Citation Nr: 20003791 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 19-03 452 DATE: January 16, 2020 ORDER Reopening of a previously denied claim of service connection for coronary artery disease (CAD) is granted. Service connection for CAD is granted. FINDINGS OF FACT 1. In an unappealed August 2015 rating decision, the RO declined to reopen a previously denied claim of service connection for CAD based on a continued lack of nexus evidence. 2. Since August 2015, evidence was received that is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for CAD. 3. The Veteran served aboard ship within 12 nautical miles of the coast of Vietnam, and hence is presumed exposed to herbicides. 4. CAD, as an ischemic heart disease, is presumed related to in-service herbicide exposure. CONCLUSIONS OF LAW 1. The August 2015 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence has been received and the claim of entitlement to service connection for CAD is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection of CAD are met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1116A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Navy from August 1957 to September 1976. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. New and Material Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The RO previously denied the claim for service connection for CAD in an unappealed and final August 2015 decision, finding that there was not a nexus between the Veteran’s CAD and his military service. Since that time the Veteran testified to an in-service event causing his CAD; he alleges that exposure to fuel fumes may have caused his heart condition. Such exposure is consistent with his duties. As a possibility of nexus is raised, additional development is required. Accordingly, new and material evidence is found. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Reopening is warranted. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be presumed for certain listed diseases when the Veteran is shown to have served in Vietnam between January 1962 and May 1975, and hence is presumed to have been exposed to herbicides. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The U.S. Court of Appeals for the Federal Circuit held that Veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam were entitlement to presumptive service connection if they satisfied the other requirements of 38 U.S.C. § 1116. Procopio, 913 F. 3d 1371 (Fed. Cir. 2019). The Blue Water Navy Vietnam Veterans Act of 2019 legislatively extended the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019), now codified at 38 U.S.C. § 1116A. The Veteran alleges service aboard three vessels which entered the 12 nautical mile limit, the USS Annapolis, the USS Kilauea, and the USS Passumpsic. All three were, at various times while the Veteran was aboard part of the Naval task forces at Yankee Station, supplying larger vessels with fuel and material in support of their ongoing mission. The Veteran reports that the ships came to shore to take on fuel and cargo destined for the task forces. While deck logs showing specific locations are not of record, the allegation is entirely consistent with the known missions of the vessels and the circumstances of their service. Moreover, the Board notes that closing with the coast of Vietnam is consistent with the Navy’s acknowledgement that the Passumpsic docked in Vietnam, at An Thoi, in 1971. Resolving reasonable doubt in favor of the Veteran, exposure to herbicides is established by presumption under 38 C.F.R. § 3.307(a). As CAD is an ischemic heart disease and a listed presumptive condition for herbicide-exposed Veterans, service connection for CAD is warranted. 38 C.F.R. § 3.309(e). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.