Alfred Procopio, Jr. v. Eric K. Shinseki , 26 Vet. App. 76 ( 2012 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1253
ALFRED PROCOPIO, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided October 16, 2012 )
Glenn R. Bergmann and Thomas Polseno, both of Bethesda, Maryland, were on the brief for
the appellant.
Karen Hartridge, Appellate Attorney, with whom Will A. Gunn, General Counsel; R. Randall
Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General
Counsel, all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and HAGEL and SCHOELEN, Judges.
HAGEL, Judge: Alfred Procopio, Jr., appeals through counsel a March 16, 2011, Board of
Veterans' Appeals (Board) decision denying entitlement to VA benefits for prostate cancer and
diabetes mellitus type II with edema, both to include as secondary to herbicide exposure. Record
(R.) at 3-15. Mr. Procopio's Notice of Appeal was timely, and the Court has jurisdiction to review
the Board decision pursuant to 38 U.S.C. § 7252(a). Because the Board member conducting the
September 2010 hearing did not comply with 38 C.F.R. § 3.103(c)(2) (2010), the Court will vacate
the March 16, 2011, Board decision and remand the matter for readjudication consistent with this
decision.
I. FACTS
Mr. Procopio served on active duty in the U.S. Navy from September 1963 to August 1967,
including service on board the U.S.S. Intrepid off the coast of Viet Nam.1 R. at 862-63, 1025.
Mr. Procopio filed claims for VA benefits for diabetes mellitus and prostate cancer in
October 2006 and October 2007, respectively. R. at 694-97, 999-1015. Specifically, Mr. Procopio
asserted that those conditions were caused by his exposure to herbicides in service while aboard the
U.S.S. Intrepid in "the Gulf of Tonkin and on the southern coast of Vietnam," which "was
responsible for launching aircraft that sprayed . . . Agent Orange." R. at 696, 1009. A VA regional
office attempted to obtain records to verify his allegations, but the National Personnel Records
Center indicated that no such records existed. R. at 836. Consequently, in March 2009, the regional
office sent Mr. Procopio a letter requesting additional information and evidence pertaining to his
exposure to herbicides in service. R. at 368-75.
In response, Mr. Procopio submitted a statement indicating that, while aboard the U.S.S.
Intrepid, he "quite frequently handled [herbicides] and the aircraft and equipment that was used to
spray these chemicals" and drank "water that was pulled from the Gulf [of Tonkin] and 'purified'
through co-distillation. . . ." R. at 362. He also submitted an undated study funded by the Australian
Department of Veterans' Affairs (hereinafter the Royal Australian Navy study) indicating that
"evaporative distillation [of seawater] may allow [dioxin] . . . to enter water supplies and to
concentrate in the distillate," which "provides evidence that contamination via water may have been
an important pathway for contamination of [Royal Australian Navy] personnel with [dioxin] on
board ships." R. at 366.
In April 2009, the regional office denied Mr. Procopio's claims. R. at 354-60. He filed a
timely Notice of Disagreement with that decision and included a May 2009 treatment note from his
private physician, Dr. Gordon Grado, who opined that Mr. Procopio's conditions were associated
with exposure to Agent Orange on the flight deck of the U.S.S. Intrepid and from water collected
1
VA maintains a list of U.S. Navy and Coast Guard ships in operation off the coast of Viet Nam whose crew
members were presumed to be exposed to Agent Orange. See U.S. Navy and Coast Guard Ships in Vietnam, U.S. DEP'T
OF VETERANS AFFAIRS, http://www.publichealth.va.gov/exposures/agentorange/shiplist/index.asp (last visited June 4,
2012). The Court takes judicial notice of the fact that the U.S.S. Intrepid is not included on that list. See Smith v.
Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute."
(citing FED. R. EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991).
