Citation Nr: 1756029 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 09-22 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from June 1946 to July 1967. He died in March 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In January 2012, the Board reopened the previously denied claim for service connection for the cause of the Veteran's death, and denied the claim on the merits. The appellant appealed that decision. In an August 2013 memorandum decision, the U.S. Court of Appeals for Veterans' Claims (Court) vacated and remanded that decision with regard to the denial of service connection for the cause of the Veteran's death. In March 2014, the Board remanded the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In a March 2014 remand, the Board directed that the AOJ obtain clarification from the National Personnel Records Center (NPRC) on "whether all relevant documents regarding a determination as to the Veteran's service in Vietnam had been forwarded to VA and that no additional relevant documents exit, or that National Personnel Records Center does not have them." It was noted that the AOJ should document all requests made and all responses received in the claims file. In July 2014, the AOJ made an initial post remand request to the NPRC. See VA Form 21-3101 (July 2014). In September 2014, VA received a response through the Personnel Information Exchange System (PIES) that the Veteran served aboard the U.S.S. Chipola in official waters of Vietnam between June 10, 1968, and June 11, 1967, but the "record provides no conclusive proof of in-country service." This response did not comply with the Board's remand directive and includes incorrect dates of service aboard the U.S.S. Chipola. A July 2015 PIES record indicates that "copies of requested records mailed;" this was in response to the AOJ's second request to verify that all relevant documents regarding a determination as to the Veteran's service in Vietnam were forwarded to VA. Having reviewed the most recent responses from the NPRC, the Board believes that the September 2014 response does not reflect accuracy in reporting information, which was not corrected in the later July 2015 response to VA. Also, the July 2015 PIES response remains vague as to whether they have any other records since they specifically reference "requested records." Additionally, in March 2014, the Board's remand directed that the AOJ request information from appropriate sources, to include ship's logs or other official service department records, to verify whether the U.S.S. Chipola was present in the inland waterways of Vietnam during the Vietnam War. Although the appellant provided some copies of deck logs for the U.S.S. Chipola dated from January to June 1966, these records largely predate the Veteran's service aboard that vessel, which was from June 1966 to June 1967, and there is no indication that the AOJ attempted to obtain information of the type identified by the Board from any official source to include the Joint Services Records Research Center (JSRRC). It is noted that the Court found that VA had failed in its duty to assist the claimant in this matter. Therefore, the Board must ensure substantial compliance with the Board's remand directives. The Board is cognizant that VA has compiled a list of brown water vessels based on research and information from the Department of Defense, and that the U.S.S. Chipola is not listed as a ship serving in the brown waters of Vietnam. Nevertheless, VA must make reasonable efforts to comply with the Court directives and ensure substantial compliance with the Board's prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that: (a) The NPRC verify that all relevant documents regarding a determination as to the Veteran's service in Vietnam have been forwarded to VA; (b) The NPRC verify that no additional documents exist, or that National Personnel Records Center does not have them; (c) The NPRC review the dates of the Veteran's service aboard the U.S.S. Chipola and provide a new PIES response with the accurate dates of service aboard that vessel along with the above information. The AOJ should document all requests made and all responses received in the claims file. 2. The AOJ should request information from JSRRC to determine if U.S.S. Chipola served in the inland waterways of Vietnam between June 1966 and June 1967. If the response is negative, then the AOJ should request ship's logs or other official service department records to verify whether the U.S.S. Chipola (AO-63) was present in the inland waterways of Vietnam during the Vietnam War between June 1966 and June 1967. The AOJ should document all requests made and all responses received in the claims file. 3. If service in brown waters of Vietnam is not confirmed, the AOJ should create a memorandum for the record documenting the above steps (and other steps) taken to verify service on the inland waterways of Vietnam. 4. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claim. If the benefit sought is not granted, the appellant should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).