Citation Nr: 1312773 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 04-07 687A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependent's Education Assistance pursuant to 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from December 1955 to February 1975. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in October 2002 and February 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a July 2011 decision, the Board denied the appellant's claims and she appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2012, the Court issued an order that vacated the July 2011 Board decision and remanded the matters on appeal for readjudication consistent with the instructions outlined in a Joint Motion for Remand by the parties. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." 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 Board's review of the claims file reveals that further development on the matters of entitlement to service connection for the cause of the Veteran's death and entitlement to Dependent's Education Assistance pursuant to 38 U.S.C.A. Chapter 35 is warranted. In the May 2012 Joint Motion for Remand, the parties initially observed that the Board failed to provide an adequate statement of reasons or bases for its determination, as it did not discuss relevant evidence regarding whether the Veteran set foot in Vietnam. It was further noted that remand was also required for the Board to ensure compliance with the duty to assist. While the Board found that a search of deck logs was not required, the parties agreed that the record contained sufficient information to narrow down a search of deck logs to the 60 day period required by the Joint Services Records Research Center (JSRRC) and that a request should be made to JSRRC. See Veterans Benefits Administration's Adjudication Procedure Manual, M21-1MR, IV.ii.1.H.28. A provision of the manual indicated that the time frame for any inquiry may include different date ranges, as long as the cumulative number of days does not exceed 60. M21-1MR, IV.ii.1.H.28.j. The parties noted that evidence of record suggested that the Veteran went ashore during the period from December 17, 1966, to June 16, 1967, a time period that corresponded to his service on the USS Providence. It was further indicated that the USS Providence was in the waters offshore of Vietnam for a total of 55 days during that time period. Thus, the Board was instructed to request a search of the deck logs of the USS Providence for the time period that the vessel was in the waters offshore Vietnam from December 17, 1966, to June 16, 1967. As the Joint Motion for Remand has been endorsed by the Court's May 2012 Order, development to verify whether the Veteran served in Vietnam to corroborate the alleged exposure to Agent Orange is necessary. As noted above, evidence of record suggested that the Veteran went ashore during the period from December 17, 1966, to June 16, 1967. Service personnel records detailed that the Veteran served aboard the USS Providence during Vietnam operations from December 10, 1966 - December 17, 1966; January 12, 1967 - January 19, 1967; February 8, 1967 - February 21, 1967; March 22, 1967 - March 31, 1967; April 1, 1967 - April 11, 1967; May 12, 1967 - May 13, 1967; May 24, 1967 - May 31, 1967; and June 1, 1967 - June 3, 1967. Finally, as the appellant's claim for entitlement to Dependent's Education Assistance pursuant to 38 U.S.C.A. Chapter 35 is inextricably intertwined with the pending service connection claim for cause of death, it is appropriate to defer consideration of this claim until the development requested is complete. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, a decision on the matter of entitlement to Dependent's Education Assistance pursuant to 38 U.S.C.A. Chapter 35 is deferred pending completion of the actions requested below. Accordingly, the case is REMANDED for the following actions: 1. In accordance with the instructions noted in the Joint Motion, undertake additional development to verify whether the Veteran served in Vietnam. The AMC should contact JSRRC and request that it search the deck logs of the USS Providence for the time periods the vessel was in the waters offshore Vietnam between December 17, 1966, and June 16, 1967, to ascertain whether the Veteran went ashore in Vietnam during that time period. 2. Thereafter, the AMC must review the claims folder to ensure that the foregoing requested development has been completed and is in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Upon completion of the above, the AMC should readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ J. D. DEANE 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) (2012).