Citation Nr: 19139772 Decision Date: 05/22/19 Archive Date: 05/22/19 DOCKET NO. 09-11 903 DATE: May 22, 2019 ORDER Entitlement to service connection for adenocarcinoma, status-post left upper lobectomy, is granted. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam and therefore is presumed to have been exposed to herbicide agents during service. 2. The Veteran was diagnosed with adenocarcinoma, status-post left upper lobectomy. CONCLUSION OF LAW The criteria for entitlement to service connection for adenocarcinoma, status-post left upper lobectomy, are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1962 to July 1966. Among his decorations is the National Defense Service Medal Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, the Veteran testified before the undersigned Veterans Law Judge. In August 2012, the Board decision denied the Veteran’s claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2014 Memorandum Decision, the Court vacated the Board’s August 2012 decision and remanded the matter for further proceedings. The Board thereafter denied the Veteran’s claim in an October 2014 decision. The Veteran appealed that decision to the Court as well. In a February 2016 Memorandum Decision, the Court vacated the Board’s October 2014 decision and remanded the matter for further proceedings. The Board remanded the claim on appeal for further development in December 2016. Entitlement to service connection for adenocarcinoma, status-post left upper lobectomy. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure include lung cancer. 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). Recently, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit held that the phrase “the Republic of Vietnam” includes the 12 nautical mile territorial sea of Vietnam. Procopio, 913 F.3d at 1379. As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. Id. at 1380-81. Here, private treatment records show that the Veteran had a diagnosis of adenocarcinoma, status-post left upper lobectomy. Therefore, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records identify, any complaints, treatment for, or diagnosis of lung cancer or symptoms indicative of lung problems. However, the Veteran’s military personnel records indicate that he served aboard the USS Bausell (DD-845) in May 1966. Furthermore, the March 2017 response from the Joint Services Records Research Center (JSRRC) reflects a determination that the USS Bausell’s deck logs place the vessel “in the coastal waters of Vietnam” on May 31, 1966. On that day, according to JSRRC, deck logs show that the ship was steaming in the area of Quang Ngai, South Vietnam, and “maneuvered close to the beach to 1,500 yards then commenced small arms fire at two Viet Cong swimmers about 500 yards from the shore.” The Board takes judicial notice that this response from JSRRC places the Veteran within the 12 nautical mile territorial sea of Vietnam during active duty. Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201(b)). Thus, the Board finds that the Veteran meets the criteria for having service in the Republic of Vietnam, and he is therefore presumed to have been exposed to herbicide agents during service. Accordingly, as all of the elements for presumptive service connection for adenocarcinoma, status-post left upper lobectomy, as due to exposure to herbicide agent are met, the benefit sought on appeal is granted. 38 C.F.R. §§ 3.307, 3.309. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, 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.