in the united states court of appeals for veterans …
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Vet.App. No. 18-6934
IN THE UNITED STATES COURT
OF APPEALS FOR VETERANS CLAIMS
MICHAEL A. SUTER,
Appellant,
v.
ROBERT L. WILKIE, Secretary of Veterans Affairs,
Appellee.
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF APPELLEE
SECRETARY OF VETERANS AFFAIRS
WILLIAM A. HUDSON, JR. Acting General Counsel MARY ANN FLYNN Chief Counsel RICHARD A. DALEY Deputy Chief Counsel ALEXANDER M. PANIO Appellate Attorney Office of General Counsel (027E) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 632-5157
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................... iii
RECORD BEFORE THE AGENCY CITATIONS ........................................ iv
I. ISSUES PRESENTED ............................................................................. 1
II. STATEMENT OF THE CASE .................................................................. 1
A. Jurisdiction ....................................................................................... 1
B. Nature of the Case ........................................................................... 1
C. Statement of Relevant Facts ............................................................ 2
III. SUMMARY OF THE ARGUMENT ......................................................... 4
IV. ARGUMENT .......................................................................................... 5
A. The Board’s Explanation Was Fully Sufficient To Inform Appellant and the Court of the Reasons or Bases for Its Conclusion that the Evidence Did Not Demonstrate In-Service Exposure to Herbicide Agents .............................................................................................. 5
1. Fort Gordon .................................................................................. 6
2. Fort Clayton ................................................................................ 12
B. The Board Did Not Clearly Err in Satisfying Its Duty To Assist ...... 13
C. Appellant Has Abandoned All Issues Not Argued in His Brief ....... 17
V. CONCLUSION ...................................................................................... 17
iii
TABLE OF AUTHORITIES
Cases
Disabled Am. Veterans v. Gober, 234 F.3d 682 (2000) ...................................... 17
Gilbert v. Derwinski, 1 Vet.App. 49 (1990) ...................................................... 6, 14
Hilkert v. West, 12 Vet.App. 145 (1991) .................................................................8
Pieczenik v. Dyax Corp., 265 F.3d 1329 (Fed. Cir. 2001) ............................................5
Johnson v. Shinseki, 26 Vet.App. 237 (2013) ................................................. 6, 10
Allday v. Brown, 7 Vet.App. 517 (1995) .................................................................6
Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) ...............................................6
Mayfield v. Nicholson, 19 Vet.App. 103 (2005) ......................................................8
Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) ..............................................9
Bardwell v. Shinseki, 24 Vet.App. 36 (2010) ....................................................... 13
Rucker v. Brown, 10 Vet.App. 67 (1997) ............................................................. 13
Nolen v. Gober, 14 Vet.App. 183 (2000) ............................................................. 14
Gobber v. Derwinski, 2 Vet.App. 470 (1992) ....................................................... 14
Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) ............................................... 16
Raugust v. Shinseki, 23 Vet.App. 475 (2010) ..................................................... 16
Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) ................................................ 17
United States Code
38 U.S.C. § 5103(a) ............................................................................................ 14
38 U.S.C. § 5107 ....................................................................................................6
38 U.S.C. § 7104(d) ...............................................................................................6
iv
38 U.S.C. § 7252(a) ...............................................................................................1
38 U.S.C. § 7261(a)(4) ...........................................................................................4
Code of Federal Regulations
38 C.F.R. § 3.159 ................................................................................................ 14
38 C.F.R. § 3.309 ...................................................................................................5
RECORD BEFORE THE AGENCY CITATIONS
R. at 4-9 (Sep. 2018 Board decision) ........................................................... passim
R. at 37-38 (Aug. 2018 NOD) .............................................................................. 10
R. at 132 (Service record of assignments) .............................................................2
R. at 644-53 (List of herbicide test & storage sites outside Vietnam) ......... 2, 6, 12
R. at 725 (Apr. 2016 VA-9) .....................................................................................3
R. at 727 (Apr. 2016 VA-9) .....................................................................................3
R. at 732-764 (Mar. 2016 SOC) .............................................................................3
