Citation Nr: 1030746 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 05-09 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from November 1964 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. The Veteran appeared at a Travel Board hearing before the undersigned Acting Veterans Law Judge in February 2010. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND A veteran who served in the Republic of Vietnam (RVN) during the period beginning on January 9, 1962, and ending on May 7, 1975, known as the Vietnam Era, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (2009). "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 (2009). Additionally, in service-connection claims involving herbicide agent exposure as a result of service in Vietnam, prostate cancer may be presumed to have been incurred in-service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2009). The Veteran maintains that service connection is warranted for prostate cancer as a result of exposure to Agent Orange in the RVN. The Board notes that the Veteran has been diagnosed as having prostate cancer. The question which remains is whether the Veteran was physically present in the RVN during the Vietnam Era. The Veteran's service personnel records confirm that he was stationed at the Udorn Thai Royal Air Force Base (TRAFB) from October 1966 to May 1967. The Veteran maintains that he was actually in Vietnam on several occasions during plane transfers to other destinations. He reported that the length of the stops ranged from several hours to overnight. In his August 2004 notice of disagreement, the Veteran indicated that under official military orders he was physically present in the RVN on or about November 21-22, 1966, and again on or about January 22-24, 1967. In a November 2004 statement, the Veteran indicated that there was an official order, unknown number/date, from 432d TAC Recon Wing Udorn RTAFB. He noted that his claims could be verified by a passenger manifest on Southern Air Transport from Saigon, RVN, to Clark AFB, Philippines, which would be on or about November 21-22, 1966. He further reported that there was an official order, unknown number/date, 432d TAC Recon Wing Udorn RTAFB that could be verified by passenger manifests on an Air Force (AF) C- 130 flight from Udorn to Na Trang, RVN, 24 hours, then departing the next day from Na Trang to CCK AFB, Formosa that was on or about January 22-24, 1967. The Veteran stated that he had been unable to obtain copies of these manifests or orders. The first order was to attend a Jungle Survival School at Clark AFB and that the second order was a permissive TDY to attend an air refueling conference. In his March 2005 substantive appeal, the Veteran indicated that he did spend time in Vietnam, albeit for a short period of time. He again reported the dates and circumstances that were previously noted in his November 2004 statement in support of his claim. In another statement received in April 2009, the Veteran indicated that he was physically required to be within the land borders of the RVN twice under valid USAF temporary duty (TDY) travel orders issued by the 432 Tactical Reconnaissance Wing/Combat Support Group Udorn, Thailand. He stated that he was physically present and within the land borders of the RVN on or about December 18/19, 1966. The physical location was Saigon and this could be verified by: (a) the passenger manifest on a C-130 flight from Udorn AFB to Tan Son Nhut AFB, RVN; (b) the passenger manifest on the Southern Air Transport Flight from Tan Son Nhut AFB to Clark AFB for the purpose of attending Jungle Survival School; and (3) by the travel voucher submitted for this official TDY that shows routing from Udorn RTAFB to Tan Son Nhut, RVN, to Clark AFB. The Veteran further reported that on or about January 6-14 or March 3-5, 1967, he was again physically present and within the land of the borders of the RVN for 24 hours. The physical location was Na Trang AFB, RVN. He stated that this could be verified by: (a) the passenger manifest from Udorn RTAFB to Na Trang; (b) the passenger manifest the following day from Na Trang to CCK AFB, Formosa; and (c) by the travel voucher submitted for this official TDY. During his February 2010 hearing, the Veteran testified that he was physically on the ground at least twice in the RVN. He indicated that these were on or about January 6-8, 1967, and on or about March 3-5, 1967. The Veteran stated that he was at Na Trang AFB in the RVN. The Veteran stated that he was on permissive TDY, which was their way of using it for R&R. He noted that this gave allowance to travel on U.S. military aircraft. He departed Udorn, Thailand, went to Don Muang RTAFB in Bangkok, Thailand, hopped a flight from there to Na Trang, spent the night in Na Trang, flew the next day from Na Trang over to CCK, which was a C-130 base in Formosa, and went from CCK to Kadena AB, Japan, where he spent his R&R. He noted having two R&Rs, one spent in Bangkok and then Padia (Pattaya) Beach, Thailand, and the second one at Kadena, Japan. The Veteran also testified