 Board decision) ...... 4, 8 R. at 60-77 (April 2017 Appellant submission) ...... passim R. at 78-96 (March 2017 Board transcript) ...... 4 R. at 115-19 (September 2015 Board decision) ...... 4 R. at 251-88 (Veteran’s Naval Reserve documents) ...... 2
ii R. at 389-95 (March 2013 VA Form 9) ...... 4 R. at 399-431 (February 2013 Statement of the Case) ...... 3, 4 R. at 452 (February 2011 Request for Information) ...... 3, 8 R. at 458 (February 2011 Request for Information) ...... 3, 8 R. at 471-93 (November 2009 VA Form 21-534) ...... 2, 3, 10 R. at 499-500 (September 2010 Letter from the Veteran) ...... 10 R. at 522-23 (May 2010 Notice of Disagreement) ...... 3 R. at 527-29 (April 2010 rating decision) ...... 3 R. at 534 (March 2010 Request for Information) ...... 2, 8 R. at 588-99 (March 2010 VCAA letter) ...... 2 R. at 600-11 (March 2010 VCAA letter) ...... 2 R. at 737-50 (February 2010 claim) ...... 2 R. at 789 (March 1998 application for marriage license) ...... 2 R. at 818 (April 1998 rating decision) ...... 2 R. at 828-33 (March 1998 application for compensation or pension) ...... 2
iii IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS MARY STANLEY, ) Appellant, ) ) v. ) Vet. App. No. 20-1424 ) DENIS MCDONOUGH, ) Secretary of Veterans Affairs, ) Appellee. ) ______
ON APPEAL FROM THE BOARD OF VETERANS' APPEALS ______
BRIEF OF APPELLEE SECRETARY OF VETERANS AFFAIRS ______I. ISSUE PRESENTED Whether the Court should affirm the January 28, 2020, Board of Veterans’ Appeals (Board) decision which denied entitlement to nonservice-connected disability pension benefits, where the Board’s decision is plausible and not clearly erroneous.
II. STATEMENT OF THE CASE
A. Jurisdictional Statement
The Court has proper jurisdiction pursuant to 38 U.S.C. § 7252(a), which
grants the Court exclusive jurisdiction to review final decisions of the Board.
B. Nature of the Case
Mary Stanley, hereafter “Appellant,” appeals the January 28, 2020, Board decision that denied nonservice-connected disability pension benefits from her late husband, Phillip E. Stanley, hereafter “the Veteran.” (Record (R.) at 1-12). C. Statement of Facts and Procedural History
The Veteran served on active duty in the United States Navy from
September 1961 to September 1963, and in active duty for training (ACDUTRA)
and inactive duty for training (INACDUTRA) with the Navy Reserves. (R. at 251-
88, 492).
In March 1998, the Veteran filed an Application for Compensation or
Pension for a nonservice-connected pension, noting active duty service from
September 11, 1961, through September 7, 1963. (R. at 828, 832 (828-33)). In
April 1998, the Regional Office (RO) denied the Veteran’s claim because
“[d]isability pension is payable only to veterans of wartime service” and his “service
records show active service from 09/11/61 to 09/07/63, which is not during a
wartime period.” (R. at 818).
In February 2010, the Veteran filed another Application for Compensation
and/or Pension listing his active service time from September 11, 1961, through
September 7, 1963. (R. at 738 (737-50)). The Veteran listed the disabilities that
prevented him from working were his “Lumbar spine condition, 66 yr old, 2 Heart
stints, heart attack, COPD.” (R. at 747). In March 2010, the RO issued a letter to
the Veteran requesting additional documents to support his application for
nonservice-connected pension. (R. at 588-99). The Veteran responded that he had no additional evidence to give to VA to support his claim. (R. at 610 (600-11)).
That same month, the RO also requested service records related to the Veteran’s dates of service in Vietnam. (R. at 534). The following month, in April 2010, the
2 RO issued a decision denying the Veteran’s claim for pension benefits because the evidence showed he had no wartime service, only active duty from September
11, 1961, to September 7, 1963. (R. at 527-29). In May 2010, the Veteran filed a notice of disagreement (NOD). (R. at 522-23).