R. at 803-832 (Feb. 2016 SOC) .............................................................................3
R. at 833 (Jan. 2016 DPRIS report) .............................................................. 12, 13
R. at 836-47 (Channel 12 news articles) ........................................................ 3, 11
R. at 879-880 (Sep. 2015 NOD) .......................................................................... 12
R. at 897-900 (Mar. 2015 rating decision) ..............................................................3
R. at 927 (Jan. 2015 DPRIS report) .......................................................... 3, 13, 16
R. at 1088-89 (Nov. 2013 JSRRC memorandum) .......................................... 3, 13
R. at 1106 (Nov. 2013 NOD) ..................................................................................2
R. at 1146-51 (Oct. 2013 rating decision) ..............................................................2
v
R. at 1871 (DD-214) ...............................................................................................2
R. at 1966 (Jun. 2012 statement) ...........................................................................2
R. at 1987-92 (Oct. 2011 Claim) ............................................................................2
R. at 2010-11 (DOD Herbicide report)............................................................. 2, 10
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
MICHAEL A. SUTER, ) Appellant, )
) v. ) Vet. App. No. 18-6934 ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs, )
Appellee. ) ________________________________________________________________
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF APPELLEE
SECRETARY OF VETERANS AFFAIRS
I. ISSUES PRESENTED
Whether the Court should affirm the September 25, 2018, Board of Veterans’ Appeals (Board) decision that denied service connection for (1) chronic obstructive pulmonary disease (COPD), (2) atherosclerosis, and (3) prostate cancer.
II. STATEMENT OF THE CASE
A. Jurisdiction
The Court has jurisdiction over this matter pursuant to 38 U.S.C. § 7252(a).
B. Nature of the Case
Michael A. Suter (Appellant) appeals the September 25, 2018, Board
decision that denied service connection for COPD, atherosclerosis, and prostate
cancer, to include as due to exposure to herbicide agents (Agent Orange). (See
Record (R.) at 4-9 (Board decision)). Appellant’s contentions relate only to his
potential herbicide exposure. To that end, Appellant contends that the Board
2
supplied an inadequate statement of reasons or bases and that it failed to ensure
that the duty to assist had been satisfied. (Appellant’s Brief (App. Br.) at 10-20).
The Secretary disputes these contentions.
C. Statement of Relevant Facts
Appellant served on active duty from November 1966 to August 1968. (R.
at 1871). Service records show that Appellant served as an instructor from June
8, 1967, to September 12, 1967, and from April 2, 1968, to April 12, 1968, as part
of Company B of the 6th battalion, in the student brigade USA Signal Support
Emergency Signal System (USASSESS) at Fort Gordon, Georgia. (R. at 132).
Appellant also served as a radio teletype operator at Fort Gordon with the 385th
signal company (Support) from April 1968 to July 1968. (Id.). Appellant also
served at Fort Clayton, Panama, from October 1967 to April 1968. (Id.). U.S.
Department of Defense (DOD) records show that herbicide agents, including Agent
Orange were sprayed by helicopter at a specific location at Fort Gordon over a
period of 3 days in July 1967 as part of a short-term test program. (R. at 644-53,
2010-11).
In October 2011, Appellant filed a claim for service connection for prostate
cancer and pulmonary fibrosis. (R. at 1987-92). He later stated his belief that his
conditions were due to Agent Orange exposure from his time at Fort Gordon,
Georgia. (R. at 1966). Appellant’s claims for service connection were initially
denied in an October 2013 rating decision. (R. at 1146-51). Appellant filed a notice
of disagreement (NOD) in November 2013. (R. at 1106). The Joint Services
3
Records Research Center (JSRRC) issued a memorandum in November 2013
determining that, while a short-term evaluation of Agent Orange was conducted
from December 1966 to October 1967 at Fort Gordon, there was “no record of
operational use on the military base” and “no evidence of [Appellant’s] unit or his
MOS being involved in the Field Evaluation of Desiccants and Herbicide Mixtures
as Rapid Defoliants.” (R. at 1088-89). In January 2015 the Defense Personnel
Records Information Retrieval System (DPRIS) in cooperation and consultation
with the National Archives and Records Administration (NARA) found that
available records did not show that Appellant was exposed to Agent Orange or
other tactical herbicides while stationed at Fort Gordon. (R. at 927). In March
2015 Appellant’s claim for atherosclerosis was denied. (R. at 897-900). In
November 2015 Appellant submitted a 3-part article from an Augusta Georgia local
news station reporting on the spraying of Agent Orange at Fort Gordon in 1967,
including an interview with a veteran who reported spraying Agent Orange by hand
along roads, at picnic sites and around lakes. (R. at 836-47). In January 2016
DPRIS issued another finding indicating that there was no documentation of any
spraying testing, storage or usage of tactical herbicides at Fort Clayton, in Panama
during the time Appellant served there.
