Citation Nr: 1321447 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-46 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for Type II diabetes mellitus with peripheral neuropathy, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active naval duty from July 1964 to July 1968. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board issued a decision denying the claim in June 2011. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and the Court by an August 2012 Memorandum Decision vacated that Board decision and remanded the case for actions consistent with that decision. REMAND The Veteran has alleged that he was exposed to herbicide agents while stationed aboard ship in the blue waters off the coast of Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. 38 C.F.R. § 3.307(d) (2012). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involve duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam ("blue water" service) may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002). See VAOPGCPREC 27-97 (July 23, 1997). The United States Court of Appeals for the Federal Circuit has clearly held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Service in inland waterways (also called "brown water" service) is also considered to be sufficient to invoke the presumption. The Veteran has not alleged that he was stationed in Vietnam or set foot in Vietnam during his service, or that he was aboard a ship that ventured into the inland waterways of Vietnam, and the evidentiary record does not support this, and hence the claim is not presently considered on the basis of the presumption of herbicide exposure on the basis of service in Vietnam. Rather, the Veteran has alleged exposure to herbicide agents while aboard the USS Intrepid in blue waters off the coast of Vietnam. He has specifically alleged that he was exposed to such chemicals while drinking or bathing using water desalinated aboard ship from waters that may have come from inland waterways of Vietnam and hence may have been contaminated by herbicide agents. The Veteran's representative references an Australian study regarding potential concentration of herbicides or other chemical agents in ship desalination processes for the production of potable water. The Veteran also alleges that he was exposed to herbicides while loading armaments onto aircraft, and when encountering personnel or ships which had come from Vietnam. The Court in its Memorandum Decision requires the Board to consider whether the Veteran's assertions of actual exposure to herbicide agents are credible, and if credible, whether they are sufficient to support the claim on the basis of such exposure. However, the Board notes that the Veteran has not voiced actual knowledge of his own exposure, but rather has voiced conjecture about possible exposure, including based on self-reported activities of drinking and bathing with desalinated water aboard ship, and based on loading armaments and encountering ships and personnel coming from Vietnam, as already noted. Thus, while the Board finds the Veteran credible as to these activities and encounters, the question remains whether the Veteran was thereby exposed to herbicide agents. The Veteran's statements are insufficient to establish this exposure. The Board finds that herbicide agent exposures based on physical contact with aircraft or personnel or ships would not be verifiable, based on no reasonable means of ascertaining whether such people and objects and vessels were contaminated in such a manner or to such a degree as to make secondary contamination plausible. In short, the Board finds such a basis of contact with herbicide agents too speculative. However, the Board believes that the allegation that the Veteran was exposed to herbicides coincident to drinking and bathing desalinated water aboard ship is potentially verifiable. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the Navy Marine Corps Public Health Center, Occupational and Environmental Medicine (OEM), 620 John Paul Jones Circle, Suite 1100, Portsmouth, VA 23708-2103, for an OEM consultation. The RO should also contact the U.S. Army Public Health Command, Office of Toxicology, Army Institute of Public Health, 5158 Blackhawk Road, Aberdeen Proving Ground, MD 21010-5403, for an exposure modeling. Both these institutions should be asked to apply their respective expertise to the question of the likelihood of the Veteran's exposure to herbicide agents through use of desalinated seawater for drinking and bathing while stationed aboard the USS Intrepid off the coast of Vietnam. The RO should cooperate with any assistance or informational needs of these institutions for these inquiries. All requests, responses, and reports received should be documented in the claims file or Virtual VA. 2. The RO should also undertake any other development deemed appropriate. 3. Then, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).