Citation Nr: 20006819 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 14-38 966 DATE: January 28, 2020 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC), on the basis of entitlement to service connection for the cause of the Veteran’s death, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1961 to January 1965. The Veteran died in July 2010. The appellant is the Veteran’s widow. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). In November 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In July 2018, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a supplemental medical opinion. The Board notes that the requested opinion was obtained in May 2019 and has been associated with the claims file. In an October 2019 letter, the Board notified the appellant that the claim on appeal was subject to a temporary stay until after the enactment of the Blue Water Navy Vietnam Veterans Act of 2019 (the Act). The stay has since been lifted. DIC The appellant seeks entitlement to service connection for the cause of the Veteran’s death. Specifically, the appellant asserts that the Veteran was exposed to herbicides while serving aboard ships that may have come in close proximity to the Republic of Vietnam. Alternatively, the appellant asserts that the Veteran was exposed to toxins from exposure to oil, fuel and refrigerant gas such as freon, mercury, lead, hexavalent chromium, cadmium and other heavy metals while working below deck as a Machinist’s Mate. See November 2017 Board Hearing Transcript and September 2018 Letter From Veteran’s Son. A review of the July 2010 death certificate shows the causes of death included cardio-respiratory arrest, sepsis, immuno suppression, multiple myeloma and amyloidosis. Initially, regarding service connection due to herbicide exposure, VA laws and regulations provide that if a veteran was exposed to herbicides during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), 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. The Board notes that multiple myeloma and amyloidosis are included in the list of diseases covered by the regulation. 38 C.F.R. § 3.309(e). A review of the Veteran’s military personnel records show he served aboard the USS Corry, USS Abbot and USS Borie between July 1961 and July 1964. During the November 2017 Board hearing, the appellant stated that the Veteran had a mission to the coast of Vietnam. Upon review, the Board finds that a remand is required to attempt to verify whether the Veteran’s service aboard any of the above mentioned ships placed him within 12 nautical miles of the Republic of Vietnam between January 9, 1962, and May 7, 1975. Additionally, as noted above, the Board remanded this case in July 2018 to obtain a supplemental medical opinion which was obtained in May 2019. In this regard, the Board noted that an April 2018 VA examination report was incomplete as the examiner only considered whether the Veteran’s multiple myeloma was etiologically related to in-service environmental exposures, and did not provide an opinion with regard to the development of amyloidosis. The Veteran’s son submitted a letter in September 2018 stating that it was “more likely than not” that toxins the Veteran was exposed to during service caused the onset of his multiple myeloma with amyloidosis, including exposure to asbestos, benzene and trichloroethene. The son noted having a Bachelor of Science degree in Chemistry and a Master of Science degree in Environmental Science. Other toxins the Veteran was assertedly exposed to included mercury, lead, hexavalent chromium, cadmium and other heavy metals which were noted present in the construction of boilers, cooling units and piping. The letter also noted that vinyl chloride, carbon tetrachloride and cis and trans-dichloroethane were widely used in cleaning solvents at that time. The son further noted that the Veteran served in the Pacific on a destroyer and there was a question as to whether he was in the waters containing herbicides. Also, during the November 2017 Board Hearing, the appellant cited an Australian study linking herbicide exposure on Naval ships via contaminated water and stated that VA should look at whether the Veteran’s ship had a mission to the coast of Vietnam. It appears the appellant is referring to a report from the National Research Centre for Environmental Toxicology (ENTOX), which was prepared for the Department of Veteran Affairs, Australia, titled “Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water.” Thereafter, a May 2019 VA examiner found that the asserted in-service toxin exposures were credible. In this regard, the examiner noted that multiple myeloma had been etiologically associated with benzene, fuel exhausts, pesticides, ionizing radiation and other toxic chemicals. Specifically, with regard to benzene, the examiner noted medical studies showing a strong association with the development of myeloma. However, the examiner simply stated that benzene was not used on Naval ships because it was highly flammable. Therefore, a negative etiological opinion was provided. The Veteran’s son submitted another letter in July 2019 rebutting the findings of the VA examiner; specifically, the finding that benzene was not used on Naval ships. In this regard, the son noted that benzene was a prominent chemical found in crude oil which was used to make petroleum products and fueling oils. The son also noted that the Veteran served on a Destroyer which utilized Navy Special Fuel Oil (NSFO) to heat boilers and generate steam which was a blend of a number of fuel oils. Additionally, the son asserted that benzene was a component of solvents, degreasers and lubrication products routinely used to clean and lubricate various machinery and weaponry present on Destroyers at that time. In this regard, the Veteran’s MOS was noted as maintenance serviceman which would have put him in direct contact with benzene. As the issue under consideration poses a medical question of complexity, an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 38 U.S.C. § 5109. The matter is REMANDED for the following action: 1. Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam in light of the Federal Circuit’s recent holding in Procopio. Such action may include obtaining and reviewing the deck logs of the USS Corry, USS Abbot and USS Borie in order to ascertain its whereabouts while the Veteran served aboard the ship, conducting a further inquiry with the JSRRC, and any other development deemed appropriate. Any development on remand should address whether the USS Corry, USS Abbot or USS Borie served within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed on those ships. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each contacted entity should be associated with the claims file. If the requested records are unavailable, issue a formal finding of unavailability and notify the appellant and allow her the opportunity to submit any records in his possession. 2. If after conducting the above development it is determined that service connection on a presumptive basis is not warranted, then obtain an expert opinion from a qualified expert pursuant to 38 U.S.C. § 5109 that addresses the following: a. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran was exposed to oil, fuel, benzene, asbestos, trichloroethene, refrigerant gas such as freon, mercury, lead, hexavalent chromium, cadmium and other heavy metals, vinyl chloride, carbon tetrachloride and cis and trans-dichloroethane from his duties as a maintenance serviceman aboard the USS Corry, USS Abbot and USS Borie. b. If the answer to (a) is yes, whether it is at least as likely as not (i.e., at least a 50 percent probability) that the medical conditions listed on the Veteran’s death certificate, including multiple myeloma and amyloidosis, were etiologically associated with in-service environmental exposure to oil, fuel, benzene, asbestos, trichloroethene, refrigerant gas such as freon, mercury, lead, hexavalent chromium, cadmium and other heavy metals, vinyl chloride, carbon tetrachloride and cis and trans-dichloroethane. Please explain why or why not. (Continued on the next page)   The expert should specifically discuss the Veteran’s son’s September 2018 and July 2019 letters noting exposure to the above-mentioned toxins due to exposure to fuels, cleaning solvents and degreasers. The expert should further discuss the cited Australian study titled, “Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water.” Finally, the expert should discuss any other toxins the Veteran was more likely than not exposed to during service as a result of his MOS. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.