Citation Nr: 1320832 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 03-34 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for heart disability as due to in-service exposure to herbicides. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from November 1958 to February 1962, and from November 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a January 2010 decision, the Board denied the Veteran's claim for service connection for heart disability, to include as secondary to service-connected skin disability. The Veteran appealed the January 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the Court issued a memorandum decision, affirming the Board's decision to the extent that it denied entitlement to service connection for heart disability as secondary to service-connected skin disability, but remanding the matter of entitlement to service connection for heart disability as due to in-service herbicide exposure to the Board for further proceedings consistent with the Court's decision. As such, the Board has limited the scope of issue to this theory of entitlement, as noted on the title page. In a July 2011 rating decision, the RO denied service connection for ischemic heart disease as a presumptive disease under Nehmer v. United States Department of Veterans Affairs, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989), finding that there was no evidence that the Veteran served in Vietnam or that his ship, the USS YORKTOWN (an aircraft carrier), served on the inland waterways of Vietnam. 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 A preliminary review of the record indicates that this claim requires additional development. The Board's November 2012 remand requested that, after completing the requested development, the RO readjudicate the Veteran's claim for service connection for heart disability as due to in-service exposure to herbicides with consideration of any evidence received since the July 2011 rating decision. The evidence received since the July 2011 rating decision included a March 1994 rating decision which stated that "[t]he veteran's records indicate that he served in Vietnam; therefore, exposure to Agent Orange is conceded." The Veteran's attorney submitted the rating decision to VA in August 2012, along with a cover letter arguing that this concession of exposure to herbicide could not be overturned without a finding of Clear and Unmistakable Error (CUE) under 38 C.F.R. § 3.105. In addition, the evidence received since the July 2011 rating decision included an October 2012 affidavit from the Veteran that the USS YORKTOWN conducted shore patrols close enough to shore that the Veteran was able to see land. The Veteran's representative specifically indicated that the Veteran did not waive RO consideration of the evidence and requested that the case be remanded to the RO so that the matter would be given expeditious treatment. A January 2013 supplemental statement of the case (SSOC) denied the Veteran's claim. However, the SSOC failed to address the March 1994 rating decision that conceded exposure to herbicide, the August 2012 cover letter from the Veteran's attorney, or the Veteran's October 2012 affidavit. As VA did not perform the requested adjudication, the action requested by the Board's November 2012 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. 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.) The RO should readjudicate the Veteran's claim for service connection for heart disability as due to in-service exposure to herbicides. In doing so, the RO must consider all evidence received since the July 2011 rating decision, to include the March 1994 rating decision that conceded exposure to herbicide, the August 2012 cover letter from the Veteran's attorney, and the Veteran's October 2012 affidavit. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and/or his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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 MARTIN 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).