Citation Nr: 20004656 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 08-03 327 DATE: January 21, 2020 ORDER Entitlement to service connection for coronary artery disease is granted. REMANDED Entitlement to service connection for an acquired psychiatric history, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a skin disorder, including as secondary to Agent Orange exposure, is remanded. Entitlement to service connection for a prostate disorder, to include as secondary to Agent Orange exposure, is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDINGS OF FACT 1. The Veteran served as a rifleman aboard the U.S.S. Kitty Hawk during the period from June 1969 to October 1971; during that period of time, the U.S.S. Kitty Hawk was in the official waters of Vietnam. 2. While serving aboard the U.S.S. Kitty Hawk, the Veteran participated in operations in the Sea of Japan, South China Sea, and Gulf of Tonkin; the Veteran also engaged in air strikes on South Vietnam and the Demilitarized Zone (DMZ) in Korea. 3. The Veteran was exposed to Agent Orange while on active duty on the U.S.S. Kitty Hawk. 4. The Veteran has coronary artery disease. CONCLUSION OF LAW The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1968 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2015, the Board remanded the Veteran’s application to reopen the previously denied claim of entitlement to service connection for a lumbar disorder, as well as the Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder to include PTSD, a skin disorder, and a prostate disorder. In May 2017, the Board reopened the claim of entitlement to service connection for a lumbar disorder, and remanded the Veteran’s claims for service connection for additional development. In a June 2018 decision, the Board denied the Veteran’s claims for entitlement to service connection for a skin disorder and a prostate disorder; the Veteran’s claims of entitlement to service connection for a lumbar spine disorder, coronary artery disease, and an acquired psychiatric disorder, to include PTSD, were again remanded for additional development and due process considerations. The Veteran then appealed the Board’s June 2018 decision that denied entitlement to service connection for a skin disorder and a prostate disorder to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 memorandum decision, the Court vacated the Board’s June 2018 denial of entitlement to service connection for a skin disorder and a prostate disorder and remanded the claims for readjudication consistent with the terms of the memorandum decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, such as cardiovascular diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Effective February 24, 2011, if it is determined that a Veteran served on active duty from April 1, 1968 to August 31, 1971, in a unit that, determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, then it is presumed that the veteran was exposed to an herbicide agent, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. 38 C.F.R. § 3.307(a)(6)(iv) (2018). On January 29, 2019, the U.S. Court of Appeals for the Federal Circuit issued the attached en banc decision in Procopio v. Wilkie, 17-1821, which held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Therefore, for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “Service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. Subsequently, legislation was enacted that added 38 U.S.C. § 1116A, providing in part for a presumption of herbicide agent exposure for Veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Offshore is defined as being in a location not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting several specific latitude and longitude points. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (June 25, 2019). The law is effective January 1, 2020 and thus, applicable to the Veteran’s claims. The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). As will be discussed below, the evidence reflects that the Veteran has been exposed to Agent Orange. At the outset, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his cardiovascular disorder was incurred during combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. Entitlement to service connection for coronary artery disease. The Veteran’s service personnel records reflect that he served aboard the U.S.S. Kitty Hawk (CVA-63) from June 21, 1969 to October 26, 1971. The Veteran’s service personnel records also reflect that he is in receipt of the Vietnam Service Medal. A search by the Joint Services Records Research Center (JSRRC) indicates that the U.S.S. Kitty Hawk was in the “Official waters of the Republic of Vietnam” from June 28, 1969 to July 15, 1969, July 27, 1969 to August 16, 1969, December 7, 1970 to December 30, 1970, January 12, 1971 to February 4, 1971, February 19, 1971 to April 1, 1971, April 9, 1971 to April 26, 1971, May 3, 1971 to May 17, 1971, and May 29, 1971 to June 23, 1971. The JSRRC was unable to confirm whether the Veteran had service in Vietnam; however, the Board notes that the Veteran specifically indicated that he did not have service on the ground in Vietnam or Korea. Additionally, a review of the Veteran’s military