Jenny N. Parseeya-Picchione v. Robert A. McDonald
28 Vet. App. 171
| Vet. App. | 2016Background
- Veteran served in the U.S. Army and was deployed to Thailand (assigned to Camp Friendship at Korat RTAFB) from Jan 1968 to Jan 1970; later diagnosed with type II diabetes (1992) and renal insufficiency (2001); died in May 2011.
- Veteran initially filed for service connection for diabetes alleging herbicide exposure and mistakenly reported Vietnam service; later asserted exposure in Thailand and testified to a possible layover in Vietnam en route to Thailand.
- Administrative record includes Project CHECO (declassified Air Force report) indicating Camp Friendship bordered Korat perimeter, and third‑party evidence (archivist and retired Major) that flights to Thailand often stopped at Ton Son Nhut in Vietnam.
- RO and Board denied service connection for diabetes, renal disease, and cause of death; Court previously vacated a Board decision for failing to explain why it concluded no herbicide exposure and ordered clarification.
- On remand, May 29, 2015 Board again denied service connection finding the veteran likely did not set foot in Vietnam, that Camp Friendship was not on the Korat perimeter as required for presumptive exposure, and that the veteran had no direct herbicide exposure; Court vacated and remanded for inadequate reasons/bases and prejudicial factual error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board adequately explained rejecting veteran's lay testimony that he had a Vietnam layover | Parseeya‑Picchione: inconsistencies were inconsequential; third‑party evidence supports layover | Secretary: Board credibility finding plausible and adequately explained | Court: Credibility finding supported but Board failed to discuss third‑party evidence; remand required for full reasons/bases |
| Whether veteran served on/perimeter of Korat AFB (implicating presumption of herbicide exposure) | Appellant: Camp Friendship bordered Korat perimeter per CHECO and veteran testimony, so presumption applies | Secretary: Board correctly concluded Camp Friendship not on perimeter and veteran not shown to have been on perimeter; factual error harmless | Court: Board’s statements about Camp Friendship/perimeter were internally inconsistent and contradicted CHECO; factual error prejudicial; remand required |
| Whether Board correctly concluded no direct exposure to tactical herbicides in Thailand | Appellant: evidence supports possible tactical or tactical‑like herbicide use on base perimeters | Secretary: Board’s incorrect statement that tactical herbicides weren’t used is harmless; no evidence veteran had direct exposure | Court: Board misstated factual point about tactical herbicide use; error prejudicial because perimeter status is material; remand required |
| Whether claims for renal disease and cause of death should be adjudicated separately | Appellant: those claims depend on service connection for diabetes | Secretary: not directly addressed beyond linkage | Court: Claims are inextricably intertwined with diabetes determination; remand of all claims warranted |
Key Cases Cited
- Gilbert v. Derwinski, 1 Vet.App. 49 (Board must provide adequate statement of reasons or bases)
- Wood v. Derwinski, 1 Vet.App. 190 (Board assesses credibility and weight of evidence)
- Tucker v. West, 11 Vet.App. 369 (remand required where Board fails to provide adequate reasons or bases)
- Overton v. Nicholson, 20 Vet.App. 427 (prejudicial error standard in VA appeals)
- Newhouse v. Nicholson, 497 F.3d 1298 (appellate review and prejudicial error principles)
- McDonough Power Equip. v. Greenwood, 464 U.S. 548 (standard for prejudicial error)
- Harris v. Derwinski, 1 Vet.App. 180 (claims inextricably intertwined; remand when decision on one affects others)