Stover: Thailand and Agent Orange Exposure

Stover v. McDonough, Case Number 20-5580, decided July 11, 2022 discusses how Thailand veterans prove exposure to Agent Orange.

The Court begins by noting that Congress has created a presumptive for Vietnam veterans, but not Vietnam Era Thailand veterans.  However, it also notes that the VA’s Adjudication Procedures Manual (M21-1) speaks to the question of Thailand Agent Orange exposure.

The veteran served at Takhli Royal Thai Air Base during the Vietnam war and sought service connection for diabetes mellitus due to exposure to tactical herbicides during his service in Thailand.

This case concerned the Board’s interpretation of the M21-1, which provides “under certain circumstances, veterans who establish that they served "on or near the perimeter[]" of an RTAFB may show, through performance of their duties, that they were exposed to herbicides.”  The Court noted the manual does not provide a true presumption of exposure, but “eases the burden of proving exposure, which is highly significant to a claimant.”

The Court “conclude[d] that the Board erred by failing to explain what it understood "near the perimeter[]" to mean when it denied appellant's claim in large measure because appellant had not established that his duties regularly placed him "near the perimeter[]" of the Takhli RTAFB. Because the Board's approach to this issue put appellant in the untenable position of not knowing what he needed to prove to satisfy the rule of decision the Board adopted.”

This veteran served as an electronics warfare systems repairman.  He stated he worked many hours every day on the flight line, which was close to the base perimeter.  He also submitted photographs of his living quarters and location of the flight line.  The Secretary began by arguing the M21-1 might not be binding on the Board, but that in any case the veteran’s military occupation (working on flight line) is so different from security jobs listed in the M21-1 that any special consideration does not apply and the Secretary argued the statements of being within 500 meters of the perimeter were insufficient.  The Secretary also argued that “on or near” the perimeter meant being close enough to physically tough the perimeter.

The Court dodged the question of whether the M21-1 is binding on the Board, but did determine that the Board adopted the M21-1 provision as the rule of decision in the case by employing the language of the provision.

The Court then pivoted to the question of the Board’s application of the M21-1 provision and determined the Board failed to give an adequate reasons or bases for its decision because it failed to define the term “near the perimeter.”  The Court’s larger point is that a Board determination based on undisclosed standards is error.

Judge Greenberg wrote a concurrence stating he would have gone further and reversed and found the veteran served near the perimeter.

This is a helpful case for any Vietnam era veteran who served in Thailand.

Decision by Judge Allen and joined by Meredith.  Concurrence by Judge Greenberg.

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