Citation Nr: 1800950 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 17-39 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and her friend ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1965 to September 1967. He was awarded the Vietnam Service Medal with two Bronze Stars. The Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Appellant testified before the undersigned Veterans Law Judge (VLJ) in a video teleconference hearing in November 2017. A transcript of that proceeding has been prepared and is associated with the file. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R.. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Appellant seeks service connection for the cause of the Veteran's death. The Veteran's death certificate reflects that his death in October 2016 was due to bladder cancer; however, the Veteran was also diagnosed with prostate cancer at the time of his death. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disability caused his death or substantially or materially contributed to it. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.303. See 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). With regard to a claim for service connection for the cause of the Veteran's death based on exposure to herbicide agents in service, such as Agent Orange, the Board notes that the law provides a presumption of service connection for certain diseases which become manifest after separation from service in Veterans who served in the Republic of Vietnam during the period from January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). "Service in the Republic of Vietnam" for the purpose of the application of the presumption includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The VA General Counsel has held that service on a deep-water naval vessel (an aircraft carrier) in waters off the shore of the Republic of Vietnam does not in itself constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002). See VAOPGCPREC 27-97. Further, in an earlier opinion, the VA General Counsel held that a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam, and a showing that a Veteran flew high-altitude missions in Vietnamese airspace is insufficient to establish such qualifying service. See VAOPGCPREC 7-93. See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525) which upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records reflect that he was assigned to Reconnaissance Attack Squadron Nine (RVAH-9) aboard the USS Ranger. His service personnel records reflect that the Veteran was authorized to wear the Vietnam Service Medal, based on participation in a campaign while serving with the Reconnaissance Attack Squadron NINE onboard USS Ranger in the South West Asia zone from January 16, 1966 to August 8, 1966. His service personnel records also show that he was authorized to wear the Republic of Vietnam Campaign Medal for service performed outside the geographical limits of South Vietnam while attached to Reconnaissance Attack Squadron Nine during the same period. Subsequent to his service aboard the USS Ranger, the Reconnaissance Attack Squadron Nine embarked on the USS Saratoga in 1967. In this case, although the Veteran was awarded the Vietnam Service Medal with two Bronze Stars, as well as the Republic of Vietnam Campaign Medal, available records in the file do not specifically show that he served in Vietnam. Thus, although the Veteran's service aboard the USS Ranger as part of the RVAH-9 made him eligible to receive these service medals, there is currently no objective evidence that he served in Vietnam, or under conditions of service involving duty or visitation in the Republic of Vietnam for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. Nevertheless, the Appellant contends that the Veteran's death should be presumed to have been due to exposure to herbicides while in Vietnam. She asserted in testimony before the undersigned VLJ and in a Statement in Support of Claim that while the Veteran was assigned to the USS Ranger, "on the west coast in country...He was loading 500 and 1,000 pound bombs on the planes, which was on the deck of the USS Ranger. Then on the USS Saratoga, on the east side of Vietnam in country, he was unloading 500 and 1,000 pound bombs and storing them in the hull of the ship...While in Vietnam, he was told he was around Agent Orange." A letter from the U.S.Army and Joint Services Records Research Center (JSRRC) stated that neither the USS Ranger nor the USS Saratoga operated in the brown waters of Vietnam, nor is there evidence that the Veteran went ashore, or entered the brown waters of Vietnam. However, the Appellant's contentions were that the Veteran was exposed to herbicide agents while handling the 500 and 1,000 pound bombs aboard the USS Ranger and USS Saratoga, and these contentions have not been addressed. Accordingly, the case is REMANDED for the following action: 1. Contact the U.S. Army and Joint Services Records Research Center (JSRRC), the Naval Historical Center, and any other appropriate federal agency and request copies of the log-books from the USS Ranger and the USS Saratoga as well as the unit records from the Reconnaissance Attack Squadron Nine for the period from January 1966 to September 1967. These log-books and unit records should be reviewed for any and all notations regarding temporary additional duty orders, as well as any notations regarding the Veteran leaving the aircraft carrier. Ascertain whether herbicide agents (Agent Orange) were present on the decks or in the hulls of the USS Ranger and the USS Saratoga, including whether herbicide agents were present on 500 pound and 1,000 pound bombs that were loaded and unloaded on those ships. If such records cannot be located, it must be specifically documented as to what attempts were made to locate them, and explained in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the Appellant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Appellant must then be given an opportunity to respond. 2. Thereafter, readjudicate the Appellant's claim for entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicide agents. If the benefits sought on appeal remain denied, the Appellant should be provided with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations. An appropriate period of time should be allowed for response. 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). _________________________________________________ T. REYNOLDS 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) (2017).