Citation Nr: 20006658 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 15-26 075 DATE: January 27, 2020 ORDER Entitlement to service connection for respiratory cancer to include as due to herbicide agent exposure is granted. FINDING OF FACT The Veteran served on a Naval vessel when it operated within 12 nautical miles of the coast of the Republic of Vietnam, is therefore presumed to have been exposed to herbicide agents, and his exposure is presumed to be the cause of his respiratory cancer. CONCLUSION OF LAW The criteria for service connection for respiratory cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from June 1964 to August 1967. The Veteran passed away on May 7, 2017. The Appellant is the Veteran’s surviving spouse. In an October 2017 correspondence, VA informed her that she had been substituted for the Veteran in the claims pending at the time of his death. Entitlement to service connection for respiratory cancer to include as due to herbicide agent exposure Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” – also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6). The Federal Circuit Court has held that the term “in the Republic of Vietnam” includes service on the landmass, inland waterways, and the territorial sea extending 12 nautical miles from the shores of the nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Certain diseases, including respiratory cancer, will be presumed service-connected if a veteran was exposed to herbicide agents in service, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the evidence, the Board finds the criteria for service connection for respiratory cancer have been met. 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). First, the evidence shows the Veteran had lung cancer prior to his death. See May 2015 VA examination. Thus, the first element of service connection has been met. See Holton, 557 F.3d at 1366. Next, the evidence shows the Veteran served on a Naval vessel that operated within 12 nautical miles of the coast of the Republic of Vietnam. The Veteran’s service personnel records show he served aboard the U.S.S. Earnest G. Small from April 1965 to June 1967. Deck logs from the U.S.S. Earnest G. Small show that during a time when the Veteran was aboard ship, the ship traveled into the territorial waters of Vietnam. See Deck logs dated May 10, 1966 (noted sailing off the coast of South Vietnam). Further, at the January 2019 hearing, the Appellant testified that the Veteran stated his ship was sailing through the deltas of Southern Vietnam. Thus, affording the Veteran the benefit of the doubt, the Veteran was aboard the U.S.S. Earnest G. Small when it was within 12 nautical miles of the coast of Vietnam. Caselaw indicates that service in such an area constitutes service in the Republic of Vietnam such that exposure to herbicide agents is presumed. See Procopio, 913 F.3d at 1371; 38 C.F.R. §§ 3.307(a)(6). The second element, in-service incurrence, has been satisfied. See Holton, 557 F.3d at 1366. (Continued on the next page)   Finally, respiratory cancer is a disease presumed to be caused by service when a veteran served in the Republic of Vietnam during the presumptive periods when herbicide agents were used. 38 C.F.R. § 3.309(e). The Veteran’s respiratory cancer is presumed to be related to exposure to herbicide agents, and the third element of service connection is satisfied. See Holton, 557 F.3d at 1366. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.