Taylor v. McDonald

27 Vet. App. 158, 2014 U.S. Vet. App. LEXIS 1953, 2014 WL 6634134
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 24, 2014
DocketNo. 13-0567
StatusPublished
Cited by1 cases

This text of 27 Vet. App. 158 (Taylor v. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor v. McDonald, 27 Vet. App. 158, 2014 U.S. Vet. App. LEXIS 1953, 2014 WL 6634134 (Cal. 2014).

Opinion

PIETSCH, Judge:

Raymond C. Taylor, who served in the Korean demilitarized zone (DMZ) during 1968 and 1969, appeals through counsel a December 10, 2012, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for non-Hodgkin’s lymphoma (lymphoma) based on a finding that the evidence was sufficient to rebut, under 38 C.F.R. § 3.307(d), a presumption of service connection based on exposure to herbicides. He argues that § 3.307(d) is invalid as applied to veterans with qualifying service in the Korean DMZ and therefore that the presumption of service connection for his non-Hodgkin’s lym[160]*160phoma, based on exposure to herbicides in service, is unrebuttable. He argues alternatively that, even if the rebuttal regulation is valid, the Board erred by relying on an inadequate August 2012 VA medical opinion as sufficient evidence to rebut the presumption.

For the reasons that follow, we hold that the application of § 3.307(d) to veterans who were exposed to herbicides during active service in the Korean DMZ is a valid exercise of the Secretary’s authority to promulgate evidentiary regulations under 38 U.S.C. § 501(a)(1). However, we agree with the appellant that the Board erred when it determined that the August 2012 VA medical opinion was sufficient to rebut the presumption of service connection, as it failed to provide an adequate statement of reasons or bases for that conclusion. We will, therefore, vacate the Board’s decision and remand the matter for readjudication consistent with this decision.

I. BACKGROUND

The following summary of the claim history most relevant to the issues on appeal is reflected in the record of proceedings before the Court.

The appellant served on active duty with the U.S. Army from September 1967 to May 1969. Record (R.) at 486. His service included 13 months in Korea. R. at 559.

VA medical notes from July 2008 indicate that the appellant had been previously diagnosed with hepatitis B and hepatitis C. R. at 362-63. In February 2009, a bone marrow biopsy was evaluated as “suspicious for Hepatitis C-related B-cell lymphoma.” R. at 234. A July 2009 medical note indicates a history of “hepatitis C related B cell lymphoma.” R. at 220. An August 2009 medical note indicates “Non-Hodgkin’s B-cell lymphoma secondary to Hep C.” R. at 190.

In August 2009, the appellant filed a claim for entitlement to service connection for non-Hodgkin’s lymphoma, due to Agent Orange (AO) exposure in service. R. at 288. The claim was denied by the VA regional office (RO) in September 2009, due to the lack of evidence that the appellant served in Vietnam or was otherwise exposed to AO in service. R. at 272. The appellant submitted a timely Notice of Disagreement, claiming that he was exposed to AO while serving in Korea in 1968. R. at 251.

In June 2010, the RO issued a Statement of the Case maintaining the denial of the appellant’s claim because service records did not show that the appellant was exposed to herbicides during active duty including service in Korea. R. at 133-34. The appellant perfected his appeal to the Board. R. at 113.

In June 2012, the Board issued a request for a VA medical specialist’s opinion based on a finding that the evidence indicated that the appellant had been exposed to herbicides “while working in and around the demilitarized zone (DMZ) in Korea.” R. at 83-84. The Board noted that the appellant’s in-service exposure created a presumption of service connection for his lymphoma unless there is affirmative evidence to the contrary. The Board further noted that some VA treatment records attributed the lymphoma to the appellant’s hepatitis C and therefore requested that an oncologist “indicate whether the evidence in its entirety supports the conclusion that the Veteran’s non-Hodgkin’s lymphoma was not incurred in, or otherwise caused by, his military service.” R. at 84.

A VA oncologist responded in August 2012, opining that “the absence of past studies would make determination of the etiology of his disorder impossible.” R. at [161]*16180. The doctor further opined: “I believe that the evidence suggests that the hepatitis C infection led to the development of the lymphoma.” R. at 81.

In December 2012, the Board issued the decision here on appeal. R. at 2-14. The Board found that the appellant was exposed to AO in service. R. at 6. The Board further found that non-Hodgkin’s lymphoma is a disease for which service connection is presumed based on exposure to an herbicide agent. Id.; see 38 C.F.R. § 3.309(e) (2014). However, the Board found that the August 2012 VA medical opinion confirmed that it was likely that the appellant’s intervening hepatitis C infection led to the development of lymphoma and that this was sufficient evidence to rebut the presumption of service connection. R. at 6-9; see 38 C.F.R. § 3.307(d) (2014). The Board considered the positive medical nexus opinions submitted by the appellant, but found the August 2012 VA medical opinion to be more probative. R. at 8.

The Board also found that the evidence was insufficient to establish a nexus to herbicide exposure on a direct basis, in the absence of an applicable presumption. R. at 9. The Board therefore denied the claim, finding that “the most probative evidence indicates that the Veteran’s non-Hodgkin’s lymphoma is the result of [hepatitis C] and not the result of herbicide exposure in service, and the evidence does not suggest that the non-Hodgkin’s lymphoma is otherwise related to service (either through date of onset or causation).” Id.

Before the Court, the appellant argues that the Board was statutorily precluded from rebutting the regulatory presumption of service connection applicable to his lymphoma. Appellant’s Br. at 20-25. He contends that VA’s regulations providing for rebuttal of the presumption are ultra vires as applied to veterans like himself who are entitled to a presumption of service connection based on their service in the Korean DMZ. In the alternative, he argues that the Board erred in finding the August 2012 medical examiner’s opinion adequate and that it constituted sufficient evidence to rebut the presumption of service connection. Id. at 8-20.

The Secretary disputes the appellant’s arguments, arguing that the Board’s decision should be affirmed. He contends that VA regulations providing for rebuttal of the presumption of service connection as applied to the appellant are a valid exercise of the Secretary’s general rulemaking authority under 38 U.S.C. § 501(a). He further contends that the Board did not err in relying on the August 2012 VA medical opinion to rebut the presumption.

II. ANALYSIS

A. Validity of the Challenged Regulation

The Board found that the appellant was entitled to a presumption under 38 C.F.R.

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Clifford H. Cox v. Robert A. McDonald
28 Vet. App. 318 (Veterans Claims, 2016)

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Bluebook (online)
27 Vet. App. 158, 2014 U.S. Vet. App. LEXIS 1953, 2014 WL 6634134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-mcdonald-cavc-2014.