The Regional Office issued a statement of the case (SOC) in February 2016
as to the claim for atherosclerosis (R. at 803-832) and another as to the prostate
cancer and pulmonary fibrosis in March 2016. (R. at 732-764). Appellant
perfected his appeals as to these claims in April 2016. (R. at 725, 727).
4
In the September 2018 decision now before the Court, the Board found that
Appellant was not exposed to herbicide agents during service, to include his
assignments in Fort Gordon and Fort Clayton. (R. at 4). In its analysis, the Board
noted that Agent Orange was sprayed over a 3-day period at a specific area in Fort
Gordon in the summer of 1967, and that Appellant was on the base at that time.
(R. at 6). The Board found, however, that the record did not demonstrate that
Appellant had been exposed to Agent Orange based on several factors including
(1) Appellant’s unit not being part of the testing; (2) Appellant’s saying he was not
part of the testing; (3) a lack of any definitive evidence showing that Appellant
trained in the area where herbicide testing took place; and (4) JSRRC and DPRIS
responses saying they could find no evidence of exposure. (R. at 6-9). This appeal
followed.
III. SUMMARY OF THE ARGUMENT
The Court should affirm the Board’s September 25, 2018, decision. The
Board’s determination that Appellant was not exposed to herbicides was plausible,
supported by the evidence of record, and premised on adequate reasons or bases.
38 U.S.C. § 7261(a)(4). The Board considered and addressed the material
evidence of record in making its decision. Appellant theorizes that his training
activities either happened where the spraying occurred or during the spraying or
both. However, Appellant’s argument in that vein is almost entirely a disagreement
with how the Board interpreted and weighed the evidence. Appellant also alleges
the Board failed to satisfy its duty to assist. But his argument in that regard is
5
based largely on speculation and would extend VA’s duty to assist far beyond what
is required under the Court’s case law. Appellant fails to demonstrate that the
Board’s findings of fact are clearly erroneous or that any inadequacy in its
statement of reasons or bases is preclusive of judicial review. Thus, Appellant has
failed to meet his burden of demonstrating error in the Board’s decision.
IV. ARGUMENT
A. The Board’s Explanation Was Fully Sufficient To Inform Appellant and the Court of the Reasons or Bases for Its Conclusion that the Evidence Did Not Demonstrate In-Service Exposure to Herbicide Agents
In its September 2018 decision, the Board found that the only theory of
service connection raised by Appellant was that the conditions currently on appeal
were due to in-service herbicide agent exposure. (R. at 4). The Board further
found that the preponderance of the evidence showed that Appellant had not been
exposed to herbicide agents during service and correspondingly denied
Appellant’s claims. See 38 C.F.R. § 3.309(e); (R. at 5-9). Appellant does not
contend that the Board’s findings were clearly erroneous and therefore waives any
argument in that regard. See Pieczenik v. Dyax Corp., 265 F.3d 1329, 1332-33 (Fed.
Cir. 2001) (“It is well settled that an appellant is not permitted to make new
arguments that it did not make in its opening brief.”). Instead Appellant maintains
that the Board provided an inadequate statement of reasons or bases in support
of its conclusions. (App. Br. at 10-15).
