Citation Nr: 1620507 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 10-19 189 ) DATE ) ) 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 secondary to toxic herbicide exposure. 2. Entitlement to service connection for prostate cancer residuals, to include as secondary to toxic herbicide exposure. 3. Entitlement to service connection for hypertension, to include as secondary to toxic herbicide exposure. REPRESENTATION Veteran represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from December 1969 to September 1973. This case comes before the Board of Veterans' Appeals (the Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) claims processing systems. Any future consideration of this case should take into consideration the existence of these electronic records. The Veteran had a hearing before the undersigned Veterans' Law Judge in October 2011. A transcript of that proceeding has been associated with the claims file. The Board remanded the Veteran's claims in April 2014 for further development. That development was completed to the extent possible and the case was returned to the Board. Stegall v. West, 11 Vet. App. 268 (1998). However, additional development is required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for diabetes mellitus, prostate cancer residuals, and hypertension, on the grounds that he was exposed to Agent Orange during his service aboard the U.S.S. Tripoli and U.S.S. Eldorado. The Veteran asserts that on several occasions he left one or both ships and went ashore in the Republic of Vietnam to collect mail and ferry supplies to and from shore. See October 2009 Notice of Disagreement; August 2010 statement; October 2011 Hearing Transcript, pp. 7-9; November 2011 representative brief; and December 2015 representative brief. The Veteran's personnel records indicate that he was assigned to the U.S.S. Tripoli from August 25, 1970, to January 19, 1971. On January 19, 1971, the Veteran transferred to the U.S. Naval Hospital, San Diego. The Veteran then transferred to the U.S.S. Eldorado on April 17, 1971, where he remained until December 1972. An October 2008 Personnel Information Exchange System (PIES) report noted that although the U.S.S. Eldorado was in official Republic of Vietnam waters from September 30 to September 31, 1971; October 30 to November 6, 1971; December 9 to December 11, 1971; January 17 to January 20, 1972, and January 24 to January 27, 1972, the available documentation provided no conclusive proof that the Veteran had in-country service. A November 2008 report from the Defense Personnel Records Information Retrieval System (DPRIS) indicates that the U.S.S. Eldorado operated in Da Nang harbor, Cam Ranh Bay, and Vung Tau in September and November 1971. It does not appear that the AOJ made a DPRIS inquiry regarding the U.S.S. Tripoli. VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records which is found on VA's website. The vessels are placed in five categories of ships that operated on the waters of Vietnam. A ship is placed on this list when documentary evidence shows that it fits into a particular category. The required evidence can come from an official ship history, deck logs, cruise books, Captain's letters, or similar documents. A specific ship may be listed in more than one category, based on its activities. The evidentiary requirements for presumptive Agent Orange exposure may vary depending on which dates the Veteran was aboard a ship and what ship activity occurred during those dates. Ship categories include: (I) ships operating primarily or exclusively on Vietnam's inland waterways; (II) ships operating temporarily on Vietnam's inland waterways; (III) ships that docked to shore or pier in Vietnam; (IV) ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore; and (V) ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. Category V provides that any Veteran aboard the mother ship during the time frame of offshore Vietnam landing craft activity will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore with the landing craft. The specified timeframe for the U.S.S. Tripoli under Category V is May 1967 to December 1973. However, from the evidence in the claims file, it is unclear whether the U.S.S. Tripoli was operating in the official waters of the Republic of Vietnam during the period in which the Veteran served aboard the vessel. Deck logs or other records may be useful in this regard. If the deck logs show that the ship was in proximity to Vietnam during the Veteran's time aboard the U.S.S. Tripoli, they could establish the Veteran's eligibility for presumptive herbicide exposure under Category V. In light of the foregoing, VA's duty to assist the Veteran in the development of his claims is triggered pursuant to 38 U.S.C.A. § 5103A(a)(1) (West 2014); 38 C.F.R. § 3.159(c) (2015), and VA must make reasonable efforts to obtain the deck logs for the U.S.S. Tripoli for the time period of August 25, 1970 to January 19, 1971. Accordingly, the case is REMANDED for the following actions: 1. Obtain from the appropriate source deck logs for the U.S.S. Tripoli (LPH-10) to determine whether the vessel operated in the official waters of the Republic of Vietnam from August 25, 1970 to January 19, 1971. 2. Thereafter, readjudicate the Veteran's claims. If any benefit requested is not awarded, issue a Supplemental Statement of the Case (SSOC) to the Veteran, and provide him and his representative an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ C. TRUEBA 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).