Citation Nr: 1600700 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 12-16 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for multiple myelomas, claimed as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to August 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg. In November 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities was raised by the Veteran in a February 2010 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) since that time. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's service personnel records indicate that he served on the USS Sacramento from May 1964 to August 1966, and the Veteran has reported that his ship was in Da Nang Harbor. Significantly, in April 2015, the United States Court of Appeals for Veterans Claims, in addressing a claim for presumptive service connection based on herbicide exposure while that veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). Remand is therefore necessary for the RO to issue a new formal finding regarding alleged herbicide exposure in light of the Gray decision. The Board additionally notes in that regard that the Veteran submitted multiple months of deck logs in February 2015 and the AOJ associated over 3,000 pages of VA medical records in June 2015, none of which has been considered in previous AOJ adjudication of the issue on appeal. On readjudication, the AOJ should consider all of the relevant evidence of record in making further determinations. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall issue a new formal finding addressing whether the Veteran may be presumed to have been exposed to herbicides in light of the decision in Gray and the Veteran's alleged service in Da Nang Harbor. If further development is needed to reach that finding, to include securing copies of all pertinent deck logs not already of record, the AOJ must undertake that development. If the AOJ cannot locate any pertinent records identified, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. 2. After completion of the above development, readjudicate the claim, with specific consideration of deck logs submitted by the Veteran and all relevant evidence added to the record since the May 2012 statement of the case. If any benefit sought is not granted, the Veteran and his representative should be provided with an supplemental statement of the case and given an opportunity to respond before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 & Supp. 2015). _________________________________________________ S. BUSH 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).