Citation Nr: 1312410 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 06-23 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1954 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In an August 2008 decision, the Board denied entitlement to service connection for the cause of the Veteran's death. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2010 Memorandum Decision, the Court vacated the Board's August 2008 decision, and remanded this case to the Board for readjudication. The Board then denied the claim for service connection for the cause of the Veteran's death in a September 2011 decision. The appellant subsequently appealed the decision to the Court. In a November 2012 Memorandum Decision, the Court vacated the Board's August 2008 decision, and remanded this case to the Board for readjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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, the surviving spouse of the Veteran, is seeking service connection for the cause of his death. The Veteran died in March 2005 of cardio-respiratory arrest and a myocardial infarction. At the time of his death, service connection was in effect for residuals of left acromioclavicular joint dislocation with healed fracture deformity on the distal third of the left clavicle, rated as 20 percent disabling; and for residuals of a fifth metacarpal fracture deformity of the right hand, rated as 0 percent disabling. The appellant asserts that the Veteran's death should be service connected because of the presumption in the law that veterans of Vietnam service were exposed to Agent Orange, and that such exposure contributed to his death. The Veteran's History of Assignments, Form NAVPERS 601-5, shows no service within the borders of the Republic of Vietnam or in the waters immediately adjacent thereto, although he was assigned to the USS Worden (DLG/CG-18), a Navy cruiser, in July 1972. In its November 2012 decision, the Court determined that VA had failed to comply with its duty to assist in researching whether the U.S.S. Worden was within the territorial limits of the Republic of Vietnam while the Veteran was serving aboard. Thus, the Board must remand this matter for compliance with the Court's November 2012 memorandum decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA must comply with evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1MR, regarding verifying whether the U.S.S. Worden was within the inland waters of the Republic of Vietnam in July 1972. The Board noted that the United States Court of Appeals for Veterans Claims has consistently held that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). Specifically, the M21-1MR provides that in cases involving alleged shipboard service within the inland waterways of Vietnam, a Personal Information Exchange System (PIES) request must be sent to the National Personnel Records Center (NPRC) for verification of service in the Republic of Vietnam. If that search does not verify a veteran's service in the Republic of Vietnam, a request must be sent to the U.S. Army and Joint Service Records Research Center (JSRRC) along with the name of number of the ship he served on and the dates of shipboard service. Pt. III, subpt. iii, ch. 2, sec. E, 33d. 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) (2012). Expedited handling is requested.) 1. Request that the appellant provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claim for service connection for the cause of the Veteran's death. Document all unsuccessful attempts to obtain such records. 2. Notify the appellant that she may submit lay statements from herself and from other individuals who have first-hand knowledge of the Veteran's service on the USS Worden. The appellant should be provided an appropriate amount of time to submit this lay evidence. 3. Comply with the evidentiary development noted in M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 33. This includes submitting a PIES request to the NPRC for verification of service in Vietnam and, if necessary, a request to the JSRRC. 4. Thereafter, the readjudicate the appellant's claim. If the benefit sought on appeal are not granted in full, the appellant and her representative should be issued a supplemental statement of the case and provided an opportunity to respond. 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. 2012). _________________________________________________ STEVEN D. REISS 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) (2012).