Citation Nr: 1215768 Decision Date: 05/02/12 Archive Date: 05/10/12 DOCKET NO. 10-19 796 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for multiple myeloma, including as due to exposure to herbicides. 2. Entitlement to a rating greater than 20 percent for residual scars from cholecystectomy, appendectomy and incisional hernia repair. REPRESENTATION Appellant represented by: Roger B. Hale, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty in the Navy from August 1962 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Acting Veterans Law Judge at a March 2011 hearing. The Board notes that, at the hearing, testimony was taken on both the issue of service connection for multiple myeloma and the issue of an increased rating for residual scars from a cholecystectomy, appendectomy, and incisional hernia repair. The Veteran filed a timely notice of disagreement with the rating assigned for his scars, but the claims file does not reflect that a substantive appeal was timely filed with respect to that issue. However, the RO issued a Supplemental Statement of the Case on this issue in September 2010. Thus, the Board finds that the issue is before the Board as the RO has waived the requirement for a timely filed substantive appeal. Percy v. Shinseki, 23. Vet. App. 37 (2009). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that he was exposed to herbicides while stationed aboard the U.S.S. America, near Da Nang, Vietnam. Multiple myeloma is one of the diseases subject to presumptive service connection for herbicide exposed Veterans. 38 C.F.R. § 3.309(e). While presence on a ship off the coast of Vietnam is not sufficient to establish exposure to herbicides, in this case the Veteran contends that he actually went ashore in Vietnam. He contends that when there was extra space in an aircraft, the America, tail number 146051, he took flights to shore to get canteen supplies to sell aboard the ship. Since the Veteran alleges that he actually went ashore, an attempt should be made to get the deck logs for the U.S.S. America for the periods that it was offshore Vietnam as well as the flight logs for the aircraft the Veteran contends that he flew in during this period. These may show that the Veteran in fact left the ship to go to shore. Therefore, VA's duty to assist the Veteran with developing facts in support of his claim necessitates obtaining copies of these items, if they are available. The Board notes that the Veteran indicated at his hearing that he provided VA with a letter from a physician which attributed his multiple myeloma to herbicide exposure. The claims file does not include this letter, and the Veteran should be so advised and requested to resubmit this letter if it is in his possession. The Board also notes that the Veteran argues that even if he was not exposed to herbicides in Vietnam, he was exposed to weed killer and pesticides while he was stationed in California and that these chemicals constitute "herbicides." The Veteran is advised that the term "herbicide" as used in the regulation regarding presumptive service connection is specifically defined at 38 C.F.R. § 3.307(a)(6). In order to establish presumptive service connection based on exposure to chemicals in the California, the Veteran would have to establish that these included one of the chemicals which are set forth in 38 C.F.R. § 3.307(a)(6). Otherwise, he may attempt to establish service connection on this basis by submitting medical evidence that his exposure to non-tactical herbicides, weed killer and pesticides caused his multiple myeloma. Finally, at his March 2011 hearing, the Veteran testified that he experienced muscle cramping from his service-connected residual scars from cholecystectomy, appendectomy and incisional hernia repair which he failed to report to a VA examiner in May 2009. The Board will request an additional VA examination which addresses all subjective complaints reported by the Veteran. 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) (2011). Expedited handling is requested.) 1. Contact the Veteran and advise him that VA does not have the letter from a physician attributing his multiple myeloma to herbicide exposure which he referenced in his March 2011 hearing testimony. Advise the Veteran that if he has such a letter, or any other medical evidence supporting his claim, he should submit it to VA. 2. Associate with the record the Veteran's relevant clinical records within the Oklahoma VA Health Care system since May 2009. 3. Obtain the deck logs of the U.S.S. America and the flight logs/passenger manifests for the America, tail number 146051, for the periods of May 29, 1968 through June 28, 1968, from July 6, 1968 to August 3, 1968, and from September 27, 1968 to October 3, 1968. 4. Upon completion of the above, schedule the Veteran for appropriate examination of his service-connected residual scars from cholecystectomy, appendectomy and incisional hernia repair. A copy of the claims folder must be made available to the examiner. In conducting the examination, the examiner is specifically requested to address whether the question as to whether there is any medical reason to accept or reject the Veteran's report that his scar results in cramping and limitation of function. 5. After completion of the above development, the Veteran's claims should be re-adjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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. 2010). _________________________________________________ T. Mainelli 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) (2011).