Citation Nr: 20040149 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-21 668 DATE: June 11, 2020 REMANDED Entitlement to service connection for multiple myeloma, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1964 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in December 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Veteran contends he was exposed to herbicide agents, including Agent Orange, while serving aboard the U.S.S. Kearsarge (CVS-33), which resulted in a current myeloma disability. Multiple myeloma is on the list of diseases that are presumptively subject to service connection if exposure to herbicides is established. 38 C.F.R. § 3.309(e). The evidence of record indicates that the Veteran served aboard the U.S.S. Kearsarge from January 1965 to April 1968. During the December 2019 Board hearing, the Veteran testified that the he was aboard the U.S.S. Kearsarge while it was in the waters of the Republic of Vietnam throughout parts of 1966, 1967, and 1968. According to a July 2015 VA memorandum, the RO submitted a “PIES 050” to the National Personnel Records Center (NPRC) requesting all personnel records. The VA memorandum noted the requested personnel records provided by the NPRC show that the Veteran did not have service in the Republic of Vietnam, but did indicate that he served aboard the U.S.S. Kearsarge, CVS-33: Antisubmarine Aircraft Carrier, which is not listed among the list of recognized vessels exposed to AO. See VA Memo, received by VA in July 2015. Although the claims file contains a copy of the Veteran’s personnel record, it does not contain a copy of the response from the NPRC itself. The Board notes that the Veteran’s separation documents show he was awarded the Vietnam Service Medal. In this regard, the Board notes that the Veteran’s receipt of this medal, in and of itself, does not establish service within Vietnam. See Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008) (holding that “it is undisputed that some servicemembers who received the Vietnam Service Medal were never in Vietnam or in its territorial waters”). However, the medal may be considered as one factor in determining whether the Veteran was exposed to herbicide agents. In March 2015, the RO sent a letter to the Veteran requesting information concerning evidence needed to determine whether the ship he served aboard entered Vietnam’s inland waterways while he was aboard or that he went ashore while the ship was docked or at anchorage, including the name of his ship and the approximate dates; and the approximate date when the ship entered inland waterways, docked, or otherwise sent him ashore. See Correspondence, dated March 31, 2015. The Veteran did not respond to the request and the RO made no further attempt to contact the Veteran. The RO also made no attempt contact the Joint Services Records Research Center (JSRRC) directly to request records to attempt to corroborate the Veteran’s claimed exposure to herbicides while in service. Although the Veteran’s service treatment records do not contain a record of assignments, as noted above, the record indicates the Veteran served aboard the U.S.S. Kearsarge from January 1965 to April 1968 and the Veteran testified that U.S.S. Kearsarge was in the waters of the Republic of Vietnam throughout parts of 1966, 1967, and 1968. The information already provided by the Veteran and the record of assignments was sufficient to provide the RO with enough information to contact the JSRRC directly to request records to attempt to corroborate the Veteran’s claimed exposure to herbicides while in service, without obtaining additional information from the Veteran himself. Additionally, the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23, provides that veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam during the Vietnam Era are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. See also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). However, the evidence of record is insufficient to determine whether the U.S.S. Kearsarge served within 12 nautical miles of the Republic of Vietnam at any point while the Veteran was stationed onboard. Accordingly, the RO should request a search of the deck logs for the U.S.S. Kearsarge, and perform any additional development indicated, to confirm the route of the U.S.S. Kearsarge from January 1965 to April 1968 to determine whether the U.S.S. Kearsarge served within 12 nautical miles of the Republic of Vietnam. The Board finds that the RO’s efforts to corroborate the Veteran’s claimed in-service exposure to herbicides are insufficient to satisfy the duty to assist. Specifically, the United States Court of Appeals for Veterans Claims has held that where an appellant provides a date range in excess of 60 days for a reported event, VA is required to submit multiple requests to the JSRRC, each covering a different 60-day range. See Gagne v. McDonald, 27 Vet. App. 397, 404 (2015); see also 38 U.S.C. § 5103A(c)(2) (requiring that the Secretary continue efforts to obtain records from a Federal department or agency unless it is reasonably certain such records do not exist or that further attempts to obtain them would be futile). The RO did not do this. The RO, in fact, made no attempt to request the necessary records from the JSRRC. Therefore, remand for further development is necessary. See 38 C.F.R. § 3.159(c)(2)(i). The matters are REMANDED for the following action: 1. Contact any appropriate entity, to include the U.S. Army and JSRRC, to verify the Veteran’s alleged exposure to herbicide agents during active duty service. 2. Request from the JSRRC, NPRC, the Department of the Navy, the National Archives, the Department of Defense, or any other appropriate facility, service department, and records custodian, copies of the deck logs, ship histories, and command histories for U.S.S. Kearsarge for the time periods of January 1965 to April 1968 to attempt to verify the Veteran’s herbicide agent exposure in Vietnam on a factual basis. If any such records are unavailable, a formal finding of unavailability should be made and associated with the claims file. The RO must also prepare a report documenting the results of the search efforts for the record. 3. Request that the JSRRC review the deck logs from the U.S.S. Kearsarge from January 1965 to April 1968 to determine whether the U.S.S. Kearsarge served within 12 nautical miles of the Republic of Vietnam during that time period. In this regard, the RO should, if necessary, submit multiple requests to the JSRRC covering the relevant time period in 60-day increments. 4. All requests and responses received should be associated with the claims file and a summary of the findings in this regard should be provided in a memorandum associated with the file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted). 5. After completing all appropriate development, the RO must readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.