Citation Nr: 1807541 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-40 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for prostate cancer, including as secondary to Agent Orange exposure. 2. Entitlement to service connection for a skin disease, including as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1967 and from March 1968 to December 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In a July 2011 rating decision, the Veteran was denied service connection for prostate cancer and a skin condition. He failed, however, to submit a notice of disagreement. In December 2012, the RO again denied service connection for prostate cancer and a skin condition. In May 2013, the Veteran submitted a timely notice of disagreement for those claims. Although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the July 2011 rating action, VA was in receipt of new and material medical evidence within one year of the rating decision addressing the claimed conditions and, therefore, must relate any subsequent decision back to this original claim. 38 C.F.R. § 3.156(b) (2017); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the July 2011 rating action did not become final and remains pending. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the July 2011 rating action is the proper determination certified for appellate review. 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 Veteran claims that his diagnosed prostate cancer and skin disease are caused by exposure to Agent Orange during his service in Vietnam. He insists that while stationed at Cannon Air Force Base, he was sent to Da Nang, Vietnam on temporary duty (TDY) providing medical support as part of a mission. The Veteran submitted an April 2012 letter from the Department of the Air Force, which was sent to the Veteran's United States Representative stating that additional information may be available from "the following Department of Defense organization;" however, the remainder of the letter containing the name of the organization is missing. On remand, this letter must be obtained and the recommended development followed. In the April 2012 letter from the Department of the Air Force, it was noted that the Veteran was seeking documentation proving his deployment to the Republic of Vietnam while assigned to the 832nd Tactical Hospital at Cannon Air Force Base, New Mexico, during the November 1964 through April 1965 time period, as part of a task force composed of the 522nd and/or 523rd Tactical Fighter Squadrons of the 27th Tactical Fighter Wing (all located at Cannon Air Force Base). The Air Force stated that archivists for the Air Force Historical Research Agency found that the 522nd Tactical Fighter Squadron and the 523rd Tactical Fighter Squadron have been to Vietnam, but it was unclear who was deployed to Da Nang. The Veteran asserts that the documents that have been submitted demonstrate that he served in Vietnam as part of Operation One Buck. The documents submitted include a general description of a mission called "One Buck," which deployed three tactical fighter squadrons to Southeast Asia; an extract of the history of the 27th Tactical Fighter Wing that noted that the 522nd Tactical Fighter Squadron was deployed to Da Nang, Vietnam, as part of Operation One Buck; and a morning report that noted that the Veteran returned from a TDY from an "Oper Mission eff 27NOV64." The Board finds that these documents do not clearly demonstrate that the Veteran service in Vietnam. Although it was noted in the morning report that other servicemen listed participated in Operation One Buck, the Veteran's TDY was not described and it cannot be assumed that he was also part of Operation One Buck. Moreover, the Veteran has argued he was deployed to Vietnam between November 1964 and April 1965, yet the morning report shows him returning from a TDY in November 1964, not departing. Given the missing pages of the April 2012 letter and the conflicts in the evidence of record, the Board finds that further development is necessary to verify that the Veteran did in fact served in Vietnam, which includes obtaining unit records and verifying the Veteran's TDY and authenticating the documents submitted. See 38 C.F.R. § 3.307(a)(6)(iii) (2017). 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 RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claim file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The RO must attempt to obtain the April 2012 letter from the Department of the Air Force, which was sent to the Veteran's United States Representative, and carry out the development recommended in the letter. 3. Contact the U.S. Army Joint Services Records Research Center (JSRRC), and any other organization that would have possession of relevant documents indicating whether or not the Veteran was deployed to Vietnam on a TDY while assigned to the 832nd Tactical Hospital at Cannon Air Force Base. Search should include morning reports from June to November 1964, and November 1964 to April 1965. Additionally, the morning report for the period ending November 29, 1964 that was submitted by the Veteran must be authenticated. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. The appellant 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).