On September 27, 2010, the Veteran passed away and in November 2010,
Appellant, his wife, filed an Application for Dependency and Indemnity
Compensation, Death Pension, and Accrued Benefits, indicating she wanted to act as a substitute claimant. (R. at 471-93).
In February 2011, the RO requested from the service department information for “pages from the personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations and official travel outside the U.S,” as well as all medical/dental
records. (R. at 452, 458).
In February 2013, VA issued a statement of the case (SOC) determining that
Appellant, as the Veteran’s legal widow, was eligible “to act as a substitute
claimant in an effort to receive accrued benefits. (R. at 399 (399-431)). The RO
continued the denial of the claim, noting that the Veteran “did not have basic
entitlement to nonservice-connected pension” because “the Veteran does not have
the required war time service for eligibility.” (R. at 430). The RO explained that
“[t]he evidence shows that the Veteran served onboard the USS Boxer and USS
Valley Forge during active duty service. The USS Valley Forge did serve in the
3 blue waters off the Vietnam shore during the Veteran’s active duty service; however, we do not have evidence that definitely puts him in Vietnam.” (R. at 431).
Appellant filed a VA Form 9, perfecting her appeal to the Board, in March 2013.
(R. at 390 (389-95)).
In September 2015, the Board remanded the matter for a hearing which was later held in March 2017. (R. at 78-96, 115-19). The Board held the record open for 30 days, and in April 2017, Appellant submitted additional material to support her claim. (R. at 60-77).
In April 2018, the Board found that the AOJ did not satisfy their duty to assist
Appellant in the development of her claim, specifically as argued by Appellant, that
they did not obtain the deck logs for the US Valley Forge for the period May 14,
1962 through July 1962. (R. at 44-45 (41-46)) The Board remanded the matter
for further development of her claim, specifically for the RO to “[c]ontact the
National Personnel Records Center (NPRC) or any other relevant record
repository in order to request the deck logs for the USS Valley Forge for the time
period of May 14, 1962 through July 30, 1962” and then to issue a SSOC. (R. at
45-46). In accordance with the April 2018 Board remand, the RO requested the
deck logs for the USS Valley Forge for the relevant time period. (R. at 35-36). The
Defense Personnel Records Information Retrieval System (DPRIS) responded
with the Naval History and Heritage, Washington Navy Yard, DC, records which
state that “[t]he ship is not recorded in Vietnam in 1962. The history and deck logs
do not document that the ship docked, transited inland waterways or that ships
4 personnel stepped foot in the Republic of Vietnam.” (R. at 34). More specifically, it stated they “reviewed the 1946-1971 ships history and the May 1-Juy 15, 1962 deck logs for the USS VALLEY FORGE (LPH-8). The USS VALLEY FORGE closed the Thai coast and on May 17, 1962, landed her embarked US Marine
Landing Team.” (Id.).
In October 2019, VA issued a supplemental SOC (SSOC), continuing the denial of nonservice-connected pension. (R. at 30-31 (22-33)). The RO stated that “[s]ince the veteran did not serve in-country Vietnam anytime between
February 28, 1961 and August 5, 1964, the previously denied claim for nonservice connected disability pension based on the lack of war-time service is confirmed as being correct.” (R. at 31).
In January 2020, the Board issued the decision now on appeal. (R. at 5-10).
Here, the Board found although “[t]he Veteran served on active duty from
September 1961 to September 1963,” he “did not serve in the Republic of Vietnam from February 28, 1961 to August 4, 1964.” (R. at 5).
III. SUMMARY OF THE ARGUMENT
The Court should affirm the Board’s January 28, 2020, decision that denied entitlement to a nonservice-connected disability pension. The Board plausibly found that the Veteran did not serve in the Republic of Vietnam from February 28,
1961 to August 4, 1964. The Board’s decision was not clearly erroneous and is supported by a fully developed record.
