Citation Nr: 20002277 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 17-27 996 DATE: January 10, 2020 REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159. In October 2019, the Board remanded the issue of an increased rating for bilateral hearing loss. The issue is currently being adjudicated at the RO and will not be discussed in this decision. Also, in the October 2019 Board decision, the Board stayed the issue of service connection for prostate cancer, pursuant to a July 2019 Stay by the Secretary of Veterans Affairs due to implementation of the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), Public Law 116–23 (Jun. 25, 2019). The Stay was lifted on January 1, 2020, and the issue of service connection for this issue now returns to the Board for adjudication. The Veteran contends that his prostate cancer is due to exposure to Agent Orange when he was handling bombs on his ship and that he is considered a Blue Water Navy Veteran. See October 2016 Notice of Disagreement. The Veteran has asserted that he was off the coast of Vietnam and that the USS Oriskany was deployed to Vietnam in May 1969 to October 1969 and June 1970 to August 1970. See May 2017 Correspondence. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, reversing its prior determination that VA’s interpretation of the statute and regulation was reasonable. Instead, the Court held that the statutory phrase “the Republic of Vietnam” included the 12 nautical mile territorial sea of that nation. Procopio, slip op. at 10. By extension, the presumption of herbicide agent exposure extends to those veterans with service in the territorial seas of the Republic of Vietnam. An August 2009 biopsy revealed that that the Veteran had prostate cancer. He underwent a robotic prostatectomy in September 2009. See the Everett Clinic treatment records. The Veteran’s personnel records indicate that he served aboard the USS Oriskany (CVA-34) from November 1968 to September 1970. The Veteran’s DD 214 details that he was in the Navy and had foreign and/or sea service totaling one year, ten months, and twelve days. The evidence of record, however, does not specify the distance of the ship to the shore of Vietnam. As such, there is insufficient evidence to determine that the Veteran was aboard a vessel that was located within the territorial sea of the Republic of Vietnam. Therefore, remand for additional development is needed to determine if the USS Oriskany was stationed in the inland waters of the Republic of Vietnam or went within 12 nautical miles of the mainland while the Veteran was serving on board. To afford the Veteran all consideration for his claimed disabilities, records detailing the USS Oriskany routes and courses must be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2019 to present. All reasonable attempts should be made to obtain any identified records. 2. Undertake appropriate development to obtain any records pertinent to verifying that the Veteran served in the inland waters of the Republic of Vietnam or was within the 12 nautical miles of the country, to include deck logs for any and all ships that the Veteran served abroad. In particular, indicate whether there is sufficient evidence to concede the Veteran served in the inland waterways of Vietnam. If not, then determine whether the USS Oriskany served within sufficient proximity to Vietnam, as to be classified as having served in the "in the waters offshore" the Republic of Vietnam. Provide a complete fact-based explanation of how and why this determination was made. If the requested deck logs are unavailable or unattainable and a determination is made that further efforts to obtain the deck logs would be futile, prepare a formal finding of fact delineating the efforts taken to obtain the logs and an exhaustion of additional efforts, if so indicated. 3. After completing the above actions, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. The Veteran 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 Veteran’s Appeals or by the United States Court of Appeal for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.