Citation Nr: 20003869 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-59 024 DATE: January 16, 2020 REMANDED Entitlement to service connection for ischemic heart disease, to include as due to in-service herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service in the Navy from April 1969 to January 1973. The Veteran contends that his currently-diagnosed ischemic heart disease results from his exposure to Agent Orange and/or other herbicides during his active service while aboard the USS Davis that operated on the coastal waters of Vietnam. He provided different dates of service aboard the USS Davis, with the earliest entry date being in April 1972 and the latest date of exit in December 1972. Private treatment records show that he was diagnosed with ischemic heart disease in January 1996, but no VA examination was conducted to determine the nature and etiology of his ischemic heart disease. Personnel records indicate that the Veteran served aboard the USS Davis, but the record is not quite clear as to his exact dates on this ship while it was in Vietnam waters. He also served aboard other ships, including the USS Stormes, which operated within the vicinity of Vietnam. Specifically, the Veteran’s Form DD 214 shows that he served in Vietnam waters. On a March 2013 response to a VA Form 21-3101 request for information (PIES request), it was indicated that no determination could be made as whether the Veteran served in the Republic of Vietnam. The response indicates that the Veteran served aboard the USS Davis DD 937, which was in the official waters of the Republic of Vietnam from July 2,1972 to July 4, 1972; July 9, 1972 to August 11, 1972; August 27, 1972 to August 31, 1972; September 3, 1972 to September 27, 1972; October 11, 1972 to October 23, 1972; and November 1, 1972 to November 6, 1972. The response further states that the record provides no conclusive proof of in-country service. As a result, the regional office (RO) concluded that the Veteran’s exposure to Agent Orange or other tactical herbicides could not be conceded. In June 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (the Act). See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019). The Act defined service “offshore of the Republic of Vietnam” as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2(a), 133 Stat. 966 (2019). 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 Act, until its effective date of January 1, 2020. The stay has since been lifted; however, as discussed below, further development is necessary before the Board can proceed with adjudication of this case. While the PIES request states that the Veteran served aboard the USS Davis DD 937, which was in Vietnam waters, it does not specify whether the Veteran was aboard the ship on those dates. In July 2013, VA communicated via telephone with the Veteran, during which he stated that he was within 2000 yards of the Vietnam shores. This would put him within 12 nautical miles of the Vietnam shores, as required by the Act. He also stated that he had deck logs that he would check, but there is nothing in the record to indicate that VA obtained those deck logs. Even if the Veteran were not exposed to herbicides due to the transportation of herbicides aboard any of his ships, the filling of planes with herbicides aboard the ships, actually setting foot on the landmass of Vietnam, or serving onboard ship in the inland waterways of Vietnam, the Act defines service “offshore of the Republic of Vietnam” as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia, as noted above. Here, the Veteran’s Form DD 214 notes that he served in Vietnam waters, and his military personnel records indicate that he was aboard the USS Davis and at least one other ship that was exposed to Agent Orange. The foregoing raises the possibility that he was exposed to herbicides while in the territorial sea of the Republic of Vietnam. As the evidence of record does not rule out completely the possibility that he was exposed to herbicides while in Vietnam waters, a remand is necessary for further development. In addition, although the Veteran has alleged that his ischemic heart disease is due to herbicide agent exposure in service, current records do not include a medical opinion linking this disability to his service. Even if the Veteran cannot be granted service connection on a presumptive basis, it does not preclude consideration of whether a grant of service connection on a direct basis is warranted. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Circ. 1994). Therefore, a remand is necessary for a VA examiner to opine as to the nature and etiology of the Veteran’s ischemic heart disease. Accordingly, the matter is REMANDED for the following actions: 1. Contact the Veteran for his deck logs and/or other information deemed necessary to substantiate his claim for service connection, as during a July 2013 conversation with VA he indicated that he “had some logs that he would check.” 2. Refer the Veteran’s claim to the appropriate agency for verification of exposure to herbicides in light of the Blue Water Navy Vietnam Veterans Act of 2019, which defines service “offshore of the Republic of Vietnam” as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. Specifically, it should be determined whether the USS Davis and/or the USS Stormes came within 12 nautical miles of the Republic of Vietnam during the Veteran’s periods of service onboard either of these vessels. 3. Obtain all clinical records, both VA and non-VA, which are not already in the claims file, pertaining to treatment of the Veteran for ischemic heart disease. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.