Citation Nr: 20004154 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-36 538 DATE: January 16, 2020 REMANDED The claim of entitlement to service connection for a heart disorder, to include as due to herbicide agent exposure is remanded. The claim of entitlement to service connection for residuals of a stroke, to include as secondary to a heart disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to August 1969. These matters come before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran presented testimony in a travel board hearing before the undersigned Veterans Law Judge. 1. The claim of entitlement to service connection for a heart disorder, to include as due to herbicide agent exposure The Veteran asserts he is entitled to service connection for a heart disorder, to include as due to exposure to herbicide agents during service in the Republic of Vietnam. See October 2019 Board hearing. The Veteran stated at his October 2019 Board hearing that he was exposed to Agent Orange from the planes flying above him, that he set foot on the landmass of Vietnam, and that he was on the inland waterways. Remand is required to verify herbicide agent exposure. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). VA has interpreted this regulation to require “the service member’s presence at some point on the landmass or the inland waters of Vietnam” for entitlement to a presumption of exposure to Agent Orange. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). Service on a U.S. Navy vessel may also qualify as duty or visitation in Vietnam, as long as the veteran set foot on land or the vessel nevertheless was in inland waterways. 38 C.F.R. §§ 3.307(a)(6)(iii); Haas, 525 F.3d at 1195, 1197; Gray v. McDonald, 27 Vet. App. 313 (2015). However, the phrase “the Republic of Vietnam” now includes the 12 nautical mile territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (U.S. Fed. Cir. Jan. 29, 2019). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection, so long as they meet the section’s other requirements. The Veteran’s military personnel records show he served on three ships: 1) the USS Guadalupe from October 1967 to March 1968; 2) the USS Cimarron from April 1968 to September 1968; and 3) the USS Kishwaukee from October 1968 to August 1969. The Veteran testified at his October 2019 Board hearing that while aboard the Kishwaukee he hauled fuel from Da Nang to Cua Viet River. The Veteran described when running fuel, he tied up a buoy approximately 1000 yards offshore. Further, he stated he got on and off the Kishwaukee and Cimarron to get food and supplies. The Veteran explained that he used a small boat anchored in the harbor of Vietnam to get on and off the Kishwaukee and the Cimarron. The Veteran’s DD 214 indicates his military occupational specialty (MOS) was Chef/Cook. Accordingly, remand is required to determine if the USS Kishwaukee, USS Cimarron, and/or USS Guadalupe were in the territorial sea extending 12 nautical miles from the shore of Vietnam. 2. The claim of entitlement to service connection for residuals of a stroke, to include as secondary to a heart disorder, is remanded. First, because the Veteran asserted that the claimed condition is secondarily related to his claimed heart disorder, at the October 2019 Board hearing, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Second, remand is required for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, an April 2007 private treatment record documents the Veteran was treated for a stroke. Further the Veteran testified at his October 2019 Board hearing that the doctor stated his stroke was due to his heart disorder. Because there is evidence of a currently diagnosed disability and an indication that the current disability may be associated with his heart disorder, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Attempt to verify the location of the USS Cimarron, the USS Kishwaukee, and the USS Guadalupe, to include whether the ships were within 12 nautical miles of the Vietnam shore during the relevant time periods. Contact all government records repositories and ot her relevant locations to obtain this information. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 4. After any additional records are associated with the claims file, obtain a medical opinion to determine the etiology of the stroke. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed warranted, it must be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the stroke was caused or aggravated by a heart disorder. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.