Citation Nr: 20008337 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-12 371 DATE: January 31, 2020 REMANDED Entitlement to service connection for skin cancer on hands, face, and neck is remanded. Entitlement to service connection for asthma, to include as secondary to asbestos exposure, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1962 through August 1966. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In pertinent part, this rating decision confirmed and continued the previous denial (November 2015 rating decision) of service connection for diabetes mellitus, type II, hypertension, and asthma. Service connection claim for skin cancer of the hands, face, and neck, and reopening of service connection claims for asthma, hypertension, and diabetes mellitus, type II, were denied in an April 2018 Board decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a joint motion for remand (JMR) granted by the CAVC in July 2019, the Board’s April 2018 decision was vacated and the appeal was remanded for providing an adequate statement of reasons or bases for finding whether the September 2016 notice of disagreement (NOD) was a valid NOD with the November 2015 rating decision, and also with regards to determining whether the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam in light of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). Initially, the Board notes that a November 2015 rating decision, which denied service connection for diabetes mellitus, type II, and denied reopening service connection claims for hypertension and asthma, became final, but concludes that new and material evidence to reopen the previously denied service connection claims is not required here. Procedural History Concerning the Validity of the NOD Before proceeding to discuss the reason as to why new and material evidence to reopen the claims is not required in this case, the Board finds it necessary to address certain procedural aspects raised by the JMR. In summary, the Board concludes that the Notice of Agreement (NOD) received in September 2016 pertains to the November 2016 rating decision (as opposed to the November 2015 rating decision) and that none of the forms filed by the Veteran can be considered valid NOD. Essentially, even though RO sent the Notice of Disagreement (NOD) form (VA Form 21-0958), along with a copy of the November 2015 rating decision, to the Veteran in November 2015, informing that he needs to return that attached form if he disagreed with the November 2015 rating decision. However, the Veteran instead filed—although timely (as it was within a year of the November 2015 rating decision)—a “request for reconsideration” on the VA Form 21-4138 (Statement in Support of Claim) in April 2016. This is not a valid NOD. There is no provision for “reconsideration” of RO rating decisions, and the RO properly responded to the Veteran and informed him if he wished to file claims, he had to do so using VA’s standardized claims form. Thereafter, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking to reopen his claims. However, this too, is not a proper NOD, as this was not on the proper VA form 21-0958, which the Veteran was provided with and was advised to file. With regards to the NOD form submitted by the Veteran in September 2016, the Board concludes that it pertains not to the November 2015 rating decision, but to September 2016 rating decision, which confirmed and continued the previous denial of his service connection claims. Even acknowledging the point raised by the JMR that the notification/decision letter date being appealed written in the September 2016 NOD form (“September 19, 2016”) coincides with the date that the Veteran signed that September 2016 NOD form (September 19, 2016)—implicitly suggesting that this date (“September 19, 2016”) should not be deemed a conclusive evidence in the Board’s determining that this NOD pertains to the September 2016 rating decision—the Board underlines the following in still concluding that the September 2016 NOD relates to September 2016 rating decision. Notably, while the Veteran indicated in the September 2016 NOD that he wanted to “reopen skin cancer, diabetes, hypertension, and asthma,” the November 2015 rating decision addressed only the claims for service connection for skin condition, diabetes mellitus, hypertension, and asthma.” In fact, it was the September 2016 rating decision that addressed the claims for service connection for skin cancer on hands, neck, face, and head.” In this case, skin condition and skin cancer claims are two entirely distinct and separate claims. Therefore, the Board finds that the September 2016 NOD appealed the November 2016 rating decision; and since a valid NOD was not received within a year of the November 2015 rating decision, that rating decision became final. Regardless of the finding above, new and material evidence to reopen the previously denied service connection claims is not required here for the following reasons. Generally, new and material evidence is required to reopen a previous, final denial of entitlement to service connection. However, when a liberalizing law or regulation creates a new basis for establishing entitlement to benefits, a claim for service connection that asserts the new theory of entitlement is considered a new claim that is legally and factually distinct from the former claim, even if the claimed disease or injury is the same. Under such circumstances, de novo review of the previously and finally denied claim is warranted. See Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994). Under 38 U.S.C. § 1116, a veteran who “served in the Republic of Vietnam” during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases, to include diabetes mellitus type II. See 38 C.F.R. § 3.309(e). VA historically interpreted the statutory phrase “served in the Republic of Vietnam” as incorporating a requirement that the veteran served on land or inland waterways. See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir, 2008). However, in January 2019, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the phrase “in the Republic of Vietnam” included the 12 nautical mile territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Thus, the presumption of exposure to herbicide agents now extends to veterans who served within that area. Here, the Veteran had previously asserted Agent Orange exposure as the etiology of his conditions. Therefore, the change in law was liberalizing in its effect to his case and is relevant to the present case, so reopening is not required. The available evidence establishes that the Veteran served aboard the U.S.S. Piedmont from November 16, 1964 to August 30, 1966. However, his personnel records also include a March 1970 correspondence letter, which states that the U.S.S. Piedmont did “not operate in the Vietnam area any time during the time he was aboard.” Nevertheless, it is unclear as to whether the “Vietnam area” indicated in the March 1970 letter is inclusive of the 12 nautical mile territorial sea of Vietnam, and there is also no ship log or other evidence indicating the U.S.S. Piedmont’s geographic locations during that time period. On March 29, 2019, VA’s Principal Deputy General Counsel issued an advisory opinion providing non-precedential guidance to the Board for the adjudication of appeals impacted by Procopio. VAOPGCADVIS 1-19, “Issues Relating to Implementation of Procopio v. Wilkie.” The advisory opinion held, in pertinent part, that “when the evidence of record is insufficient to determine whether the veteran served within the 12-nautical mile territorial sea of Vietnam, the Board should generally remand the case for further factual development.” The Board will provide more detailed and additional reasons for remand for each claim below. REASONS FOR REMAND 1. Entitlement to service connection for skin cancer on hands, face, and neck is remanded. 