Citation Nr: 20003069 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-16 670 DATE: January 14, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to January 1980. He died in April 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to service connection for the cause of the Veteran’s death is remanded. An October 2018 rating decision denied entitlement to service connection for the Veteran’s cause of death. 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 appellant’s claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 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), Public Law 116–23 (Jun. 25, 2019), 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. In September 2019, the Board stayed the issue of service connection for entitlement to service connection for the cause of the Veteran’s death, pursuant to the July 2019 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. 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.” 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. The appellant contends that the Veteran’s cause of death was associated with maladies that were due to his active service. Prior to his death, the Veteran claimed that he was exposed to herbicide agents from 1964 to 1965 during his service aboard the USS Constellation. The Veteran’s death certificate reported the cause of death was cardiac arrest. The Veteran’s autopsy report indicated the causes of death were widespread multi-organ amyloidosis, foci of myocardial interstitial fibrosis, and multifocal severe coronary atherosclerosis, which is a disease presumed to be associated with Agent Orange exposure under 38 C.F.R. § 3.309(e). A personnel record indicates that the Veteran was assigned to Attack Squadron 146 in the Pacific Fleet on May 16, 1964. An August 1964 personnel record indicates that the Veteran was assigned to Attack Squadron 146 and embarked in the USS Constellation in direct support of operations in the Gulf of Tonkin. The Veteran’s DD Form 214 for the period from April 15, 1964 to December 5, 1965 details that he had foreign and/or sea service totaling one year, six months, and twenty-one days. However, the Veteran’s personnel records are unclear regarding whether he ever set foot in the Republic of Vietnam as the records do not show any duty assignments in Vietnam. The Veteran’s service treatment records document that he was on the USS Constellation from at least May 10, 1964 to October 9, 1964. 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 whether the Veteran’s tour of duty included visitation in the Republic of Vietnam or that he served within the 12 nautical mile territorial sea of Vietnam. Therefore, remand for additional development is needed to determine if the ships the Veteran served aboard were stationed in the inland waters 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 routes and courses of the pertinent ships must be obtained. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any records pertinent to verifying whether the Veteran served in the Republic of Vietnam or was within the 12 nautical miles of the country, to include deck logs for any and all ships the Veteran served aboard, including the USS Constellation. 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. 2. Determine whether any ships the Veteran served aboard navigated within the 12 nautical mile limit of the territorial waters of Vietnam. Provide a complete fact-based explanation of how and why this determination was made. 3. After the development described above, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any determination remains unfavorable to the appellant, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.