Citation Nr: 1317599 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-41 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for glaucoma, claimed as secondary to diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had essentially continuous active Navy service from March 1964 to July 1989, when the Veteran retired with more than 25 years of credited service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In his October 2008 substantive appeal, the Veteran requested a hearing before the Board. In December 2009, the Veteran withdrew in writing his request for a hearing. Appellate review may proceed. 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 Veteran seeks service connection for diabetes mellitus, type 2. Specifically, he maintains that he was exposed to Agent Orange when the ship to which he was assigned, the USS CONY (DD-508), was anchored off the coast of Vietnam, and when he departed from ship on smaller boats onto the landmass of Vietnam and into the inland waterways. Service connection may be established on a presumptive basis for diabetes mellitus, type II, if a Veteran was exposed to an herbicide agent such as Agent Orange during service. 38 C.F.R. §§ 3.307, 3.309 (2012). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during a specified period beginning on January 9, 1962, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 7-93. "Service in Vietnam" means actual service in the country of Vietnam during the specified period; service in the waters offshore or service in other locations during the Vietnam period is considered service "in Vietnam" if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA interprets 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption, and that interpretation has been upheld by the Federal Circuit Court of Appeals. Haas, 525 F.3d at 1193-1194. A Veteran who never went ashore from ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. Id. The Veteran has been diagnosed with diabetes mellitus, type 2. Thus, the Veteran's claim hinges on whether there is affirmative evidence that the USS CONY anchored in any area which could be considered part of the landmass or inland waterways of the RVN or whether he is able to verify that he went ashore. The USS CONY is known to have anchored in Cam Rahn Bay and Vung Tau; however, as these two ports are both deep-water ports, the ports are not defined by VA as within the "costal" waterways for purposes of the presumption of exposure to herbicides. The USS CONY is not among the 244 ships listed as among the ships which operated in Vietnam's inland waterways primarily, temporarily, or for extended periods. See VA, "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents," (January 18, 2012); see also "Agent Orange: Alphabetized Ships List," updated November 2012. However, as noted in the Introduction to that list, the presumption of herbicide exposure should not be denied solely because the Veteran's ship is not on the list. The Veteran contends that he was exposed to Agent Orange when he departed from his ship, the USS CONY (DD-508) to go ashore at Cam Rahn Bay, to go ashore in Vung Tau, and that he was on smaller boats that left the USS CONY for various purposes in Nha Trang and in the Mekong Delta area (location unspecified). The Veteran contends that the fact that the USS CONY sent out smaller boats that operated inland and that members of the USS CONY crew went ashore for various purposes should be reflected in the deck logs. He has presented evidence from an unofficial, non-governmental source that indicates that deck logs from the USS CONY show that that vessel anchored at Vung Ganh Rai, which is along the Saigon River. The Veteran has requested that the deck logs, and a more detailed ship's history, be obtained. Accordingly, the case is REMANDED for the following action: 1. The Naval Historical Center and the Department of the Navy should be asked to determine whether a more detailed ship history for the USS CONY for the period of its support of operation in Vietnam from August 1967 to December 1967 can be located. (The ship history currently obtained summarizes that period in three sentences). If no additional historical information for the USS CONY for this period can be located, the history of the action to which the USS CONY was assigned (II Corps Tactical Zone or Task Unit 70.8.9) should be obtained, such as after-action reports, reports of munitions used, tactical support, or the like. If no other information is obtained, request the history of the USS ORISKANY for the period from November 27, 1967 to December 10, 1967, since the CONY was apparently alongside the ORISKANY during that brief period. 2. The deck log for the USS CONY from August 6, 1967 to December 29, 1967 should be obtained. 3. The Veteran should e asked to provide any other evidence of any type that might assist to substantiate his claim that he went ashore onto the landmass of Vietnam or was on board a smaller craft that operated in the inland waterways of Vietnam. 4. After all development directed above has been completed, the RO/AMC should again review VA's listings of ships associated with service in Vietnam and exposure to herbicide agents to determine if the USS CONY has been added to the list since November 2012. VA, Adjudication Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, ¶28, "Considering Claims Based on Service Aboard Ships Offshore the RVN." Then, after completion of any other action deemed necessary based on the evidence obtained during Remand, the claims on appeal should be readjudciated. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further 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. 2012). _________________________________________________ MICHAEL A. HERMAN 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).