Citation Nr: 0413908 Decision Date: 05/28/04 Archive Date: 06/02/04 DOCKET NO. 03-24 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for lung cancer, claimed as the residual of exposure to Agent Orange. 2. Entitlement to service connection for prostate cancer, claimed as the residual of exposure to Agent Orange. 3. Entitlement to service connection for diabetes mellitus, claimed as the residual of exposure to Agent Orange. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to medication for lung cancer, prostate cancer, and diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from May 1962 to July 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This case is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify you if further action is required on your part. REMAND The veteran in this case seeks service connection for lung cancer, prostate cancer, and diabetes mellitus, claimed as the residual of exposure to Agent Orange in the Republic of Vietnam. In addition, the veteran seeks service connection for gastroesophageal reflux disease, claimed as secondary to medication for the aforementioned disorders. In correspondence of June 2003, the National Personnel Records Center indicated that it was unable to determine whether the veteran had in-country service in the Republic of Vietnam. Further noted was that the veteran's personnel record did not contain enough information to make a definitive statement regarding his in-country service. Available data indicated that the veteran was attached to NIT Fighter Squadron One Five Four, VF 154, which could have been assigned either to ship or shore. For Department of Defense purposes, the veteran's unit was credited with Vietnam service for the periods from February 2 to March 5, 1965; March 16 to April 17, 1965; May 2 to May 28, 1965; June 23 to July 3, 1965; July 4 to July 24, 1965; August 11 to September 11, 1965; and September 21 to October 15, 1965. In e-mail correspondence of July 2003, it was noted that the veteran had been stationed aboard the U.S.S. Coral Sea from January to October 1965, at which time it was off the coast of Vietnam. The veteran alleges that he went ashore on at least three occasions to make tailhook repairs on aircraft, a task for which he reportedly received hazardous duty pay. As is clear from the above, it has yet to be determined whether the veteran served "in-country" as part of a repair team while on board ship off the coast of Vietnam. This is, in fact, the basis for the RO's denial of the benefits sought. During the course of an Informal Hearing Presentation in January 2004, the veteran's accredited representative stated that, while they would not anticipate finding the veteran's name in a ship's log for shore parties in Vietnam, they would expect to find shore party information, in particular, shore parties sent "in-country" to repair aircraft, in the veteran's unit records. Based on a review of the veteran's claims folder, it is unclear whether an attempt to obtain these unit records has yet been made. Accordingly, further development will be undertaken prior to a final adjudication of the veteran's claims for service connection. In light of the aforementioned, the case is REMANDED to the RO for the following actions: 1. The RO should once again contact the National Personnel Records Center, or other appropriate service storage facility(ies), in an attempt to verify the veteran's "in-country" service in the Republic of Vietnam. More specifically, the RO should attempt to verify any "in-country" service by the veteran while a member of Fighter Squadron One Five Four off the coast of Vietnam during the period from January to October 1965. All attempts to obtain such records should be verified in the claims folder. Should the RO be unable to obtain such records, a notation to that effect should be inserted in the claims folder. In addition, the veteran and his representative should be informed of any such problem. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2003, the date of the most recent evidence of record, should also be obtained and incorporated in the claims folder. The veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. Once again, all attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the claims folder. In addition the veteran and his representative should be informed of any such problem. 3. The RO should then review the veteran's claims file, and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA) is complete. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5103, 5103A (2002) and in 38 C.F.R. § 3.159 (2003) are fully complied with and satisfied. 4. The RO should then review the veteran's claims for service connection for lung cancer, prostate cancer, diabetes mellitus, and gastroesophageal reflux disease. Should the benefits sought on appeal remain denied, the veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the Statement of the Case in July 2003. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________ KATHY A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2003).