Citation Nr: 1329545 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-11 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection to diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1971. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Louis, Missouri. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. 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 Board's review of the claims file reveals that further action on the appeal is warranted. The Veteran in this case seeks service connection for diabetes mellitus, type II, on the basis of exposure to herbicides. A March 2009 VA treatment report documents current diabetes mellitus, type II. However, the Veteran does not contend, and service records do not show, that his diabetes arose during service. Rather, he contends his diabetes later developed due to in-service herbicide exposure. In correspondence received throughout the appeal, the Veteran contends that he was exposed to herbicides while stationed aboard the U.S.S. Shangri-La. He contends that this ship entered a port area in South Vietnam in order to receive parts to repair an elevator. He contends his ship was in the "brown water" of Vietnam. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a 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) (West 2002). "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or service in other locations 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's requirement that a Veteran must have "stepped foot" on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off- shore of the Republic of Vietnam is not qualifying service in Vietnam). Prior to appellate adjudication, the Board finds that further development is necessary to establish whether the Veteran may have been exposed to herbicides on active duty. The Veteran's DD 214 Form shows he was awarded the Vietnam Service Medal and Republic of Vietnam Campaign Medal for service aboard the U.S.S. Shangri-la in the contiguous waters of Vietnam from April 11, 1970 through November 5, 1970. A command history report for the U.S.S. Shangri-la shows that in June 1970, the ship entered the Republic of South Vietnam territorial waters and stood in the harbor of Da Nang. Parts for a number 3 elevator were received via helicopter. This was the only known incident of a U.S. aircraft carrier that entered a port area in South Vietnam. The visit was for the purpose of obtaining supply parts, and was not for liberty. In March 2009, the National Personnel Records Center (NPRC) was contacted to verify Vietnam service. The NPRC responded that it was unable to determine whether or not the Veteran served in the Republic of Vietnam. The Veteran was attached to a unit that could have been assigned to a ship or to shore. For Department of Defense (DOD) purposes, the Veteran's unit was credited with Vietnam service from April 10, 1970 to May 2, 1970, May 12, 1970 to May 29, 1970, June 13, 1970 to July 4, 1970, July 28, 1970 to August 19, 1970, August 30, 1970 to September 30, 1970, and October 20, 1970 to November 7, 1970. However, service records provided no conclusive proof of in-country service. With regard to whether the Veteran served in the inland waterways of Vietnam, a list of Navy and Coast Guard Ships associated with service in Vietnam and exposure to Herbicide Agents, while not complete, provides some information in determining which vessels may be subject to the presumption. VA's Compensation and Pension Service, which recently updated its list, has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. However, the Veteran's ships, the U.S.S. Shangri-la and the U.S.S. John F. Kennedy, are not vessels recognized as having conducted "brown water" operations in Vietnam. With regard to whether the Veteran actually stepped foot in Vietnam, records show that the U.S.S. Shangri-la was stationed was in the harbor and supplies were received via helicopter. The purpose of the visit was not for liberty. The Veteran's service personnel and treatment records do not confirm in-country Vietnam service. Additionally, receipt of the Vietnam Service Medal alone cannot be used to establish service in the Republic of Vietnam, as some service members who received the Vietnam Service Medal were never in Vietnam or its territorial waters. See Haas, 525 F.3d at 1196. The U.S. Dep't of Defense Manual of Military Decorations and Awards, Chapter C.6.6.1.1.2 and C.6.6.1.2.1.2. (September 1996) states that the Vietnam Service Medal is awarded members of the Armed Forces of the United States serving at any time between July 4, 1965 and March 28, 1973, in Vietnam, its contiguous waters, or the airspace there over, including service members who were attached to or regularly served for one or more days aboard a naval vessel directly supporting military operations in Vietnam. However, as noted above, the Veteran's unit was credited with Vietnam service on a number of occasions. Significantly, the record further shows that in February 2009, the Veteran reported to a treating VA physician that while he mostly served on a ship near Vietnam, he did physically step foot in Da Nang on one occasion. As such, the Board finds that further information from the Veteran should be elicited as to his actual presence on the landmass of Vietnam prior to appellate adjudication. The deck logs for the U.S.S. Shangri-la should also be requested to verify the Veteran's allegations. Finally, in his VA Form 9 the Veteran asked VA to obtain the Microfilm Publication USN Muster Roll, Carrier Airborne Early Warning Squadron 121 (VAW 121) Year 1970, Act #07889 Reel 5252. An attempt to obtain this record should be made. Accordingly, the case is REMANDED for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically, the Veteran should be asked to provide detailed information concerning his presence on the landmass of Vietnam. 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Contact the National Archives and Records Administration or other appropriate entity, and request copies of the deck logs and muster rolls/personnel diaries for the U.S.S. Shangri-la for the time periods of April 10, 1970 to May 2, 1970, May 12, 1970 to May 29, 1970, June 13, 1970 to July 4, 1970, July 28, 1970 to August 19, 1970, August 30, 1970 to September 30, 1970, and October 20, 1970 to November 7, 1970. The AOJ should review the documents to determine if personnel aboard the ship went ashore during the specified periods of time. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 4. If muster rolls are not obtained via the above request, attempt to obtain Microfilm Publication USN Muster Roll, Carrier Airborne Early Warning Squadron 121 (VAW 121) Year 1970, Act #07889 Reel 5252. 5. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. All applicable laws and regulations should be considered. If the benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and be given the opportunity to respond. 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). _________________________________________________ H. N. SCHWARTZ 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).