Citation Nr: 1624682 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 11-01 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from September 1967 to December 1971. He had additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision, sent to the Veteran in January 2010, of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at the RO in San Antonio, Texas in March 2015. A transcript of the hearing is contained in the electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded this claim in August 2015. Because there has not been substantial compliance with the Board's earlier decision, a second remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Board apologizes for the delay that this will bring. The Appeals Management Center (AMC) was directed to contact the Veteran to clarify when exactly he served aboard the Epperson. In an August 2015 statement, the Veteran informed VA that he was aboard that ship from August 30, 1968 and December 27, 1969. After it was determined that the Veteran was not aboard the Epperson after December 1969, the AMC was directed to submit the claim to the Director of the Compensation Service for review of the deck logs and the climate information and hydrology studies submitted by the Veteran and make a determination as to whether it is at least as likely as not that the U.S.S. Epperson DD-719 may be considered to have been operating in inland waters proximate to the Mekong Delta and/or Phan Thiet in November 1969. All findings, conclusions and supporting rationale were to be set forth in the response. The record shows that, in a December 23, 2015, memorandum, the AMC explained to the Director of the Compensation Service the facts of the Veteran's claim and his assertions. The memorandum concluded that, [g]iven the complexity of this case, the VA recommends an advisory opinion from the Chief of Public Health and Environmental Hazards Officer to determine if the data submitted by the Veteran establishes whether or not the U.S.S. Epperson operated in inland waters proximate to the Mekong Delta and/or Phan Thiet in November 1969 and that the Veteran's reported exposure to aerosolized herbicides could be linked to the subsequent diagnosis of prostate cancer. Memorandum at p. 3. The Director of the Compensation Service did not reply directly to AMC request. In a February 2016 advisory opinion, the Director stated that the Veteran's service aboard the Epperson did not result in herbicide exposure due to the fact that there is no evidence that the Veteran went ashore. It was not specified whether it is at least as likely as not that the U.S.S. Epperson DD-719 may be considered to have been operating in inland waters proximate to the Mekong Delta and/or Phan Thiet in November 1969. As such, remand is necessary. There was no response to the suggestion of a referral to the Chief of Public Health and Environmental Hazards Officer for an opinion. Accordingly, the case is REMANDED for the following action: 1. The AOJ should submit the claim to the Director of the Compensation Service, for review of the deck logs and the climate information and hydrology studies submitted by the Veteran, and determine whether it is at least as likely as not that the U.S.S. Epperson DD-719 may be considered to have been operating in inland waters proximate to the Mekong Delta and/or Phan Thiet in November 1969. If the complexity of the case so warrants, the case should be referred to the Chief of Public Health and Environmental Hazards Officer for that opinion. All findings, conclusions and supporting rationale should be set forth in the response. 2. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the appellant and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. 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). _________________________________________________ THOMAS J. DANNAHER 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).