2
from evaporators on that ship. R. at 339-43. In October 2009, the regional office issued a Statement
of the Case that continued to deny Mr. Procopio's claims because there was "no record that [he was]
exposed to Agent Orange" and the U.S.S. Intrepid carried "A-1 Skyraiders used for bombing and
rocketing targets–not spraying Agent Orange." R. at 308. Mr. Procopio subsequently perfected his
appeal. R. at 281.
In September 2010, Mr. Procopio testified at a Board video conference hearing about his in-
service exposure to herbicides. R. at 41-50. At that time, Mr. Procopio submitted a May 2010
treatment note from Dr. Grado that included an impression of "Agent [O]range exposure in Vietnam
as [a] Blue Water Sailor"2 and a treatment plan to "[s]upport [his] history of Agent Orange exposure
in [the] military, as I have had many other patients who were 'Blue Water Sailors' with Agent Orange
exposure while off-shore in Vietnam." R. at 34. Mr. Procopio subsequently submitted an October
2010 letter from Dr. Grado opining: "If Mr. Procopio was off the coast of Vietnam when Agent
Orange was being used and he was therefore exposed to Agent Orange, then [his] prostate cancer
can be associated with his Agent Orange exposure." R. at 22.
In March 2011, the Board issued the decision currently on appeal, which denied entitlement
to VA benefits for prostate cancer and diabetes mellitus type II with edema, both to include as
secondary to herbicide exposure. R. at 3-15. Specifically, the Board considered and rejected the
Royal Australian Navy study as "too general in nature" and Dr. Grado's opinions as "conditional."
R. at 12.
II. PARTIES' ARGUMENTS
On appeal, Mr. Procopio essentially posits three arguments. First, he argues that the Board
hearing officer violated her duty to "explain fully the issues and suggest the submission of evidence
which the claimant may have overlooked" under 38 C.F.R. § 3.103(c)(2) (2010) and Bryant v.
Shinseki, 23 Vet.App. 488, 496 (2010). Second, he asserts that the Board provided inadequate
reasons or bases for finding that Mr. Procopio was not exposed to herbicides via water distillation
2
In VA parlance, the term "blue water" refers to those veterans who served on ships in the waters off the coast
of Viet Nam, whereas the term "brown water" refers to those veterans who served on vessels in the muddy, inland
waterways of Viet Nam. See generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).
3
aboard the U.S.S. Intrepid. Third, he argues that the Secretary violated the duty to assist by failing
to request that the Joint Service Records Research Center verify his exposure to herbicides and
failing to make reasonable efforts to discover the method of water distillation used by U.S. Navy
ships.
The Secretary disputes each of these arguments. First, he argues that the Board hearing
officer adequately explained that exposure to herbicides was the issue on appeal and that Mr.
Procopio had actual knowledge of the evidence necessary to substantiate his claim. Second, he
contends that the Board adequately addressed the evidence of record, including the Royal Australian
Navy study, in support of its finding that Mr. Procopio was not exposed to herbicides. Third, he
argues that a Joint Service Records Research Center request is not required by the VA Benefits
Adjudication Procedure Manual Rewrite (M21-1MR) in U.S. Navy ship cases and that there is no
reasonable possibility of substantiating Mr. Procopio's claim through further investigation regarding
water distillation.
III. ANALYSIS
A. Hearing Officer Duties
Mr. Procopio argues that the Board member who conducted the September 2010 video
conference hearing failed to comply with the duties outlined in 38 C.F.R. § 3.103(c)(2) because she
"asked no pertinent questions," "failed to explain that the chief factual issue in the case was whether
[he] had actually been exposed to herbicide agents while serving aboard the U.S.S. Intrepid off the
coast of Vietnam," and did not "suggest to [him] that he submit evidence" demonstrating such
exposure. Appellant's Brief (Br.) at 9 (italics added). The Secretary responds that, "[b]ecause [Mr.
