Citation Nr: 20042811 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 09-38 975 DATE: June 24, 2020 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to September 1974. The Veteran died on May [REDACTED], 2007; and the appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2011, the Board of Veterans’ Appeals (Board) issued a decision denying the claim for service connection for the cause of the Veteran’s death. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an August 2012 Joint Motion for Partial Remand (JMR), which remanded the October 2011 Board decision for re-adjudication consistent with its decision. In April 2013 and February 2017, the Board re-adjudicated the matter, where it was remanded for further development; and in November 2017, the Board issued another decision, once again, denying the appellant’s claim for service connection for the cause of the Veteran’s death. The Veteran appealed the November 2017 Board decision to CAVC, resulting in the July 2019 Memorandum Decision, which remanded the November 2017 Board decision for re-adjudication consistent with its decision. In January 2020, the Board once again re-adjudicated the matter, where it was remanded for further development. The Board finds that further development is necessary prior to re-adjudication of the claim. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant contends that the Veteran’s death was caused by nonservice-connected respiratory cancer and/or stomach cancer that is directly related to his active duty service, to include exposure to radiation, herbicides, and/or asbestos aboard a naval vessel in the waters offshore of Vietnam. Alternatively, the appellant contends that the Veteran’s nonservice-connected respiratory cancer materially contributed and/or worsened his stomach cancer that ultimately caused his death. As an initial matter, the Board notes that the Veteran’s military records reflect that he completed Nuclear Weapons Transshipment School from September 16-26, 1973; and his service treatment records (STRs) reflect that he was stationed aboard the USS Shasta from December 1972 to September 1974. Additionally, CAVC has determined that “it is more likely than not that USS Shasta carried at least some form of nuclear ordinance…” (see CAVC Decision, August 2012); therefore, based on this, the Board recognizes the possibility of the Veteran’s exposure to radiation. Furthermore, given the Veteran’s service aboard the naval vessel from 1972 to 1974, and the record not containing any evidence to the contrary, the Board concedes to the Veteran’s exposure to asbestos. While the appellant has been provided with an unfavorable VA medical opinion regarding the contended causation of the Veteran’s death by stomach cancer to his conceded exposure to radiation, per the January 2020 remand directives; the Board notes that due to the appellant raising additional contentions, consideration of these additional contentions must be adequately addressed prior to re-adjudication of the claim. First, with regard to the appellant’s contention of herbicide exposure causing the Veteran’s respiratory and/or stomach cancers, the Board finds it necessary to obtain deck logs for the USS Shasta for the period of January through July 1973 in which this ship was in military operations in Vietnam (the Board notes that the record reflects that the ship primarily supplied vessels involved in Operation Endsweep from January to July 1973 – a minesweeping operation in North Vietnamese waters stipulated by the Paris Peace Accords (see SSOC, May 2016; see also Web/HTML Documents, May 2016)). Deck logs are necessary to determine whether the Veteran served in the “territorial sea” of Vietnam (i.e., within 12 nautical miles of the nation’s landmass), as such service would qualify as service in “the Republic of Vietnam” as required for the presumption of exposure to herbicide agents under 38 C.F.R. § 1116. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Once deck logs have been obtained and reviewed, if and only if, they reflect the Veteran has the required Vietnam service under Procopio, the Board finds a VA medical opinion is necessary to determine whether the Veteran’s stomach cancer is etiologically related to his exposure to herbicides. Secondly, as the Board has conceded to the Veteran’s exposure to asbestos aboard the USS Shasta, the Board also finds that a VA medical opinion is necessary to determine whether the Veteran’s respiratory and/or stomach cancers are etiologically related to his conceded exposure to asbestos. Lastly, the Board finds it necessary to obtain a VA medical opinion to determine whether the Veteran’s respiratory cancer substantially or materially contributed and/or worsened the Veteran’s stomach cancer that ultimately caused his death. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Obtain deck logs for the USS Shasta for the period of January to July 1973 in which this ship was in military operations offshore of Vietnam while the Veteran was serving on it. 2. If the deck logs only provide coordinates of the USS Shasta location, conduct the necessary development and research to determine where the ship was located. 3. After properly developing the ship’s location, if and only if, the deck logs reveal the required Vietnam service under Procopio, provide the appellant with a VA medical opinion by an appropriate clinician regarding the nature and etiology of the Veteran’s stomach cancer as it relates to herbicide exposure. Additionally, regardless of the deck logs, provide the appellant with VA medical opinions by appropriate clinicians regarding the nature and etiology of the Veteran’s respiratory and stomach cancers as it relates to asbestos exposure, and relation of the Veteran’s respiratory cancer to his stomach cancer. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory cancer had its onset during any period of active military duty, or is otherwise etiologically related to service, to include exposure to asbestos. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s stomach cancer had its onset during any period of active military duty, or is otherwise etiologically related to service, to include exposure to herbicide agents and/or asbestos exposure. Please note: the examiner must provide an opinion with discussion on both exposures, unless the required Vietnam service under Procopio has not been met, then the examiner only needs to provide discussion on exposure to asbestos. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory cancer materially or substantially caused and/or worsened his stomach cancer. 4. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements in regard to the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. 5. 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 resorting 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, Associate 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.