Citation Nr: 20002780
Decision Date: 01/13/20	Archive Date: 01/13/20

DOCKET NO. 16-13 297
DATE: January 13, 2020

REMANDED

Entitlement to service connection for multiple myeloma, to include as due to exposure to herbicide agents, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from October 1972 to February 1974.  He died in June 2016.  The appellant is his surviving son and has been substituted as the claimant for the purposes of processing the above-listed claim to completion.  38 U.S.C. § 5121A.   This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office.

The appellant was initially scheduled for a Board hearing in May 2019; however, despite confirming that he would attend in April 2019, he did not appear for the scheduled Board hearing, did not offer good cause for his absence, and has not since requested a new hearing.  Thus, his request is considered withdrawn.  38 C.F.R. § 20.704(d).

The appellant asserts the Veteran was exposed to Agent Orange while serving aboard the USS Coral Sea and eventually developed fatal multiple myeloma, which is a disease that is presumptively associated with exposure to herbicide agents.  The Veteran served in the Navy, and the available records do not show (and neither the Veteran nor the appellant has asserted) that he went ashore in Vietnam.  Nevertheless, for the purposes of determining whether a Veteran may be presumed to have been exposed to herbicide agents, the term “Service in the Republic of Vietnam” includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation.  Procopio v. Wilkie, 913 F.3d 1371 (2019). 

Here, while the U.S. Army & Joint Services Records Research Center (JSRRC) determined in May 2009 that there was no conclusive proof of exposure to tactical herbicide agents as relating to this Veteran at issue, it limited its analysis to evidence of contact with contaminated aircrafts and transportation, storage, or testing of tactical herbicides.  Thus, on remand, the RO should determine whether the USS Coral Sea operated within 12 nautical miles from the shores of the Republic of Vietnam.

The appeal is REMANDED for the following action:

Determine if the USS Coral Sea CVA-43 was within 12 nautical miles from the shores of the Republic of Vietnam during the Veteran’s period of service.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans’ Appeals

 

Attorney for the Board	R. Asante

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.