Citation Nr: 1806828 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-16 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of prostate cancer, claimed as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as due to herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to November 1971 and from December 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2009 and August 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The May 2009 rating decision denied service connection for residuals of prostate cancer, claimed as due to herbicide exposure. The Veteran disagreed with the denial and perfected an appeal in June 2011. The Veteran's claims of entitlement to service connection for diabetes mellitus and peripheral neuropathy of the bilateral upper and lower extremities due to Agent Orange were denied in a January 2012 rating decision. The Veteran filed a notice of disagreement (NOD) in August 2012 and a statement of the case (SOC) was issued in September 2017. In an October 2017 response to a September 2017 supplemental statement of the case (SSOC), the Veteran indicated that he had additional evidence to submit as to his pending appeals. In a November 2017 statement, the Veteran's representative asked that the October 2017 SSOC response be accepted as a substantive appeal in lieu of a VA Form 9. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The Board has reviewed the record and accepts the October 2017 SSOC response as a substantive appeal; the issues on appeal have therefore been identified accordingly. In November 2017, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND For the reasons set forth below, the Board finds that the issues on appeal must be remanded for further evidentiary development. The Veteran asserts entitlement to service connection for residuals of prostate cancer, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper and lower extremities as due to herbicide exposure. He does not claim that he set foot in the Republic of Vietnam; rather, he contends that he was exposed to Agent Orange while stationed on ships that served the in-land waterways and close coastal waters of Vietnam. See the November 2017 Board hearing transcript. The Veteran has identified these ships as the U.S.S. OKINAWA (LPH-3), the U.S.S. RACINE (LST-1191), the U.S.S. CLEVELAND (LPD-7), and the U.S.S. JUNEAU (LPD-10). Id. at pg. 4. VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. Service in the Republic of Vietnam 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 U.S.C. § 101(29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Notably, the Veterans Benefits Administration (VBA) has historically extended the herbicide presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b. Significantly, in April 2015, the United States Court of Appeals for Veterans Claims (Court), in addressing a claim for presumptive service connection based on herbicide exposure while that Veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to Veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of the Gray decision, the VBA revised its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated September 5, 2017) http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm. The VBA now recognizes that all vessels with the designation of Landing Ship, Tank (LST) shall be covered as ships associated with service in Vietnam and exposure to herbicide agents. The Board initially observes that the Veteran's complete service personnel records have not been associated with the claims file. See, e.g., the deferred rating decision dated December 2015. As such, upon remand, the AOJ should attempt to obtain these outstanding records. Additionally, although the RO has undertaken some development concerning the Veteran's claimed service aboard the U.S.S. RACINE (LST-1191), the actual dates of his service aboard the ship have not been confirmed. See the Formal Finding dated August 2017. Moreover, the record does not contain any verification of the other ships upon which the Veteran served including the U.S.S. JUNEAU (LPD-10), the U.S.S CLEVELAND (LPD-7), and the U.S.S. OKINAWA (LPH-3). Inquiry has not been conducted into whether the Veteran served on these ships and, if so, whether these ships were stationed in the close coastal waters or in-land waterways of Vietnam. Thus, after obtaining the Veteran's complete service personnel records, the AOJ should conduct appropriate inquiry into whether the ship(s) upon which the Veteran served visited any in-land waterway, close coastal waters of Vietnam, or were ocean-going 'blue water' ships. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain the Veteran's service personnel records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. After conducting any additional development deemed necessary, determine whether the Veteran was exposed to herbicide agents aboard the ship(s) he was stationed (including the U.S.S. JUNEAU (LPD-10), the U.S.S CLEVELAND (LPD-7), the U.S.S. OKINAWA (LPH-3), and the U.S.S. RACINE (LST-1191)), or any other incidence of his military service. 3. Thereafter, readjudicate the claims on appeal. If a benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).