Citation Nr: 20004718 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-38 520 DATE: January 21, 2020 REMANDED Entitlement to service connection for residuals of thyroid cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from July 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. 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 Act), until the effective date of the Act, January 1, 2020. The Act creates 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, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. This case was subject to the stay. As the stay has since been lifted, adjudication of this case may resume. 1. Entitlement to service connection for residuals of thyroid cancer is remanded. Remand is required for additional development concerning claimed in-service exposures as they relate to the Veteran’s thyroid cancer. Exposure to Herbicide Agents The Veteran contends his thyroid cancer is service-related based on exposure to herbicide agents during the Vietnam era. The evidence does not suggest that he set foot on the Republic of Vietnam landmass. Veterans who during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish the contrary. 38 U.S.C. § 1116A(b). Recently, the U.S. Court of Appeals for the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ “are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. 38 U.S.C. § 1116A(d); see Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Veteran’s service records confirm his presence aboard the USS Ticonderoga (CV-14) and USS Shangri-La (CVS-38) but the record needs additional development regarding whether the ships operated in the 12-nautical-mile territorial sea of the Republic of Vietnam while the Veteran was serving aboard. See Procopio, 913 F.3d at 1380. Remand for this development is warranted. Exposure to Radiation The Veteran also contends he was exposed to radiation via handling weapons and missiles and by working on electronics and missile systems aboard the USS Ticonderoga and USS Shangri-La. See November 2019 Board Hr’g Tr. 10. Veterans benefits law differentiates between ionizing and non-ionizing radiation. The type of radiation exposure from working on electronics and missile systems aboard a naval ship would be considered non-ionizing. See Rucker v. Brown, 10 Vet. App. 67 (1997). The allegation of exposure to radiation from handling weapons and missiles, on the other hand, could potentially relate to ionizing radiation. 38 C.F.R. § 3.309(d) provides presumptive service connection for certain enumerated diseases due to exposure to ionizing radiation. To qualify for the presumptive effects of this regulation, a veteran must be diagnosed with one of its enumerated diseases – thyroid cancer is such a disease – and be considered a “radiation-exposed veteran.” A “radiation-exposed veteran” is defined as one who participated in a “radiation-risk activity.” The six types of radiation-risk activities are set forth in § 3.309(d)(3)(ii)(A)-(E). The Veteran’s history and allegations do not suggest any of them are applicable to his claim. Thus, he is not considered a “radiation-exposed veteran” within the meaning of § 3.309(d) and he cannot qualify for presumptive service connection. Nonetheless, 38 C.F.R. § 3.311 provides special developmental procedures for determining whether a particular claimed disease may be related to exposure to ionizing radiation. To this end, the Board notes that the Veteran’s thyroid cancer is an enumerated “radiogenic disease” under § 3.311. The thyroid cancer manifested 5 or more years after the alleged exposure to radiation. See 38 C.F.R. § 3.311(b)(5). Accordingly, the RO should request all available records regarding radiation exposure and then request a dose estimate from the Under Secretary for Health. 38 C.F.R. § 3.311(a)(1), (a)(2)(iii). The matters are REMANDED for the following actions: 1. Conduct the necessary development to determine whether the Veteran entered the 12-nautical mile territorial sea of Vietnam while serving aboard the USS Ticonderoga or the USS Shangri-La to include review based on deck logs, ship logs, or any other documents detailing the movements and operations of the vessels. If there remains insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure. 2. If it is determined that the Veteran was indeed exposed to herbicide agents based on the location of the identified vessels, conduct any appropriate development, to include obtaining a VA examination or opinion on causal nexus. 3. Develop the appeal for the Veteran’s claimed radiation exposure. This should include requesting all available records regarding radiation exposure and requesting a dose estimate from the Under Secretary for Health. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mike A. Sobiecki, 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.