Citation Nr: 1455352 Decision Date: 12/16/14 Archive Date: 12/24/14 DOCKET NO. 12-14 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina ISSUES 1. Entitlement to service connection for ischemic heart disease due to herbicide exposure. 2. Entitlement to an evaluation in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) for the period prior to December 29, 2008, and 50 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1971, February 1972 to November 1973 to June 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009, October 2009, and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2014, the Veteran testified before the undersigned acting Veterans Law Judge at a videoconference hearing. A transcript of the proceeding has been associated with the claims file. The Board notes by way of background that service connection for ischemic heart disease was denied by way of the August 2011 rating decision after a special review of the Veteran's claims file in light of Nehmer v. U.S. Veterans Admin., 32 F.Supp. 2d 1175 (N.D. Cal. 1999), aff'd, 284 F.3d 1158 (9th Cir. 2002) (involving retroactive benefits for certain claimed conditions involving herbicide exposure). The Board has reviewed not only the physical claims file, but also the Veteran's electronic records maintained in Virtual VA to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran served on active duty in the Navy from June 1967 to March 1971, February 1972 to June 1976. He claims that he has coronary artery disease (ischemic heart disease) due to exposure to Agent Orange in Vietnam. By way of background, the Board acknowledges that the Veteran's VA treatment records reflect that he has been diagnosed with coronary artery disease. See, e.g., September 2, 2004. In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides for presumptive service connection for certain listed diseases, including ischemic heart disease (noted as including atherosclerotic cardiovascular disease and coronary artery disease). 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." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2014). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as generally requiring proof of some duty or visitation onshore in Vietnam. The Secretary has determined that "the presumption [of herbicide exposure only] applies to those who served in the Republic of Vietnam on the ground (ground troops) or on its inland waterways (Brown Water Navy Veterans). Veterans who served in deep-water naval vessels off the coast of Vietnam during the Vietnam War are referred to as Blue Water Navy Veterans," and the evidence "does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans." See Notice Department of Veterans Affairs, Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 19, 2012). The Veteran testified and his personnel records confirm that he served aboard the USS Perry (DD-844), USS Cecil (DD-835), and USS Basilone (DD-824). He submitted a copy of a June 1972 letter that he wrote to his parents while aboard the USS Cecil, with the envelope bearing a postmarked date of June 27, 1972. In that letter, he wrote that he had made his last "beach run," which the Veteran explained in his notice of disagreement was made to reference having gone ashore as a spotter for gunners to determine if shells (from firing inland) were hitting assigned targets. The RO requested verification of the Veteran's service in Vietnam by way of a PIES request to the RMC. A July 2011 response reflects that in-country service was unable to be verified, but that it was verified that he served aboard the USS Perry (DD-884) and the USS Cecil (DD-835) while in the official contiguous waters of Vietnam. The Veteran has requested that the ship's deck logs be reviewed to verify that he actually went ashore while serving aboard the USS Cecil. In that regard, the Board acknowledges that the M21-1MR, IV.ii.1.H.28.j., provides that if the Veteran is able to provide a 60-day timeframe for docking or inland waterway travel [or presumably having gone ashore], verification should be requested from the U.S. Army and Joint Services Records Research Center (JSRRC) through the PIES/Defense Personnel Records Image Retrieval System (DPRIS) interface, using request code O43, which generates a request for ship histories and deck logs for Navy veterans. Therefore, the Board finds that this matter should be remanded so that such a request for a search of the USS Cecil's ship histories and deck logs may be performed for the month of June 1972. B. PTSD The Veteran's PTSD is currently assigned a 30 percent disability rating for the period prior to December 29, 2008, and 50 percent thereafter. The Veteran seeks higher ratings. The Veteran filed a claim for an increased rating for his PTSD, which was denied by way of June 2009 and October 2009 rating decisions. The Veteran filed a notice of disagreement in September 2009, but no Statement of the Case has been issued to date. Therefore, this claim must now be remanded to allow the RO to provide the appellant with an appropriate SOC on this issue. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: 1. Request verification from JSRRC through the PIES/DPRIS interface, using request code O43, by a search of the ship's histories and deck logs, of the Veteran's allegedly having gone ashore as described above in Vietnam in June 1972 while serving aboard the USS Cecil (DD-835). 2. Issue a Statement of the Case (SOC) to the Veteran with regard to his claim for higher ratings for his PTSD. See Notice of Disagreement, September 2009. 3. Then, readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, and allow an appropriate period of time for response. 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 2014). _________________________________________________ S.S. Toth Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).