Citation Nr: 1606859 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 12-14 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure during military service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for prostate cancer. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2015; a transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board concedes that the Veteran has a diagnosis of prostate cancer. On appeal, the Veteran avers that he was assigned to 2 months of temporary duty (TDY) in Da Nang, Republic of Vietnam in approximately June to August 1965 or June to August 1966 as an assigned driver for pilots. The Veteran's service records do not demonstrate any evidence of TDY to Da Nang during his period of service; his service records demonstrate that he was assigned to Clark Air Base in the Republic of the Philippines from May 1, 1965 through October 1966, as a specialist driver including bus service for pilots. In various statements, the Veteran has asserted that he thought he was in the Republic of Vietnam in June and/or during the summer; thus, the Board has extrapolated the above dates based on his service records and those statements. The Veteran has submitted photographs of what he asserts to be the duty station in Da Nang that he was assigned to, including the tent on the airstrip that he stayed in; "downtown" Da Nang; Da Nang's marketplace; and, pictures of the South China Sea and a local food shop that he visited while at the South China Sea shore in the Republic of Vietnam. The Veteran also provided four lay statements from 2 sisters and 2 male friends, F.M. and C.G.C., all of whom confirm that they received written correspondence from the Veteran during the period of time he was stationed in Da Nang on TDY; they all indicate that such letters did not have any postage attached to it as it came from a combat zone. No copies of those letters or the envelopes they were received in have been submitted; C.G.C.'s statement indicates that he does not have copies of the correspondence that he received. There is no indication whether either of the sisters or F.M. have any copies of the correspondence or envelopes that they may have received. Accordingly, the Board finds that a remand is necessary in order for the Veteran to obtain and submit copies of the correspondence he sent to F.M. and/or his two sisters from that time period, which may potentially corroborate that it originated in the Republic of Vietnam. Should no copies of those correspondences or envelopes exist, the Veteran should so inform VA. Additionally, on remand, the AOJ should obtain unit records from the Veteran's assigned unit at Clark Air Base, as those records might demonstrate assignment of the Veteran to TDY in the Republic of Vietnam. Also, the AOJ should attempt to obtain any pay records or other types of evidence which may demonstrate that the Veteran received combat pay or other sort of evidence that he served in a combat zone on a temporary basis during his period of service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran for copies of any correspondence that he may have sent from the Republic of Vietnam during his period of TDY, including copies of the envelopes showing free postage from a combat zone. The Veteran should additionally submit any statements from his 2 sisters or friend, F.M., indicating that they do not have copies of that original correspondence if, in fact, such copies of that correspondence no longer exist. 2. Attempt to obtain the Veteran's unit records through official sources, including through inquiries with the Joint Services Records Research Center (JSRRC), to verify whether he was assigned to TDY to the Republic of Vietnam, particularly for the periods of June through August 1965 and/or June through August 1966. If the records are unavailable and further attempts would be futile, the claims file should be so annotated with a memorandum of unavailability and the Veteran notified of such. 3. Attempt to obtain the Veteran's pay records from official sources, to include the Defense Finance and Accounting Service (DFAS), to verify whether the Veteran received any temporary combat pay, or other type of alternative payment, for service in the Republic of Vietnam during his period of assignment to Clark Air Base in the Republic of the Philippines from May 1965 through October 1966. If the records are unavailable and further attempts would be futile, the claims file should be so annotated with a memorandum of unavailability and the Veteran notified of such. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for prostate cancer, to include as secondary to herbicide exposure during military service. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ MARJORIE A. AUER 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).