Citation Nr: 20005652 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 13-08 997 DATE: January 23, 2020 REMANDED Entitlement to service connection for the Veteran’s cause of death. REASONS FOR REMAND The Veteran had active service with the Navy from May 1966 to February 1970, with subsequent service with the Naval Reserve. The Veteran died in February 2011. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 administrative decision from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon, which denied entitlement to service connection for the Veteran’s cause of death. Jurisdiction was subsequently transferred to the VA Regional Office in St. Paul, Minneapolis (RO). In a February 2017 videoconference hearing, the Appellant and her son testified before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. The Board remanded the appeal in August 2017 for additional record development. Unfortunately, the Board finds that the RO did not substantially comply with the August 2017 remand directives and another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for the Veteran's cause of death is remanded. The Appellant contends that the Veteran’s coronary artery disease, a condition that contributed to the Veteran’s death, was caused by exposure to herbicide agents during his active service with the Navy aboard the U.S.S. Hornet, specifically while on special operations with the HS-2 Squadron and the HA(L)-3 Squadron, known as the “Seawolves”. A veteran who had active duty service in the Republic of Vietnam beginning on January 9, 1962 and ending on May 7, 1975 (the “Vietnam Era”), shall be 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. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii), (v). The Veteran’s DD Form 214 confirms the Veteran’s service during the Vietnam Era and shows he was awarded the Vietnam Service Medal and Republic of Vietnam Campaign Medal with Device. The Veteran’s military occupation specialty is listed as an Aircraft Mechanic, and military personnel records of record show the Veteran had qualified as a plane captain for the A1/T-28 type aircraft and that he was assigned to the HS-2 Squadron, a helicopter squadron, during his active service. Within the August 2017 Board remand, the RO was directed to send an inquiry to all appropriate sources, including the Joint Services Records Research Center (JSRRC), to verify claimed exposure to herbicide agents during the Veteran’s active service in Vietnam while serving with the HS-2 Squadron, and/or the HA(L)-3 Squadron. On remand, the RO conducted an independent investigation into the HA(L)-3 Squadron which showed that the documents remained classified. Additionally, the RO associated U.S.S. Hornet deck logs for the months of October 1968 through December 1968, which did not show the Veteran had entered inland water ways or the shore of the Republic of Vietnam. The RO indicated that October 1968 through December 1968 constituted the period of time in which the Veteran was stationed aboard the U.S.S. Hornet. The RO concluded in a September 2018 memorandum that the VA lacked the information the U.S. Army and JSRRC requires to verify herbicide exposure in the Republic of Vietnam. The Board, however, disagrees with the RO’s determination and finds that substantial compliance with prior remand directives was not obtained. Stegall, 11 Vet. App. 268. A search of the military personnel records show that the Veteran served on board the U.S.S. Hornet and embarked with HS-2 on operations in the Vietnam area for continuous sea service from October 1968 to October 1969. An additional entry shows the Veteran served with HS-2 in the U.S. Seventh Fleet in support of combat operations in Southeast Asia from October 1968 to May 1969, in which he was awarded to Meritorious Unit Commendation Ribbon. The Board finds inadequate the RO’s search of the U.S.S Hornet deck logs for the months of October, November and December 1968, only, and finds inadequate the RO’s failure to request a JSRRC search given this information of record. Therefore, the Board finds that remand is necessary to obtain U.S.S. Hornet deck logs for the period of October 1968 through May 1969 and to request a JSRRC search of the Veteran’s service with the HS-2 while aboard the U.S.S. Hornet in Southeast Asia during the same time period to verify any potential exposure to herbicide agents. See 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2018). Under 38 U.S.C. § 1116, “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) (2018). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam, however, the Federal Circuit recently held in Procopio v. Wilkie 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, as long as they meet the section’s other requirements. Procopio, 913 F.3d at 1380-81. As indicated above, military personnel records show the Veteran was stationed aboard the U.S.S. Hornet from October 1968 to October 1969. Per the recent precedent set forth in Procopio, the Board finds that remand is necessary to determine whether the location of the U.S.S. Hornet from October 1968 to October 1969 was within 12 nautical miles of the Republic of Vietnam. See also 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2018). If a veteran was exposed to an herbicide agent during active service, certain diseases, including coronary artery disease, shall be presumed service connected if the certain requirements are satisfied, subject to rebuttal. 38 U.S.C. §§ 1113, 1116 (2012); 38 C.F.R. § 3.307 (a), (d), 3.309(e) (2018). If based on the above requested development, the RO finds that the Veteran was presumptively exposed to an herbicide agent due to his service with the HS-2 or while aboard the U.S.S. Hornet, the RO should order a VA medical opinion to determine whether the Veteran’s diagnosed coronary artery disease, listed as a significant condition contributing to death, contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See Lathan v. Brown, 7 Vet. App. 359 (1995) (In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death.); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (under 38 U.S.C.§ 5103A, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim). (Please note that this case has been advanced on the Board’s docket). The matter is REMANDED for the following action: 1. Obtain and associate with the record all VA treatment records, to include records located at the Portland VA Medical Center, the Southern Oregon Rehabilitation Center and Clinics (SORCC), and the Grants Pass West VA Community Based Outpatient Clinic. 2. The AOJ should send an inquiry to all appropriate sources to verify the location of the U.S.S. Hornet from October 1968 to October 1969 to determine whether the vessel was within 12 nautical miles of the Republic of Vietnam during this time period. 3. The AOJ should send an inquiry to all appropriate sources to verify the Veteran’s claimed exposure to herbicide agents during his active service Vietnam. Specifically, the AOJ should send a request to the JSRRC for verification as to whether the Veteran was potentially exposed to herbicide agents during his period of service with the HS-2 Squadron while stationed in Southeast Asia (either with the U.S. Seventh Fleet and/or aboard the U.S.S. Hornet) from October 1968 to October 1969. Research should also include deck logs of the U.S.S. Hornet from October 1968 to October 1969, which should be associated with the record. The AOJ should make all available efforts to obtain such records, and all such attempts should be reflected in a written memorandum included in the claims file. The non-existence or unavailability of such records must be verified and this should be documented by a memorandum in the record to that effect. 4. If, based on the above development, the AOJ can confirm that Veteran was presumptively exposed to an herbicide agent due to his service with the HS-2 or while aboard the U.S.S. Hornet, the RO should order a VA medical opinion to determine whether the Veteran’s diagnosed coronary artery disease, listed as a significant condition contributing to death in the February 2011 certificate of death, contributed substantially or materially to cause death, or aided or lent assistance to the production of death. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 5. The AOJ must ensure that the required actions have been accomplished to the extent possible in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. (Continued on the next page)   6. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek, 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.