Citation Nr: 1313847 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-46 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for type II diabetes mellitus with diabetic retinopathy and peripheral neuropathy of the upper and lower extremities, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to February 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for type II diabetes mellitus with diabetic retinopathy and peripheral neuropathy of the upper and lower extremities. The Veteran disagreed and perfected an appeal. The Veteran presented testimony in support of his claim at a February 2012 hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is included in the Veteran's VA claims folder. This matter was last before the Board in March 2012 at which time it was remanded for further development. Also, when this matter was last before the Board, it referred the Veteran's claims for service connection of a skin disorder and a heart disorder for adjudication. A review of the claims file, to include Virtual VA, does not indicate that these claims have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are once again REFERRED to the AOJ for appropriate action. 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 When this matter was last before the Board, it was remanded, inter alia, to have the AOJ attempt to obtain copies of the U.S.S. Southerland's deck log, ship's log, bridge log and/or other logs maintained by the ship and available for review, for the period of February 16 to 18, 1968. These records were particularly sought as the available evidence indicated that around this time the Southerland had anchored at Da Nang Harbor, the Republic of Vietnam, and the Veteran claims that the ship's logs would prove his going ashore in the Republic of Vietnam at this time. Notably, at the time of the Board's remand, the Joint Services Records Research Center (JSRRC) had specifically reported that the Southerland had anchored at Da Nang on February 17, 1968; thus, the Board sought records the day prior and the day after this date. This evidence is particularly important as the Veteran is seeking service connection for type II diabetes mellitus with diabetic retinopathy and peripheral neuropathy of upper and lower extremities as due to exposure to herbicides. See 38 C.F.R. § 3.309(e). He claims that the Southerland's deck logs would prove that he set foot in Vietnam while the Southerland was anchored in Da Nang harbor. Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. See 38 C.F.R. § 3.313(a). A veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); see also VAOPGCPREC 27-97. In compliance with the Board's remand directives, the AOJ obtained pages of the Sutherland's February 1968 deck log book, particularly those pages covering the period of February 16 to 18, 1968. A review of these pages, however, shows that as of midnight, February 16, 1968, the Southerland had apparently already anchored at Da Nang harbor. Thus, it is possible that pages of the deck log book dated prior to February 16, 1968, could substantiate the Veteran's claim that he set foot in the Republic of Vietnam at this time. Accordingly, the claim must again be remanded. 38 C.F.R. § 3.159(c)(2). In this attempt to assist the Veteran in substantiating his claim, the Board feels that a request for the deck log book pages dated from February 9 to 15, 1968 should suffice. However, should the AOJ's initial review indicate otherwise, the AOJ should request further records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate record keeper and request copies of the U.S.S. Southerland's deck log, ship's log, bridge log and other logs maintained by the ship and available for review for the period February 9 to 15, 1968. In this regard, the AOJ is advised to review the records received. If this review indicates that the U.S.S. Southerland had anchored in Da Nang harbor prior to February 9, 1968, then the AOJ should request further records from the appropriate record keeper in an effort to determine the date upon which the U.S.S. Southerland first anchored in Da Nang harbor around this timeframe, i.e. February 1968. 2. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. (CONTINUED ON NEXT PAGE) 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). _________________________________________________ S. S. TOTH 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).