Citation Nr: 0430798 Decision Date: 11/19/04 Archive Date: 11/29/04 DOCKET NO. 02-15 180 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as secondary to in-service herbicide exposure. 2. Entitlement to service connection for a skin disorder of the arms, including as secondary to in-service herbicide exposure. 3. Entitlement to service connection for gastroesophageal reflux disorder (GERD), including as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The veteran served on active duty in the Navy from September 1971 to May 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 decision by the RO in Pittsburgh, Pennsylvania which, in pertinent part, denied service connection for diabetes mellitus, a skin rash, and GERD. The veteran claimed that these disabilities were caused by in- service herbicide exposure. A videoconference hearing was held before the undersigned acting veterans law judge in July 2003. At the July 2003 hearing, the veteran withdrew the issue of entitlement to service connection for sinusitis, and therefore this issue will not be addressed by the Board. 38 C.F.R. § 20.204 (2003). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran contends that he has Type II diabetes mellitus, a skin disorder of the arms, and GERD as a result of exposure to Agent Orange while serving on the U.S.S. Rowan near the coast of Vietnam during service. Service personnel records reflect that he served in the Navy, and that from 1971 to 1973 he was assigned to the U.S.S. Rowan. He was authorized to wear the Vietnam Service Medal based on his service aboard this ship. Post-service medical records reflect that the veteran has been diagnosed with diabetes mellitus and GERD. He reports that he has received treatment for a recurrent skin rash on his arms. A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection based on herbicide exposure will be presumed for certain specified diseases including Type II diabetes mellitus and chloracne which is manifest to a compensable degree at any time after service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2003). "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 (2003). Service connection based on herbicide exposure may also be established with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). At his hearing in July 2003, the veteran testified that he has received private treatment for a skin rash. Such records are not on file and must be obtained prior to Board review. 38 U.S.C.A. § 5103A(b) (West 2002). The veteran has also reported receiving ongoing treatment for diabetes mellitus and GERD at the University Drive VA Medical Center (VAMC) in Pittsburgh, Pennsylvania. Recent VA treatment records for diabetes mellitus, GERD, and a skin disorder should be obtained. Id.; Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The veteran is advised that he may submit evidence tending to show that he has diabetes mellitus, a skin disorder, and GERD which were incurred in service, or evidence tending to show that the conditions of his service involved duty or visitation in Vietnam. 38 U.S.C.A. § 5103(a) (West 2002). In light of the foregoing, the case is remanded to the RO for the following action: 1. Ask the veteran to identify all VA and non-VA health care providers that have treated him for diabetes mellitus, GERD, or a skin disorder of the arms since separation from service. After receiving this information and any necessary releases, the RO should contact the named medical providers and obtain copies of the related medical records. 2. The RO should readjudicate the veteran's claims for service connection for diabetes mellitus, GERD, and a skin disorder of the arms. If the claims remain denied, the RO should provide the veteran and his representative with a supplemental statement of the case and the opportunity to respond before the case is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters 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 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). _________________________________________________ J. A. MARKEY Acting 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).