Citation Nr: 1538801	
Decision Date: 09/10/15    Archive Date: 09/18/15

DOCKET NO.  09-26 736	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure.
 
2.  Entitlement to service connection for neuropathy of the left and right lower extremities, to include as due to herbicide exposure.
 
3.  Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure.

4.  Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus.


REPRESENTATION

Veteran represented by:	Matthew D. Hill, Attorney


ATTORNEY FOR THE BOARD

Devon Rembert-Carroll, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1971 to February 1975.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In a November 2013 decision, the Board denied entitlement to service connection for diabetes mellitus, neuropathy of the right and left lower extremities, ischemic heart disease, hypertension and erectile dysfunction.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC or Court).  In an April 2015 Memorandum Decision, the Court affirmed the Board's denial of hypertension and vacated and remanded the remaining issues for further development consistent with the decision.  

A review of the Veteran's Veterans Benefits Management System (VBMS) file reveals the April 2015 Memorandum Decision.  A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issues on appeal.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran contends that his service aboard the USS Roark, which docked in Da Nang Harbor while the Veteran was aboard, entitles him to the presumption of exposure to herbicides.  See 38 U.S.C.A. § 1116(a)(2) (West 2014), 38 C.F.R. §§ 3.307, 3.309(e) (2015).  See also Haas v. Peake, 525 F.3d 1168 2008); VAOPGCPREC 27-97.  The Veteran contends that Da Nang Harbor should be considered an inland waterway for purposes of the presumption of exposure.  

In the April 2015 Memorandum Decision, the Court concluded that the VA's definition of inland waterways was irrational and therefore not subject to deference.  The Court held that the VA is required to re-analyze its definition of inland waterways of Vietnam - particularly as it applies to whether the Da Nang Harbor is located within the territorial boundaries of Vietnam.  See Gray v. McDonald, 27 Vet. App. 313 (2015).  Accordingly, a remand is necessary for any determination made by VBA regarding the status of Da Nang Harbor to be reconciled with the facts of this case.

Accordingly, the case is REMANDED for the following action:

Action should be taken to reconcile any determination made by VBA regarding the territorial status of Da Nang Harbor with the facts of this case.  If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and afford them the appropriate time to respond before returning the claims file to the Board for further appellate review.

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).

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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).



_________________________________________________
TANYA SMITH
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) (2015).