Citation Nr: 20036734 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 15-03 708 DATE: May 28, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death, is granted FINDINGS OF FACT 1. The Veteran died in January 2009. 2. At the time of his death, the Veteran did not have any service-connected disabilities. 3. The official death certificate shows that the immediate cause of death was lung cancer. 4. It is at least as likely as not that the Veteran’s lung cancer is related to his active duty service, including as caused by or due to his exposure to toxic herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § §§ 101, 1110, 1310; 38 C.F.R. § §§ 3.303, 3.304, 3.307, 3.309, 3.312.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to April 1973 to include service in the Republic of Vietnam. The appellant is the Veteran’s widow. In October 2018, the appellant testified at a hearing before the undersigned at the Regional Office (RO). A transcript of the hearing has been associated with the record. 1. Entitlement to service connection for the cause of the Veteran's death The appellant asserts that the Veteran’s cause of death was related to his service in Vietnam. In particular, she asserts that the Veteran’s lung cancer is related to his exposure to toxic herbicides as a blue water Veteran. In order to establish service connection for the cause of the Veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, it is insufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C. § § 1310; 38 C.F.R. § § 3.312. Alternatively, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran’s death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. § §§ 1110; 38 C.F.R. § § 3.303, 3.304. Regarding his toxic herbicide exposure claim, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to toxic herbicides during such service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Recently, in Procopio v. Wilkie, 913 F.3d 1371, 1379 (Fed Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit further clarified that the term “‘Republic of Vietnam” refers to both the Republic of Vietnam’s “landmass and its 12 nautical mile territorial sea.” Additionally, diseases that are presumed to be related to toxic herbicide exposure include diabetes and prostate cancer. See 38 C.F.R. §§ 3.307, 3.309. As is relevant here, effective January 1, 2020, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67, which provides that if a Veteran's service offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 is determined to be within the 12 nautical mile territorial sea of the Republic of Vietnam, as established by various latitude and longitude points listed in the Act, than a veteran will be presumed to have been exposed to herbicide agents. See also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Based upon the evidence of record, the Board determines that service connection for the cause of the Veteran’s death, lung cancer, is warranted. As an initial matter, the Board determines that the Veteran has been presumptively exposed to toxic herbicide agents given his service in Vietnam. 38 C.F.R. § 3.307. Here, the Veteran was assigned to a number of ships while on active duty service. However, it is his very short service on board USS CHIPOLA (AO-63) that is dispositive. Specifically, the Veteran’s personnel records reflect that he was on board CHIPOLA from July 18 to 24, 1964, and that this ship was in a hostile fire zone during that time. From this information alone, the Board is willing to accept that the Veteran was physically present within the territorial waters of Vietnam. Although he may have also been within the territorial waters with the other ships he served aboard, mere presence at any point in time is sufficient for purposes of the 38 C.F.R. § 3.307. Next, the evidence also establishes that the Veteran was diagnosed with lung cancer, which is presumed related to toxic herbicide exposure under 38 C.F.R. § 3.309, and that this disorder contributed to his death. By virtue of the foregoing, the evidence is at least in equipoise to support service connection for the cause of the Veteran’s death. Therefore, service connection for the cause of the Veteran’s death is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. McGee, Associate Counsel