CAVC Case 09-3980: Diabetes

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · 2009-08-03 · HAGEL, Judge

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

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Official 2026 VA monthly compensation, including the 2.8% COLA increase.

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2026 base rates, all ratings (veteran alone)
RatingMonthly (2026, incl. 2.8% COLA)
10%$180.42
20%$356.66
30%$552.47
40%$795.84
50%$1,132.90
60%$1,435.02
70%$1,808.45
80%$2,102.15
90%$2,362.30
100%$3,938.58
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Outcome
Vacated / Remanded
Decision Date
2009-08-03
Judge
HAGEL, Judge
Service Era
Not specified

Conditions Claimed

Diabetes

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Issues on Appeal

Service Connection

Why It Was Decided This Way

Because the Board failed to provide an adequate statement of its reasons or bases for rejecting favorable lay evidence of record and failed to ensure that VA satisfied its duty to assist,the Court will vacate the August 2009 Board decision and remand the matter for further development and readjudication consistent with this decision.

In August 2009,the Board issued the decision now on appeal,concluding that VA satisfied its duty to assist the appellant.

The Board noted the evidence of record indicating that commercial,non-tactical herbicides were used throughout Thailand during the appellant.

Accordingly,the Board found that the preponderance of the evidence was against the appellant.

The Secretary concedes that the Board failed to support aspects of its decision with an adequate statement of reasons or bases,but contends that the appropriate remedy is remand,rather than reversal.

As noted above,however,the Board concluded that the preponderance of the evidence did not support the appellant.

He contends that the only evidence of record pertaining to whether he set foot in Viet Nam is his own lay statements and the letter submitted by Sergeant Gillen and that,because these statements were uncontroverted,the Board's finding that he did not set foot in Viet Nam was clearly erroneous and should be reversed.

The Secretary concedes that the Board failed to adequately account for these lay statements by sufficiently explaining its reasons or bases for rejecting them,but contends that the statements were not uncontroverted and that remand is the proper remedy under these circumstances.

Authorities Cited

Buchanan v. NicholsonCaluza v. BrownCombee v. BrownDyment v. PrincipiDyment v. WestFletcher v. DerwinskiGilbert v. DerwinskiGutierrez v. PrincipiHaas v. PeakeHersey v. DerwinskiHicks v. BrownJandreau v. NicholsonJohnson v. BrownKutscherousky v. WestNolen v. GoberSee Kay v. PrincipiSee Layno v. BrownStegall v. WestTucker v. WestWood v. Derwinski

Denial Type

Credibility|Preponderance Against|Duty To Assist

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