Citation Nr: 1537993 Decision Date: 09/04/15 Archive Date: 09/10/15 DOCKET NO. 14-19 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for ischemic heart disease, status post coronary artery bypass surgery with implanted pacemaker, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1957 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for ischemic heart disease. In July 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran contends that the claimed heart disorder is due to exposure to herbicides during his service in the Republic of Vietnam. Veterans who have qualifying service are presumed to have such exposure, and, once such exposure is established, certain diseases (including ischemic heart disease) are presumptively service connected. Under the governing regulations, qualifying service includes service in the waters offshore and other locations if the conditions of service involved duty or visitation in the Republic of Vietnam (e.g., its inland waterways). See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). In a June 2013 statement, the Veteran indicated that he served aboard the USS ALUDRA AF-55 while it docked in Da Nang harbor on April 17-18, 1969. At the July 2015 Board hearing, the Veteran testified that he was stationed abroad the USS ALUDRA when it docked in Da Nang harbor in March 1969. See Hearing Transcript p. 5. Moreover, the Veteran testified that while the USS ALUDRA was docked, he went ashore on a work detail to account for supplies that were to be loaded onto the ship for transportation to the Philippines. Id. at pp. 5, 8-9. VA records confirm that the USS ALUDRA conducted in-port docking replenishments at Cam Ranh Bay, Vung Tau, An Thoi, and Da Nang harbors during March and April 1969. However, service personnel records indicate that the Veteran served aboard the USS ALUDRA between January 1968 and February 1969. Specifically, service personnel records indicate that the Veteran was transferred to the USS HASSAYAMPA (AO-145) on or around February 11, 1969. Service personnel records also indicate that the Veteran was then transferred to the USS KAWISHIWI (AO-146) on March 28, 1969. Nevertheless, an August 2012 response from the Personnel Information Exchange System (PIES) confirmed that the Veteran served "in the official waters of the Republic of Vietnam" on several occasions between 1965 and 1969, including service aboard the USS JEROME COUNTY, LST-848 (1965-1966), the USS ALUDRA, AF-55 (1968), and the USS KAWISHIWI, AO-146 (1969). However, the PIES response indicated that there was no conclusive proof that the Veteran had "in-country service." While there is indication that the ships on which the Veteran served were stationed in harbors and locations off the Vietnamese coastline, there is no official documentation that these vessels docked during the Veteran's service. Until recently, VA had interpreted locations such as Da Nang harbor as offshore locations not qualifying as an "inland waterway," and therefore not warranting a presumption of herbicide exposure. However, a recent ruling by the United States Court of Appeals for Veterans Claims (Court) found that such interpretation was inconsistent with the purpose of the regulation at large, and did not reflect VA's fair and considered judgment. Namely, the Court found that, although the presumption of exposure is purportedly applied where there is evidence of herbicide spraying, the interpretation regarding service in areas such as Da Nang harbor was based primarily on geographical characteristics (i.e., depth and ease of entry) rather than any evidence of spraying. Notably, it indicated that there was no indication that VA made a fact-based assessment regarding the probability of exposure in Da Nang harbor from aerial spraying. See Gray v. McDonald, 27 Vet. App. 313 (2015). Thus, the prior interpretation with respect to Da Nang harbor and similar offshore locations is invalid. In light of the above, the Board finds that the matter requires additional development and readjudication with consideration of the ruling in Gray and any new policy guidance regarding the treatment of offshore locations in relation to the presumption of herbicide exposure. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Conduct any additional development indicated by the ruling in Gray, particularly with respect to securing records which may bear upon whether any of the ships on which the Veteran served (the USS JEROME COUNTY, LST 848, the USS ALUDRA, AF-55, or the USS KAWISHIWI, AO-146) was actually, or likely to have been, exposed to herbicide spraying (e.g., deck logs, unit histories, etc.). 2. Then, the AOJ should readjudicate the Veteran's claims with special consideration given to his statements regarding service in locations close to the coastline of Vietnam, the results of any development sought above, and additional guidance issued regarding the treatment of offshore locations relation to the presumption of exposure to herbicides. If the claim remains denied, the AOJ should issue an appropriate Supplemental Statement of the Case and afford the Veteran and his representative an opportunity to respond before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).