Citation Nr: 20004243 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 17-33 703 DATE: January 21, 2020 REMANDED Entitlement to service connection for prostate cancer, to include as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for coronary artery disease, to include as secondary to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1960 to November 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at an April 2019 hearing via teleconference. A transcript of his testimony has been associated with the claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for prostate cancer, to include as secondary to herbicide agent exposure, is remanded. 2. Entitlement to service connection for coronary artery disease, to include as secondary to herbicide agent exposure, is remanded. The Veteran claims that he is entitled to service connection for prostate cancer and coronary artery disease as a result of herbicide agent exposure. More specifically, the Veteran contends that he was exposed to herbicide agents while serving on the U.S.S. Valley Forge off the coast of Vietnam between May and July of 1962. Alternatively, he alleges that he was exposed to herbicide agents after he flew helicopters from this ship and landed them in Vietnam during this same timeframe, or while serving in Okinawa, Japan. At this juncture, however, the Board finds that a remand is necessary for additional development to be performed with respect to these claims. Recent case law has affected how claims of entitlement to service connection presumptively linked to herbicide exposure during the Vietnam War are adjudicated, primarily for those veterans who served in the coastal waters of Vietnam. Briefly, 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). The phrase “the Republic of Vietnam” now includes the 12 nautical mile territorial sea of Vietnam. 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 under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Here, the Veteran’s service personnel records indicate that he served aboard the U.S.S. Valley Forge between May and August 1962. More specifically, his personnel records show that he embarked on the U.S.S. Valley Forge at Subic Bay, Philippines, in connection with the 3rd Marine Division Special Landing Force on May 26, 1962. On August 21, 1962, he disembarked at Subic Bay. See Sea and Air Travel Embarkation Slips. Research indicates that the U.S.S. Valley Forge operated temporarily in the inland waterways of Vietnam in December 1965 and in Vietnam’s close coastal waters as a troop transport with helicopters and smaller vessels transporting troops on and off shore from September 1964 to September 1969. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (Oct. 28, 2019), http://www.va.gov/shiplist-agent-orange.pdf. However, it is currently unclear whether it may have been within the 12 nautical mile territorial sea between May and August 1962, when the Veteran served aboard the ship. In connection with the Veteran’s claims, a Joint Service Records Research Center (JSRRC) search was performed with respect to his possible exposure to herbicide agents during the Vietnam era. In November 2017, JSRRC responded with a history of the U.S.S. Valley Forge. JSRRC indicated that they reviewed the ship’s history between 1944 and 1971, as well as deck logs from May and June 1962. JSRRC reported that the ship arrived in Long Beach, California, on January 23, 1962. Three months later, the ship departed for a Western Pacific deployment. The government of Thailand, fearing Communist Pathet Lao forces, asked President Kennedy to land troops in Thailand to head off a possible invasion. In connection with this request, the U.S.S. Valley Forge closed the Thai coast and on May 17, 1962, landed an embarked U.S. Marine Landing Team. In the weeks the followed, the crisis abated. In July 1962, the ship sent helicopters ashore to assist in lifting Marines out of Thailand. JSRRC also stated that the ship’s deck logs indicated that the ship conducted offloading operations of Marines, their ammunition, and equipment by helicopters, landing craft, small boats, and barges, while anchored in Bangkok Bay between May 17-18, 1962. The Valley Forge deck logs from May 1-16, May 18-31, and June 1-30, 1962, indicate that the ship subsequently went to Okinawa, Subic Bay, and Hong Kong for provisions, upkeep, and crew liberty. JSRRC concluded that the ship history and deck logs did not document any Vietnam operations. Significantly, however, the JSRRC response indicates that only the ship’s deck logs dated through June 30, 1962, were reviewed. However, the Veteran’s personnel records indicate that he served aboard the U.S.S. Valley Forge until August 21, 1962. Moreover, it is unclear from the November 2017 JSRRC response whether the U.S.S. Valley Forge was within the 12 nautical mile territorial sea of Vietnam during the relevant timeframe, or whether JSRRC considered whether it was within the territorial sea. As such, and in light of the ruling in Procopio, further development is needed to ascertain the whereabouts of the U.S.S. Valley Forge between May and August 1962. Accordingly, the matters are REMANDED for the following action: (This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam in light of the recent holding in Procopio. Such action includes conducting a further inquiry with the JSRRC and any other development deemed appropriate to verify whether the Veteran was exposed to herbicide agents during his service aboard the U.S.S. Valley Forge between May 26, 1962, and August 21, 1962. Separate responses must be provided for each 60-day period. Any development on remand should address whether the U.S.S. Valley Forge served within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed on the ship. The RO must consider all available resources deemed helpful in determining whether the Veteran falls within the expanded definition described above, including but not limited to deck logs, ship logs, and captain’s logs from the U.S.S. Valley Forge, as well as any other records deemed necessary, from between May and August 1962. Contact all relevant government records repositories and document for the file which repositories were contacted. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must be clearly 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 documented in the record. Required notice must also be provided to the Veteran and his representative. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.