Procopio] has maintained throughout the course of his appeal that he was exposed to [Agent Orange]
aboard the [U.S.S. Intrepid], it borders on absurd to presume that [he] was unaware of the need to
submit evidence showing he had actually been exposed to herbicide agents in service." Secretary's
Br. at 9-10. The Secretary also contends that "any failure by the hearing officer to explain the need
for evidence of direct herbicide exposure was harmless because the record demonstrates that [Mr.
Procopio] had actual knowledge of the evidence necessary to substantiate his claim." Id. at 10. In
his reply brief, Mr. Procopio asserts that his hearing testimony confirms that he was not aware that
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he needed to submit evidence, other than Dr. Grado's opinions and his own lay statements, "that he
had been in direct bodily contact with a substance that could reasonably be identified as Agent
Orange." Appellant's Reply Br. at 1.
1. Applicable Law & Regulatory History
Section 3.103(c)(2) provides, in pertinent part: "It is the responsibility of the employee or
employees conducting the hearings to explain fully the issues and suggest the submission of evidence
which the claimant may have overlooked and which would be of advantage to the claimant's
position." 38 C.F.R. § 3.103(c)(2). As the Court explained in Bryant, this regulation imposes "two
distinct duties" on hearing officers: (1) "a duty to fully explain the issues still outstanding that are
relevant and material to substantiating the claim," and (2) a duty to "suggest that a claimant submit
evidence on an issue material to substantiating the claim when the record is missing any evidence
on that issue or when the testimony at the hearing raises an issue for which there is no evidence in
the record."3 23 Vet.App. at 492, 496. Of particular importance to this appeal, the Court held that
those duties applied with equal force to VA employees conducting hearings at the agency of original
jurisdiction and the Board. Id. at 497-500.
The Secretary had an opportunity to appeal the Court's decision in Bryant to the U.S. Court
of Appeals for the Federal Circuit, but elected not to do so. Rather, VA responded to that decision
by publishing an August 2011 rule "amending its hearing regulations to clarify that the provisions
regarding hearings before the Agency of Original Jurisdiction . . . do not apply to hearings before the
Board of Veterans' Appeals. . . ." 76 Fed. Reg. 52,572, 52,572 (Aug. 23, 2011). VA explained that
the Court's reliance in Bryant on Douglas v. Derwinski, 2 Vet.App. 435 (1992), which held that
§ 3.103(c) applied to Board hearings, was misplaced because that case was decided in the context
of a different regulatory scheme. Id. at 52,573. Namely, pursuant to the regulations in effect at the
time that Douglas was decided, "if an appellant chose to have a hearing before employees of the
[agency of original jurisdiction] acting as a hearing agency for the Board, then he or she was not
entitled to a subsequent hearing before a Board Member." Id. (citing 38 C.F.R. § 19.160 (1991)).
3
The purpose of those duties is to "assure [the] clarity and completeness of the hearing record," a critical and
sometimes marginalized component of a claimant's right to a fair and full adjudication before VA. 38 C.F.R.
§ 3.103(c)(2); see Bryant, 23 Vet.App. at 499.
5
Shortly after Douglas, VA "amended its hearing regulations to terminate the practice of [agency of
original jurisdiction] personnel holding appellate hearings on the Board's behalf" because VA
determined that "'a clear demarcation should exist between the conduct of hearings by the Board and
hearings conducted by [Veterans Benefits Administration] employees at regional offices.'" Id.
(quoting 58 Fed. Reg. 27,934, 27,934 (May 12, 1993)). According to VA, that 1993 amendment
"reflected VA's intent to clearly distinguish hearings before [agencies of original jurisdiction] from
hearings before the Board, including the duties of the respective VA personnel conducting the
hearing," despite the fact that the final rule implementing that amendment did not mention
§ 3.103(c)(2). Id.; see also 58 Fed. Reg. at 27,934. Nevertheless, following that 1993 amendment,
it became "standard VA practice and procedure" to apply § 3.103 only to hearings before the agency
of original jurisdiction, and to apply 38 C.F.R. § 20.706 to hearings before the Board. 76 Fed. Reg.
at 52,572. At that time, § 20.706 did not contain any explicit reference to the duties to fully explain
the outstanding issues and to suggest the submission of overlooked evidence contained in
§ 3.103(c)(2). See 38 C.F.R. § 20.706 (1993) (requiring the presiding Board member, among other
things, to "assure that the course of the hearing remains relevant to the issue, or issues, on appeal").
