Citation Nr: 1317285 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-45 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1969. He had prior service from March 1965 to August 1967 with the U.S. Naval Reserve Surface Division in drill pay status with several periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 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 on his part. REMAND Unfortunately, a remand is required for the Veteran's claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Board notes that in the March 2009 duty-to-assist letter sent to the Veteran the RO requested medical evidence showing the diagnosis and earliest symptoms for both disorders on appeal. In reply, the Veteran completed and signed a VA Form 21-4142 (Authorization and Consent to Release Information to VA) in June 2009 in which he requested that VA treatment records dated from 2002 to the present from VA's Greater Los Angeles Healthcare System be associated with his claims file. On the form the Veteran indicated that these records were related to his diabetes and prostate cancer. The Board's review of the claims file and the Veteran's Virtual VA eFolder show that the RO only obtained VA treatment records dated from October 2005 to July 2009. These records show that he had a radical prostatectomy in June 2003 and that his diabetes mellitus was diagnosed 8 or 9 years before his visit to a VA optometry clinic in January 2006. While the Veteran served aboard the U.S.S. RANGER (CVA-61) off the coast of Vietnam during the Vietnam War and while he concedes that he never set foot on land in Vietnam, he asserts that he was nevertheless exposed to herbicides such as Agent Orange because personnel and equipment returned to the ship and crew members were exposed when the wind carried Agent Orange offshore to the ship. Regulations state that a veteran who, during active military, naval, or air service, served in Vietnam between January 1962 and May 1975 shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). However, service "in" the Republic of Vietnam has been interpreted as requiring a veteran to have set foot on land in the Republic of Vietnam rather than mere shipboard service in offshore waters. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding foot-on-land rule to be permissible statutory interpretation), cert denied, 129 S. Ct. 1002 (2009); see also 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations also provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including diabetes mellitus and prostate cancer, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Even though the Veteran is not entitled to presumptive service connection for either diabetes or for the residuals of prostate cancer due to herbicide exposure based on any presence on land in Vietnam, he may still pursue direct service connection for each claim. Thus, on remand the RO/AMC must associate with the claims file all VA medical records from 2002 to October 2005 not found therein and update the file with any more recent records from July 2009 to the present. VA has a duty to obtain all relevant VA and governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). The Board observes that it is not clear from the available evidence whether the Veteran was diagnosed with diabetes at a VA facility in 1997 or whether his June 2003 prostate surgery was performed at a VA hospital. Therefore, on remand the Veteran also should be requested to provide releases for any pertinent private medical records that might show the diagnoses and initial treatment of his diabetes and prostate cancer as such may be relevant to whether either disorder is related to his periods of active duty or ACDUTRA. The Board also notes that the Veteran has not yet been provided a VA examination for either claim. On remand, after the RO/AMC has obtained the requested medical evidence, it should then determine whether the Veteran is entitled to a VA examination for either issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding that determining whether the evidence indicates a disability may be associated with service is a low threshold); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that reflected that he suffered an event, injury, or disease in service that may be associated with his symptoms); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all VA and private medical care providers who have treated him for his diabetes and prostate cancer disorders. The RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from the Greater Los Angeles Healthcare System during the period from 2002 to October 2005 and from July 2009 to the present. 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. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After any missing VA and private treatment records have been associated with the claims file, the RO/AMC shall review the Veteran's claims file and shall take such additional development action as it deems proper with respect to the claims on appeal, including scheduling the Veteran for (a) VA examination(s). 3. After all development has been completed the RO/AMC shall readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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). 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). _________________________________________________ F. JUDGE FLOWERS 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).