Citation Nr: 1332972 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-18 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND In June 2009, the Veteran submitted a claim of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. Specifically, the Veteran indicated that he served on three aircraft carriers as a Navy musician attached to Unit Band 163. He reported that he completed three tours or cruises in Vietnam on the USS TICONDEROGA, USS BON HOMME RICHARD, and USS YORKTOWN providing music for ceremonies on the ships and flying to surrounding bases to play for military funerals and ceremonies. The Veteran asserted that, while he was stationed on his second cruise aboard the USS BON HOMME RICHARD, he was transported via aircraft from the aircraft carrier to play at a military ceremony, which included a stopover in Da Nang, Vietnam, for an airplane grappling hook repair after the plane was unable to land on the aircraft carrier. The Veteran is essentially claiming entitlement to service connection for diabetes mellitus, type II, based on presumptive exposure to herbicides while he was in Da Nang, Vietnam. The Veteran's DD Form 214 detailed that he served in the Navy from August 1965 to August 1969 with a documented military occupational specialty of Tuba/String Bass Instrumentalist. Additional service personnel records showed the Veteran graduated from music school in July 1966. An Enlisted Performance Record showed the Veteran was potentially outside of the United States from July 1966 to October 1968. A transfer slip detailed that the Veteran was transferred to the USS Ticonderoga with COMCARDIV 3 in October 1966 for TAD (temporary active duty) with Duty Band 163. A January 1967 administrative remarks document indicated that the Veteran was authorized to wear the Vietnam Service Medal and Ribbon. It was noted that eligibility was earned while he was attached to COMCARDIV THREE Staff and embarked in USS TICONDEROGA from November 13, 1966, to December 18, 1966. A May 1968 administrative remarks document reported the Veteran was on the USS Yorktown and crossed the Equator bound from Vietnam waters on May 28, 1968. A July 1968 administrative remarks document indicated that the Veteran was authorized to wear the Vietnam Service medal with bronze star or additional bronze star for each campaign he participated. The document indicated that he was part of campaigns from March 14, 1968, to April 8, 1968, from May 5, 1968, to May 25, 1968, and from June 6, 1968, to June 16, 1968. It was further noted that the Veteran was authorized to wear the Republic of Vietnam Campaign Medal with Device (1960-) having qualified by serving within the contiguous waters of Vietnam for a period of six months contributing to direct combat support to the Republic of Vietnam armed forces during such period. Post-service medical evidence of record indicates that diabetes mellitus, type II, was diagnosed in 2009. Diabetes mellitus, type II, is a disability which is presumed to have resulted from exposure to certain herbicide agents such as Agent Orange. 38 C.F.R. §§ 3.307, 3.309(e) (2013). Veterans who served in Vietnam during the period of January 9, 1962, to May 7, 1975, are presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). To date, efforts to verify the Veteran's accounts of visitation to Vietnam have not been successful. According to a July 2009 response to a Personnel Information Exchange Request, the National Personnel Records Center (NPRC) indicated that it was unable to determine whether or not the Veteran served in Vietnam. It was noted that the Veteran served aboard the USS TICONDEROGA (CVA-14), which was in the official waters of the Republic of Vietnam from October 13, 1966, to December 18, 1966. However, NPRC indicated that the record provided no conclusory proof of in-country service. On remand, the RO must undertake additional development for this matter. The RO must first contact the Veteran and request that he provide any further information concerning the approximate date of his visitation to Da Nang, Vietnam, when his aircraft stopped for repairs. The Board notes that verification of in-country Vietnam visitation of this nature requires some specificity as to the dates the purported events occurred. In this case, the Veteran's statements concerning the date of his claimed visitation to Vietnam during service have been somewhat vague. In this regard, VA's duty to assist the Veteran in developing the facts and evidence pertinent to his claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran and his representative are urged to provide any additional information regarding the approximate date when his aircraft stopped for repairs in Da Nang, Vietnam, as well as which aircraft carrier he was stationed on at the time of Vietnam visitation, including the approximate dates of his cruise aboard the USS BON HOMME RICHARD. Thereafter, requests to the U.S. Army and Joint Services Records Research Center (JSRRC) or any other appropriate agency should be made for a search of records from the Veteran's assigned unit, to include flight logs, flight manifests, embarkation or travel slips, deck logs, and unit or ship histories, to verify the Veteran's report of visitation to Da Nang, Vietnam, on one occasion during active service. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for diabetes mellitus, type II. The RO must specifically request that the Veteran provide further information concerning the approximate date of his visitation to Da Nang, Vietnam, while on a flight stopover for repairs, as well as which aircraft carrier he was stationed on at the time of Vietnam visitation, including the approximate dates of his cruise aboard the USS BON HOMME RICHARD. Regardless of the Veteran's response, additional development regarding the claimed in-service herbicide exposure must be undertaken. The RO must make all attempts to verify whether the Veteran set foot in Vietnam. The RO must request information regarding any temporary duty orders for the Veteran and records from his assigned units, to include flight logs, flight manifests, embarkation or travel slips, deck logs, and unit or ship histories. Efforts to confirm the Veteran's claim of in-country visitation to Vietnam must include an attempt to verify based on confirmed dates and unit of assignment whether the Veteran's Duty Band 163 disembarked on one occasion in Da Nang, Vietnam, due to necessitated aircraft maintenance. If any source requires a specific time period in order to search unit records, the RO must designate the two month time period from July 1966 to October 1968 as well as any other time period supplied by the Veteran. Requests for this information must be made from any source that may contain or archive records of these occurrences, to include NPRC, JSRRC, the Department of the Navy, or any other appropriate agency. 2. The RO must notify the Veteran and his representative of ALL efforts to develop the claim of entitlement to service connection for diabetes mellitus, type II, in conjunction with this remand. Specifically, the RO must (a) identify the information the RO was unable to obtain; (b) explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 3. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2013).