5 IV. ARGUMENT
A. The Board Plausibly Found that the Veteran Did Not Serve in the Republic of Vietnam from February 28, 1961 to August 4, 1964
Appellant unpersuasively argues that the Veteran, while attached to the USS
Valley Forge, had service off the coast of Indochina and inserted Marines into
Laos. (Appellant’s Brief (App. Br.) at 2); citing (R. at 68). She contends that
“[b]ased on the evidence in the file, it is not possible to say whether the U.S.S.
Valley Forge was close to Cambodia, Thailand, or Vietnam when it sent Marines
to Laos.” (App. Br. at 8). However, despite her assertions, the record clearly shows that “[t]he USS VALLEY FORGE closed the Thai coast and on May 17,
1962, landed her embarked US Marine Landing Team,” not the coast of Indochina
or Vietnam. (R. at 34 (emphasis added)). Accordingly, the Board plausibly found
that the Veteran did not meet the criteria for an award of entitlement to nonservice-
connected pension benefits because he did not serve in country in the Republic of
Vietnam from February 28, 1961 to August 4, 1964. (R. at 5, 9).
The “Secretary shall pay to each veteran of a period of war who meets the
service requirements…and who is permanently and totally disabled from
nonservice-connected disability not the result of the veterans’ willful misconduct,
pension at the rate prescribed by this section.” 38 U.S.C. § 1521(a). “The
Secretary shall pay to the surviving spouse of each veteran of a period of war who
met the service requirements prescribed in 38 U.S.C. § 1521(j), or who at the time
of death was receiving (or entitled to receive) compensation or retirement pay for
6 a service-connected disability, pension.” 38 U.S.C. § 1541(a). Pursuant to 1521(j),
“A veteran meets the service requirements of this section if such veteran served in the active military, naval, or air service - (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during
more than one period of war.” 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). The
term “period of war” includes the Vietnam era, which is defined as the period
beginning on February 28, 1961, and ending on May 7, 1975, for veterans who
served in the Republic of Vietnam during that period, or the period beginning
August 5, 1964, and ending May 7, 1975, for all other cases. 38 U.S.C. § 101(29).
The Court reviews the Board’s decision regarding entitlement to a
nonservice-connected pension under the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); see Vargas-Gonzalez v. West, 12 Vet.App. 321, 328
(1999). “A factual finding ‘is “clearly erroneous” when although there is evidence
to support it, the reviewing court on the entire evidence 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. United States Gypsum Co., 333
U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990)
(finding of fact is not clearly erroneous if there is a plausible basis for it in the
record)). The Court may not substitute its judgment for the factual determinations
7 of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. See id.
Contrary to Appellant’s assertions, VA fully developed the record. In March
2010, the RO requested records related to the Veteran’s dates of service in
Vietnam from the service department. (R. at 534). In February 2011, the RO again submitted another request for information for “pages from the personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations and official travel outside the U.S,” as well as all service medical/dental records. (R. at 452, 458). In April
2018, the Board remanded the matter for further development, in part based on her arguments that the AOJ did not satisfy its duty to assist “by not obtaining the deck logs for the USS Valley Forge for the period of May 14, 1962 through July
1962.” (R. at 45). Accordingly, the Board remanded for the RO to “[c]ontact the
National Personnel Records Center (NPRC) or any other relevant record repository in order to request the deck logs for the USS Valley Forge for the time period of May 14, 1962 through July 30, 1962” and then to issue a SSOC. (R. at
45-46). VA accordingly requested the deck logs for the USS Valley Forge for the relevant time period. (R. at 35-36). The DPRIS response from the Naval History
and Heritage, Washington Navy Yard, DC, stated:
The history and deck logs reveal that the USS VALLEY FORGE had a homeport change from Norfolk, Virginia to Long Beach, California on January 6 and arrived in Long Beach on January 23, 1962. Three months later, the ship departed for a Western Pacific (WESTPAC) deployment and on May 7, 1962 hoisted the flag as Commander,
8 Seventh Fleet Ready Amphibious Task Group. The Communist Pathet Lao forces had renewed their assault on the Royal Laotian Government, and the government of Thailand asked US President Kennedy to land troops to head off a feared full-fledged invasion of their own country. The USS VALLEY FORGE closed the Thai coast and on May 17, 1962, landed her embarked US Marine Landing Team. The crisis abated in the weeks that followed, and in July 1962, the ship sent her helicopters ashore to assist in lifting the Marines out. The deck logs further reveal that the USS VALLEY FORGE conducted off-loading operation of US Marines (no units listed) their ammunition and equipment by helicopters, landing craft, small boats and barges while anchored in Bangkok Bay, Gulf of Siam, Thailand during the period May 17-18, 1962. The US Ambassador to Thailand flew on board the ship from 0937-1019 hours on May 18, 1962. The ship preceded to Buckner Bay, Okinawa; Subic Bay, manila Bay and it operating area, Republic of the Philippines (RP); and Hong Kong for provision, upkeep and crew liberty during the period May 1-16, 18-81, and June 1-July 15, 1962 before returning to Long Beach in December 1962 for Christmas. The ship is not recorded in Vietnam in 1962. The history and deck logs do not document that the ship docket, transited inland waterways or that ships personnel stepped foot in the Republic of Vietnam.