The law requires that a Board decision must include its “findings and
conclusions, and the reasons or bases for those findings and conclusions, on all
6
material issues.” 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57
(1990). This requires that “the Board (1) address the material issues raised by the
appellant or reasonably raised by the evidence, (2) explain its rejection of
materially favorable evidence, (3) discuss potentially applicable laws, and (4)
otherwise provide an explanation for its decision that is understandable and
facilitative of judicial review.” Johnson v. Shinseki, 26 Vet.App. 237, 264 (2013)
(Kasold, C.J. dissenting), rev’d on other grounds sub nom. Johnson v. McDonald,
762 F.3d 1362 (Fed. Cir. 2014). Ultimately, the Board’s statement of reasons or
bases must be adequate to serve two purposes: to enable the claimant to
understand the precise basis for its decision and to facilitate judicial review. Allday
v. Brown, 7 Vet.App. 517, 527 (1995). Here, the Board’s statement of reasons or
bases accomplishes both aims and is therefore fully adequate. The Board properly
noted that there is no presumptive exposure to herbicide agents for any of the
locations and periods of Appellant’s service. (R. at 5). Thus, the burden was and
remains on Appellant to demonstrate that he was in fact exposed to herbicide
agents during service. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282,
1287 (Fed. Cir. 2009) (holding it is the veteran's “general evidentiary burden” to
establish all elements of his claim, including the nexus requirement).
1. Fort Gordon
The Board noted DOD documentary evidence showing that in July 1967
herbicide agents had been tested over a period of 3 days at a specific, delineated
test site at Fort Gordon, Georgia. (R. at. 6, 644-53). The Board noted as well that
7
Appellant’s personnel records established that he was stationed at Fort Gordon
during and after the testing. (Id.). The Board noted, however, that the JSRRC had
attempted to ascertain whether Appellant would have been exposed to herbicide
agents during this testing and found that “’there is no evidence of his unit or his
MOS (military occupational specialty) being involved in the Field Evaluation of
Desiccants and Herbicide Mixtures as Rapid Defoliants.’” (R. at 7 (quoting R. at
1088-89)). The Board also noted that the DPRIS had indicated that “there was no
information that the Veteran was exposed to Agent Orange or other tactical
herbicides while he was stationed in Fort Gordon.” (R. at 7 (referring to R. at 833,
927)). The Board found that “it is reasonable to infer, due to an absence of
documentation, that the DPRIS finding is competent and credible evidence that the
Veteran was not exposed to Agent Orange while he was stationed in Fort Gordon,
Georgia.” (R. at 7). The Board also noted that Appellant had not asserted that he
was involved directly in spraying or testing. (Id.). The Board therefore concluded
that Appellant had not been directly exposed to herbicide agents. (R. at 8-9).
The Board also considered Appellant’s theory that he was exposed because
he trained at some point in the same area where the herbicide agents were tested.
(R. at 4). The Board noted that Appellant had submitted buddy statements and
written statements regarding his duties at Fort Gordon and news articles purporting
to show where herbicide testing took place. The Board plausibly assigned these
pieces of evidence low probative value, however, because none of them actually
8
shows that Appellant participated in field exercises that took place in the herbicide
agent test site. (R. at 7-8).
Thus, the Board clearly explained its reasoning for finding that Appellant had
not been exposed to herbicide agents and addressed the evidence submitted by
Appellant regarding his duties while there, the purported location of the spraying,
and his statements that he had been exposed to herbicide agents because he had
trained in the same area where it was sprayed. (R. at. 6-9). The Board’s
explanation is clearly stated and fully sufficient to facilitate judicial review. See
Mayfield v. Nicholson, 19 Vet.App. 103, 129 (2005) (observing that where judicial
review is not hindered by deficiency of reasons or bases, a remand for reasons or
bases error would be of no benefit to the appellant and would therefore serve no
useful purpose), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
As noted, however, Appellant insists that the Board provided an inadequate
statement of reasons and bases. In all cases, the burden is on an appellant to
demonstrate error in the Board decision. Hilkert v. West, 12 Vet.App. 145, 151
(1999) (en banc), aff’d 232 F.3d 908 (Fed. Cir. 2000). Here Appellant’s arguments
are little more than a restatement of the evidence and a disagreement with how
the Board interpreted that evidence. Appellant has not met his burden of
establishing that the Board’s analysis is preclusive of judicial review.
It is difficult to construe what precisely Appellant’s argument is. Appellant
initially argues that the Board “failed to adequately address the Appellant’s lay
statements.” (App. Br. at 11). Appellant then states the Board erred when it “failed
9
to address these lay statements.” (App. Br. at 12). Board then states, “The Board
noted the Appellant’s September 2014 statement that his duties as a radio teletype
operator included training students in various field locations at Fort Gordon, and
that these training sessions required him to stay in the field for 2-3 days at a time.”
