Citation Nr: 1515938 Decision Date: 04/13/15 Archive Date: 04/21/15 DOCKET NO. 13-14 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for cancer of the vocal cords, claimed as due to herbicide exposure. 2. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 3. Entitlement to service connection for diabetes mellitus, type II (diabetes), claimed as due to herbicide exposure. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two September 2011 rating decisions issued by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks to establish his entitlement to service connection for cancer of the vocal cords, and ischemic heart disease as presumptively due to herbicide exposure. See 38 C.F.R. § 3.309(e). He also asserts that he should be presumed to have been exposed to herbicides, pursuant to 38 C.F.R. § 3.307(a)(6)(iii), as part of his military duties aboard the USS Mispillion. In January 2014, the Board remanded the Veteran's claims because he stated he set foot onto Vietnam, that is, while anchored in Antoy Bay in 1969, his duties involved visiting the shores of Vietnam. The service records establish the Veteran served aboard the USS Mispillion while it was in at least the blue waters of Vietnam from June 1968 to November 1968. The Veteran stated he was in Vietnam in 1969. Therefore, the Board remanded the claims in January 2014 to request a search of the deck logs for the USS Mispillion from June 1968 to December 1968 and in 1969 to verify whether there were shore parties or docking in Vietnam during those periods. In this regard, the RO sent a letter in April 2014 to the Veteran requesting the approximate dates as to when he was in Vietnam in 1969 as well as June 1968 to December 1968 so that a request could be made for a 60 day period that would make the search feasible. The Veteran never responded to the letter. The RO proceeded no further regarding the remand directive for deck logs. The Board notes that the remand never made its directive for deck logs contingent upon the Veteran identifying a specific date or sixty day period. In any event, the Board has determined that search for deck logs could have been requested for the period from June 1968 to November 1968 (e.g., June and July 1968, August-September 1968, and October-November 1969), even in the absence of a response from a Veteran. As no request for the deck logs of the USS Mispillion was made, the Board finds that a remand is required to obtain this missing information. See 38 U.S.C.A. § 5103A (d). The Court held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. Under the circumstances, as the Veteran recalls it was 1969 that he was in Vietnam, the Board the Veteran should be given another opportunity to give the approximate date or dates he recalls being ashore in 1969. The Board reminds the Veteran that the duty to assist is not a one-way street, and that he has a duty to cooperate, to include providing the necessary information that will help VA and other sources locate relevant records. If an appellant wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). He is advised that he has an obligation to assist VA in the development of his claim, and that failure to do so may result in an adverse decision. There has not been a VA examination to determine whether the Veteran's vocal cord cancers, diabetes, and ischemic heart disease is related to any incidents noted in the service treatment records or service generally regardless of the Veteran's Agent Orange exposure. There is medical evidence in the file that the Veteran has been diagnosed with vocal cord cancer and ischemic heart disease. As to diabetes, the Veteran has filed a claim for service connection for diabetes, which suggests that a medical professional told him that he has diabetes. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether the disabilities are present and to ascertain the etiology. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate entity to request a search of the deck logs for the USS Mispillion from June 1968 to December 1968 and in 1969 to verify whether there were shore parties or docking in Vietnam during those periods. Any negative responses should be associated with the claims file. The request should request any documents concerning the Veteran including but not limited to muster rolls (or any equivalent documents), unit rosters, daily duty status reports, and deck logs of the USS Mispillion or any other ship identified by the Veteran. The RO should advise the Veteran that such searches are feasible only if the NPRC or other records custodian has a 90 day period to make the search. The RO should also advise the Veteran that the failure to provide the information may result in a VA examination and subsequent decision based upon the evidence of record. All efforts must be documented and associated with the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159. 2. If herbicide exposure is not established, provide the Veteran with a VA otolaryngology examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has a vocal cord cancer disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service other than as a result of Agent Orange exposure, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to discuss the clinical significance of the Veteran's statement that his service exposed him to fuel and other chemicals while aboard the USS Mispillion. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. A complete rationale for any opinion offered should be provided. 3. If herbicide exposure is not established, provide the Veteran with a VA cardiac examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has an ischemic heart disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service other than as a result of Agent Orange exposure, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to discuss the clinical significance of his service exposed him to fuel and other chemicals while aboard the USS Mispillion. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. A complete rationale for any opinion offered should be provided. 4. If herbicide exposure is not established, provide the Veteran with a VA diabetes examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has diabetes. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the diabetes disability began in service or is causally and etiologically related to service other than as a result of Agent Orange exposure, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to discuss the clinical significance of his service exposed him to fuel and other chemicals while aboard the USS Mispillion. A complete rationale for any opinion offered should be provided. 5. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his representative an SSOC and a reasonable period to respond, and 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).