Citation Nr: 20003657 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 15-38 293 DATE: January 15, 2020 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1963 to February 1967 and in the U.S. Air Force from October 1967 to August 1972. The appellant is the Veteran’s surviving spouse. This matter originally came before the Board of Veteran’s Appeals (Board) from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A September 2019 Board decision denied the claim for entitlement to service connection for the Veteran’s cause of death. That Board decision was appealed to the United States Court of Appeals for Veterans’ Claims (CAVC). The parties presented an Amended Joint Motion for Remand (JMR) requesting a vacatur of the September 2019 Board decision and a remand for development which was granted by CAVC in October 2019. The matter is again before the Board. Entitlement to service connection for the Veteran’s cause of death is remanded. The appellant is claiming entitlement to service connection for the Veteran’s cause of death as secondary to herbicide exposure. The Veteran passed away in October 2011 and his cause of death was recorded as myocardial infarction in his death certificate. In the JMR the parties agreed the Board must provide an adequate statement of reasons and bases addressing whether the USS Constellation’s presence in the “official waters of Vietnam” included being in the 12-nautical miles territorial waters of the Republic of Vietnam for determining whether the Veteran is entitled to the presumption of herbicide exposure under 30 CFR § 3.307(a)(6)(iii). As the Veteran’s record does not provide enough information for the Board to determine whether the USS Constellation was in the territorial waters of the Republic of Vietnam in accordance with Procopio, the Board finds a remand is necessary to obtain the necessary information. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Additionally, the Board notes the Veteran’s death certificate shows he died in a hospital, but current records appear to be incomplete as records from the period related to the Veteran’s death have not been associated with the claims file. Upon remand RO must make the necessary efforts to obtain any outstanding medical records. The matters are REMANDED for the following action: 1. Contact the appellant and with her assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). a. In specific, the record shows the Veteran passed away in Cedar Park Regional Medical Center. Records from this medical center have not been associated with the record. b. Additionally, the appellants DIC application notes the Veteran received treatment from the Central Texas Health Care system but it is unclear whether these records are complete. 2. After any outstanding records have been associated with the claims file, contact all appropriate sources, to include the Department of the Navy, National Personnel Records Center (NPRC), and the Joint Services Records Research Center (JSRRC), to confirm or verify whether the USS Constellation was at any time during the Veteran’s service within 12 nautical miles of the coast of the Republic of Vietnam. In specific, request from the JSRRC, or any other appropriate repository, copies of any additional deck logs and or command histories for USS Constellation, and any additional service personnel records, for the time periods of the Veteran’s service, to attempt to verify the locations of the ship while the Veteran served on the ship. a. If the USS Constellation is confirmed to have been within 12 nautical miles of the coast of the Republic of Vietnam during the Veteran’s service, please request a VA medical opinion regarding the Veteran’s cause of death and whether it was related to his herbicide exposure or otherwise related to service. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: i. Whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s cause of death, noted as myocardial infarction, is related to the Veteran’s service, to include any herbicide agent exposure. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. A detailed and complete rationale for the opinion must be provided. (Continued on the next page)   b. If the USS Constellation is not confirmed to have been within 12 nautical miles of the coast of the Republic of Vietnam during the Veteran’s service, a formal finding documenting the reason the vessel’s location could not be confirmed should be made and associated with the claims file. 3. Thereafter, readjudicate the issue on appeal. If the claim remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.