Citation Nr: 20006596 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-51 737 DATE: January 27, 2020 REMANDED Entitlement to service connection for ischemic heart disease due to exposure to herbicides is remanded. Entitlement to service connection for hypertension due to exposure to herbicides or secondary to service-connected disabilities is remanded. Entitlement to service connection for dyslipidemia due to exposure to herbicides or secondary to service-connected disabilities is remanded. Entitlement to service connection for diabetes mellitus type II due to exposure to herbicides is remanded. Entitlement to service connection for transient ischemic attack, also claimed as a stroke, due to exposure to herbicides or secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a May 2019 Board hearing. A transcript of the hearing is of record. The Board notes that July 2019 the Secretary of Department of Veteran’s Affairs (Secretary) directed a stay on all adjudication of claims and appeals potentially affected by the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) effective until January 1, 2020. The Veteran’s claim was found to be potentially affected by the BWN Act. The Veteran was notified his appeal was placed on hold until January 1, 2020 in a December 2019 letter. As the stay is no longer in affect, the Board will proceed with adjudicating the Veteran’s claim. 1. Ischemic Heart Disease and Diabetes Mellitus Type II The Veteran contends that he is entitled to service connection for his ischemic heart disease and diabetes due to the presumption of certain disease due to exposure to an herbicide. 38 C.F.R. § 3.309(e). The evidence in the record indicates that the Veteran has current diagnoses of coronary artery disease and diabetes mellitus which are chronic diseases presumptively service connected under 38 C.F.R. § 3.309(e). The issue before the Board is whether the Veteran was exposed to herbicide agents during his service. The Veteran’s chief contention is that he is a “blue water” veteran and that he was exposed to herbicide agents while he was stationed on the USS Kitty Hawk. In a recent decision by Untied States Court of Appeals for the Federal Circuit (Federal Circuit), the Federal Circuit found that veterans that served on ships that operated in the territorial seas of the Republic of Vietnam (12 miles off the coast of Vietnam) had served in Vietnam for the purposes of 38 C.F.R. § 3.307. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Board notes that a January 2013 Personal Information Exchange System (PIES) report noted that the USS Kitty Hawk was in the “official waters of the Republic of Vietnam.” However, the Board finds that the distinction between “official waters” and “territorial waters” is ambiguous, and it is unclear whether the PIES report found specific evidence that the USS Kitty Hawk was within 12 miles of the Republic of Vietnam. Further, the Veteran testified in the May 2019 Board hearing that the deck logs indicate that the USS Kitty Hawk was within 12 miles of the Republic of Vietnam on December 18, 1970 and March 5, 1971. However, the evidence in the record does not contain the deck logs of the USS Kitty Hawk. Therefore, on remand, the AOJ should conduct any necessary development to verify the Veteran’s alleged herbicide exposure, to include whether the USS Kitty Hawk operated in the territorial seas of the Republic of Vietnam during the Veteran’s service aboard the ship. Specifically, the AOJ must address the Veteran’s statements that USS Kitty Hawk was within 12 miles of the Republic of Vietnam on December 18, 1970 and March 5, 1971. 2. Hypertension, Dyslipidemia, and Transient Ischemic Attack The Veteran contends that his hypertension, dyslipidemia, and transient ischemic attack are all related to his exposure to an herbicide or in the alternative secondary to his ischemic heart disease and/or diabetes mellitus. Initially, the Board finds that the issues of service connection for hypertension, dyslipidemia, and transient ischemic are inextricably intertwined with the results of the above remanded claims and development. Therefore, a remand is warranted. The Board notes that notes that hypertension, dyslipidemia, and transient ischemic attack are not on the list of presumptive chronic diseases as due to exposure to an herbicide.38 C.F.R. § 3.309(e). However, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Notably, the Veteran’s representative argued in the May 2019 Board hearing that in November 2018, the National Academies of Science, Engineering, and Medicine found enough evidence exists to link hypertension to Agent Orange exposure in Vietnam. Therefore, if upon development, evidence demonstrates that the Veteran was exposed to an herbicide due to the USS Kitty Hawk serving in the territorial waters of Vietnam, then the Veteran must be afforded VA examinations to determine whether exposure to an herbicide is etiologically related to the Veteran’s hypertension, dyslipidemia, and/or transient ischemic attack. Upon examination the examiner must also provide an opinion as to whether any hypertension, dyslipidemia, and/or transient ischemic attack were caused by or aggravated by the Veteran’s CAD and/or diabetes mellitus. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents. Specifically, whether he served aboard a ship that operated within 12 miles of the Republic of Vietnam. If more details are needed, contact the Veteran to request the information. If there is still 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. (a.) The finding must address the January 2013 PIES report that the USS Kitty Hawk was located in the official waters of Vietnam. (b.) The finding must address the Veteran’s May 2019 testimony that the deck logs from the USS Kitty Hawk indicates the ship was within 12 miles of the Republic of Vietnam on December 18, 1970 and March 5, 1971. 2. If, and only if, herbicide exposure is verified, then, obtain the following examinations: (a.) Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must opine: a. Whether the Veteran’s hypertension is at least as likely as not related to an in-service injury, event, or disease, including exposure to an herbicide. i. The examiner must discuss the Veteran’s representative’s argument that the National Academies of Science found enough evidence exists to link hypertension to Agent Orange in November 2018. b. Whether the Veteran’s hypertension is at least as likely as not (1) proximately due to the Veteran’s CAD and/or diabetes mellitus type II, or transient ischemic attack or dyslipidemia or (2) aggravated beyond its natural progression by his CAD and/or diabetes mellitus type II or transient ischemic attack or dyslipidemia. c. The examiner must provide a complete rationale for all opinions provided. (b.) Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any dyslipidemia. The examiner must opine: a. Whether the Veteran’s dyslipidemia has resulted in actual disease or disability (as contrasted with merely a laboratory finding) and if so, whether is at least as likely as not related to an in-service injury, event, or disease, including exposure to an herbicide. b. Whether the Veteran’s dyslipidemia is at least as likely as not (1) proximately due to the Veteran’s CAD and/or diabetes mellitus type II, or hypertension, transient ischemic attack or (2) aggravated beyond its natural progression by his CAD and/or diabetes mellitus type II or hypertension, or transient ischemic attack. c. The examiner must provide a complete rationale for all opinions provided. (c.) Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any transient ischemic attack. The examiner must opine: a. Whether the Veteran’s transient ischemic attack is at least as likely as not related to an in-service injury, event, or disease, including exposure to an herbicide. b. Whether the Veteran’s transient ischemic attack is at least as likely as not (1) proximately due to the Veteran’s CAD and/or diabetes mellitus type II, or hypertension or dyslipidemia or (2) aggravated beyond its natural progression by his CAD and/or diabetes mellitus type II or hypertension or dyslipidemia. (Continued on the next page)   c. The examiner must provide a complete rationale for all opinions provided. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.