Citation Nr: 20034420 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 18-03 696 DATE: May 18, 2020 REMANDED Service connection for chronic cough, to include as due to herbicide agent exposure, is remanded. Service connection for prostate cancer due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1961 to June 1968. This matter comes before the Board of Veterans’ Appeal (Board) from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. This matter was previously before the Board in January 2019. The Veteran appealed the January 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR). In December 2019, the Veteran was notified of the JMPR and provided an additional 90 days to submit evidence or argument. In December 2019 the Veteran requested the full 90 days to submit additional evidence. In March 2020, the Veteran requested an additional 30 days to submit evidence. Although no formal response was issued to the Veteran’s 90-day extension request, the Board notes that the requested 90-day period has already passed, and the Veteran’s 30-day extension request was granted in April 2020. An additional appellate brief was filed in April 2020 indicating submission of no additional evidence. 1. Service connection for chronic cough, to include as due to herbicide agent exposure, is remanded. 2. Service connection for prostate cancer due to herbicide agent exposure is remanded. The Veteran seeks service connection for prostate cancer due to herbicide agent exposure. He asserts that he had service in Vietnam such that he should be presumed to have been exposed to an herbicide agent. The Veteran has raised two specific arguments to show in-country service in Vietnam. First, the Veteran argues that his receipt of the Vietnam Service Medal (VSM) establishes in-country service. The Board acknowledges that the Veteran’s DD Form 214 and military personnel records reflect receipt of the VSM. However, the VSM was awarded for those who served in Vietnam and for those who served elsewhere in support of operations in Vietnam. For example, the Board notes that SECNAVINST 1650.1G, as submitted by the Veteran, indicates that in addition to those serving in Vietnam, all members of the Armed Forces of the United States in Thailand, Laos, Cambodia, or the air space thereof, between July 4, 1965, and March 28, 1973, and serving in direct support of operations in Vietnam are also eligible for the VSM. Further, the Federal Circuit has held that “service in Vietnam” will not be presumed based upon a veteran’s receipt of the VSM. See Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008). Thus, a VSM alone does not establish service in Vietnam. Second, the Veteran has asserted that he had actual in-country service in Vietnam while serving as a transport flight crew member. To this end, he included a document dated in April 1967, which was signed and directed by his Commanding Officer requesting a Vietnam Service Medal for a Chief of Naval Reserve Training (CNARESTRA) flight 08-40. The Veteran asserts this flight took he and his crew in-country to Vietnam. The Veteran’s personnel file also contains a July 1966 Report on the Fitness of Officers that shows he was stationed at the U.S. Navy Recruiting Station in Los Angeles, California and had recently volunteered to serve as navigator for a cargo flight to the Western Pacific. Additionally, the personnel records include a Naval Reserve Association Rear Admiral Richard L. Fowler Award, which denotes the award was for the Veteran’s volunteering as a transport flight crew member “in support of the United States Naval Air Reserve’s WESTPAC operations to South Vietnam.” In an April 2017 memorandum, VA issued a formal finding that it lacked the information the U.S. Navy and Joint Services Records Research Center requires to verify herbicide exposure. However, as the Court noted in the October 2019 JMPR, the file contained May 2017 internal RO correspondence which suggested there may have been sufficient evidence to submit to Joint Services Records Research Center (JSSRC). The Court noted that this specifically included a search based on: 1) the Veteran’s unit; 2) the December 2016 statement from the Veteran describing the CNARESTRA FLIGHT 08-40 which reportedly took he and other flight crew in-country to Vietnam; and 3) the August 10, 1966, Report on the Fitness of Officers where it was noted that “[i]n order to brush up on his navigation, the Veteran volunteered to serve as navigator for a cargo flight to the Western Pacific.” Thus, the appeal is remanded for further development to determine whether in-country Vietnam service may be established. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents. A request to JSRRC should include a search based on: 1) the Veteran’s unit; 2) the December 2016 statement from the Veteran describing the CNARESTRA FLIGHT 08-40 which reportedly took he and other flight crew in-country to Vietnam; and 3) the August 10, 1966, Report on the Fitness of Officers where it was noted that “[i]n order to brush up on his navigation, the Veteran volunteered to serve as navigator for a cargo flight to the Western Pacific. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.