Following Bryant, VA amended § 3.103(c)(2) and § 20.706 to reflect its intent and practice
with respect to hearings. VA explained that its amendment "merely clarifies current procedures for
obtaining and conducting a hearing on a claim for VA benefits before the VA agency of original
jurisdiction or the Board," "does not create new procedure," and represents "no substantive change."
76 Fed. Reg. at 52,573. Therefore, on August 23, 2011, VA promulgated the amended rule without
notice and comment and it became effective that same day. See 5 U.S.C. § 553(b)(A) (exception to
the notice-and-comment rulemaking requirements for "interpretive rules, general statements of
policy, or rules of agency organization, procedure, or practice"); 76 Fed. Reg. at 52,572.
However, in April 2012, VA rescinded the August 2011 amendment because it determined
that it should have been promulgated through the notice-and-comment procedure outlined in
5 U.S.C. §§ 553(b)-(c). 77 Fed. Reg. 23,128 (Apr. 18, 2012). VA explained that notice-and-
comment rulemaking was required because the amendment "altered the language [of § 3.103(c)(2)]
upon which the Bryant Court relied." Id. According to VA, this April 2012 rule was meant "to
6
return the regulations to the language in effect before August 23, 2011." Id. The rescission of that
amendment became effective June 18, 2012. 77 Fed. Reg. at 23,128.
In light of these regulatory changes post-Bryant, both parties were ordered to file
supplemental memoranda of law on which version of § 3.103(c)(2) is applicable to this case. Both
parties asserted that the version of § 3.103(c)(2), as applied in Bryant, is for application here. See
Secretary's Memorandum of Law (Mem.) at 2 ("As the Board hearing in this case took place in 2010,
well before 38 C.F.R. § 3.103(c)(2) was amended in [August] 2011, the Secretary asserts that
38 C.F.R § 3.103(c)(2)[, as applied in Bryant,] is applicable to the Board hearing in this case.");
Appellant's Mem. at 8-10 (noting that the August 2011 amended rule "does not apply to the March
16, 2011, Board decision on appeal," and that [§] 3.103(c)(2) as discussed in Bryant is for
application").
The Court agrees. See Abington Memorial Hosp. v. Heckler, 750 F.2d 242, 244 (3d Cir.
1984) ("[V]acating or rescinding invalidly promulgated regulations has the effect of reinstating prior
regulations." (citing Action on Smoking & Health v. Civil Aeronautics Board, 713 F.2d 795, 797
(D.C. Cir. 1983))); see Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) ("The effect of
invalidating an agency rule is to reinstate the rule previously in force."); see also Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("[A]dministrative rules will not be construed
to have retroactive effect unless their language requires this result."); Ervin v. Shinseki,
24 Vet.App. 318, 322 (2011) ("If [the Secretary] did expressly speak to the temporal reach of the
regulation, then the Court should apply the regulation as indicated by the language of the
regulation."). Accordingly, the Court concludes that the Board member conducting Mr. Procopio's
September 2010 video conference hearing was obligated to fully explain the outstanding issues in
Mr. Procopio's appeal and suggest the submission of evidence that he might have overlooked. See
Bryant, 23 Vet.App. at 492.
