Citation Nr: 1331614 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 12-02 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus, claimed to be the result of exposure to Agent Orange. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to April 1973. He appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim requires further development before being decided on appeal, so the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Service connection is granted for disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for a disease diagnosed after discharge, if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain diseases are considered chronic, per se, including Diabetes Mellitus, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., the dioxin in Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam means actual service in country in Vietnam from January 9, 1962 through 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), 3.313(a). But VA's Office of General Counsel has held that service on a deep-water naval vessel off the shores of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A). VAOPGCPREC 27-97 (July 23, 1997). See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upholding the interpretation of governing law that service in the offshore waters of Vietnam without temporary duty or visitation on land, even where the claimant was the recipient of the Vietnam Service Medal (VSM), was insufficient to warrant application of the presumption of herbicide exposure). Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e) include Type II Diabetes Mellitus and "early onset" peripheral neuropathy. As such, Type II Diabetes Mellitus shall be presumptively service connected if it manifested to the required minimum compensable degree of at least 10-percent disabling within one year of service or if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of the disease during service. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's military duty assignment is documented to have been aboard naval ships that primarily were situated in the deep waters offshore of the coast of the Republic of Vietnam, first the U.S.S. Henry W. Tucker (DD-875) and then the U.S.S. Bausell (DD-845). The U.S.S. Henry W. Tucker is known to have docked to pier in Da Nang Harbor for one day during the approximate two-year time frame the Veteran served aboard that ship (see VA Compensation and Pension Service database, "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents."). Yet there is no objective or otherwise competent indication he went ashore on the landmass of Vietnam when the ship docked. To reiterate, under 38 C.F.R. § 3.307(a)(6)(iii), in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam must have involved service on the landmass of Vietnam (often referred to as service "in country") or, at the very least, on the inland waterways ("brown water"), so does not include mere service on a deep-water naval vessel in the waters offshore ("blue water"). See again Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525); VAOPGCPREC 27-97. What constitutes "inland waterways" is not defined in VA regulations; however, VA Adjudication Procedure Manual provides interpretive guidance. The Manual indicates that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. The Manual does note an exception regarding Veterans who served as a coxswain. This does not end the inquiry into whether the Veteran had service within the territorial borders of Vietnam, however, as to trigger the presumption of Agent Orange exposure under 38 U.S.C.A. § 1116. He maintains that, while aboard the U.S.S. Henry W. Tucker, one of his duties was to land helicopters on the small flight deck of the ship, and while conducting joint operations with the Australian military was tasked to go ashore into Vietnam by helicopter and spend a few days there at an Australian outpost in the Vietnam jungle. He cites mid-1971 as the approximate time frame of that service and maintains he is certain such an event would have been documented in the ship's log. Therefore, in accordance with VA's duty to assist him in fully developing his claim, the Board is forwarding this case to the U.S. Joint Services Records Research Center (JSRRC) for a search of all available deck logs, ship histories, and other unit records to try and confirm the aforementioned incident. The Veteran is hereby reminded that any and all additional supporting information he can provide regarding the incident can only assist in VA's continued attempt to verify it. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Contact the Veteran and give him further opportunity to provide additional supporting details regarding his alleged flight into Vietnam in mid-1971, including especially by providing approximate dates (preferably within a 60-day time frame), locations, and names and unit designations of all individuals involved. 2. Then, with the benefit of this additional information, contact the JSRRC and request verification of the incident involving a purported helicopter flight into Vietnam in mid-1971, which, according to the Veteran's report, was to an Australian military outpost. Search for all available deck logs, ship histories, and other unit records that would tend to verify this claimed mission. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2013). _________________________________________________ KEITH W. ALLEN 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).