Citation Nr: 20021597 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-24 981 DATE: March 26, 2020 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to service connection for diabetes mellitus, for accrued benefits, is remanded. Entitlement to service connection for prostate cancer, for accrued benefits, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to September 1968. The Veteran passed away in June 2009. The appellant is the Veteran’s surviving spouse, as determined by a VA administrative decision issued on February 2012. This matter originally came before the Board of Veteran’s Appeals (Board) from a February 2009 and a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Board remanded the issues for development. In January 2018, the Board denied the claim for entitlement to service connection for the Veteran’s cause of death as well as the issues for entitlement to service connection for diabetes mellitus type II and prostate cancer. That Board decision was appealed to the United States Court of Appeals for Veterans’ Claims (CAVC). The parties presented a Joint Motion for Remand (JMR) requesting a vacatur of the January 2018 Board decision which was granted by CAVC in December 2018. The matters are again before the Board. 1. Entitlement to service connection for the Veteran's cause of death is remanded. 2. Entitlement to service connection for diabetes mellitus, for accrued benefits, is remanded. 3. Entitlement to service connection for prostate cancer, for accrued benefits, is remanded. The appellant claims entitlement to service connection for the Veteran’s cause of death, as well as service connection for diabetes mellitus and prostate cancer as due to herbicide exposure. The Veteran’s death certificate shows his cause of death as metastatic lung cancer, secondary to adenocarcinoma of the prostate. This death certificate also notes the Veteran’s diabetes mellitus type II as a significant condition that contributed to the Veteran’s death. In support of her claims and the Veteran’s herbicide exposure during service, the appellant has pointed out the Veteran’s statement of May 2006 regarding an in-country mission in Vietnam. Additionally, the appellant’s representative argued that the Veteran served aboard the USS Kitty Hawk which was noted to be in the territorial waters of Vietnam. Section 1116 of title 38, United States Code, provides that 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. VA had 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). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit (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. Diabetes mellitus and prostate cancer are diseases which may be presumptively service connected as due to herbicide exposure. The Veteran’s herbicide exposure during service has not yet been verified. The Board notes the Veteran’s military records show that he served aboard the USS Kitty Hawk. The USS Kitty Hawk is not one of the ships included on the AO Ship exposure list. See VA herbicide exposure ship list. http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm. The Veteran’s personnel records are silent for Vietnam in-country service. While the Board regrets further delay, a remand is necessary so that a formal finding can be made as to whether the Veteran’s service aboard the USS Kitty Hawk took him within 12 nautical miles of Vietnam. The Board notes USS Kitty Hawk deck logs have been associated with the claims file. The appellant’s representative has also submitted maps with the approximate location of the USS Kitty Hawk while the Veteran was onboard, and its relative location to Vietnam. As these documents have not yet been considered by the Joint Services Records Research Center (JSRRC) or any other appropriate agencies, the Board finds a remand is necessary so that the appropriate agencies may issue a decision on the matter. Upon remand, the Agency of Original Jurisdiction (AOJ) should forward those documents to the JSRRC, for a determination as to whether the USS Kitty Hawk was within 12 nautical miles of Vietnam during the Veteran’s service. In this respect, the Board does not view itself or the AOJ as possessing the competence to interpret longitude and latitude position charts, nor as possessing the competence to assess whether the maps that have been associated with the claims file are accurate. Accordingly, the Board finds a remand is necessary so that the appropriate development can be undertaken. The matters are REMANDED for the following actions: 1. After any outstanding records have been associated with the claims file, contact all appropriate sources, to include the Department of the Navy, National Personnel Records Center (NPRC), and the Joint Services Records Research Center (JSRRC), to confirm or verify whether the USS Kitty Hawk was at any time during the Veteran’s service within 12 nautical miles of the coast of the Republic of Vietnam. Please note that a finding that the USS Kitty Hawk was “within the territorial waters of Vietnam” or within “official waters of Vietnam” is not sufficient. If necessary request from the JSRRC, or any other appropriate repository, copies of any additional deck logs and or command histories for USS Kitty Hawk, and any additional service personnel records, for the time periods of the Veteran’s service, to attempt to verify the locations of the ship while the Veteran served on the ship. a. If the USS Kitty Hawk is confirmed to have been within 12 nautical miles of the coast of the Republic of Vietnam during the Veteran’s service, please request a VA medical opinion regarding the Veteran’s cause of death and whether it was related to his herbicide exposure or otherwise related to service. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: i. Whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s cause of death, is related to the Veteran’s service, to include any herbicide agent exposure. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. A detailed and complete rationale for the opinion must be provided. b. If the USS Kitty Hawk is not confirmed to have been within 12 nautical miles of the coast of the Republic of Vietnam during the Veteran’s service, a formal finding documenting the reason the vessel’s location could not be confirmed should be made and associated with the claims file. The formal finding must also address the maps and deck logs that have been associated with the claims file. 3. Thereafter, readjudicate the issues on appeal. If the claim remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.