2. Application of § 3.103(c)(2) to Mr. Procopio's Appeal
It is undisputed that Mr. Procopio's claims were denied by the regional office because of a
lack of competent evidence of (1) in-service exposure to herbicides and (2) a nexus between any
such exposure and his current disabilities. R. at 266-78, 288-309, 354-60. Therefore, pursuant to
§ 3.103(c)(2), the Board member was obligated to explain those issues to Mr. Procopio and to
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suggest the submission of evidence relevant to those issues that he might have overlooked. See
Bryant, 23 Vet.App. at 496-97. However, the Board member failed to do so. Specifically, after
administering an oath to Mr. Procopio and announcing that the record would be held open for 60
days to allow him to submit additional evidence, the Board member turned the hearing over to Mr.
Procopio's representative and did not ask any questions or otherwise comment on his appeal. In fact,
after the veterans service organization representative finished eliciting testimony from Mr. Procopio,
the Board member stated that she had no questions for Mr. Procopio and that she understood his
contentions. R. at 49. She then thanked them both and concluded the hearing. R. at 49-50.
Despite the Board member's minimal participation in the hearing, the Secretary asserts that
the Board member complied with her duty to fully explain the outstanding issues in Mr. Procopio's
claims because she stated at the outset of the hearing that the issues on appeal were entitlement to
benefits for prostate cancer and diabetes mellitus, to include as a result of exposure to herbicides.
R. at 42. However, the Court in Bryant held that a similarly generic statement of the scope of the
claims was insufficient to satisfy § 3.103(c)(2). 23 Vet.App. at 497 (holding that the Board member's
statement that the issues on appeal included entitlement to benefits for bilateral hearing loss, tinnitus,
squamous cell carcinoma, and frostbite of both feet did not satisfy § 3.103(c)(2) because the Board
member did not inform the appellant that the outstanding elements necessary to substantiate those
claims were proof of current disabilities and medical nexuses). Accordingly, because the Board
member in the instant case did not explain that Mr. Procopio's claims could only be substantiated
by submitting evidence of in-service exposure to herbicides and a nexus between that exposure and
his current disabilities (the missing elements in his claims), the Court concludes that the Board
member failed to discharge her duty to fully explain the outstanding issues under § 3.103(c)(2).
23 Vet.App. at 496 ("[W]hen the [regional office] has denied a disability claim because there is no
current disability, no nexus to service, or no incident in service, etc., then . . . the Board hearing
officer's explanation and discussion should be centered on these issues.").
Next, with respect to the Board member's duty to suggest the submission of evidence that Mr.
Procopio might have overlooked, the Secretary argues that any failure in that regard was harmless
because "the record demonstrates that [Mr. Procopio] had actual knowledge of the evidence
necessary to substantiate his claim." Secretary's Br. at 10 (citing Mayfield v. Nicholson,
8
19 Vet.App. 103, 121 (2005) (holding that no prejudice exists where a claimant had actual
knowledge of the evidence necessary to substantiate his claim), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006)). In support of this argument, the Secretary notes that Mr. Procopio
has consistently asserted and submitted evidence that he was exposed to herbicides aboard the U.S.S.
Intrepid, his veterans service organization representative asked him during the hearing whether he
was "exposed chemically" to herbicides in service (R. at 47), and the October 2009 Statement of the
Case explained that "both the [Royal Australian Navy] study and Dr. Grado's medical opinion . . .
were not in themselves sufficient to prove that he had actually been exposed to herbicide agents in
service" (Secretary's Br. at 11). This argument, however, is misplaced for several reasons.
First, the Secretary is conflating the duty to fully explain the outstanding issues with the duty
to suggest the submission of overlooked evidence. Even assuming that the foregoing evidence
demonstrates that Mr. Procopio was aware that he needed to submit evidence of in-service exposure
to herbicides and a nexus between that exposure and his current disabilities, his testimony clearly
reflects that he was unaware of what type of evidence was necessary to prove those elements.
Specifically, Mr. Procopio's representative at the hearing requested that the record before the
agency be held open for 60 days to allow Mr. Procopio to submit another nexus opinion from Dr.