personnel records and the deck logs for the U.S.S. Kitty Hawk indicated that the ship operated in the Sea of Japan, South China Sea, and Gulf of Tonkin during the Veteran’s service; the Veteran participated in operations in those areas, as well as participated in reconnaissance flights and operations involving air strikes in South Vietnam and the DMZ in Korea. The Board acknowledges that there were no reports of the U.S.S. Kitty Hawk participating in the spraying of herbicides or in the inland waters of the Republic of Vietnam. Moreover, Agent Orange and tactical herbicides were not transported, stored, or used aboard U.S. Navy or Coast Guard ships. See VBA Manual M21-1, IV.ii.1.H.2.l, Processing Claims Based on Storage of Agent Orange Aboard U.S. Navy and Coast Guard Ships. The Department of the Army and JSRRC informed VA that it has no evidence indicating that Navy ships transported tactical herbicides from the U.S. to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. See VBA Manual M21-1, IV.ii.1.H.2.m, Mandatory Claims Folder Documentation for Veterans Claiming Herbicide Exposure Aboard a Ship in Offshore Waters. The Board observes that documents submitted by the Veteran include news articles and a copy of the July 8, 1965 Executive Order by President Lyndon B. Johnson, establishing the Vietnam Service Medal. These documents reflect that the July 8, 1965 Executive Order called for the medal to be awarded to members of the Armed Forces that served in Vietnam or its contiguous waters; an associated document indicates that the contiguous waters of Vietnam have been defined as including the Gulf of Tonkin. Based on the above, the Board finds that it is reasonable to assume that the Veteran had service within 12 nautical miles of the shores of Vietnam, as asserted by the Veteran. The Board finds the Veteran's statements were credible as they are consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). See also Caluza v. Brown, 7 Vet. App. 498 (1995). As such, the probative, credible evidence demonstrates that the Veteran was exposed to Agent Orange during active duty, and the presumptions outlined in 38 C.F.R. § 3.309 (e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). In this case, there is evidence of coronary artery disease. VA and private treatment records reflect that the Veteran was diagnosed with coronary artery disease in 2003. As noted in 38 C.F.R. § 3.309(e), coronary artery disease is a disease that has been associated with herbicide exposure. Therefore, the Board concludes that the Veteran’s coronary artery disease is related to his period of active duty aboard the U.S.S. Kitty Hawk, and the claim of service connection for coronary artery disease is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric history, to include posttraumatic stress disorder, is remanded. 2. Entitlement to service connection for a skin disorder, including as secondary to Agent Orange exposure, is remanded. 3. Entitlement to service connection for a prostate disorder, including as secondary to Agent Orange exposure, is remanded. 4. Entitlement to service connection for a lumbar spine disorder is remanded. As noted in the June 2019 Memorandum Decision, the Court found that the Board erred by failing to ensure compliance with the directives in the May 2017 Board remand regarding the Veteran’s Texas National Guard records. The Court stated that a remand to the Board was warranted in order for VA to make additional efforts to obtain the Veteran’s Texas Army National Guard records and associate them with his claims file or, if they are unavailable, to notify him that they are unavailable. In this regard, the Board observes that, as noted by the Court, the record contains a May 2017 correspondence to the Texas State Adjutant General. However, despite a deferred rating that reflects that a follow-up request was deemed necessary, there is no indication that the RO made the follow-up request for the National Guard records or notified the Veteran of any unavailable records. As such, the Board finds that remand is required to ensure compliance with the Board’s directives in the May 2017 remand and the duty to assist under 38 U.S.C. § 5103A. Therefore, in order to ensure compliance with the directive in the May 2017 Board remand, the Veteran’s claims for service connection of a skin disorder, a prostate disorder, a lumbar spine disorder, and an acquired psychiatric disorder, to include PTSD, must be remanded to give the Veteran opportunity to provide authorization for the RO to obtain the Texas National Guard records. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). See also Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate). The matters are REMANDED for the following action: 1. The RO should attempt to obtain and associate with the file, any Texas Army National Guard records, including those from 1977 to 1981. 2. 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. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. After completing all indicated development, the RO should readjudicate the Veteran's claims for service connection. If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Brokowsky, 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.