2. Entitlement to service connection for asthma, to include as secondary to asbestos exposure, is remanded. The Veteran contends that his current skin cancer and asthma are etiologically related to his active duty service, to include exposure to Agent Orange. Among various contentions, he claims that he served in Da Nang Harbor and the “war zone” in 1966 while aboard the U.S.S. Piedmont (AD-17). Alternatively, as for his asthma condition, he claims that he was exposed to asbestos while working as a welder and pipe fitter during active duty service. His military occupational specialty (MOS) was a ship pipe fitter from 1962 to 1966. His post-service treatment records show that the Veteran was diagnosed with asthma/chronic rhinitis, as well as various skin conditions, to include suspicious skin lesion that may be cancerous or pre-cancerous, squamous cell carcinoma, basal cell carcinoma, and actinic keratoses. See April 2006 VA treatment records; July 2006 and January 2007 VA treatment records; November 2011 VA examination. His VA treatment records also document the Veteran’s report of service in Vietnam. See April 2006 VA treatment records (ie. the Veteran served in Navy 1962 to 1966 and “went to Vietnam” twice). In light of Procopio and the facts addressed above, the appeal must be remanded for further evidentiary development to determine whether the U.S.S. Piedmont entered the territorial sea of Vietnam during the Veteran’s shipboard service, sufficient to establish whether he was presumed to have been exposed to herbicide agents. While neither the Veteran’s skin cancer nor asthma is one of the enumerated diseases under 38 C.F.R. § 3.309(e), under Combee, service connection may still be awarded based on that exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Thus, a determination on exposure is still relevant to assessing his appeal on a direct basis. 3. Entitlement to service connection for hypertension is remanded. The Veteran claims that his current hypertension condition is related to a high blood pressure shown in his August 1966 separation examination. Alternatively, he contends that his current hypertension is etiologically related to his exposure to agent orange. To date, hypertension is not an enumerated disability entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § § 3.309(e). However, as addressed earlier, under Combee, service connection may still be awarded based on that exposure on a direct basis. In the 2018 update to the National Academy of Sciences’ (NAS) report, “Veterans and Agent Orange,” hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to herbicide agents, to the category of “sufficient” evidence of an association to herbicide agents. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. The Board declines to take judicial notice of the findings and conclusions found in the 2018 update to the NAS report, as this literature does not include facts of universal notoriety that are not subject to reasonable dispute. Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012). However, the Board will take judicial notice that the 2018 update to the NAS report “Veteran and Agent Orange” exists, and although the Veteran underwent a VA examination in November 2011 (during which the examiner stated that an opinion on whether the Veteran’s hypertension is caused by or related to service, could not be rendered without resorting to mere speculation), the Board finds than an addendum medical opinion is warranted for an appropriate VA examiner to consider this report in relationship to the Veteran’s medical history. 4. Entitlement to service connection for diabetes mellitus, type II, is remanded. The Veteran claims that he has been diagnosed with “diabetes border line,” and attributes its cause to his exposure to Agent Orange. The representative contends that while the Veteran does not have a current diagnosis of diabetes mellitus, upon further development, to include a VA examination—pursuant to remand to consider whether the Veteran is entitled to a presumption of herbicide exposure—might lead to finding that the Veteran has a current diagnosis of diabetes mellitus, type II. Diabetes mellitus type II is one of the diseases presumptively associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). Thus, exposure to an herbicide agent, in turn, will be presumed to be the cause of diabetes mellitus, type II. However, as it is unclear whether the Veteran has a qualifying service in Vietnam for the purposes of this presumption, not to mention whether he has a current diagnosis of diabetes mellitus, type II, the Board must remand to first verify if the U.S.S. Piedmont that the Veteran was onboard was within the 12 nautical mile territorial sea of Vietnam, and thereafter, determine his current disability. These matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from February 2017 to the present. 2. Verify whether the U.S.S. Piedmont sailed within 12-nautical miles of the Republic of Vietnam while the Veteran was aboard, specifically from November 16, 1964 to August 30, 1966. Thereafter, issue a formal finding on whether the Veteran was presumed to have been exposed to herbicide agents during his service aboard the U.S.S. Piedmont. 3. IF, AND ONLY IF, exposure to Agent Orange is shown, then schedule appropriate VA examinations for the claims for the following disabilities. Following a complete review of the electronic claims file and in-person examination, the examiner must opine on the following: (a) Determine if the Veteran has a current diabetes mellitus, type II. (b) Determine if it is at least as likely as not the Veteran’s current hypertension condition is related to in-service disease or injury, to include his exposure to Agent Orange? Please expressly consider the 2018 NAS Update (finding sufficient evidence of an association of hypertension with the chemicals of interest based on new evidence and a review of prior studies). (c) Determine if it is at least as likely as not the Veteran’s current skin cancer and asthma (to include as secondary to asbestos exposure) are related to in-service disease or injury, to include his exposure to Agent Orange? The examiner must provide a complete rationale for any opinion based on the examiner’s medical expertise, medical principles, and the evidence in the appellate record. However, the examiner is advised that simply stating skin cancer and hypertension conditions are not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.