Citation Nr: 20004341 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 16-23 656 DATE: January 21, 2020 ORDER Service connection for ischemic heart disease, to include as due to toxic herbicide exposure, for accrued benefits purposes, is granted. Service connection for diabetes, to include as due to toxic herbicide exposure, for accrued benefits purposes, is granted. FINDINGS OF FACT 1. The Veteran had confirmed service on a ship within 12 nautical miles of the Republic of Vietnam and is therefore presumed to have been exposed to toxic herbicides. 2. The Veteran’s ischemic heart disease is presumed to be related to his exposure to toxic herbicide agents. 3. The Veteran’s diabetes is presumed to be related to his exposure to toxic herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, to include as due to toxic herbicide exposure, for accrued benefits purposes, have been met. 38 U.S.C. §§ 5103, 5103A; 7104; 38 C.F.R. §§ 3.159, 3.307, 3.309(e), 3.816, 3.1000, 3.1010. 2. The criteria for service connection for diabetes, to include as due to toxic herbicide exposure, for accrued benefits purposes, have been met. 38 U.S.C. §§ 5103, 5103A; 7104; 38 C.F.R. §§ 3.159, 3.307, 3.309(e), 3.816, 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1962 to October 1966. He received the Republic of Vietnam Campaign Medal and the Vietnam Service Medal. He died in September 2019. The appellant is his surviving spouse and has been substituted as the claimant. The Board observes that prior to his death, the Veteran’s claims on appeal were denied by the Board in March 2018. In August 2018, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) and remanded the claims to the Board for additional development and consideration. Specifically, the Board was to consider whether or not the Veteran was presumptively exposed to toxic herbicides based upon the fact that a ship he served on, USS PRINCETON (LPH-5) was added to VA’s list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicides. In April 2019, the Board again denied the claims on appeal. However, in a decision issued that same month, the Chairman of the Board granted a motion for reconsideration pursuant to 38 U.S.C. § 7103, and that decision was vacated as a matter of law. This decision is issued in lieu of the April 2019 decision. 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 Blue Water Navy Vietnam Veterans Act of 2019 (the Blue Water Act), until the effective date of the Act, January 1, 2020. That date having elapsed, the issues on appeal may now be adjudicated. Service Connection 1. Entitlement to service connection for ischemic heart disease for accrued benefits purposes 2. Entitlement to service connection for ischemic heart disease for accrued benefits purposes The appellant asserts that the Veteran’s ischemic heart disease and diabetes were related to the Veteran’s toxic herbicide exposure. Specifically, she contends that he served aboard a ship that entered the territorial waters of Vietnam. Under the relevant laws and regulations, 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, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309. Based upon the evidence of record, the Board determines that service connection for the Veteran’s ischemic heart disease and diabetes is warranted. As an initial matter, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed to toxic herbicides during such service. Service in the Republic of Vietnam includes 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). Recently, in Procopio v. Wilkie, 913 F.3d 1371, 1379 (Fed Cir. 2019), the United States Court of Appeals for the Federal Circuit further clarified that the term “Republic of Vietnam” refers to both the Republic of Vietnam’s “landmass and its 12 nautical mile territorial sea.” More recently, Congress enacted new statutory requirements for the adjudications of certain claims based on Veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975 via the Blue Water Act. Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas and, as is relevant here, diabetes mellitus and ischemic heart disease. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). In this case, the Board finds that the evidence of record is sufficient to demonstrate that he was presumptively exposed to toxic herbicides. Specifically, the deck logs in conjunction with the Veteran’s personnel records reflect that while aboard USS PRINCETON (LPH-5), he entered the territorial waters of Vietnam during his period on service. Moreover, VA’s list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicides reflects that PRINCETON was within the territorial waters of Vietnam in April 1962 and for a period between October 1964 to December 1968. As such, the evidence of record is sufficient to demonstrate that he entered the territorial waters of Vietnam and therefore the Board concludes that the Veteran was presumptively exposed to toxic herbicide agents. Next, the Board finds that the evidence is sufficient to establish a diagnosis of ischemic heart disease and diabetes. Here, the Veteran’s March 2014 VA treatment records reflect a diagnosis of diabetes and coronary artery disease (a type of ischemic heart disease). Accordingly, because he was presumptively exposed to toxic herbicide agents, the Veteran’s disorders are presumptively related to his active duty service under 38 C.F.R. § 3.309(e), and service connection is warranted. 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. B.T. Knope Veterans Law Judge Board of Veterans’ Appeals Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Meyer, Associate Counsel