Citation Nr: 1336194 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-23 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1954 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In an August 2008 decision, the Board denied entitlement to service connection for the cause of the Veteran's death. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2010 Memorandum Decision, the Court vacated the Board's August 2008 decision, and remanded this case to the Board for readjudication. The Board then denied the claim for service connection for the cause of the Veteran's death in a September 2011 decision. The appellant again appealed the decision to the Court. In a November 2012 Memorandum Decision, the Court vacated the Board's August 2008 decision, and remanded this case to the Board for readjudication. The claim was again before the Board in April 2013, at which time it was remanded for additional development. Additional development is needed before the claim can be decided on the merits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 appellant, the surviving spouse of the Veteran, is seeking service connection for the cause of his death. The Veteran died in March 2005 of cardio-respiratory arrest and a myocardial infarction. At the time of his death, service connection was in effect for residuals of left acromioclavicular joint dislocation with healed fracture deformity on the distal third of the left clavicle, rated as 20 percent disabling; and for residuals of a fifth metacarpal fracture deformity of the right hand, rated as 0 percent disabling. The appellant asserts that the Veteran's death should be service connected because of the presumption in the law that veterans of Vietnam service were exposed to Agent Orange, and that such exposure contributed to his death. The Veteran's History of Assignments, Form NAVPERS 601-5, shows no service within the borders of the Republic of Vietnam or in the waters immediately adjacent thereto, although he was assigned to the USS Worden (DLG/CG-18), a Navy cruiser, in July 1972. In its November 2012 decision, the Court determined that VA had failed to comply with its duty to assist in researching whether the U.S.S. Worden was within the territorial limits of the Republic of Vietnam while the Veteran was serving aboard. VA must comply with evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1MR, regarding verifying whether the U.S.S. Worden was within the inland waters of the Republic of Vietnam in July 1972. The Board noted that the United States Court of Appeals for Veterans Claims has consistently held that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). Specifically, the M21-1MR provides that in cases involving alleged shipboard service within the inland waterways of Vietnam, a Personal Information Exchange System (PIES) request must be sent to the National Personnel Records Center (NPRC) for verification of service in the Republic of Vietnam. If that search does not verify a veteran's service in the Republic of Vietnam, a request must be sent to the U.S. Army and Joint Service Records Research Center (JSRRC) along with the name of number of the ship he served on and the dates of shipboard service. Pt. III, subpt. iii, ch. 2, sec. E, 33d. In April 2013 the Board remanded the claim for development consistent with the M21-1MR regarding whether the U.S.S. Worden was within the territorial limits of the Republic of Vietnam while the Veteran was serving aboard. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In response to the April 2013 Board remand, the AMC submitted a PIES request. The response stated that the NPRC was unable to determine whether the Veteran served in the Republic of Vietnam based on the dates that the U.S.S. Worden was in the official waters of the Republic of Vietnam. A May 2009 memorandum from the JSRRC was associated with the claims file stating that there was no evidence that Navy or Coast Guard ships transported tactical herbicides and that JSRRC could not document or verify that a shipboard veteran was exposed to tactical herbicides. The record does not show that a request was sent to the JSRRC along with the name of number of the ship the Veteran served on and the dates of shipboard service in order to verify whether he served within the territorial limits of the Republic of Vietnam. Therefore, the claim must be remanded for additional development. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request verification from the JSRRC regarding whether the Veteran served in the territorial waters of Vietnam in July 1972 in compliance with M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 33. The request must include that the Veteran served on the U.S.S. Worden (DLG/CG-18) in July 1972. 2. Then readjudicate the appeal. If the benefit sought on appeal are not granted in full, the appellant and her representative should be issued a supplemental statement of the case and provided an 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). _________________________________________________ STEVEN D. REISS 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).