Citation Nr: 1330587 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 12-02 610A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide and/or asbestos exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2009 rating decision in which the RO denied service connection for type II diabetes mellitus. In December 2010, the Veteran filed a notice of disagreement (NOD) with the December 2009 rating decision. A statement of the case (SOC) was issued in February 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. For the reasons expressed below, the matter on appeal has been expanded as stated on the title page, and is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. 38 C.F.R. § 19.9 (2012). The Veteran seeks service connection for his current type II diabetes mellitus, including as due to herbicide exposure, while participating in firing missions in support of troops down inland waterways/rivers during the Vietnam era while stationed aboard the USS Jenkins. However, the Defense Personnel Records Information Retrieval System (DPRIS) research on the USS Jenkins that is currently of record fails to clarify whether individuals stationed on the USS Jenkins participated in military activities on the inland waterways, rivers, or directly on the land mass of Vietnam during the period the Veteran served, such that he can benefit from the presumption of herbicide exposure available to Veterans that qualify. As such, the matter must be remanded for additional development. To invoke the presumption of herbicide exposure (and, in turn, the presumption of service connection for type II diabetes mellitus based on such exposure), evidence must indicate that a Veteran either physically served on or visited the Vietnamese land mass, or its inland waterways. However, the presumption does not apply to Veterans who served exclusively offshore in ocean-going ships, i.e., the "blue water" Navy. It is unclear from the DPRIS research report whether the USS Jenkins' history of "conducting special local operations near Da Nang Harbor, Republic of Vietnam (RVN) from October 26-28 and November 25-27, 1968 (emphasis added)" and/or "Naval Gunfire Support operations in the coastal waters of the RVN from December 26, 1968 to January 18, 1969 (emphasis added)" means that the USS Jenkins operated in inland waterways and rivers sufficient to invoke the presumption of exposure to herbicides while the Veteran was in military service on the ship. This is especially relevant, as the Veteran indicated that he participated in gunfire support missions on the inland waterways/rivers and his DD-214 and personnel records indicate that he earned a Vietnam Service Medal with 3 Bronze Stars, Vietnam Campaign Medal, and a National Defense Service Medal for participating in Vietnam military operations and campaigns. As such, a remand is required to clarify this matter. Further, the Board requires deck log research on the USS Jenkins during the specific periods where the history of the ship indicates presence in the waters of Vietnam, and the Veteran was stationed on the ship. The Veteran's representative submitted a statement in lieu of a VA Form 646 indicating that the Veteran was exposed to herbicides while stationed on the USS Jenkins in the coastal waters of Vietnam. The representative specifically noted that the USS Jenkins conducted relevant operations in the waters of Vietnam October 26-28, 1968, November 25-27, 1968, December 8 -18, 1968, and December 26, 1968 to January 18, 1969, and the Veteran's personnel records verify that he was stationed on the USS Jenkins during those periods. DPRIS stated that it did not provide deck log research on the Veteran's behalf for the USS Jenkins since the dates provided were too expansive as they exceeded the 60 day time period for deck log research. However, the statement in lieu of a VA Form 646 narrowed the relevant range of time for the deck log research. Thus, the RO must contact DPRIS to request deck log research for the specific time frames listed above. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo examination, if appropriate) prior to adjudicating the claim on appeal. As a final point, the Veteran alternatively alleged "possible" asbestos exposure in his claim. The RO has not adjudicated the claim under this alternative theory of entitlement, and should do so on remand. Accordingly, this matter is hereby REMANDED for the following action: 1. Contact DPRIS and: (a) Request deck log research on the USS Jenkins for October 26-28, 1968, November 25-27, 1968, December 8 -18, 1968, and December 26, 1968 to January 18, 1969. (b) Request that DPRIS specifically state whether the "special local operations near Da Nang Harbor, Republic of Vietnam (RVN) from October 26-28 and November 25-27, 1968" included operations on the inland waterways or the land mass of the Republic of Vietnam. DPRIS must also provide a rationale for its answer, including the names and dates of the sources relied upon for the answer and sources consulted for the explanation. Request that DPRIS identify the military activities and operations that were included in the "special local operations" for the USS Jenkins from October 26-28 and November 25-27, 1968. (c) Request that DPRIS specifically state whether the "Naval Gunfire Support operations in the coastal waters of the RVN from December 26, 1968 to January 18, 1969" included operations on the inland waterways or land mass of the Republic of Vietnam. DPRIS must also provide a rationale for its response, including identification of the sources consulted and relied upon. Request that DPRIS identify the military activities and operations that were included in the "Naval Gunfire Support operations" for the USS Jenkins from December 26, 1968 to January 18, 1969. 2. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo examination, if appropriate) adjudicate the expanded claim on appeal in light of all pertinent evidence and legal authority. Specifically address the alternate theory of entitlement to service-connection based on asbestos exposure. 3. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case and afford them the opportunity to respond before the claims file is returned to the Board. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until 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 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).