Parseeya-Picchione v. McDonald, Case Number 15-2124,
decided July 11, 2016 involves herbicide exposure and subsequent development of
diabetes.
The claim was by the veteran’s surviving spouse and for
DIC. The veteran stated he had been
stationed in Thailand and exposed to agent orange when he stopped in Vietnam on
a flight to Thailand and in Thailand where he was stationed.
The case was remanded on reasons and bases reasons. First, the Court did not find error in the
Board’s determination the veteran’s statement of a layover in Vietnam was not
credible. However, the Court softened
this blow by finding the Board did not provide an adequate statement of reasons
or bases for its conclusion the appellant did not step foot in Vietnam because
it did not consider other evidence.
Specifically, an archivist at the Air Force Historical Research Agency
wrote as a general rule military cargo aircrafts en route to bases in Thailand
would stop at Ton Son Nhut Air Base in Vietnam.
Additionally, a USAF major wrote confirming the AF Historical Research
Agency statement. The Board responded by
saying the evidence only provided “general information” and did not support the
claim the veteran himself stopped overnight in Vietnam. The
Court stated “This cursory discussion does not enable the appellant to
understand the Board’s precise basis for concluding that the veteran had not
set foot in Vietnam and frustrates judicial review of that issue. Remand is warranted.” Id. at *6.
The Court also concluded the Board failed to provide
adequate reasons and bases for denying herbicide exposure on a direct basis in
light of the Board’s acknowledgement the veteran served in Camp Friendship at
Korat Air Force Base in Thailand, which was located near the perimeter of the
base. The Board acknowledged Camp
Friendship was at the outer edge of the base, but then determined without much
explanation that it was not the perimeter.
The Court remanded for a clarification of the position of the veteran’s
camp.
The VA also acknowledged the Board was wrong when it stated tactical
herbicides were used in Thailand four years prior to the veteran’s service
there, but argued the misstatement was not prejudicial. The Court noted if the VA found the veteran
served near the perimeter, the VA’s misstatement would be crucial.
This will be an important template in assisting veterans who
were exposed to Agent Orange in Thailand as it helps show how to demonstrate a
stopover in Vietnam was likely and the Board cannot discount statements the
veteran was near the perimeter.
Written by Judge Greenberg and joined in by Judges Schoelen
and Pietsch.
