Citation Nr: 1029785 Decision Date: 08/10/10 Archive Date: 08/24/10 DOCKET NO. 06-07 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for prostate cancer to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez INTRODUCTION The appellant had active service from March 15, 1950 to December 18, 1959, and from December 28, 1959 to July 15, 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant asserts that he was exposed to Agent Orange or an herbicide during active duty, and subsequently developed prostate cancer for which service connection should be presumed. After a review of the claim file, the Board finds that additional development is necessary prior to deciding the appellant's claim. He contends that while serving on board the USS MCKEAN which was in the waters of Vietnam, he, on occasion, went ashore into Vietnam on missions and was therefore, exposed to Agent Orange. A reply to a request for information dated in March 2005 shows that the appellant served aboard the USS MCKEAN (DD 784) which was in the waters of the Republic of Vietnam from August 9, 1965 to September 11, 1965, September 30, 1965 to October 19, 1965, October 28, 1965 to November 26, 1965, and form December 9, 1965 to December 21, 1965. A CURR response of March 2007 states that the USS MCKEAN departed for duty in South Vietnam in December 7, 1965. It further states that according to the National Archives and Records Administration and the Naval Historical Center, deck logs and muster rolls/personnel diaries are the only administrative records produced by commissioned U.S. Navy ships during the Vietnam War that are permanently retained. These records do not normally annotate individuals arriving or going ashore on a routine basis. The deck logs may indicate aircraft or boats arriving/departing but do not list passengers by name, unless that individual is a very important person or high ranking officer. Also, the deck logs do not normally list the destinations of the aircrafts or vessels. Finally, it stated that information concerning the appellant being required to go ashore in the Republic of Vietnam may be found in his OMPF (Official Military Personnel File). The appellant has submitted two lay affidavits from fellow servicemembers dated in March 2005. In his affidavit, M.L.C, states that the USS MCKEAN served off the coast of Vietnam and would routinely make port calls in Dnang and the Quang Ngai Province. He further stated he saw the appellant leave the ship with a side arm on many times. In his affidavit, J.C.C. stated that the appellant went ashore with a side arm, when the ship made periodic port calls in South Vietnam to obtain supplies and equipment. The RO submitted, in October 2009, a formal finding of unavailability of records to show that the appellant served in the Republic of Vietnam. However, the Board finds that the RO did not undertake all available efforts to substantiate service in the Republic of Vietnam. Specifically, a review of the claim file shows that personnel service records have not been obtained and associated with the claim file. This must be done to ensure proper development. Indeed, the CURR response of March 2007 states that information concerning the appellant being required to go ashore in the Republic of Vietnam may be found in his OMPF (Official Military Personnel File). However, the RO did not make an attempt to obtain the same. Moreover, CURR has stated that deck logs do not "normally" annotate individuals going ashore. However, considering the lay affidavits submitted, the Board is of the opinion that a review of the deck logs is necessary to, at a minimum, confirm that members on board the ship made trips ashore during the times the appellant was serving on board the USS MCKEAN and to verify if indeed any individuals involved in those missions were named in the deck logs. 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) (2009). Expedited handling is requested.) 1. The AOJ should obtain and associate with the claim file the appellant's OMPF (Official Military Personnel File) to include personnel service records. 2. The AOJ should seek a review of the deck logs and muster rolls/personnel diaries for the USS MCKEAN for the time periods of August 9, 1965 to September 11, 1965, September 30, 1965 to October 19, 1965, October 28, 1965 to November 26, 1965, and form December 9, 1965 to December 21, 1965. The AOJ should review the documents to determine if personnel aboard the ship went on missions ashore during the specified periods of time. Moreover, the AOJ should specifically look for any mention of the appellant as one of the personnel engaged in any such ashore missions. All findings, including any negative findings, should be clearly documented in the claim file. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ H.N. SCHWARTZ 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).