Citation Nr: 20008080 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-04 702 DATE: January 30, 2020 REMANDED The claim of entitlement to service connection for type II diabetes mellitus, claimed as due to exposure to herbicide agents, is remanded. The claim of entitlement to service connection for prostate cancer, claimed as due to exposure to herbicide agents, is remanded. The claim of entitlement to service connection for a kidney condition, claimed as secondary to diabetes mellitus, is remanded REASONS FOR REMAND The Veteran served on active duty from June 1958 to December 1976. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2016 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO denied the Veteran’s claims for service connection for, inter alia, type II diabetes mellitus, prostate cancer, and a kidney condition. The Veteran timely disagreed with, and perfected an appeal as to, each denial. In April 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO in San Diego, California; a copy of the transcript of that hearing has been associated with the claims file. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board notes that on July 1, 2019, the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases that may be affected by the Blue Water Navy Vietnam Veterans Act of 2019, until the effective date of the Act, January 1, 2020. Specifically, the Act creates new statutory requirements for the adjudications of certain claims based on herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975; in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971; and in Thailand during the period from January 9, 1962, to May 7, 1975. In October 2019, this appeal was stayed. As the stay has now been lifted, the Board may proceed with adjudication of the claims on appeal. In the instant case, the Veteran is seeking service connection for diabetes mellitus and prostate cancer, which he believes may be related to his exposure to Agent Orange while serving aboard the USS Los Angeles and/or the USS Ozbourn during the Vietnam War. The Veteran is also seeking service connection for a kidney condition, which he believes is related to his diabetes mellitus. In this regard, the Board notes that the law provides that there are certain diseases, to include type II diabetes mellitus and prostate cancer, that are associated with exposure to “herbicide agents” during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for certain veteran presumed exposed herbicides, to include Agent Orange, who develop an identified disease recognized by VA’s Secretary as etiologically related to such exposure. For Vietnam veterans, the last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam Era, which is the period beginning on January 9, 1962, and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore. See 38 C.F.R. § 3.307(a)(6)(iii). The Board acknowledges that VA policy previously expressly excluded those veterans who had served in the “blue waters” off the coast of the Republic of Vietnam, to include those who had anchored in Cam Ranh Bay, Vung Tau Harbor, and Da Nang Harbor, but had not set foot on the land mass of Vietnam, from benefitting from the presumption of herbicide exposure. However, in Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims (Court) held that this manner in which VA defined inland waterways was (1) inconsistent with the regulatory purpose of providing compensation to veterans based on the likelihood of exposure to herbicides and (2) irrational because it was an arbitrary exercise in line-drawing. More recently, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008). In doing so, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.” Id. at 1380-81 As noted above, subsequently, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019, which codified the Procopio holding and extends the presumption of herbicide exposure to those veterans who served in the territorial sea of the “Republic of Vietnam,” as defined in 38 U.S.C. § 1116A. Notably, the Procopio decision did not address the evidence necessary to support a finding of “service in the Republic of Vietnam” based on presence within the 12 nautical mile territorial sea of that nation. VA’s Office of General Counsel (OGC), however, has issued an advisory opinion indicating the determination is one to be made on consideration of all procurable and assembled data. Whether an appeal may be adjudicated or requires remand for further development is a matter of judicial discretion based on the evidence of record. VAOPGCPREC 1-2019. Here, the Veteran’s service personnel records reflect that he served aboard the USS Ozbourn. Further, the list of “Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents” indicates that the USS Ozbourn conducted fire support missions on Saigon River during the periods from October to November 1965 and from August to October 1966. Although it does not appear as though the Veteran was stationed aboard the USS Ozbourn during these timeframes, service personnel records do show that the Veteran was aboard the USS Ozbourn in 1965, shortly before that ship was noted to have operated on Vietnam’s inland waterways. Thus, the Board finds it necessary to remand the Veteran’s claims for service connection for a determination as to whether the USS Ozbourn was in the 12 nautical mile area of Vietnam at any time while the Veteran was aboard the ship. Similar development should also be undertaken for the USS Los Angeles so as to ensure that adjudication of the Veteran’s claims is a fully informed one. Regarding the Veteran’s claim for service connection for a kidney condition, the Veteran has claimed that that disability is secondary to his diabetes mellitus. As a favorable disposition of the diabetes mellitus claim could well impact the secondary service connection claim, these claims are inextricably intertwined with the diabetes mellitus claim, and all the claims should be adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Hence, the claim for service connection for a kidney condition is being remanded, as well. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the agency of original jurisdiction (AOJ) should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly regarding any private (non-VA) treatment), explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his agent a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to any claim(s) n appeal that is not currently of record, to include any outstanding, pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Pursuant to the decision in Procopio v. Wilkie and OGC Advisory Opinion 1-19, complete all necessary development to determine whether the USS Ozbourn was within the 12 nautical mile territorial sea of the Republic of Vietnam at any time while the Veteran was serving aboard that ship. As the Veteran has also alleged that he served aboard the USS Los Angeles off the coast of Vietnam, development should be undertaken to determine whether that ship was within the 12 nautical mile territorial sea of the Republic of Vietnam at any time while the Veteran was serving aboard. 4. To help avoid future remand, ensure that all requested 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, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development warranted, adjudicate the claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.