Grado that was based on a review of his service records because VA had determined that Dr. Grado's
previous opinions based on his statements were inadequate to demonstrate a nexus. R. at 43-44. At
that point, the Board member should have interjected, explaining that a nexus opinion alone would
be insufficient to substantiate his claims without evidence of in-service exposure to herbicides,
which generally cannot be provided by a private doctor decades after the alleged exposure. Further,
the Board member should have recognized that, if Mr. Procopio is able to establish in-service
exposure, he would be entitled to presumptive service connection for prostate cancer and diabetes
mellitus type II under 38 C.F.R. § 3.309(e), alleviating the need for a nexus opinion.
Yet, the Board member did not alert Mr. Procopio that he was overlooking evidence of in-
service exposure to herbicides. Instead, the Board member violated § 3.103(c)(2) by allowing Mr.
Procopio to proceed under the assumption that submitting a nexus opinion alone would be sufficient
to substantiate his claims–even though the hearing testimony indicated otherwise–and by failing to
suggest evidence that he could submit to demonstrate exposure. See Bryant, 23 Vet.App. at 496
9
(explaining that a hearing officer "must not only be familiar with the claims file but also be engaged
in the hearing process"); 38 C.F.R. § 3.103(c)(2) (stating that the purpose of the regulation is to
"assure [the] clarity and completeness of the hearing record").
This is not to say that the Board member was required to preadjudicate Mr. Procopio's claim.
As the Court explained in Bryant, "[p]readjudication or the weighing of conflicting evidence . . . is
not required for a hearing officer to determine that evidence is not in the record with regard to a
particular, material element of the claim." 23 Vet.App. at 493. Here, the regional office explicitly
stated in its October 2009 Statement of the Case that there is "no record of [Mr. Procopio's]
purported exposure to herbicides in service." R. at 309. A Statement of the Case is a document that
"a hearing officer should have encountered in his review of the record, [that] will likely assist . . .
in identifying the outstanding issues. Bryant, 23 Vet.App. at 496, n. 3. As such, the Board member
did not need to weigh the evidence of record to determine that a letter regarding nexus alone would
not substantiate Mr. Procopio's claim. Thus, the Board member should have informed Mr. Procopio
that the issue of in-service exposure to herbicides was being overlooked, and the Board member's
failure to do so thus constitutes error. See id. at 493-94 (explaining that a Board member "cannot
ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the
record (or the claimant at [the] hearing) clearly shows that such evidence is not available").
Second, the Secretary's argument that the issuance of a pre-hearing Statement of the Case
cures a Board member's failure to suggest the submission of overlooked evidence essentially
eviscerates the duty required by § 3.103(c)(2). If the Secretary's argument were correct, then every
claimant would have actual knowledge of the evidence necessary to substantiate a claim at the time
of a Board hearing because Statements of the Case precede Substantive Appeals to the Board, see
38 U.S.C. § 7105, and the Board member, therefore, would never be obligated to perform that duty.
Cf. Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (holding that a pre-hearing notice letter
identifying the evidence necessary to substantiate a claim was not sufficient to satisfy § 3.103(c)(2)).
Consequently, the Court must reject the Secretary's proposed prejudicial error analysis because it
renders a portion of § 3.103(c)(2) a legal nullity. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331,
1336 (Fed. Cir. 2006) (rejecting the Secretary's proffered interpretation because it "would render
portions of the statutes and regulations [governing claims for VA benefits] meaningless").
10
Based on the foregoing, the Court concludes that the Board member conducting the
September 2010 video conference hearing did not comply with her duties to apprise Mr. Procopio
of the elements of his claims that still needed to be proven and to suggest the submission of evidence
thereof that he might have overlooked. See Bryant, 23 Vet.App. at 496-97. As explained above, the
Board member made no efforts to explain to Mr. Procopio that he needed to submit evidence
regarding his in-service exposure to herbicides, despite testimony indicating that he was unaware that
this element of his claims remained outstanding and that he was confused about what evidence was
necessary to substantiate his claims. See id. at 499 (explaining that "prejudice arises from the failure
of the hearing officer to assure the 'clarity and completeness of the hearing record,' and the lost
additional opportunity to try and submit such evidence before [the] claim [is] finally adjudicated"
(quoting 38 C.F.R. § 3.103(c)(2))) (internal citations omitted). Therefore, vacatur and remand is
warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998).
