Citation Nr: 1332340 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-03 025 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 4. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 5. Entitlement to service connection for a disability manifested by tremors of both hands, to include as due to exposure to herbicides or as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached. As an initial matter, the Board notes that 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. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The diseases for which service connection due to herbicide exposure is presumed include diabetes mellitus and peripheral neuropathy. 38 C.F.R. § 3.309(e) (2013). In this case, the Veteran claims that he served aboard the USS Vega from December 1967 to December 1968 and was exposed to herbicides during that time. Specifically, he indicated that the ship was anchored in Cam Ranh Bay on several occasions, received supplies from the pier, and he had to go on station in the Tonkin Gulf. He said on two occasions the ship was sprayed by a plane flying overhead. He indicated that he was informed that the plane was spraying chemicals or herbicides to kill foliage and the pilot was emptying his tanks before landing at a nearby air force base. The Veteran noted that after the two incidents of spraying from the plane overhead, he and his fellow service members had to wash down the ship. He indicated that he also took two trips upriver to a place called "white elephant" to get mail. He indicated that on one occasion he was at a beach for swimming and a barbecue and that the USS Vega was anchored in Da Nang Harbor on several occasions. A review of the Veteran's service personnel records shows that he served aboard the USS Vega from March to December 1968. A response from the National Personnel Records Center (NPRC) indicates that the USS Vega was in the official waters of the Republic of Vietnam from April 11, 1968, to April 22, 1968; from May 8, 1968, to May, 27, 1968; from July 4, 1968, to July 15, 1968; and from July 21, 1968, to August 2, 1968. But the response indicated that there is no conclusive proof of in-country service. The RO concluded that the USS Vega was not known to have traversed the inland waterways or docked on the shore of the Republic of Vietnam during those time periods. A memorandum from the Joint Services Records Research Center (JSRRC) indicates that there was no evidence that Navy ships transported herbicides or that ships operating off the coast of the Republic of Vietnam used, stored, tested, or transported herbicides. The JSRRC was also unable to verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over the Republic of Vietnam or equipment that was used in the Republic of Vietnam. The JSRRC concluded that there was no evidence to support the Veteran's claim of exposure to herbicide agents. Because there is evidence that the USS Vega served in the official waters of the Republic of Vietnam during the period during which the Veteran served aboard, the Board has determined that further research is necessary in order to determine whether the Veteran had in-country service in Vietnam. Specifically, a search of the USS Vega deck logs should be undertaken to determine whether there were shore parties or docking during the period which the USS Vega was in the official waters of Vietnam. If the Veteran is determined to have been exposed to herbicides in service, the Veteran should be afforded a VA examination to determine whether he has confirmed diagnoses of the claimed disabilities and the etiology of any claimed disability present. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC or any other appropriate agency to request a search of the deck logs for the USS Vega from April to May 1968 and from July to August 1968 to verify whether there were shore parties or docking in Vietnam during those periods. Any negative responses should be associated with the claims file. 2. If the Veteran's claimed exposure to herbicides is confirmed, the Veteran should be scheduled for a VA examination to determine whether the Veteran has confirmed diagnoses of diabetes mellitus, peripheral neuropathy of the upper and lower extremities, hypertension, obstructive sleep apnea, or a disability manifested by tremors of the hands. If peripheral neuropathy is diagnosed, the examiner should specify whether peripheral neuropathy of the upper and lower extremities is acute or subacute. If confirmed diagnoses of peripheral neuropathy of the upper and lower extremities, hypertension, obstructive sleep apnea, and a disability manifested by tremors of the hands are made, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any of the claimed disabilities are related to the Veteran's active service, including exposure to herbicides. The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that peripheral neuropathy of the upper and lower extremities, hypertension, obstructive sleep apnea, and a disability manifested by tremors of the hands were caused or aggravated by diabetes mellitus. The examiner must consider the Veteran's lay statements. The rationale for all opinions expressed must be provided. The examiner should review the claims folder and should note that review in the examination report. 3. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).