Citation Nr: 1817011 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-07 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to December 1968. This matter initially came before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied entitlement to service connection for type II diabetes mellitus. The Veteran testified before the undersigned at a September 2013 videoconference hearing at the RO. A transcript of the hearing has been associated with his file. In July 2014 and August 2016, the Board remanded this matter for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its August 2016 remand, the Board instructed the AOJ to undertake all necessary actions to obtain any ship logs and other information detailing the movements and operations of the USS Mispillion during the following periods: September 11, 1967 through September 24, 1967; October 8, 1967 through October 20, 1967; October 24, 1967 through November 5, 1967; June 6, 1968 through June 16, 1968; June 21, 1968 through July 20, 1968; July 27, 1968 through July 31, 1968; August 7, 1968 through August 23, 1968; August 26, 1968 through September 3, 1968; September 15, 1968 through September 20, 1968; October 19, 1968 through October 31, 1968; and November 5, 1968 through November 17, 1968. All efforts to obtain these records were to continue until they were obtained or it was reasonably certain that they did not exist or that further efforts to obtain them would be futile. Pursuant to the Board's remand, the AOJ contacted the National Archives and Records Administration (National Archives) on several occasions and requested copies of the ship logs of the USS Mispillion that were identified in the remand. In September 2016, the National Archives responded that a review of the ship logs of the USS Mispillion dated in 1967 revealed that the ship was operating at Yankee Station and did not dock, anchor, or moor near Vietnam. It was also noted that the 1968 ship logs were missing. Copies of the actual ship logs, however, were never sent to the AOJ and further efforts were not undertaken to ensure that the records were obtained and associated with the claims file. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to ensure compliance. Id. at 270-71. As copies of the available ship logs identified in the August 2016 remand do not appear to have been obtained, the Board must unfortunately again remand the claim for service connection for diabetes mellitus for compliance with the instructions in the August 2016 remand. If the Board is in error that the ship logs were not obtained, it apologizes, and requests that the AOJ indicate the location of these documents in a memorandum to the file. Updated VA treatment records should also be secured upon remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the file all outstanding VA records of the Veteran's treatment from the Gulf Coast Veterans Health Care System dated since August 2016; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Undertake all necessary actions, to include contacting the National Archives, the Department of the Navy, and/or any other appropriate source, to obtain copies of all available ship logs and other information detailing the movements and operations of the USS Mispillion during the following periods: September 11, 1967 through September 24, 1967; October 8, 1967 through October 20, 1967; October 24, 1967 through November 5, 1967; June 6, 1968 through June 16, 1968; June 21, 1968 through July 20, 1968; July 27, 1968 through July 31, 1968; August 7, 1968 through August 23, 1968; August 26, 1968 through September 3, 1968; September 15, 1968 through September 20, 1968; October 19, 1968 through October 31, 1968; and November 5, 1968 through November 17, 1968. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 3. If the benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. 4. If the Board is in error that the requested ship logs were not obtained, it apologizes, and requests that the AOJ indicate the location of these documents in a memorandum to the file. 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). _________________________________________________ Jonathan Hager 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).