Citation Nr: 20002980 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 11-10 988 DATE: January 14, 2020 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The appellant is the surviving spouse of a Veteran who served on active duty from October 1968 to October 1974. The Veteran died in November 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision that reconsidered the appellant’s claim following receipt of additional evidence after an April 2009 rating decision had decided the claim. In March 2017, the case was remanded for additional development. A June 2018 Board decision denied service connection for the cause of the Veteran’s death. The appellant appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a June 2019 Joint Motion for Remand (JMR) by the parties. A June 2019 CAVC Order vacated the Board decision and remanded the matter for compliance with the JMR instructions. The appeal was previously stayed pursuant to a Secretary of Veterans Affairs July 1, 2019, directive to the Board to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019, until January 1, 2020. Entitlement to service connection for the cause of the Veteran's death The Veteran’s death certificate lists the immediate cause of his death as ischemic cardiomyopathy due to coronary artery disease (CAD) and diabetes mellitus. [At the time of his death, his sole service-connected disability was amoebic dysentery (rated 0 percent).] The appellant’s primary theory of entitlement to the benefit sought is one of presumptive service connection under 38 U.S.C. § 1116 (based on exposure to herbicides). She and the Veteran (before he died) have stated that he traveled to Vietnam while serving on the USS Midway. In June 2018, the Board denied the claim and addressed several theories of entitlement raised by the appellant. Notably, the Board found that the evidence does not show that the Veteran visited or served within the land borders or internal waterways of Vietnam (and therefore that is not presumed to have been exposed to herbicides in service). In the June 2019 JMR, the parties agreed that the Board erred by providing an inadequate statement of reasons or bases for finding that the evidence does not show that the Veteran served in the Republic of Vietnam. Specifically, the parties agreed that the Board “relied on case law that was recently overturned by the Federal Circuit in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). In Procopio, the Federal Circuit held that when the Agent Orange Act was passed in 1991, veterans who served in the 12 nautical mile territorial sea of Vietnam were considered to have served in the ‘Republic of Vietnam.’” [The parties cited to the Board’s decision and the evidence of record, which shows that the Veteran’s ship, the U.S.S. Midway, “was in the ‘official waters’ of the Republic of Vietnam” while he was aboard (see January 2016 JSRRC Memorandum), and that the “deck logs also appear to show that the ship travelled through the Gulf of Tonkin in November 1972.”] In June 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). The BWN Act adds section 1116A to title 38 of the United States Code, effective January 1, 2010. The new section 1116A extends the existing Agent Orange Act of 1991 presumption codified at section 1116 to veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See VAOPGCPREC 3-2019 at 2, 12; BWN Act, Pub. L. No. 116-23, Sec. 2 (a). The BWN Act “defines “offshore” as a geographical area “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” eleven points of latitude and longitude listed in an included table. Id. Considering the JMR, the Procopio case, and the BWN Act, further development of the record is necessary to comply with VA’s duty to assist the appellant in the development of facts to properly adjudicate this claim. Development to determine whether the Veteran served in the Republic of Vietnam considering the BWN Act is necessary. The matter is REMANDED for the following: Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam considering the Blue Water Navy Vietnam Veterans Act of 2019. Such action may include obtaining and reviewing the deck logs of the U.S.S. Midway in order to ascertain its whereabouts while the Veteran the ship, inquiry with the JSRRC, and any other development deemed appropriate. The development on remand should address whether the U.S.S. Midway served within the geographic area identified by the BWN Act while the Veteran was serving on the ship. Contact all relevant government records repositories and document for the file which repositories were contacted. If any requested records or relevant information are not available, or the search for any such records or information otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records and this information must continue until it is determined that they do not exist or that further attempts to obtain the records or information would be futile. The non-existence or unavailability of such records or information must be verified, and this should be documented for the record. The Agency of Original Jurisdiction should make a finding for the record whether the U.S.S. Midway was in the geographic area identified in the BWN Act. The appellant and her representative must be provided notice of that determination. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.