Citation Nr: 1218325 Decision Date: 05/23/12 Archive Date: 05/31/12 DOCKET NO. 10-35 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for congestive heart failure, to include as due to exposure to herbicides. 2. Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicides. 3. Entitlement to service connection for lung cancer, to include as due to exposure to herbicides. 4. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. 5. Entitlement to an initial rating in excess of 30 percent for asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Kirscher Strauss, 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 with the U.S. Navy from December 1955 to September 1957; from December 1957 to February 1, 1962; from February 14, 1962 to May 6, 1968; and from May 16, 1968 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for congestive heart failure, type II diabetes mellitus, lung cancer, and prostate cancer, all claimed as a result of exposure to herbicides; and which awarded service connection for asbestosis and assigned an initial 30 percent rating, effective August 29, 2008. In May 2010 the Veteran testified at a hearing before RO personnel, and in November 2011 he testified at a travel board hearing before the undersigned Veterans Law Judge. Transcripts of these hearings are of record. In November 2011 the Veteran submitted to the Board additional evidence for consideration in connection with the claims on appeal. A waiver of RO jurisdiction for this evidence was received in a written statement dated in November 2011 that is included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2011). 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 While the Board regrets the delay in deciding the claims on appeal, a review of the claims file reveals that further development is required. First, additional development is required to assist the Veteran regarding his claimed exposure to herbicides while serving in the U.S. Navy off the coast of Vietnam. Post-service private treatment records show that the Veteran was diagnosed with congestive heart failure in November 1996, carcinoid tumor of the lung, right middle lobe in March 2004, prostate cancer in September 2005, and diabetes mellitus in August 2006. He contends that each of these disabilities is due to exposure to herbicides during military service. When his claim for service connection for diabetes mellitus, lung cancer, and prostate cancer was received in September 2006, he identified serving on the USS Bradley and USS Fox. The Veteran's service personnel records, including reports of separation from service (DD Form 214), show that awards included the Vietnam Service Medal (VSM) and Vietnam Campaign Medal (VCM). Receipt of these awards is insufficient to show that the Veteran had service in Vietnam. See Haas v. Peake, 525 F.3d 1168 (Fed.Cir. 2008) (only veterans present on the landmass or inland waters of Vietnam are entitled to the presumption of service connection based on herbicide exposure, regardless of whether they were awarded the VSM). None of his service records reflect any service on the landmass or inland waters in Vietnam. In April 2007 the National Personnel Records Center (NPRC) noted that the Veteran served aboard the following ships that were in the official waters of the Republic of Vietnam on the following dates: USS Bradley July 28, 1966 to August 10, 1966; September 1, 1966 to September 18, 1966; October 17, 1966 to November 20, 1966 USS Fox November 13, 1968 to January 10, 1969; January 26, 1969 to February 27, 1969; June 24, 1970 to July 16, 1970; August 7, 1970 to August 28, 1970; and September 7, 1970 to October 5, 1970. The NPRC reported that they were unable to determine whether the Veteran had in-country service in the Republic of Vietnam. In November 2011 the Veteran testified that he never stepped foot on land in Vietnam and that none of the ships on which he served ever docked to land in Vietnam. However, in correspondence received in September 2008, he stated that while serving on the USS Bradley from 1965 to 1968, the ship was overseas on two occasions, serving off the coast of North Vietnam. He added that "on different occasions [the USS Bradley was] anchored in inlet rivers in support of swift boats" in addition to being anchored just off the shoreline and operating along the coastlines. He also testified in May 2010 that the ship would "go right in the mouth of the river and anchor" in support of swift boats that ran the river. During the November 2011 hearing he stated that the USS Bradley could get "real close to the bank." He described running up and down the coasts and getting closer than 100 yards to the shore line. The Veteran also reported in September 2008 that while stationed on the USS Fox from 1968 to 1971, the ship completed two overseas tours and that they operated in North Vietnam Waters, including the Gulf of Tonkin. Finally, he stated that he was stationed on the USS Dixie from 1971 to 1975 and that on one occasion the ship moored for a short period of time in Da Nang Harbor. He testified in November 2011 that the USS Dixie stopped by Da Nang Harbor to drop off a woman who was going to have a baby or who just had a baby. A Transcript of Sea Service (GSA Form 6918) dated in July 1983 and received in September 2008 lists the Veteran's sea service during the Vietnam era as follows: Vessel From To USS Bradley (DE 1041) May 15, 1965 April 1, 1968 USS Walke (DD 723) June 3, 1968 October 15, 1968 USS Fox (DLG 33) October 16, 1968 November 22, 1970 USS Samuel Gompers (AD 37) November 23, 1970 November 5, 1971 USS Agerholm (DD 826) December 4, 1973 April 27, 1974 USS Dixie (AD 14) July 13, 1974 July 29, 1975 Based on official Navy records, VA has compiled a list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents. VA Adjudication Policy and Procedures Manual M21-1MR, IV.ii.2.C.10.k. The list includes ships operating primarily or exclusively on Vietnam's inland waterways; ships operating temporarily on Vietnam's inland waterways, including at the mouth of rivers or river deltas, or docking to the shore; and ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. The Board has reviewed that list, which was last updated on January 18, 2012, and finds that none of the vessels on which the Veteran served falls within the scope of the manual's provisions during the time period that the Veteran was on each vessel. In May 2010 the Veteran provided deck logs from the USS Bradley dated from March 1968 to April 1968 and from the USS Fox dated from November 1968 to February 1969 in support of his claim. The records reflect operations, maneuvers, and anchoring in the Gulf of Tonkin, Da Nang Harbor off the coast of Vietnam, and South Vietnam, but do not indicate that either ship ever docked, anchored at the mouth of a river, or traveled in inland waterways. In summary, the Veteran has identified anchoring at the mouth of a river and in inlet rivers in support of swift boats during his Navy service in Vietnam, but none of the evidence associated with the claims file currently corroborates his claim. However, attempted verification of such activities for the USS Bradley for the dates listed above has not been accomplished. Accordingly, the RO/AMC should request that the JSRRC (U.S. Army and Joint Services Records Research Center) attempt to verify whether the USS Bradley anchored in inlet rivers or river mouths during July 28, 1966 to August 10, 1966; September 1, 1966 to September 18, 1966; and October 17, 1966 to November 20, 1966. In addition, the RO/AMC should ask the Veteran to identify any other 60-day time frame in which he believes that he was on a ship that was anchored at the mouth of a river or in inlet rivers in Vietnam. Regarding the Veteran's claim for an initial rating in excess of 30 percent for asbestosis, during hearings in May 2010 and November 2011, he testified that he believed his asbestosis disability had increased in severity since this disability was initially evaluated on VA examination in March 2009. Therefore, the RO/AMC should schedule the Veteran for a VA respiratory (obstructive, restrictive, and interstitial) examination to determine the current nature and severity of his asbestosis. The Veteran also testified in November 2011 that Dr. M. M. administered a breathing test every three months, but he quit seeing that doctor. Private treatment records from Dr. M. M. indicate that pulmonary function testing was performed in October 2008 and showed moderate obstructive airway impairment with no significant change compared to the previous test; however, the actual pulmonary function test report was not associated with the treatment note. An October 2009 treatment note reflects that Dr. M. M. reviewed the recent VA pulmonary function test. The RO/AMC should request pulmonary function test reports from Dr. M. M. dated from August 2008 to the present as well as any relevant, ongoing treatment records dated since April 2010. 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. Ask the Veteran to identify a 60-day time frame in which he believes that he was on a ship that was anchored at the mouth of a river or in inlet rivers in Vietnam. 2. Contact JSRRC or other appropriate entity and attempt to verify whether the USS Bradley anchored in inlet rivers or river mouths in Vietnam during July 28, 1966 to August 10, 1966; September 1, 1966 to September 18, 1966; and October 17, 1966 to November 20, 1966. Additionally, if the Veteran responded with sufficient information to item #1 above, attempt to verify any additional 60 day periods he indicates that a ship he served on anchored at the mouth of a river or in inlet rivers in Vietnam. All requests for verification should be documented in the claims file. All responses to the inquiry(ies) should be documented in the claims file, and the Veteran notified of any negative response. 3. The RO/AMC should ask the Veteran to provide the names and addresses of all medical care providers who treated him for his asbestosis. After securing any necessary release, the RO/AMC should request any records that are not duplicates of those contained in the claims file, including any pulmonary function test reports from Dr. Majmudar dating since August 2008 and any ongoing treatment records dating since April 2010. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file and the Veteran and his representative notified of such. 4. After the action requested in item #3 above has been completed to the extent possible, the Veteran should be scheduled for a VA respiratory examination to determine the current nature and severity of his asbestosis. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated studies or testing should be conducted and associated with the examination report, including pulmonary function tests. The examiner should address the symptomatology associated with the Veteran's service-connected asbestosis. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2011). _________________________________________________ K. A. BANFIELD 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).