VA Reverses Joe Collins' C-123 Agent Orange Claim Denial – grants full benefits at last

I wrote earlier (4 Oct 2016) about reading a June 2016 Board of Veterans Appeals denial of a vet's appeal that had a lot of C-123 info in it, including the years the unnamed vet served at Hanscom AFB and that he'd worked on the C-123s there. With the help of the Westover "old geezers' network we were able to identify the vet as Joe Collins.

The facts were clear...there was no way the denial would hold up, yet there it was, denied and any correction likely to take years. But the vet, according to the denial, had advancing cancer. It couldn't and shouldn't wait.

It only took a couple of phone calls to VA HQ as well as their St Paul C-123 claims center to start correcting this injustice. Three months passed. Yesterday VA posted the "new and improved" BVA decision about Joe Collins' claim, awarding him full disability and calling its error, "a denial of due process of law."

Whatever. What matters is that Joe and his wife are now protected with the benefits due his Agent Orange illnesses, and the event proves we have to keep looking out for each other, especially our elder brothers and sisters who too often get ignored or mistreated by VA.

Here's the text of the BVA re-decision. It states that new evidence was submitted after Joe's June denial, but that's incorrect. All I did was point out the VA's own magnificent error.

Citation Nr: 1637572

Decision Date: 09/23/16   Archive Date: 09/30/16

DOCKET NO. 15-34 922   )       DATE

On appeal from the

Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic lymphocytic leukemia.

2.  Entitlement to service connection for chronic lymphocytic leukemia (CLL).

REPRESENTATION

Veteran represented by: Massachusetts Department of Veterans Services

WITNESS AT HEARING ON APPEAL
The Veteran

ATTORNEY FOR THE BOARD

J. J. Tang, Associate Counsel
INTRODUCTION

The Veteran served on active duty with the United States Navy from April 1946 to April 1948, and on active duty as a member of the United States Navy Reserves from October 1950 to August 1952. It appears that he had an additional period of active duty from August 1959 to August 1962, verified periods of active duty for training from October 28, 1962, to November 28, 1962, and additional active duty for training in 1972 and 1973, with the United States Air Force Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of entitlement to service connection for CLL.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in April 2016. A transcript of his hearing has been associated with the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015).

FINDINGS OF FACT

1.     On June 2, 2016, the Board issued a decision that declined to reopen the previously denied claim for service connection for CLL, and in this decision, the Veteran was denied due process of law.

2.     In a November 2012 Board decision, the Board denied a claim for service connection for CLL, based on the determination that such disability was not incurred in or aggravated by active service.

3.    The Veteran did not appeal the November 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court) and did not file a request for reconsideration of the November 2012 Board decision.

4.    The additional evidence received since the November 2012 Board decision is new and raises a reasonable possibility of substantiating the claim for service connection for CLL.

5.    The Veteran has CLL, the Veteran was exposed to an herbicide agent from C-123 aircraft in the line of duty during a period of active duty for training in the Air Force Reserves during the Vietnam era in 1972 and 1973.

CONCLUSIONS OF LAW

1.   The June 2, 2016 decision of the Board is vacated. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015).

2.   The November 2012 Board decision, which denied entitlement to service connection for CLL, is final. 38 U.S.C.A. § 7104(b) (West 2010); 38 C.F.R. § 20.1100 (2012).

3.   The additional evidence received since the November 2012 rating decision is new and material to the claim for service connection for CLL, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).

4.   The criteria for service connection for CLL are met. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Vacatur of Board Decision

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). On June 2, 2016, the Board issued a decision that declined to reopen the previously denied claim for service connection for CLL, and in this decision, the Veteran was denied due process of law. Accordingly, the June 2, 2016 Board decision addressing the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for CLL, is vacated.

Duties to Notify and Assist

Because the Board is reopening the previously denied claim for service connection for CLL and granting the claim on the merits, discussion concerning compliance with the duties to notify and assist is not necessary.

Application to Reopen the Claim for Service Connection

Even if a prior decision becomes final, a claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (applying to claims to reopen that are filed after August 29, 2001). Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide a medical examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In a November 2012 Board decision, the Board denied a claim for service connection for CLL, based on the determination that such disability was not incurred in or aggravated by active service. After the Veteran was notified of the adverse decision, the Veteran did not appeal the November 2012 Board decision to the Court, nor did he file a request for reconsideration of the November 2012 Board decision. Therefore, the Board decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7104(b) (West 2010); 38 C.F.R. § 20.1100 (2012).

