Citation Nr: 21007572 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-08 902 DATE: February 10, 2021 REMANDED Service connection for a heart condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1953 to October 1953. He died in March 2020. His wife has been substituted in as the appellant. The matter comes before the Board of Veterans’ Appeals (Board/BVA) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2015, the Board remanded this matter for further development, to include obtaining an opinion as to the etiology of any current heart condition. In May 2016, the Board denied service connection for a heart condition. Thereafter, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2017, a Joint Motion for Remand (JMR) was filed requesting that the May 2016 Board decision be vacated and remanded for actions consistent with the JMR. Later that month, the Court granted the motion and remanded the matter for actions consistent with the terms of the JMR. In May 2017, the Board remanded this matter for development in conjunction with the JMR. In August 2018, the Board denied service connection for a heart condition on direct, presumptive, and secondary bases. Thereafter, the Veteran appealed this decision to the Court. In a June 2020 memorandum decision, the Court found that the appellant raised no challenge to the Board's conclusions that the Veteran’s disorder was not related to a service-connected condition and was not directly linked to his service. It found those matters were abandoned on appeal and would not review the portion of the Board's decision addressing them. As to the portion of the Board's August 2018 decision explaining its conclusion that the Veteran’s heart disorder was not linked to in-service herbicide exposure, that part was vacated, and the matter was remanded for further proceedings consistent with the Court decision. In vacating the decision, the Court noted that the Board did not consider potentially favorable evidence that tended to demonstrate that the Veteran accurately reported that his service took him to Aberdeen Proving Ground in 1953. It observed that the record contained a September 1953 medical record that revealed that the Veteran reported that he underwent"[x]-rays at Aberdeen." The next year, when the Veteran applied for entitlement to disability benefits for a right knee injury, he wrote that he received treatment for the claimed injury in Aberdeen, Maryland, in "May-June 1953." The Court further noted that the record also contained a postcard sent by the Veteran to his parents to provide them his military address. The postmark was faint but mostly legible. It showed the date "May 23" and the location "Aberdeen Proving Ground." The Court also noted that the Board concluded that the Veteran’s “obtainable [service treatment records] did not show that he was stationed at Fort Detrick or any other base in Maryland." It noted that the Board mentioned but did not discuss the fact that fire destroyed the Veteran’s personnel records and that some of his service treatment records might also be lost. The Court indicated that the Board did not determine what records likely were missing and whether they were more likely to contain information about the location of the Veteran’s service than the records that VA was able to obtain. Instead, without explanation, it treated the extant records as sufficient to provide definitive information about the Veteran’s movements during his service even though those records clearly contained gaps. The Court stated that on remand, the Board was to review the existing records with the care necessary given the circumstances. The Court also noted that the Board found that a statement that the Veteran made in 1983 contradicted his later assertions that he was in Maryland in 1953. According to the Board, the Veteran stated in 1983 that he joined the military in May 1953 and re-injured his right knee in June 1953 during basic training and after eight weeks, was transferred to Atlanta, Georgia for more training exercises after his right knee was declared normal. As the Board's paraphrase suggested, the 1983 hearing transcript did not indicate where the Veteran served before he arrived in Atlanta or where his treatment took place. The Court stated that the claim the Veteran was pursuing in 1983 did not rest on the location of his service, and he had no reason to provide details about his movements. The Court observed that the Veteran gave an extensive account of the injuries he suffered during basic training, but he never mentioned where he served before arriving in Atlanta. The Court stated that the Board's firm conclusion about the meaning of the Veteran’s 1983 statements did not seem to follow. The Court also noted that the Board did not recognize an inconsistency in its factfinding. The Board concluded that the Veteran’s service treatment records indicated that he injured his right knee in May 1953 while stationed in Providence, Rhode Island, and received continuous treatment for it until June 1953. As recounted above, it then found that, in 1983, the Veteran credibly reported "he joined the military in May 1953 and re-injured his right knee in June 1953 during basic training." The Court indicated that those findings seemed to contradict one another, and the precise sequence of events and where they occurred remained in doubt. The Court also noted that the Board found the Veteran’s assertion that he served at Aberdeen Proving Ground to be not credible in part because he once reported that he was in Maryland in June 1953 and later stated that he was in Maryland in July 1953. The Board responded that the Veteran’s existing service treatment records showed differently. They instead indicated that was in Providence, Rhode Island in May and for some part of June 1953 until he was transferred to Atlanta, Georgia in July 1953." The Court found that the Board made too much of those records. Nothing in the record showed that the Veteran transferred directly from Providence to Atlanta. There was a gap in available service documents that covered parts of both June and July 1953. It was not certain where the Veteran was during that time. The earliest record from Atlanta was dated July 23, 1953. As the then appellant noted, the gap of time between records from Providence and Atlanta was sufficient to cover his alleged service in Maryland. The Court observed that the Board also supported its credibility conclusion by quoting, in isolation, the Veteran’s statement that "he was 'somewhere' in Maryland in June 1953." The Court indicated that the Board's use of quotation marks around "somewhere" indicated that it found the Veteran’s imprecision to be a mark against his credibility. It noted that in the full passage from which the Board selected the phrase it quoted, however, the Veteran wrote that he found himself on a "rifle range somewhere in Maryland" after he "marched out" from Aberdeen Proving Ground. The Court indicated that to summarize, the Board concluded that the Veteran’s statements were "inconsistent with each other and other evidence of record." The Court stated that given that the Veteran did not directly address his military travels in 1983 and that the record contained numerous gaps, it looked less like that the Veteran was inconsistent and more likely that the Board used the absence of evidence as evidence against the Veteran without fully acknowledging the deficiencies in the record. The Court indicated that these errors were not harmless. It noted that had the Board concluded that the Veteran served at Aberdeen Proving Ground, it then would have had to consider his recollections about his alleged herbicide exposure. The Board also may have had to ask the JSRRC coordinator to expand upon his prior response. The Court indicated that the fundamental fairness of the adjudication was in doubt, and it could not say that the outcome would not be different on remand. As noted above, the Court vacated that portion of the Board decision addressing herbicide exposure and remanded the matter for actions consistent with the Court decision. Given the above, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran was stationed at the Aberdeen Proving Ground at some point during the time period from June 8, 1953 to July 23, 1953. VA has a duty to assist the Veteran by attempting to verify the claimed herbicide exposure. Thus, a remand is required in order to determine whether the Veteran was exposed to an herbicide or some other toxic chemical and to obtain additional medical opinion. Based upon the above, additional development is warranted. The matter is REMANDED for the following action: 1. Follow controlling guidance and request herbicide exposure verification from the Department of Defense. If the Department of Defense does not confirm herbicide exposure, refer the Veteran's pertinent information to the United States Army and Joint Services Records Research Center (JSRRC) or other appropriate entity with a request for verification of exposure to herbicides or other hazardous or toxic chemicals. All documentation sent and received by the AOJ must be associated with the claims file. For purposes of this determination, it is to be assumed that the Veteran served at Aberdeen Proving Ground during the time period from June 8, 1953 to July 23, 1953. 2. If exposure to herbicides is conceded, provide the claims folder to an appropriate VA examiner for review. The examiner is to identify all heart conditions/diseases that were present. For each diagnosed disorder, the examiner must opine as to whether it is at least as likely as not that the identified heart conditions/diseases were related to herbicide exposure in service. Complete detailed rationale is requested for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.