Citation Nr: 0602237 Decision Date: 01/26/06 Archive Date: 01/31/06 DOCKET NO. 04-14 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for diabetes mellitus, including as due to exposure to Agent Orange in service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from April 1969 to March 1971. This appeal arises from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for post- traumatic stress disorder and diabetes mellitus. The RO in a subsequent August 2005 rating decision granted service connection for post-traumatic stress disorder. That decision has resulted in there being no case or controversy as to that issue. Therefore, it is moot. Aronson v. Brown, 7 Vet. App. 153, 155 (1994). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran is seeking service connection for diabetes mellitus. He has asserted that as a Vietnam veteran service connection for diabetes mellitus should be granted based on presumptive service connection. 38 C.F.R. §§ 3.307, 3.309 (2005). The pivotal issue in the case is whether the veteran has service in the Republic of Vietnam as defined by the regulation. The regulation defines "service in the Republic of Vietnam" as follows: "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii)(2005). The veteran's DD Form 214N indicates he was awarded a Vietnam Service Medal and a Vietnam Campaign Medal. The veteran's last duty assignment was aboard the USS Lloyd Thomas. His service personnel records included an Itinerary of the 1970- 1971 Westpac Cruise of the USS Lloyd Thomas. The destroyer was in operations in the Vietnam Combat zone from September 7-11, 1970, from September 28 to October 8, 1970, from November 9-28, 1970, from December 8-28, 1970, and from January 16 to February 11, 1971. The veteran was noted to have been aboard for the full deployment. In July 1997, the General Counsel of VA interpreted the regulations as indicating that service on a deep-water naval vessel in the waters off the shore of the Republic of Vietnam did not constitute service in the Republic of Vietnam for the purposes of 38 U.S.C.A. § 101(29)(A). The regulatory definition in 38 C.F.R. § 3.307(a)(6)(iii), which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the Republic to be considered to have served there, through the inclusion of the requirement for duty or visitation in the Republic. VAOPGCPREC 27-97. In an earlier opinion, the GC had explained why "service in Vietnam" was required for application of 38 C.F.R. § 3.313. VAOPGCPREC 7-93. The veteran testified before the undersigned Veterans Law Judge at a hearing in October 2005. The veteran did not assert that the USS Lloyd Thomas docked in Vietnam. He stated he had actually stepped foot in Vietnam on only one occasion. He said the destroyer was gunfire support for the 1st Australian division. As part of a goodwill mission members of the Australian division and crew members from the destroyer were taken by helicopter to visit each other. (T- 3). An Australian helicopter would land aboard ship and then take crewmembers to spend the night in their camp. (T-4). The destroyer was stationed in the Tonkin Gulf. The veteran has submitted a history of the USS Lloyd Thomas (DD764) from the USS Joseph P. Kennedy, Jr., DD 850 Destroyer Museum. It reveals the destroyer was positioned as naval gunfire support off the Republic of Vietnam and on January 1971 was deployed for the second time to the 7th fleet. It operated in the Gulf of Tonkin. While the evidence currently of record clearly indicates the veteran's destroyer served in the waters offshore of the Republic of Vietnam, and that the veteran's assertion he set foot in Vietnam is therefore plausible, there is nothing that verifies the veteran actually visited within the country. The Veterans Benefits Administration Adjudication Procedure Manual (M21-1), Part III, Chapter 4.24(e), Verifying Vietnam Service for Claims Involving Exposure to Herbicide Agents, provides as follows: A veteran must have actually served on land within the Republic of Vietnam (RVN) to qualify for the presumption of exposure to herbicides 38 C.F.R. § 3.307(a)(6). The fact that a veteran has been awarded the Vietnam Service Medal does not prove that he or she was "in country." Service members who were stationed on ships offshore, but never set foot in-country, were sometimes awarded the Vietnam Service Medal. If a veteran claims service connection for exposure to herbicide agents, and alleges service on a ship in the waters offshore of Vietnam, review the record for evidence that the ship was in the waters off Vietnam and that the veteran's service involved duty or visitation on land. If the veteran cannot produce evidence of this, request verification from the service department. Contact U.S. Armed Services Center for Research of Unit Records (USASCRUR) only after the veteran and service department have been unable to determine such service. (The Board notes the name of USASCRUR has been changed to U.S. Army and Joint Services Records Research Center (JSRRC). While the RO did request the veteran's service personnel records, no request has been made of the service department or to JSRRC to verify the veteran actually visited the Republic of Vietnam, as instructed in M21-1. The claim must be remanded to request verification from the service department and/or JSRRC. In addition, the Board noted that the visitation to the Republic of Vietnam described by the veteran was not a social visit or casual contact, but a mission that was officially sponsored and supported between the U. S. Navy and the Australian 1st Division. The veteran reported that he participated only once, but inferred that exchanges had occurred on several occasions. It is not unreasonable to assume that such exchanges would have been within the knowledge of the commanding officers of the destroyer. The records in the claims folder include the names of two of the commanding officers of the USS Lloyd during the time period in question. The history reveals that Commander Leo P. Brown was relieved of his command of the USS Lloyd Thomas in September 1971. In addition, the veteran's service personnel records indicate that Lieutenant Commander R. F. Schultz was the Executive Officer of the USS Lloyd Thomas in February 1971. Either of these officers may be able to provide verification that such exchanges took place. The service department may be able to provide information as to their current addresses or forward VA's request to the officers. The Board also wishes to notify the veteran and his representative that the United States Court of Appeals for Veterans Claims (Court) has scheduled oral argument in Haas v. Nicholson, No. 04-0491. As Haas involves the interpretation of "service in the Republic of Vietnam" within the meaning of the regulations, the Court's decision may have a significant impact on the veteran's claim. The claim is remanded for the following: 1. VA should request that the U. S. Navy verify whether there were exchanges of U. S. Navy personnel between the USS Lloyd Thomas and the Australian 1st Division, during the following periods from September 7-11, 1970, from September 28 to October 8, 1970, from November 9-28, 1970, from December 8-28, 1970, and from January 16 to February 11, 1971. The request should be sent to the Naval Historical Center, Ships History Branch, Washington Navy Yard, 901 M St. SE, Washington, DC 20374-5060. A copy of the Itinerary of the 1970-1971 Westpac Cruise of the USS Lloyd Thomas, contained in the veteran's service personnel records, and a copy of this remand should accompany the request. 2. VA should contact the service department and ask if the department is able to provide a current address or to forward mail to either Commander Leo P. Brown and/or Lieutenant Commander R. F. Schultz, who served aboard the USS Lloyd Thomas during 1970 and 1971. The request should include a letter addressed to the officers asking if they recall that there were exchanges of personnel between the USS Lloyd Thomas and the Australian 1st Division. And if so, whether those exchanges involved the sailors visiting the camp of the Australian 1st Division within the Republic of Vietnam. A copy of this remand should be enclosed with the letter. 3. VA should request from the National Records and Archives Administration the deck logs of the USS Lloyd Thomas during the following periods from September 7- 11, 1970, from September 28 to October 8, 1970, from November 9-28, 1970, from December 8-28, 1970, and from January 16 to February 11, 1971. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).