(App. Br. at 11). It is thus unclear what exactly the Board is alleged to have done
wrong. It is clear, however, from both the Board’s decision and Appellant’s brief
that the Board did in fact specifically address Appellant’s lay statements, to include
his description of his duties and the locations at which he performed them (R. at
7), as well as the supporting buddy statements and news articles. (R. at 8). As
the Board plausibly found, none of these statements demonstrates that Appellant
was directly exposed to herbicide agents. Moreover, as the Board found, Appellant
denied participating in the spraying or testing. (R. at 7). Appellant’s contention
that the Board did not adequately address his lay statements or misconstrued their
purpose is little more than a disagreement with how the Board weighed the
evidence and does not demonstrate any deficiency that renders the Board’s
statement of reasons or bases preclusive of judicial review. See Waters v.
Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (holding that, although the Board
must consider lay evidence, it “may give it whatever weight it concludes the
evidence is entitled to”).
Appellant asserts that he “is in fact competent to report that his field
exercises were conducted at the specific test site where the herbicides were
sprayed.” (App. Br. at 12). Given that Appellant specifically denied participating
10
in the spraying or testing, he admittedly had no first-hand knowledge of precisely
where such spraying and testing took place. (R. at 7). Appellant’s statements, to
the extent he has made any concerning the location of the spraying, are vague
and at odds with the evidence of record. (R. at 38, 37-38 (Appellant’s statement
that “they sprayed it as a defoliant in the woods and around the perimeter”), 2010-
11 (DOD tactical herbicides report noting that “aerial applications were made on
duplicate 3-acre plots, 200 by 660 feet in dimension,” and “all sites were selected
because of their isolation from any local human populations”)). Appellant has
never supplied the Board with any more than a vague description of the location
of his field exercises or of where he believes the testing site to be.
If the basis of the Board decision can be ascertained, as here, its statement
of reasons or bases is adequate. See Johnson v. Shinseki, 26 Vet.App. 237, 247
(2013) (“A Board statement should generally be read as a whole, and if that
statement permits an understanding and facilitates judicial review of the material
issues of fact and law presented on the record, then it is adequate.” (citation
omitted)). The Board discussed Appellant’s “contention that he was exposed to
Agent Orange due to his presence in the field in Fort Gordon” but found that the
statements, along with the other evidence of record did not establish that he was
present in the herbicide testing site or that he was ever actually exposed to
herbicide agents. (R. at 7-9).
Appellant continues the same line of reasoning in his next argument,
contending that, even though the Board addressed the articles he submitted, its
11
reasons for assigning a low probative value were inadequate because the Board
“failed to address favorable findings within those articles.” (App. Br. at 13). Again,
the Board clearly evaluated the articles but found that Appellant was
distinguishable from the veteran in the article in that he did not directly participate
in the spraying or testing of the herbicides. (R. at 8). More importantly, the Board
found that the article is of low probative value because it does not establish that
Appellant was present at the herbicide test site. (Id.).
Appellant states that the article was probative – a sure sign that he just does
not like the way that the Board weighed the evidence – because it showed that the
herbicides were sprayed at a location called “Camp Crockett” and that, because
the article says that 98 acres were sprayed, that somehow bolsters Appellant’s
statement that herbicides were sprayed in the woods and around the perimeter of
the base. Appellant’s argument fails for three reasons. First, Appellant has not at
any point stated that he participated in training or exercises at “Camp Crockett,”
despite multiple statements describing his training activities. Indeed, he has never
mentioned Camp Crockett, or any specific area mentioned in the articles.1 Second,
Appellant provides no explanation for how this is “consistent with [] Appellant’s
statements that he performed training field exercises in the woods and around the
perimeter of the base.” (App. Br. at 13). Nothing in the articles states that spraying
was done around the perimeter of the base, and the DOD report already indicated
1 The articles describe “Camp Crockett” as a “mock-up of a Vietnamese Village for training purposes,” which Appellant has also never mentioned. (R. at 845).