(R. at 34).
Although the Naval History and Heritage statement provided the Board with
detailed movements of the USS Valley Forge, Appellant nevertheless now argues
that “[b]ased on the evidence in the file, it is not possible to say whether the U.S.S.
Valley Forge was close to Cambodia, Thailand, or Vietnam when it sent Marines
to Laos.” (App. Br. at 8). She contends that “[i[f these records are not available,
VA was to inform Appellant.” (App. Br. at 8); citing 38 U.S.C. § 5103A(c).
However, there is no finding by the Board or VA that these records are unavailable.
The records are clearly available, and the DPRIS records were addressed in the
Board’s decision and were made part of Appellant’s record. (R. at 8-10, 34).
9 Consistent with the Board’s analysis, even Appellant’s own article, Message
From the Captain, signed by the Commanding Officers in October 1962, supports the Board’s decision. (R. at 71). The article states that “[y]ou, serving on board the flagship of the Ready Amphibious Task Group of the Seventh Fleet, have been involved in operations of international significance in Thailand,” it does not state that any operations were conducted off the Vietnam shore. (Id.) There is no
support for Appellant’s contention that it is impossible to say the location of the
USS Valley Forge, and there is no error in the Board’s findings.
Appellant argues that the USS Valley Forge “approached what was then
called Indochina and inserted Marines into Laos.” (App. Br. at 7); citing (R. at 68).
Although the Board addressed the article submitted by Appellant from the website,
it plausibly relied upon the DPRIS response provided by the Naval History and
Heritage, “the custodians of Naval ship histories,” specific to the Veteran’s duty on
the USS Valley Forge. (R. at 8, 34). The Board specifically considered “the
Veteran’s statement that he was ashore in Vietnam in June 1963” but contrary to
his claim, found that the “Naval History and Heritage, Washington Navy Yard, DC,
records show that the USS Valley Forge was performing exercises off the coast of
California and Hawaii during that time.” (R. at 9); see (R. at 68, 499-500).
The Board plausibly determined the location of the USS Valley Forge during
the relevant times in 1962 and 1963. (R. at 8-10). There is no dispute that the
Veteran served active duty in the Navy from September 11, 1961, through
September 7, 1963. (R. at 492). There is also no dispute that the Veteran served
10 on the USS Valley Forge. (Id.). The record specifically shows that the Veteran was attached to the USS Valley Forge from January 2, 1962, to August 30, 1963.
(R. at 62). At issue is the location of the USS Valley Forge during the time that
the Veteran was attached to the ship. (See App. Br. at 7-10). She contends that
“[b]ased on the evidence in the file, it is not possible to say whether the U.S.S.
Valley Forge was close to Cambodia, Thailand, or Vietnam when it sent Marines to Laos.” (App. Br. at 8). However, VA fully developed the record before the Board and the Board found that the “USS Valley Forge closed the Thai coast and on May
17, 1962, landed her embanked US Marine Landing Team” and the “history and deck logs do not document that the ship docked, transited inland waterways or that ships personnel stepped foot in the Republic of Vietnam.” (R. at 8, 34). As such, the evidence supports the Board’s finding and her argument is unpersuasive.