At the time of the November 2012 Board decision, the evidence of record included the Veteran's service records, post-service treatment records, and the Veteran's statements. Such evidence showed a diagnosis of CLL, that the Veteran served as an Air Reserve Technician (ART) from 1970 to 1973, and that the Veteran's service as an ART was during a period of active duty for training in the Air Force Reserves at Hanscom Air Force Base.

The additional evidence presented since the November 2012 rating decision includes the Veteran's written statements describing his work as an ART during active duty for training in the Air Force Reserves at Hanscom Air Force Base. The Veteran also submitted annual statements of Reserves credits for 1972 and 1973, in which the Veteran is shown to have had credits for days of active duty for training service during these years. The credibility of the Veteran's statements is presumed for the purposes of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that tends to indicate that the Veteran may have been exposed to an herbicide agent regularly and repeatedly in the line of duty during a period of active duty for training during the requisite time period in the Vietnam era was absent at the time of the November 2012 rating decision, and this evidence, in conjunction with the newly revised regulation pertaining to herbicide exposure for Air Force Reserves crewmen, raises a reasonable possibility of substantiating the claim. Thus, the Board finds that new and material evidence has been submitted. The claim for service connection for CLL is reopened. The merits of the claim for service connection are discussed below.

Service Connection

A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).

"Active military, naval or air service" includes periods of active duty for training (ACDUTRA) during which a disease or injury was incurred or aggravated in the line of duty. See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6; see also Biggins v. Derwinski, 1 Vet. App. 474 (1991).

Generally, to establish entitlement to service connection, the claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran has been diagnosed with CLL, per the medical evidence of record. Thus, the present disability is shown.

The Veteran contends that his CLL is the result of exposure to an herbicide agent during active service. The Veteran contends that he was working as an ART at Hanscom Air Force Base from 1970 to 1973, and as discussed above, his Reserves credits records confirm periods of ACDUTRA in 1972 and 1973. The Veteran reports that he worked on C-123 aircraft that had been used to spray an herbicide agent in Vietnam. In a January 2009 statement, the Veteran reported that though he was not actually removing tanks and equipment from the aircraft, he was around the aircraft on a daily basis. In September 2009, the Veteran submitted a statement from a fellow ART that reported that over a period of several weeks, he and the Veteran physically checked on the status and decontamination of a C-123 aircraft that had arrived at the base for decontamination. The Veteran also testified at the April 2016 Board hearing regarding his specific duties as an ART on the C-123's, including taking floor boards out of the airplanes and doing maintenance inside and outside the airplanes. The Board finds that the Veteran's statements describing his duties as an ART during ACDUTRA and the Veteran's fellow ART's statements regarding their duties as ARTs are credible.

Newly revised 38 C.F.R. § 3.307(a)(6)(v) states, "An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph,'regularly and repeatedly operated, maintained, or served onboard C-123 aircraft' means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service."

In light of the recent revised regulation, and given the credible statements as to the nature and duration of the Veteran's duties as an ART working with C-123 aircraft during these aforementioned periods of ACDUTRA, the Board finds that the Veteran regularly and repeatedly maintained C-123 aircraft during the Vietnam Era as a crewmember of an Air Force Reserve Squadron. Thus, under 38 C.F.R. § 3.307(a)(6)(v), exposure to an herbicide agent in the line of duty during ACDUTRA is shown.

CLL is included in the list under 38 C.F.R. § 3.309(e). There is a presumption of service connection for a Veteran who was exposed to an herbicide agent during active service and is diagnosed with CLL that manifested to a compensable degree at any time after service, unless there is affirmative evidence to show that the disease is not related to exposure to an herbicide agent. 38 C.F.R.

§ 3.307(a); see 38 C.F.R. § 3.307(d).

Here, the Board has found that exposure to an herbicide agent is shown, and such exposure constitutes an injury for purposes of determining whether the Veteran's CLL was incurred in active air service. Further, the Veteran's CLL is presumed to be service-connected on the basis of his exposure to an herbicide agent during his ACDUTRA service in the Vietnam era. For these reasons, the Board concludes that the Veteran's CLL was presumptively incurred in active air service, and service connection for CLL is granted.

ORDER

The June 2, 2016 decision of the Board is vacated.

Because new and material evidence has been received, the claim for service connection for CLL is reopened.

Entitlement to service connection for CLL is granted