12
that spraying was done in wooded areas. Third, the articles themselves are vague,
inconsistent, and contradictory. (Compare R. at 836-837 (“herbicides were
sprayed on duplicate 3-acre plots” at “site 21”) with 840-841 (discussing Camp
Crockett, training area 47, and “23 sites” where tactical herbicides were sprayed)
and 845 (“98 acres sprayed at the southern tip of the sprawling Army post”)). The
Board addressed the articles, as it was required to, and was absolutely justified in
assigning them low probative value because, as it found, they do not establish that
Appellant was present in the herbicide agent test site. None of Appellant’s
statements contradicts that conclusion.
2. Fort Clayton
The Board also found that Appellant was not exposed to herbicide agents at
Fort Clayton, Panama. Appellant again contends that the Board provided an
inadequate statement of reasons or bases in not sufficiently addressing his lay
statements, specifically that “use of weed killer was sprayed often to prevent return
of vegetation.” (R. at 880 (879-880)).
There is no competent evidence in the record that herbicide agents were
used at Fort Clayton. The Board noted a DPRIS confirmation that US Army
records did not document any spraying, testing, transporting, or storage of
herbicides at Fort Clayton during the time Appellant was stationed there. (R. at
833). Moreover, evidence supplied by Appellant himself listing the location of
herbicide testing and storage sites outside of Vietnam makes no mention of Fort
Clayton, or anywhere else in Panama, for that matter. (R. at 644-53). The only
13
evidence to the contrary is Appellant’s lay statements. However, as the Board
plausibly found, Appellant “is not competent to identify Agent Orange or herbicide
agents because such medical and scientific determinations require education,
training[,] and experience that the Veteran does not possess. Bardwell v. Shinseki,
24 Vet. App. 36 (2010).” (R. at 8 (parenthetical omitted)). Appellant does not
present any argument refuting the Board’s conclusion in this regard. Once the
Board found Appellant’s statements not competent in this regard, it was not
allowed to assign them any probative value. Rucker v. Brown, 10 Vet.App. 67, 74
(1997). As such, there remains no competent evidence of herbicide agent use at
Fort Clayton amidst the evidence of record. Without any competent evidence of
the presence of herbicide agents, there is no basis upon which to premise
exposure to such herbicides. The Board’s reasoning is clear on its face, and
Appellant does not establish how judicial review is precluded.
B. The Board Did Not Clearly Err in Satisfying Its Duty To Assist
In arriving at its conclusion, VA conducted the requisite development for a
claim for herbicide exposure. The Board obtained confirmation from the JSRRC
and the DPRIS, which in turn coordinated with the National Archives and Records
Administration and reviewed unit histories and other historical US Army records.
(R. at 833, 927, 1088-89). The Board also had in its possession DOD records and
lists of herbicide test sites, as well as Appellant’s service personnel records.
Appellant argues that the Board somehow erred in not “exhausting all efforts to
14
obtain records that could verify that he performed field training exercises at the
herbicide test site at Fort Gordon.” (App. Br. at 15).
The duty to assist requires that the Secretary make reasonable efforts to
obtain records so long as such records are both relevant and adequately identified
by the claimant. 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159. The Board’s
determination that the duty to assist has been satisfied is a finding of fact subject
to review under the “clearly erroneous” standard. See Nolen v. Gober, 14 Vet.App.
183, 184 (2000); Gilbert, 1 Vet.App. at 52-53 (1990) (a finding of fact is not clearly
erroneous if there is a plausible basis for it in the record).
Appellant’s entire argument is an invitation for the Court to order the Board
on a fishing expedition for a variety of possible records that may exist that might
have some pertinent information but were somehow not considered by the JSRRC,
the DPRIS, or NARA in their review. However, this is far beyond what the duty to
assist requires. Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (“In short, the
duty to assist is not a license for a 'fishing expedition' to determine if there might
be some unspecified information which could possibly support a claim.").
Appellant first faults the Board for not obtaining “the Fort Gordon command
history,” without providing a definition for what exactly that is or any evidence that
such a thing even exists, apart from Appellant’s unsubstantiated and unsupported
opinion that “presumably, the base command staff would have prepared a record
of what units performed training exercises on the herbicide test site.” (App. Br. at
16-17). In fact, he offers utterly no authority for the presumption on which he relies.
