Citation Nr: 1237150 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-09 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus, claimed to be the result of exposure to herbicides (Agent Orange). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The veteran served on active duty in the U.S. Navy from June 1965 to January 1985. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This claim must be further developed before being decided on appeal, so the Board is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND There is no disputing the Veteran has Type II Diabetes Mellitus as his medical treatment records confirm this, so resolution of this appeal turns, instead, on whether he has this disease as a result of exposure to herbicides during his military service, as he is alleging. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence establishing that he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to herbicide agents during active military, naval, or air service, certain specified diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). This list of diseases includes Type II Diabetes. See 38 C.F.R. § 3.309(e). However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); and McCartt v. West, 12 Vet. App 164, 167 (1999). Here, although Type II Diabetes Mellitus is a disease presumptively associated with Agent Orange exposure, the RO has denied this claim because the Veteran has not shown that he served in the Republic of Vietnam during the Vietnam War era or elsewhere (Thailand or Korea, along the Demilitarized Zone (DMZ)) where Agent Orange was sprayed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). "Service in the Republic of Vietnam" includes service in the waters offshore and in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The interpretation of the quoted language has been the subject of extensive litigation. But the U.S. Court of Appeals for the Federal Circuit has held that, under 38 C.F.R. § 3.307(a)(6)(iii), in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam must have involved service on the landmass of Vietnam (often referred to as service "in country") or, at the very least, on the inland waterways ("brown water"), but does not include mere service on a deep-water naval vessel in the waters offshore ("blue water"). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 129 S. Ct. 1002 (2009); VAOPGCPREC 27-97. What constitutes "inland waterways" is not defined in VA regulations; however, VA Adjudication Procedure Manual provides interpretive guidance. The Manual indicates that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. The Manual does note an exception regarding Veterans who served as a coxswain. The Veteran served in the U.S. Navy during the Vietnam era on a ship, the USS Bellatrix (AF-62). He does not assert that he actually set foot in Vietnam. Rather, in various statements, he has contended that he served aboard this ship from September 1966 to June 1967, and that the ship moored in Da Nang, worked the coastal waters, but also sailed into the inland waterways of Vietnam. In March 2009, to try and substantiate this claimed activity, he personally requested copies of deck logs of the USS Bellatrix from the National Archives and Records Administration (NARA). And in a March 2009 response, the NARA informed him that the records were available and provided him an order form requesting payment for copies of these records. He informed the RO of his attempt to obtain these deck logs, and in June 2010 the RO also contacted the NARA and specifically requested copies of these deck logs. In a June 2010 response to the RO, the NARA did not provide copies of the requested records. Rather, the NARA merely stated that the ship's deck logs did not provide information placing individuals aboard the ship, nor indicate names of individuals who had departed the ship and might have set foot in Vietnam, nor would they provide other personnel-related information. After receiving this response, the RO did not make any further attempts to obtain copies of these deck logs from the NARA, and the Veteran's representative has asserted these deck logs are crucial in that they will verify the presence of this ship in the inland waterways of Vietnam, in turn entitling the Veteran to the presumption of herbicide exposure and presumption of service connection since he has a disease that is presumptively associated with said exposure. The representative asserts that VA's duty to assist the Veteran with his claim has not been met and has requested a remand to obtain copies of these deck logs. The Board concurs. The duty to assist requires that VA make reasonable efforts to obtain relevant records that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A.§ 5103A(b)(1); 38 C.F.R. § 3.159(c). If after making reasonable efforts VA is unable to obtain all of the relevant records sought, VA must so notify the claimant. This notice must identify the records not obtained, explain the efforts made to obtain them, and describe any further action VA will take on the claim. Id. When, as here, the records are in the custody of a Federal department or agency, governing law and regulation require VA to make as many requests as are necessary to obtain them. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). In this particular case at hand, it is clear these deck logs exist; the NARA has already informed the Veteran of this fact. Thus, the RO must make another attempt to obtain copies of these deck logs of the USS Bellatrix, from during the period when the Veteran was stationed aboard this vessel during the Vietnam era, in an attempt to verify the presence of this ship in the inland waterways of Vietnam during this era. Id. His service personnel records also should be obtained. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain the Veteran's service personnel records (SPRs) from the appropriate military records repository, including the National Personnel Records Center (NPRC). 2. Based on his SPRs, and the information he has provided regarding his service aboard the USS Bellatrix, contact the NARA and request that it furnish copies of the deck logs of the USS Bellatrix (AF-62) from during the time the Veteran alleges this ship traveled into the inland waterways of Vietnam during the Vietnam era. In requesting these records, follow the procedures prescribed in 38 C.F.R. § 3.159(c)(2). So make as many requests for these records as this VA regulation requires and only end these efforts if the requirements of this regulation are met. Document all efforts to obtain these records. If the attempts and necessary follow-up attempts to obtain these records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e)(1). 3. Then, after completing all other indicated development, readjudicate this claim of entitlement to service connection for Type II Diabetes Mellitus, alleged to be due to herbicide exposure, in light of all additional evidence obtained. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2011). _________________________________________________ KEITH W. ALLEN 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).