that he attended Jungle Survival School in November or December 1966. He stated that this flight was government air to Tan Son Nhut AFB, near Saigon, where he awaited transportation. He reported that he was on Southern Air Transport from Tan Son Nhut over to Clark AFB, where he attended Jungle Survival School, which was a requirement for the Pacific Air Command. He stated that he flew in uniform when he on TDY. He noted that his first trip to Na Trang was overnight and that his second trip to Saigon was four or five hours. The Veteran indicated that there were two TDY orders, one for the Jungle Survival School and the other for a permissive TDY. He stated that the Jungle Survival School sent him to Clark AFB in the Philippines. He noted that in addition to the TDY orders, the travel would be shown by the passenger manifests. The claims file contains a May 2009 memorandum with regard to a formal finding of lack of information required to corroborate stressors associated with a claim of service connection for herbicide exposure. VA had determined that the information requested to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. It was further indicated that all procedures to obtain this information from the Veteran had been properly followed and that evidence of written and telephonic efforts to obtain this information were in the claims file and that all efforts to obtain the needed information had been exhausted and that any other attempts would be futile. It was further revealed that a PIES request was submitted on September 30, 2003, and that a response was received on April 13, 2004, stating that the National Personnel Records Center (NPRC) was unable to determine whether the Veteran had in-country service in the RVN. It was further noted that a letter was sent to the Veteran informing him of the need to know how his military duties in the waters offshore the RVN exposed him to herbicides. It was observed that a response was received from the Veteran on April 30, 2009, which was submitted to the JSRRC coordinator and that a negative response was received from the JSRRC coordinator as the Veteran had not been assigned to Thailand during the period from April 2, 1964, to September 8, 1964. While the Board notes that this memorandum is of record, it does not appear that any attempts have been made to verify the existence of TDY orders for the Veteran's claimed periods of travel to Vietnam or absence or presence of passenger manifests on the planes the Veteran reported traveling on when entering and leaving Vietnam in 1966 and 1967, not 1964. The Veteran has provided specific dates and destinations with regard to his periods of claimed travel into and out of Vietnam. As such, an attempt should be made to confirm his claimed travel into and out of the RVN. Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the Veteran's claimed travel through the Republic of Vietnam for the time periods reported above including November and December 1966 and January and March 1967. The search should include an attempt to verify through TDY orders and/or passenger manifests that the Veteran was physically present in the Republic of Vietnam. In this regard, the service department should be asked to indicate whether it was standard operating procedure for pilots stationed at Udorn RTAFB to be sent to Clark AFB for jungle survival training via a Southern Air Transport flight through Tan Son Nhut AFB. Obtain a copy of the Veteran's complete service personnel records from his Official Military Personnel File (OMPF), including training courses taken (to include where and when); all records of his assignments, whether permanent or TDY stations; all travel orders; pay stubs which reflect special pay status, travel vouchers, and all TDY orders. If efforts to obtain the Veteran's OMPF are unsuccessful through the National Personnel Records Center (NPRC), request verification of the reported TDYs flying into and out of Vietnam through the Air Force Personnel Center (AFPC) at Randolph Air Force Base, Texas, the Defense Finance and Accounting Service (DFAS), the U.S. Army and Joint Services Records Research Center (JSRRC) and/or other appropriate depository. VA must provide the JSRRC or other depository with the appropriate information, as needed, showing service dates, duties, and units of assignment and copies of the Veteran's statements pertaining to travel into and out of in Vietnam in 1966 and 1967, while he was stationed at Udorn RTAFB, Thailand from October 1966 to May 1967. Associate all documents obtained with the claims file. All efforts to obtain these records, and the responses received, must be documented in the claims file, and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. 2. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's service-connection claim, to include on a direct and presumptive, if warranted, in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. The Veteran 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ M. R. VAVRINA Acting 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) (2009).