The requirements for a period of war within the Vietnam era require active duty service from February 28, 1961 to August 4, 1964, and although the Veteran’s service dates are within the date range, the Board plausibly found that he did not serve in the Republic of Vietnam as required by statute. See 38 U.S.C. § 101(29); see also 38 C.F.R. § 3.2(f). Therefore, the Veteran did not meet the basic eligibility criteria for nonservice-connected pension. (R. at 5); see Fisher v. West, 11
Vet.App. 121, 124 (1998) (finding “it is not ‘patently arbitrary and irrational’ to treat wartime veterans differently than non-wartime veterans for the purpose of awarding pension benefits and to treat veterans who served in the Republic of
11 Vietnam differently from those who served elsewhere for the purpose of defining wartime service.”).
Veterans of the Vietnam era between January 6, 1962, and May 7, 1975, who served within the 12-nautical-mile limit of Vietnam’s territorial sea are entitled to a presumption of exposure to herbicides. Procopio v. Wilkie, 913 F.3d 1371,
1381 (Fed. Cir. 2019); 38 U.S.C. § 1116A(b). Effective January 1, 2020, the Blue
Water Navy Vietnam Veterans Act of 2019 clarified “presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam.”
Procoprio, 943 F.3d at 1378; 38 U.S.C. § 1116A(b). Here, however, the record is
clear that the Veteran did not serve in a location that entitles him to the presumption
of herbicide exposure.
To support her claim, Appellant relies, in part, upon a map of Indochina
attached to her brief which was not in the record before the Board. (App. Br. at
11). Therefore, the Court cannot consider this map on appeal. (App. Br. at 11).
The Court is prohibited from considering evidence not before the Board during the normal course of deciding an appeal. 38 U.S.C. 7252(b); see Rogozinski v.
Derwinski, 1 Vet.App. 19, 20 (1990) (finding that review in the Court shall be on the record of proceedings before the Secretary and the Board).
The Board addressed another article submitted by Appellant, noting that the
“article submitted by the Appellant from the “Naval Historical Center website showed that the USS Valley Forge spent the first half of 1963 in amphibious exercises off the Coast of California and in the Hawaiian Island,” and after entering
12 “the Long Beach Naval Shipyard on July 1, 1963 for a Fleet Rehabilitation and
Modernization Overall and was put to sea again on January 27, 1964.” (R. at 9,
68). Appellant contends in her brief that the “late veteran was on a ship that sent
Marines into Laos in 1963” and “[i]f that ship is now determined to have been off
the coast of Vietnam, Appellant, who sought nonservice-connected survivor’s
pension benefits, would qualify as the surviving spouse of a wartime veteran.”
(App. Br. at 4). Not surprisingly, Appellant admits that “[t]he only evidence of where
the U.S.S. Valley Forge was in 1963 is the print-out that Appellant provided, stating
that the ship ‘closed the coast of Indochina in order to put ashore’ Marines.” (App.
Br. at 7); citing (R. at 68 (65-77)). That evidence, which is actually a 2011 internet
print out of the “DICTIONARY of American Naval Fighting Ships” is not the only
evidence where the USS Valley Forge was located. (R. at 65-77). Yet, the
evidence from DPRIS shows that the USS Valley Forge was not off the coast of
Vietnam. (R. at 34). In fact, “[t]he history and deck logs do not document that the
ship docked, transited inland waterways or that ships personnel stepped foot in the
Republic of Vietnam.” (Id.).
Appellant seeks for VA to determine where the USS Valley Forge was when
it sent Marines into Laos. (App. Br. at 10). But VA already determined where the
USS Valley Forge was when it sent Marines into Laos, it was off the coast of
Thailand. (R.at 34). Based on the evidence of record, the Board plausibly found
that “[a]lthough the record shows that the Veteran served on the USS Valley Forge
in the Western Pacific, it does not support a finding the Veteran was transported
13 to the Republic of Vietnam. As discussed above, the USS Valley Forge transported Marines to Laos via Bangkok Bay, Gulf of Siam, Thailand.” (R. at 9).
