Citation Nr: 1802214 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-15 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for acute myeloid leukemia (AML), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to November 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A videoconference hearing was held before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is of record. The undersigned Veterans Law Judge held the record open for a 30-day period following the hearing to allow for the submission of additional evidence. Thereafter, the Veteran submitted additional evidence for which there is an automatic waiver of initial agency of original jurisdiction (AOJ) review, along with a waiver of such review. This appeal was processed using the Veterans Benefits Management System (VBMS) and 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 AOJ. VA will notify the Veteran if further action is required. REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claim. The Veteran and his representative have contended that he has AML as a result of herbicide exposure during his military service. Specifically, they have reported that, although he did not set foot in Vietnam, he was exposed to Agent Orange during his service on the USS Renshaw because the vessel operated within close proximity to the shore. His representative also reported that the USS Renshaw stopped other vessels that had been exposed to Agent Orange and that the ship used distilled seawater for drinking and bathing that was contaminated with Agent Orange. See February 2012 written statement and November 2016 Bd. Hrg. Tr. The Veteran's representative submitted excerpts from a National Research Centre for Environmental Toxicology (ENTOX) report prepared for the Australian Department of Veteran Affairs, "Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water," along with written statements discussing that report from another VA representative. See December 2016 written submission. In April 2015, the United States Court of Appeals for Veterans Claims (Court) held that a fact-based assessment must be made regarding the probability of herbicide spraying even with regard to offshore areas not traditionally considered inland waterways. Gray v. McDonald, 27 Vet. App. 313 (2015). The RO has not yet had the opportunity to review the Veteran's claim in light of the Court's holding for determining an inland waterway in Vietnam, and a remand is required. In addition, the record shows that the Veteran was diagnosed with a myeloid sarcoma of the right parotid gland that was treated with chemotherapy shortly before he filed his January 2012 claim. See, e.g., VA treatment records from December 2011 (diagnosis of myeloid sarcoma noted to be a soft tissue presentation of AML; inpatient progress note showing assessment of myeloid sarcoma now with leukopenia, neutropenia, and thrombocytopenia, as well as pancytopenia secondary to chemotherapy). Thereafter, the treatment records indicate a history of myeloid sarcoma with likely/possible myelodysplastic syndrome (MDS) based on a bone marrow biopsy, without evidence of active leukemia. See, e.g., VA treatment records from March 2012, June 2012, and March 2014; see also American Cancer Society, "Types of Myelodysplastic Syndromes" (indicating types of MDS can progress to AML), https://www.cancer.org/cancer/myelodysplastic-syndrome/about/mds-types.html (reviewed January 2018). The March 2012 VA treatment record shows that the Veteran asked about a relationship between his malignancy and Agent Orange exposure, and the treatment provider noted that there had been a prior relationship drawn between the two through an evaluation at another VA facility. Based on the foregoing, the Board finds that a VA examination and medical opinion are needed if herbicide exposure is established and the claim cannot be granted on a presumptive basis. See Bd. Hrg. Tr. at 4-6 (representative requesting VA examination and clarifying that only claimed in-service event was herbicide exposure). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should take any appropriate steps to attempt to verify the location of the USS Renshaw (DD-499) during the time periods in April 1965, May 1965, June 1965, July 1965, August 1965, September 1965, August 1966, September 1966, and October 1966 that the Veteran served on that ship while it was in the official waters of the Republic of Vietnam. See August 2012 3101 printout. The Veteran has reported that the USS Renshaw was operating in such close proximity to the Vietnam shore that he could hear the gunfire and see the tracers going back and forth. His representative also reported that the USS Renshaw stopped other vessels that had been exposed to Agent Orange and that the ship used distilled seawater for drinking and bathing that was contaminated with Agent Orange. See February 2012 written statement and November 2016 Bd. Hrg. Tr. The Veteran's representative also submitted excerpts from a report prepared for the Australian Department of Veteran Affairs, along with written statements discussing that report from another VA representative, as outlined in the body of the remand above. See December 2016 written submission. All attempts and responses should be documented in the claims file. 2. After determining the locations of the USS Renshaw during the times noted above, the AOJ should review those locations in light of the Court's decision in Gray v. McDonald, 27 Vet. App. 313 (2015). In so doing, the AOJ should specifically address whether the USS Renshaw ever entered an inland waterway as VA defines that term. 3. After completing the above actions, the AOJ should conduct any other indicated development. Further development may include providing a VA examination or obtaining a VA medical opinion if herbicide exposure is established and service connection cannot be granted on a presumptive basis. 4. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).