15
Appellant next faults the Board for failing to obtain records from the Fort Detrick
Plant Science Lab, the United States Department of Agriculture (USDA), and the
University of Hawaii, again based solely on a completely unfounded and facially
implausible suggestion that these institutions would have records of military troop
locations or military base schematics from 1967. (Id.). The assertion that any of
these entities would have records establishing that Appellant was exposed to
herbicides is completely unsupported. For the same reasons the theory that Fort
Detrick would have records from units that were admittedly not a part of the testing
program and that were not discovered by the DPRIS, NARA, or the JSRRC in their
research of the issue and that Fort Gordon does not have, is itself implausible.
There is simply no support for the proposition that any of these entities would have
records from troop units not directly involved in the operation.
To the extent that any of them might have specific spraying locations, it is
unclear why Appellant believes that these records are necessary – or even likely
to be useful – at all, since he has repeatedly stated that the spraying locations are
documented in the submitted articles. (App. Br. at 6 (“The June 2011 article
contained a “Fort Gordon Defoliant Testing Area Sample Summary and Map,”
which showed the exact locations of defoliant testing areas at Training Area 47 on
Fort Gordon.”). Indeed, the Board did not make a finding that the location of the
spraying was unknown. However, even were one of the institutions that he
implicates to have a record of specific spraying locations on the base, Appellant
still has not provided any specific information regarding the location of his duties,
16
and the Board’s analysis would remain the same: that the evidence does not show
– even by the modest “equipoise” standard – that Appellant was present in the
specific spraying sites.
Finally, Appellant faults the Board for failing to obtain a unit history for the
385th signal company (App. Br. at 17), even though the unit history for the 385th
was clearly obtained and reviewed by the DPRIS. (R. at 927). Appellant again,
without any evidence in support, assumes that the unit history will supply not only
troop training locations, but also reference to the location of the spraying and a
correlation between the two. This argument also implies that, in conducting review
of the unit history, the DPRIS and/or NARA found specific indications that
Appellant trained in an area that was documented to be where herbicides were
sprayed but ignored such evidence in its report to VA.
The duty to assist is not boundless in scope. See Golz v. Shinseki, 590 F.3d
1317, 1320-21 (Fed. Cir. 2010). Appellant’s argument is the very definition of the
type of “fishing expedition” prohibited by the Court, and the duty to assist does not
require this of the Board. Indeed, Appellant’s assertion of prejudice is purely
hypothetical and based on the “potential pertinence” that such records exist and
might be probative. (App. Br. at 18). An appellant who claims that the Board erred
in not obtaining certain records must do more than merely assert the possibility
that those records could be relevant. Raugust v. Shinseki, 23 Vet.App. 475, 478
(2010) (holding that an assertion that it was “conceivable” that certain records
would have aided claim insufficient to establish error in failure to obtain those
17
records). There is no specific allegation by Appellant, prior to his brief, that these
records would be relevant and nothing but pure speculation now to support that
they would be. Appellant has therefore not demonstrated that the Board clearly
erred in its duty to assist.
As there is no failure in the Board’s duty to assist, the Secretary will not
entertain Appellant’s underdeveloped closing argument regarding reasons or
bases as to the duty to assist. Woehlaert v. Nicholson, 21 Vet.App. 456, 463
(2007) (rejecting the appellant’s argument because it was underdeveloped); (App.
Br. at 19). Indeed, it would appear axiomatic that, if the argument that the Board
failed to satisfy this critical duty is unpersuasive, then it is inescapable that a
reasons-or-bases argument on the same point distills to nothing more than extra
verbiage.
C. Appellant Has Abandoned All Issues Not Argued in His Brief
Any and all issues or arguments that have not been raised in Appellant’s
opening brief have been abandoned. See Disabled Am. Veterans v. Gober, 234
F.3d 682, 688 n. 3 (Fed. Cir. 2000) (stating that the Court would “only address
those challenges that were briefed”).
V. CONCLUSION
For the foregoing reasons, the Court should affirm the Board’s September
25, 2018, decision.
Respectfully submitted, WILLIAM A. HUDSON, JR.
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Acting General Counsel MARY ANN FLYNN Chief Counsel /s/ Richard A. Daley RICHARD A. DALEY Deputy Chief Counsel /s/ Alexander M. Panio ALEXANDER M. PANIO Appellate Attorney Office of General Counsel (027E) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 202-632-5751 Counsel for the Secretary