Citation Nr: 1803137 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 11-00 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was previously before the Board in May 2014 and October 2016, when it was remanded for additional development. In April 2012, a Travel Board hearing was held pursuant to the Veteran's request, and a transcript of the proceeding is associated with the Veteran's claims file. As set forth in an October 2017 letter, the Veterans Law Judge (VLJ) who conducted the hearing is no longer employed by the Board. In general, the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). However, when a VLJ becomes unavailable to participate in the disposition of a proceeding, it may be assigned to another VLJ. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3(b). The October 2017 letter explained that although the Board was able to make a decision on the record, the Veteran could request another Board hearing. In a November 2017 written response, the Veteran indicated that he did not request another Board hearing, and therefore, a new hearing is not required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for diabetes mellitus on account of exposure to herbicides during active military service while serving on the USS Meyerkord. As reflected in his April 2012 Board hearing testimony, he contends that he was exposed to herbicides in Subic Bay, Republic of the Philippines, when he went on land for rest and recuperation. In the alternative, the Veteran maintains that his West Pacific tour included service in the Republic of Vietnam, which would support an award of presumptive service connection. Before a decision can be reached on his claim, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's claim has previously been remanded to obtain development as to whether the Veteran was exposed to herbicides in Subic Bay, and as to whether the Veteran docked in, or was in the inland waterways of, the Republic of Vietnam. The Veteran served on the USS Meyerkord from June 1972 to January 1975. Command histories for the USS Meyerkord have been obtained from the Naval History and Heritage Command for calendar years 1972 through 1975. Additionally, the JSRRC issued a formal finding pertaining to possible exposure in Subic Bay in February 2016, and it issued a formal finding regarding possible exposure to Agent Orange while in Vietnam waters in June 2017. While the ship's command histories show service in Subic Bay and the Republic of Vietnam in both 1972 and 1973, a review of the formal findings reflects that the JSRRC only considered the ship's history and deck logs from 1972. Thus, it is unclear from the record whether the Veteran might have been exposed to herbicides while serving on the USS Meyerkord in 1973. Specifically, the ship's 1973 command history indicates that it was moored at Subic Bay from January 5 to 8, 1973. It appears that the ship was subsequently in Vietnam waters from approximately January 9 to 26, 1973, to include Point Allison (Military Region One), Da Nang Harbor, Point Joey (Military Region Two), Point Gwen (Military Region Two), Point Jane (Military Region Two), and Point Sasha (in the vicinity of Phan Thiet, Republic of Vietnam). As such, additional clarification is needed before the Board can adjudicate the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Request clarification from the JSRRC regarding the Veteran's claimed herbicide exposure while serving on the USS Meyerkord. At a minimum, the JSRRC must consider and address the USS Meyerkord's 1973 command history, which reflects that the ship was moored in Subic Bay from January 5 to 8, 1973, and that it was in Vietnam waters from approximately January 9 to 26, 1973, to include Point Allison (Military Region One), Da Nang Harbor, Point Joey (Military Region Two (MRII)), Point Gwen (MRII), Point Jane (MRII), and Point Sasha (in the vicinity of Phan Thiet, RVN). 2. After completing the development requested above, in addition to any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought is not granted in full, the AOJ should furnish the Veteran an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate 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). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that any claim that is 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. _________________________________________________ S. HENEKS 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).