Citation Nr: 20006337 Decision Date: 01/27/20 Archive Date: 01/24/20 DOCKET NO. 19-07 535 DATE: January 27, 2020 ORDER Service connection for multiple myeloma, due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran died in July 2018. 2. At the time of the Veteran’s death, he had a pending claim of service connection for multiple myeloma. 3. The competent and credible evidence of record tends to show that the Veteran served in the 12-nautical-mile territorial sea of the Republic of Vietnam. 4. The Veteran is presumed to have been exposed to herbicide agents, such as Agent Orange, during his service offshore Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for multiple myeloma due to herbicide agent exposure are met. 38 U.S.C. §§ 1110, 1111, 1113, 1116, 1116A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty April 1965 to April 1967, including aboard the USS Pictor (AF-54). This case is before the Board of Veterans’ Appeals (Board) on appeal from July 2017 and September 2019 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in July 2018, and VA received a request for substitution later that month, see 07/19/2018, VA 21-0847, and that request was granted as indicated in a December 2018 letter that indicated VA was continuing to work on the appeal because the appellant is the substitute claimant. The Veteran contended that his multiple myeloma was the result of herbicide agent exposure while aboard the USS Pictor. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation, while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA will presume the diseases listed in 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e) are related to service if they become manifest to a degree of 10 percent or more at any time after service and the herbicide agent exposure was during active service in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). Multiple myeloma is listed in 38 U.S.C. § 1116(a)(2)(G) and 38 C.F.R. § 3.309(e). Under Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) and the Blue Water Navy Vietnam Veterans Act of 2019, 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. See 38 U.S.C. § 1116A. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record demonstrates that the criteria for service connection for multiple myeloma due to herbicide agent exposure are met. The record contains a competent diagnosis of multiple myeloma. 04/14/2017, C&P Exam. The Veteran’s military personnel records demonstrate that he served aboard the USS Pictor from April 1965 to April 1967. 11/28/2016, DD 214. The evidence shows the Veteran was within the 12-nautical-mile territorial sea of the Republic of Vietnam between August and October 1965. The Veteran’s service personnel records reflect that he was eligible to wear the Vietnam Service Medal for service aboard the USS Pictor in direct support of combat forces in the Vietnam area of operations for one or more periods of time between August and October 1965. The Joint Services Records Research Center (JSRRC) reported the USS Pictor provided support to other ships in the coastal waters of Vietnam on September 1965, April 1966, and December 1966. 06/21/2017, DPRIS Response. JSRRC did not find a record that USS Pictor docked in Vietnam, but during that time, the USS Pictor was anchored in the following Vietnamese harbors: Da Nang Harbor, Chu Lai, Qui Nhon Harbor, An Thoi, Vung Tau, and Cam Ranh Bay. Significantly, VA’s rule indicating that Da Nang Harbor was not in the waters offshore Vietnam was found to be “inconsistent with the regulatory purpose and irrational” and therefore “unworthy of deference.” Gray v. McDonald, 27 Vet. App. 313 (2015). In Gray, the Veteran argued that the Court should adopt the definition of inland waterways espoused in the U.N. Convention on the Territorial and Contiguous Zone,” and the Court implied that this would establish that Da Nang harbor was in the waters offshore Vietnam. Id. at 326. The Federal Circuit adopted this definition in Procopio and Procopio is codified in 38 U.S.C. § 1116A. See VAOPGCPREC 3-2019, at 2 (Dec. 13, 2019) (“The BWN Act codified the Procopio holding”). Thus, these harbors are encompassed within the area delineated in 38 U.S.C. § 1116A(d). The Veteran, accordingly, is presumed to have been exposed to herbicide agents during service. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. § 3.307(a)(6)(iii). A private oncologist provided the opinion in September 2017 that he believed the Veteran’s multiple myeloma was directly due to Agent Orange herbicide exposure while serving in the military. The oncologist did not provide any reasoning for his opinion; however, the laws and regulations provide that if a veteran has multiple myeloma and was exposed to herbicide agents, service connection is presumed. 38 U.S.C. § 1116(a)(1),(a)(2)(G); 38 C.F.R. §§ 3.307(a), 3.309(e). As the Veteran has been diagnosed with multiple myeloma and is presumed exposed to herbicide agents because he served offshore Vietnam as that term is defined in the applicable law, service connection for multiple myeloma due to herbicide agents is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.