Citation Nr: 1747484 Decision Date: 10/24/17 Archive Date: 11/01/17 DOCKET NO. 17-21 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus, to include as a result of exposure to herbicides. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1956 to June 1975. He was awarded the Vietnam Meritorious Unit Citation (Gallantry Cross) and the Combat Action Ribbon in recognition of his combat service. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2015 and July 2016 rating decisions of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). On his May 2016 and April 2017 VA Form 9 submissions, the Veteran requested a hearing before the Board. However, the record reflects that the Veteran failed to report to his videoconference Board hearing that was scheduled for September 2017. Because the record does not contain further explanation as to why he failed to report to that hearing, or a request to reschedule the hearing, the Board deems his request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 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 Veteran if action on his part is required. REMAND On review of the record, the Board has found that additional development is necessary for both of the claims on appeal. Service Connection for Type 2 Diabetes Mellitus The Veteran contends that he developed type 2 diabetes mellitus as a result of alleged exposure to herbicides during his service in the Navy while stationed aboard the USS Kitty Hawk and the USS Philip. The medical evidence of record documents that the Veteran has a current diagnosis of type 2 diabetes mellitus, which is a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for all Veterans who served in Vietnam (to include in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam) during the Vietnam Era (i.e., the period beginning on January 9, 1962 and ending on May 7, 1975). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). In order to qualify for the presumption, a service member must have been present at some point on the landmass or inland waters of Vietnam; a Veteran who never went ashore from a deep water naval vessel on which he served in Vietnamese coastal waters does not qualify for the presumption. See Haas v. Peake, 525 F.3d 1168, 1187-94 (Fed. Cir. 2008); see VAOPGCPREC 27-97 (July 23, 1997). In a December 2013 response to VA's request for information about the Veteran's service, the National Personnel Records Center (NPRC) confirmed that the Veteran was stationed aboard the USS Kitty Hawk (CVA-63) from May 19, 1964 to June 10, 1964, as well as aboard the USS Philip (DD-498) on the following dates: from July 29, 1965 to August 1, 1965; from September 24, 1965 to September 26, 1965; from August 24, 1966 to September 4, 1966; from September 29, 1966 to October 4, 1966; from November 14, 1966 to November 30, 1966; from September 11, 1967 to September 19, 1967; from September 30, 1967 to October 16, 1967; from October 24, 1967 to November 4, 1967; from November 13, 1967 to December 17, 1967; and from January 8, 1968 to January 24, 1968. The NPRC also noted in its December 2013 response that both the USS Kitty Hawk and the USS Philip "were in the official waters of the Republic of Vietnam. However, the record provides no conclusive proof of in-country service." The Veteran has stated (on a September 2002 VA Form 21-526, Veterans Application for Compensation or Pension, for an unrelated claim) that he served in Vietnam "@ [at] sea[,] never in country." Upon reviewing VA's list of "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" (updated September 5, 2017), the Board notes that neither the USS Kitty Hawk nor the USS Philip are included in any category on that list. Nevertheless, the Board notes that this list is still evolving and that all development described in the VA Adjudication Manual (M21) should be followed in cases involving ship activity, including sending a request to the Joint Services Records Research Center (JSRRC) for all pertinent deck logs. M21-1, IV.ii.1.H.2.j-k. Because the deck logs for the USS Kitty Hawk and the USS Philip for the dates of the Veteran's on-board service are not currently of record, these deck logs should be obtained and reviewed in order to determine whether there is credible supporting evidence of either ship sailing into the inland waters of Vietnam at any time while the Veteran was aboard. SMC Based on the Need for Aid and Attendance Under 38 U.S.C.A. § 1114(l), SMC for aid and attendance is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran is currently service-connected for only two disabilities: hearing loss (rated 0 percent) and tinnitus (rated 10 percent). The evidence of record does not currently show that the Veteran qualifies for an award of SMC based on the need for aid and attendance as a result of either of those two service-connected disabilities. However, the Board finds that the SMC claim is inextricably intertwined with the claim for service connection for type 2 diabetes mellitus that is currently being remanded, because the evidence received in connection with, and the determination on, such claim could materially affect the outcome of the SMC claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, consideration of the appeal for an award of SMC based on the need for aid and attendance must be deferred pending resolution of the service connection claim on appeal that is being remanded. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take any needed actions to obtain, to include requesting from the JSRRC, if necessary, and associate with the claims file, the deck logs and ship history for the following two ships: (a) For the USS Kitty Hawk (CVA-63), for the period from May 19, 1964 to June 10, 1964; and (b) For the USS Philip (DD-498), for each of the following periods: (i) July 29, 1965 to August 1, 1965; (ii) September 24, 1965 to September 26, 1965; (iii) August 24, 1966 to September 4, 1966; (iv) September 29, 1966 to October 4, 1966; (v) November 14, 1966 to November 30, 1966; (vi) September 11, 1967 to September 19, 1967; (vii) September 30, 1967 to October 16, 1967; (viii) October 24, 1967 to November 4, 1967; (ix) November 13, 1967 to December 17, 1967; and (x) January 8, 1968 to January 24, 1968. Include in the claims file a copy of any requests made for the deck logs and the responses for each period. If any records are unavailable, then annotate the file and notify the Veteran accordingly. 2. If deck logs are obtained and associated with the claims file pursuant to Item 1, then review those records to determine whether there is credible supporting evidence of the USS Kitty Hawk or the USS Philip sailing into the inland waters of Vietnam at any time while the Veteran was aboard. Notify the Veteran of any determination made on this question. 3. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for service connection for type 2 diabetes mellitus, followed by the claim on appeal for an award of SMC based on the need for aid and attendance (after any further development indicated, and in light of the determination made on the service connection issue). If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West 2014). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2016).