Citation Nr: 20005577 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 18-27 131 DATE: January 23, 2020 REMANDED Entitlement to service connection for chronic lymphocytic leukemia, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for skin cancer to include basal cell carcinoma and squamous cell carcinoma, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1962 to June 1966. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript is of record. 1. Entitlement to service connection for chronic lymphocytic leukemia is remanded. The Veteran seeks service connection for chronic lymphocytic leukemia. He asserts that he was exposed to herbicide agents while serving aboard aircraft carriers. The record shows that the Veteran served with the Carrier Airborne Early Warning Squadron Thirteen from April 1965 to February 1966, with assignments aboard the U.S.S. Independence, the U.S.S. Coral Sea, the U.S.S. Midway, and the U.S.S. Oriskany. The Veteran has also reported that in 1965 he spent a night at a hotel in DaNang during a mission to work on an aircraft at the DaNang Air Force Base. Additional information is needed before the Board can make a fully informed decision. Chronic lymphocytic leukemia is recognized by VA as a disease for which presumptive service connection is available as due to herbicide exposure. 38 C.F.R. § 3.309 (e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. VA had historically interpreted the statutory phrase “served in the Republic of Vietnam” as incorporating a requirement that the Veteran served on land or inland waterways. Recently, however, in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), 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. There is insufficient evidence of record to determine whether, at any point during his service aboard the U.S.S. Independence, the U.S.S. Coral Sea, the U.S.S. Midway, and/or the U.S.S. Oriskany in 1965-66, the Veteran is considered to have had qualifying service in the country of Vietnam, pursuant to 3.307(a)(6)(iv); Procopio, 913 F.3d at 1380-81. Accordingly, on remand, the RO should conduct appropriate development (such as obtaining deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Independence, the U.S.S. Coral Sea, the U.S.S. Midway, and the U.S.S. Oriskany during the Veteran’s service period) to determine whether the Veteran is considered to have served in the Republic of Vietnam, such that herbicide agent exposure can be presumed. Additionally, RO should conduct appropriate development to determine whether the Veteran spent a night in DaNang during a mission in 1965. 2. Entitlement to service connection for skin cancer to include basal cell carcinoma and squamous cell carcinoma is remanded. The Veteran seeks service connection for skin cancers. The record indicates that he has been treated for basal cell carcinoma and squamous cell carcinoma. He contends that his skin cancers are associated with his exposure to herbicide agents in the Republic of Vietnam. As noted above, the case is being remanded to attempt to determine whether the Veteran had exposure to herbicide agents in service. The Veteran’s skin cancers are not listed in § 3.309(e) as disabilities for which presumptive service connection based on exposure to herbicide agents is available. Nonetheless, service connection must still be considered on a direct basis. Should the requested development establish that the Veteran was exposed to herbicides, the Veteran should be provided with a VA examination with an opinion addressing the relationship if any between his skin cancers and his in-service herbicide agent exposure. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. See 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Take appropriate steps to attempt determine whether, at any point during the Veteran’s service aboard the U.S.S. Independence, the U.S.S. Coral Sea, the U.S.S. Midway, and the U.S.S. Oriskany from April 1965 to February 1966, any such vessel was in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ based on deck logs, ship logs, or any other documents detailing the movements and operations of the vessels. 2. The RO should also attempt to verify whether the Veteran spent a night in DaNang during a mission to DaNang AFB in 1965. If more details are needed, contact the Veteran to request the information. 3. After the aforementioned development has been completed, issue a formal finding outlining the steps taken to verify herbicide agent exposure based on qualifying service in the Republic of Vietnam and also notify the Veteran prior to readjudication of the appeal. 4. If the above development establishes that the Veteran has herbicide agent exposure based on qualifying service in the Republic of Vietnam, schedule the Veteran for an appropriate VA examination to determine the etiology of his skin cancers, to include basal cell carcinoma and squamous cell carcinoma. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner. The examiner is asked to provide an opinion as to whether the Veteran’s basal cell carcinomas and/or squamous cell carcinomas are at least as likely as not (a 50 percent probability or greater) incurred in, or otherwise related to, his active service, to include exposure to herbicide agents. A complete rationale must be provided. The examiner is advised that a negative opinion as to a relationship between the skin disease and herbicide agent exposure cannot solely be based on exclusion of the disease from the presumptive list in 38 C.F.R. § 3.309 (e). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.