Citation Nr: 20002316 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 12-02 786 DATE: January 14, 2020 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to June 1975. He passed away in July 2008. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant and several witnesses testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2013. A transcript of the hearing is associated with the electronic claims file. In December 2014, the Board remanded the claim back to the RO for additional development. In June 2017, the Board issued a decision denying service connection for cause of death. Following an appeal to the United States Court of Appeals for Veterans Claims, a Joint Motion for Remand (Joint Motion) was issued on the claim in May 2019. 1. Entitlement to service connection for cause of death is remanded. In the May 2019 Joint Motion, the parties agreed that remand was warranted for the Board to address whether the Veteran served in the Republic of Vietnam pursuant to the recent decision of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2018). On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans’ Appeals (Board) to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. The appellant’s claim was affected by this stay. As the Act is now effective, the Board finds remand is warranted to determine whether the Veteran has qualifying service in the Republic of Vietnam or its territorial waters during his active service. In response to the December 2014 Board remand, the U.S. Army and Joint Services Records Research Center (JSRRC) confirmed the ship history of the USS Cook. Specifically, in the August 2015 supplemental statement of the case, the RO noted that “From June 16-27, the USS Cook performed anti-air picket duties for forces engaged in mine sweeping operations around Haiphong, North Vietnam.” The RO further noted “The USS Cook departed Singapore on April 18, 1975 to assist in the evacuation of South Vietnam, arriving in Vung Tau on April 20, 1975, and she operated in support of the evacuation effort until May 2, 1975 when she proceeded to Subic Bay, RP. During the period of May 2-7, 1975 the USS Cook escorted 26 South Vietnamese ships, loaded with approximately 20,000 South Vietnamese naval personnel and civilians. She provided daily replenishment of food, water and medical assistance during the Vung Tau to Subic Bay transit. However, JSRRC cannot document that the Veteran was exposed to Agent Orange by desalination off the coast of Vietnam.” In support of her claim, the appellant has submitted numerous articles, letters, buddy statements, and ship deck logs. Following the Joint Motion, the appellant, through her attorney provided a brief, wherein relevant deck log entries are highlighted including: “Collided with Saigon Ferry, no damages”, “Maneuvering various speeds and courses while escorting South Vietnamese small craft to USUN Kimbro”, “Viet-Nam Anchored”, and “off loaded 250 fruits and juices and 60 Vietnamese on KA 114-2 to board USS Sargent Kimbro”. The Act provides “Determination of Offshore. – Notwithstanding any other provision of law, for purposes of this section, the Secretary shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting the following points:...” Pursuant to VAOPGCADVIS 1-19 “When the evidence of record is insufficient to determine whether the veteran served within the 12 nautical mile territorial sea of Vietnam, the Board should generally remand the case for further factual development.” As the current record is insufficient to determine the Veteran’s reported service in the Republic of Vietnam or its territorial waters, remand is warranted. The matters are REMANDED for the following action: 1. Obtain and review the complete deck logs for the USS Cook to determine whether the Veteran served within the 12 nautical mile territorial sea of Vietnam as defined by the Blue Water Navy Vietnam Veterans Act of 2019. Specifically, the RO should review ship records during the Veteran’s active service dates for references to the ship’s location in miles from the shore and for entries stating where the ship anchored. As noted above, at least one deck log provides “Viet-Nam Anchored.” The RO should review the listed longitudinal position to determine whether this location falls within the 12 nautical mile territorial sea of Vietnam. 2. The RO should also attempt to verify whether Operation Frequent Wind or Operation End Sweep required the USS Cook to travel within the 12 nautical mile territorial sea of Vietnam. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.