Citation Nr: 1324845 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 06-22 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for prostate cancer, to include residuals of a radical prostatectomy (incontinence, bloody urine, impotence, and extreme tiredness), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1965. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in San Diego, California. The case was certified to the Board by the RO in Los Angeles, California. It was previously remanded by the Board in August 2009 and September 2010 for a Board hearing, which was held in March 2012. In May 2012 the appeal was remanded for additional development, which was completed. Nevertheless, for the reasons discussed below, another remand is necessary. A May 2013 letter submitted by the Veteran from Charles Walker, M.D., raises the issues whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include depression, whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hypertension, entitlement to service connection for a respiratory disorder, to include chronic bronchitis and chronic obstructive pulmonary disease; chronic dizziness; and for chronic back pain. These issues, however, have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 The Veteran suffers from residuals of prostate cancer. Prostate cancer is a disease subject to presumptive service connection for herbicide exposed veterans. Any veteran who served on the land mass of the Republic of Vietnam during the applicable time periods is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. Therefore, if the Veteran served on land in the Republic of Vietnam, even on a liberty pass, he would meet the requirements for presumptive service connection. The Veteran stated that he went to Vietnam on shore leave for a few days. He states that in approximately the summer or fall of 1964, perhaps August or September, his unit, i.e., Radio Relay and Construction Company, 7th Communications Battalion, 1st Marine Division, went overseas to perform field exercises. They traveled on the USS Fort Marion (LSD-22). The ship reportedly went to Honolulu, Hawaii, Yokosuka, Japan, and Okinawa, Japan. In Okinawa, the Veteran reportedly boarded a tank landing ship, i.e., a LST, which transported various supplies to Da Nang, Vietnam where it docked for several days and offloaded supplies. The Veteran reports that during this time he disembarked the ship on a liberty pass. The ship then went to Taiwan and bivouacked for a month. After exercises were completed he reportedly boarded a LSD in Okinawa, and returned to Camp Pendleton, California. Pursuant to the May 2012 remand, the Veteran's service personnel records were obtained. These records confirm that the Veteran embarked on the USS Fort Marion January 14, 1964, and disembarked at White Beach, Okinawa on February 7, 1964. On February 10, 1964 the Veteran embarked on USS Whitfield County (LST 1109), and on February 16, 1964 disembarked at Fan-Shan, Taiwan. On March 10, 1964 the Veteran embarked on the USS Point Defiance (LSD-31) at Cho Chang, Taiwan, and disembarked at Long Beach, California on April 8, 1964. These records show that in spite of his DD Form 214, the Veteran had foreign and or sea service. Although documentation supports part of the Veteran's assertions, there is still no documentation of his reported presence in Vietnam. The National Archives indicated that the unit history for 1964 and 1965 was not located, and a check of the USS Fort Marion deck logs did not indicate which units embarked. The National Archives could not identify the LST that the Veteran reported carried him to Da Nang, but that ship has now been identified as the USS Whitfield County. The National Personnel Records Center indicated that it could not locate the Veteran's unit in Vietnam during August and September 1964. In June 2013, however, the Veteran advised that he was actually overseas during the Chinese New Year celebrations for the Year of Dragon, i.e., sometime between February to April 1964. As such, and in light of the additional information regarding his overseas travel, the Board has a duty to assist the Veteran in further developing this claim to determine whether he was in Vietnam. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the deck logs for the USS Whitfield County (LST 1109) and for the USS Port Defiance (LSD-31), for the months of February to April 1964, and determine whether these logs contain any reference to shore leave in the Republic of Vietnam by members of the Radio Relay and Construction Company, 7th Communications Battalion, 1st Marine Division. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After taking any further development deemed appropriate, readjudicate the claim. If the benefit is not granted, issue a supplemental statement of the case before returning the case to the Board. 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). _________________________________________________ DEREK R. BROWN 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).