BVA Case 09-3980: Back

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 Mr.

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

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

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 Mr.

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.