B. Other Arguments
Although the Court has already determined that remand is necessary, the Court will
nevertheless address Mr. Procopio's remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390,
396 (2009) (holding that the Court may address an appellant's other arguments after determining that
remand is warranted to provide guidance to the Board).
1. Reasons or Bases
Mr. Procopio contends that the Board provided an inadequate statement of reasons or bases
for its determination that he was not exposed to herbicides in service. Specifically, Mr. Procopio
points to a particular passage in the Board decision discussing "a similar Australian study" that VA
previously reviewed and determined was insufficient to support an extension of the presumption of
exposure to herbicides to similarly situated veterans, and asserts that "the Board's error was
essentially [adjudicating] whether the evidence presented by [Mr. Procopio] was sufficient to warrant
presumptive service connection for all veterans in his circumstances, rather than direct service
connection based on the unique facts of his claim." Appellant's Br. at 12 (emphasis in original).
This argument is not supported by the record.
11
Although Mr. Procopio is correct that the cited passage pertains to presumptive service
connection, he ignores the fact that the Board separately considered whether the Royal Australian
Navy study that he submitted was sufficient to demonstrate exposure to herbicides in service for the
purposes of establishing direct service connection and determined that it was not. To that end, the
Board recited the law with respect to the probity of medical treatise evidence and noted that "[t]he
article in the current case does not provide statements for the facts of [Mr. Procopio]'s specific
case"–namely, it did "not show to any degree of specificity that [he] was exposed to Agent Orange
while drinking water on the [U.S.S. Intrepid]." R. at 12. Consequently, the Board concluded that
the Royal Australian Navy study was "too general in nature to provide, alone, the necessary evidence
to show that [Mr. Procopio] was exposed to Agent Orange while onboard [that ship]." Id.; see also
Haas v. Peake, 525 F.3d 1168, 1194 (2008) (noting VA scientists' and experts' problems with the
Royal Australian Navy study, as enumerated in 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)).
Because the foregoing discussion was sufficient to enable Mr. Procopio to understand the precise
basis for the Board's decision and to facilitate review in this Court, the Court concludes that the
Board's statement of reasons or bases was not inadequate in that regard. See Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990).
2. Duty To Assist
Mr. Procopio also argues that the Board's determination that VA satisfied its duty to assist
him in substantiating his claims was clearly erroneous because VA (1) "failed to comply with its own
procedures for investigating claimed exposure to herbicides in service outside of the landmass of
Vietnam," and (2) made "no effort . . . to confirm whether the water distillation method described
12
in the [Royal] Australian Navy stud[y] was used aboard the U.S.S. Intrepid."4 Appellant's Br. at 15,
19 (italics added).
With respect to Mr. Procopio's first contention, the M21-1MR directs the regional office,
"[i]n all cases where a [v]eteran claims that he/she served on a ship that stored or transported
herbicides," to place in the veteran's claims file a copy of the memorandum prepared by the Joint
Service Records Research Center stating that it "has no evidence to support [an allegation] of
herbicide exposure based solely on shipboard service." M21-1MR, pt. IV, subpt. II, ch. 2, § C-10(l).
Although the Secretary concedes that this memorandum was not placed in Mr. Procopio's claims file,
Mr. Procopio fails to demonstrate prejudice. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009)
(appellant bears burden of demonstrating prejudice on appeal).
