Citation Nr: A20014193 Decision Date: 09/09/20 Archive Date: 09/09/20 DOCKET NO. 191125-45618 DATE: September 9, 2020 ORDER Readjudication of the claim for service connection for the cause of the Veteran’s death is warranted. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT New evidence was received after the March 2019 denial that is relevant to the issue of entitlement to service connection for cause of death. CONCLUSION OF LAW The criteria for readjudicating the claim for service connection for cause of the Veteran’s death have been met. Veteran’s Appeals Improvement and Modernization Act, Pub. L. No. 115-55, § 5108, 131 State. 1105. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran served on active duty in the United States Navy from December 1959 to November 1963 and from January 1964 to October 1979. Unfortunately, the Veteran died in July 2018. The Appellant is the Veteran’s widow. In November 2019, the Appellant selected the direct review lane when she submitted the Decision Review Request form appealing the July 2019 rating decision. The Appellant timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In a June 2019 supplemental claim application, the Appellant also filed claims for entitlement to service connection for dependency and indemnity compensation (DIC) and entitlement to non-service-connected burial allowance and plot or interment allowance. In the July 2019 rating decision, the AOJ did not adjudicate the issues of entitlement to DIC or non-service-connected burial allowance. Therefore, the Board refers these issues to the AOJ for appropriate development and adjudication. Whether new and relevant evidence has been received to warrant readjudication of the claim of entitlement to service connection for the cause of the Veteran’s death. The Appellant contends that she submitted new and relevant evidence that warrants readjudication of of the claim of service connection for the cause of the Veteran’s death. VA will readjudicate a claim if new and relevant evidenced is presented or secured. AMA, Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. AMA, Pub. L. No. 115-55, § 101(35), 131 Stat. 1105. The questions in the case are whether the Appellant submitted evidence after the prior denial in March 2019 of her claim of service connection for the cause of the Veteran’s death, and if so, whether that evidence is new and relevant to his claims. The Board finds the Appellant submitted new evidence after the prior final rating decision that is relevant to her claim. The Appellant submitted medical literature that relates Myasthenia Gravis to Parkinson’s disease and a representative brief asserting Agent Orange exposure after the March 2019 prior rating decision. The medical literature and assertions in the representative’s brief were not already of record and may prove elements of the claim of service connection for the cause of the Veteran’s death. Readjudication of the claim is warranted. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded. Remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). Here, the Appellant submitted medical literature relating Myasthenia Gravis, the Veteran’s cause of death, to Parkinson’s disease. Additionally, the Appellant’s representative asserted that the Veteran served in the Republic of Vietnam during service and was exposed to Agent Orange. The representative asserts that the Veteran’s Myasthenia Gravis, like Parkinson’s disease, is caused by herbicide exposure. The Veteran’s military personnel records show that he served during the Vietnam era, was listed has having years of sea or foreign service, including ships that may have served in the Republic of Vietnam, and earned a Vietnam Service Medal and a Republic of Vietnam Campaign Medal. VA had historically interpreted the statutory phrase served in the Republic of Vietnam as a requirement that the Veteran served on land or inland waterways. However, the definition of service in the Republic of Vietnam was recently expanded to include naval ships that served in waterways within 12 nautical miles of the territorial sea of Vietnam. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. 116-23 (to be codified at 38 U.S.C. § 1116A(c)) (the Act). The Act created new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in, among other places, the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. Thus, the remaining issues in this case turn on whether the ships on which the Veteran was stationed were within 12 nautical miles of the coast of Vietnam during the relevant time period. The Board finds that the evidence of record is insufficient to determine whether the Veteran served within the 12-nautical-mile territorial sea of Vietnam. On remand, additional development is necessary to make this factual determination. Further, assuming that the evidence establishes service within the 12-nautical-mile territorial sea of Vietnam, the criteria for McLendon will have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for the Veteran’s cause of death because no VA examiner has opined whether the Veteran’s cause of death was related to service. Remand is thus required to correct these pre-decisional duty to assist errors. The matters are REMANDED for the following action: 1. Conduct all factual development necessary, including obtaining all relevant records needed to determine whether the Veteran served in the Republic of Vietnam or if his sea service included service on board a ship that traveled within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was on board. 2. After completing the above, forward the Veteran’s claims file to an appropriate VA specialist for an opinion regarding the etiology of the Veteran’s Myasthenia Gravis. The VA examiner must review the claims file and consider all pertinent evidence of record, to include the Veteran’s STRs, Certificate of Death, and medical literature relating Myasthenia Gravis to Parkinson’s disease. The examiner must opine whether the Veteran’s Myasthenia Gravis is at least as likely as not related to service, to include exposure to herbicide agents if such is confirmed following completion of the development set out in Instruction 1, above. The examiner must address the Appellant’s submitted medical literature in the context of this opinion. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.