Appellant’s arguments throughout his brief are hypothetical: (1) “Should the
late veterans’ ship be placed in the waters off the coast of Vietnam, he would
qualify as a Vietnam veteran” (App. Br. at 2); (2) “[i]f that ship is now determined
to have been off the coast of Vietnam, Appellant, who sought nonservice-
connected survivor’s pension benefits, would qualify as the surviving spouse of a
wartime veteran” (App. Br. at 4); (3) “If VA states that the information needed to
confirm herbicide exposure is not available, then this Court should infer that the
late veteran was in fact exposed during his Navy service,” however neither the
agency of original jurisdiction (AOJ) nor the Board ever actually said that the information is not available (App. Br. at 8). Emphasis added. Appellant’s arguments are not based on actual evidence in the record, but on hypotheticals if certain evidence was in the record. But there is no evidence in the record to support Appellant’s claims, but for her internet search on the USS Valley Forge.
In her brief, Appellant appears simply to disagree with the findings of the
Board and the DPRIS report. But she fails to raise any evidence demonstrating that the Veteran was off the coast of Vietnam other than a generic internet search
Dictionary article, and a Message From the Captain of the Valley Forge. (R. at 67-
71); see Burger v. Brown, 5 Vet.App. 340, 342 (1993) (the Board “as fact finder, is required to weigh and analyze all the evidence of record.”). Although Appellant may disagree with how the Board weighed the evidence, she fails to demonstrate
14 error. See Chudy v. O’Rourke, 30 Vet.App. 34, 39 (2018) (“Mr. Chudy is essentially
unhappy with the outcome the Board reached, but provides no persuasive reason
for the Court to disturb the Board's determination—and it is not the Court's role to
secondguess the factfinder.”).
Here the Board plausibly found that “the Veteran did not serve during a
period of war as defined in the applicable statutes and regulations,” where the
Veteran served in active duty from September 11, 1961, through September 7,
1963, but did not serve in country in the Republic of Vietnam from February 28,
1961, to August 4, 1964, and Appellant fails to demonstrate otherwise. (R. at 7,
9).
B. Neither the Board Nor AOJ Determined That Additional Information Was Necessary To Confirm Herbicide Exposure
Again, Appellant argues that the information pertaining to the whereabouts of the USS Valley Forge is important, and the VA should obtain them or notify
Appellant they are not available. (App. Br. at 8). However, again, the location of the USS Valley Forge during the time period that the Veteran was on the ship,
January 2, 1962, through August 30, 1963, is in the record. (R. at 34, 62, 68).
Appellant references the National Personnel Records Center 1973 fire for her assertion that the Board has a heighted duty to explain its denial, however there is no evidence beyond bald assertions, to suggest that the Veteran’s records were destroyed or missing in any way. (App. Br. at 9). Appellant contends that the “Government should bear the cost of its inability to preserve historical records,”
15 yet again, there is no showing that the Veteran’s records are unavailable. (App.
Br. at 9).
The Board’s decision is plausibly based upon the evidence of record and is not clearly erroneous. Gilbert, 1 Vet.App. at 52. Appellant has not demonstrated
that the Board committed prejudicial error so as to warrant any action by the Court other than affirmance. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
(holding that appellant has the burden of demonstrating error), aff'd, 232 F.3d 908
(Fed. Cir. 2000) (table); Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009)
(explaining that the burden of demonstrating prejudice normally falls upon the party attacking the agency’s determination). As the Board correctly noted,
Therefore, because the Board properly considered the evidence of record and Appellant’s arguments are without merit, the Court should affirm the decision now on appeal.
V. CONCLUSION
WHEREFORE, the Court should affirm the Board’s January 28, 2020, decision denying a nonservice-connected disability pension to Appellant.
Respectfully submitted,
RICHARD A. SAUBER General Counsel
MARY ANN FLYNN Chief Counsel
/s/ Dustin P. Elias DUSTIN P. ELIAS Deputy Chief Counsel
16
/s/ Audrey L. Lozuk-Lawless AUDREY L. LOZUK-LAWLESS Appellate Attorney Office of General Counsel (027E) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 202-632-6789
Attorneys for Appellee
17