The memorandum is intended to serve as a "substitute for individual inquiries to the [VA
Compensation and Pension] Service's Agent Orange mailbox and to the [Joint Service Records
Research Center]" because the Joint Service Records Research Center "has found no evidence that
indicates Navy . . . ships transported tactical herbicides from the United States to the Republic of
Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical
herbicides," "cannot document or verify that a shipboard Veteran was exposed to tactical herbicides
based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam," and
"can provide no evidence to support a Veteran's claim of exposure to tactical herbicide agents while
serving aboard a Navy . . . ship during the Vietnam era." M21-1MR, pt. IV, subpt. II, ch. 2, §§ C-
10(l), (m). Consequently, any remand to the Board to place that memorandum in Mr. Procopio's
claims file or for a Joint Service Records Research Center request would be futile because it has
already been determined that no such records exist. See Soyini v. Derwinski, 1 Vet.App. 540, 546
4
The Court notes that Mr. Procopio does not argue that the Board had a duty to seek clarification of Dr. Grado's
October 2010 letter. See Savage v. Shinseki, 24 Vet.App. 259, 270 (2011) (holding that VA has a duty to clarify
ambiguous private medical opinions in limited circumstances, where "the missing information is relevant, factual, and
objective"); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) (explaining that the Court's prior caselaw
"establish[es] that the content of information and evidence received by VA may require an appropriate response,
consistent with the duty to assist"); Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007) ("Where . . . the medical examiner
specifically states that a medical opinion cannot be provided without information not currently available, the Secretary's
duty to assist requires that the Secretary determine whether that information may be reasonably obtained, and if so, to
make efforts to obtain it. . . ."). Therefore, the Court deems any such argument abandoned. See Grivois v. Brown,
6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned).
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(1991) (holding that the Court need not order a remand based on a technical error of law where a
remand would unnecessarily impose additional burdens on the Board with no benefit flowing to the
veteran). Therefore, the Court concludes that Mr. Procopio has failed to carry his burden of
demonstrating that VA committed prejudicial error in failing to include that memorandum in his
claims file. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of
prejudicial error"); Sanders, supra; Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).
With respect to his second contention, Mr. Procopio acknowledges that VA previously had
made an inquiry and was "unable to obtain official confirmation . . . from the Department of
Defense" that any U.S. Navy ships used that process, 73 Fed. Reg. 20,363, 20,364 (Apr. 15, 2008),
but nevertheless argues that he "fails to see why the U.S. Navy, pursuant to a clear request based on
the facts of this particular case, would be unable to determine whether the U.S.S. Intrepid utilized
[that] type of water distillation. . . ." Appellant's Reply Br. at 5 (italics added). Although this may
be true, he fails to identify–and the record does not reflect–where in the record he requested that VA
obtain information as to whether the U.S.S. Intrepid used the evaporative distillation process
described in the Royal Australian Navy study. He also fails to demonstrate why, given the response
to VA's generic request regarding use of that process by U.S. Navy ships, VA should have submitted
an additional, more tailored, request for information, specific to the U.S.S. Intrepid. See Robinson
v. Peake, 21 Vet.App. 545, 552 (2008) (Board must address all issues raised by the claimant or
reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see
also 38 U.S.C. § 5103A(b)(1) ("[T]he Secretary shall make reasonable efforts to obtain relevant
records (including private records) that the claimant adequately identifies to the Secretary . . . ."
(emphasis added)); Hilkert v. West, 12 Vet.App. 149, 151 (1999) (en banc) aff'd per curiam,
232 F.3d 908 (Fed. Cir. 2000) (table). Of course, in light of the need to remand this matter, Mr.
Procopio may pursue this matter on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002)
(noting that, on remand, claimants may present, and the Board must consider, any additional
evidence and argument in support of remanded matters).
On remand, Mr. Procopio is free to submit additional evidence, including the types of
alternative evidence of herbicide exposure identified in his reply brief, and argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay, supra.
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"A remand is meant to entail a critical examination of the justification for the decision" by the Board.
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed
expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).
IV. CONCLUSION
Upon consideration of the foregoing, the March 16, 2011, Board decision is VACATED and
the matter is REMANDED for readjudication consistent with this decision.
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