Citation Nr: 1802895 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-16 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to restoration of service connection for diabetes mellitus, type II, to include whether severance of service connection, effective July 1, 2013, was proper. REPRESENTATION Veteran represented by: Douglas E. Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to May 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In June 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In correspondence received by VA in November 2016, the Veteran, through the representative, requested another hearing. As the Veteran has already been afforded the aforementioned hearing before the undersigned Veterans Law Judge, and has not alleged any sort of error or fault with that hearing or asserted good cause for another hearing on the same issue, the Board finds an additional hearing is not warranted. Pertinent law and regulations afford a claimant "a" hearing, and such has already been provided to the Veteran in the present case. See 38 U.S.C. § 7107(d)(1) (2012); 38 C.F.R. §§ 20.703 , 20.704, 20.1304 (2017). The Board recognizes that in May 2017 the Veteran filed a VA Form 9 (Substantive Appeal) with regard to the issues adjudicated in two separate April 2017 Statements of the Case. In that Substantive Appeal, the Veteran requested a videoconference hearing before the Board. Therefore, those issues will be the subject of a separate Board decision after he is afforded the opportunity to testify at a hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the delay, an additional remand is required for further development and adjudicative action. The Veteran claims he has diabetes mellitus, type II, due to exposure to herbicide agents during his active duty service on board the USS Ingersoll and the USS Kennebec. By way of history, in a May 2012 rating decision, the AOJ granted service connection for diabetes mellitus, type II, finding that it was related to the Veteran's active duty service. In a December 2012 rating decision, the AOJ proposed to sever service connection for diabetes mellitus, type II, finding that the May 2012 rating decision contained clear and unmistakable error in the grant of service connection. The AOJ explained that herbicide agent exposure was erroneously conceded based on the Veteran's service on the USS Ingersoll. Specifically, the Veteran served aboard the USS Ingersoll from December 16, 1963, to October 21, 1965. VA law allows herbicide exposure to be conceded if a veteran served on the USS Ingersoll on October 24 and 25, 1965. Because the Veteran did not serve on the USS Ingersoll on those dates, or had on-ground service in Vietnam or on another recognized Navy ship that operated in the offshore waters of Vietnam, the AOJ determined that herbicide agent exposure could not be conceded. An April 2013 rating decision implemented the proposed severance. During his June 2015 hearing, through his attorney, the Veteran argued that the USS Ingersoll and USS Kennebec operated in Da Nang Harbor, which should be considered an inland waterway because of its geography (shoreline configuration) and history (it has been under the dominion of Vietnam) and that his exposure to herbicide agents should be presumed. The Veteran has not alleged that he set foot in Vietnam. In November 2015, the Board remanded the Veteran's claim pursuant to Gray v. McDonald, 27 Vet. App. 313 (2015) to determine the Veteran's probability of exposure to herbicide agents during active service. Specifically, the Board instructed the AOJ to secure records "which bear upon the exact location (in relation to its proximity to the Republic of Vietnam) of the USS Ingersoll and USS Kennebec during the Veteran's service on board these ships, to include deck logs, unit histories, etc." Thereafter, the AOJ was to make formal determinations regarding the proximity of the USS Ingersoll and the USS Kennebec to the shores of Vietnam during the Veteran's service on those ships and to also determine whether the Veteran was actually or likely exposed to herbicide agents while serving aboard those ships. In December 2015, the AOJ sent a Personnel Information Exchange System (PIES) request for morning reports from the USS Ingersoll and the USS Kennebec. A request for morning reports was also sent directly to the National Personnel Records Center (NPRC) in January 2016. The record does not reflect that any responses were received pursuant to these requests and there is no indication that morning reports for these ships are unavailable. In March 2016, the AOJ submitted a request through the Defense Personnel Records Image Retrieval System (DPRIS) for deck logs, unit histories, and any other evidence that might indicate how close the USS Ingersoll and the USS Kennebec were to the Vietnam shoreline. In August 2016, the AOJ received a response to this request from the Joint Services Records Research Center (JSRRC), which was based on a review of the ships' available histories. Notably, there was no command history available for the USS Kennebec in 1966; only a general history was available. Based on the foregoing, in a November 2016 Advisory Opinion, the Director of Compensation Service found no evidence the Veteran was on a ship that operated in inland waterways and that he could not be presumed to have been exposed to herbicide agents. The Board finds that the development conducted by the AOJ is insufficient and that additional development must be completed on remand. Specifically, the AOJ should undertake development to obtain the morning reports and the deck logs for the dates the Veteran was aboard the USS Ingersoll and USS Kennebec. The Board finds this is necessary because morning reports and deck logs provide far more detail regarding ships' exact locations on a day-to-day basis, in contrast to command or general ship history reports. This is integral to determining how far away the Veteran's ships were from the shore of Vietnam or from any other body of water which may warrant a finding that he was presumptively exposed to herbicide agents. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Obtain morning reports and deck logs from the USS Ingersoll from December 13, 1963, through October 1, 1965, and from the USS Kennebec from October 21, 1965, to May 19, 1967. The AOJ must continue to request these records from all appropriate records repositories until a response is received that the records do not exist or until it is determined that further attempts to obtain those records would be futile. All efforts to obtain these records must be documented in the file. 2. Following completion of step 1, the AOJ should: (a) Ascertain how close the USS Ingersoll and the USS Kennebec were to the shores of Vietnam during the Veteran's service on these ships, and (b) Make a finding for the record regarding whether the USS Ingersoll and/or USS Kennebec were actually, or likely to have been, exposed to herbicide agents during the Veteran's service on these ships. 3. Then, the Veteran's claim must be readjudicated with special consideration given to his statements regarding service in Da Nang Harbor and other locations close to the coastline of Vietnam, the results of any development sought above, and additional guidance issued regarding the treatment of Da Nang Harbor in relation to the presumption of exposure to herbicide agents. If the claim remains denied, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN 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).