Citation Nr: 21001016 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-30 490 DATE: January 6, 2021 REMANDED Entitlement to dependency indemnity compensation (DIC), based on service connection for the cause of the Veteran's death is remanded. Entitlement to DIC under 38 U.S.C. § 1318 is remanded. INTRODUCTION The Veteran served on active duty from December 1973 to December 1977, and March 1978 to May 1988. He died in November 2015, and the Appellant is his surviving spouse. In December 2020, the Appellant attended a hearing before the undersigned Veterans Law Judge. REASONS FOR REMAND In a recent January 2019 decision, the Federal Circuit held the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Procopio v. Wilkie, 913 F.3d 1371, 1380-81, (Fed. Cir. 2019) (en banc). Relying on a variety of international law sources and treaties to which the United States is a party, the Court held that use of the formal term “Republic of Vietnam” in 38 U.S.C. § 1116 unambiguously refers to both the landmass and territorial sea of that nation. Id. The Court further noted that territorial seas have a breadth “not exceeding 12 nautical miles.” Id. A review of the Veteran’s official military personnel file (OMPF) and DD-214 shows he was awarded the Expeditionary Medal for service in Vietnam and Cambodia. During the Vietnam Era the Veteran’s OMPF shows was assigned to the U.S.S. Kawishiwi. To date, the RO has not initiated proper development to determine whether the Veteran entered the 12 nautical mile territorial sea of Vietnam. In this regard, the Board notes the Veteran was diagnosed with both atherosclerotic heart disease (ASHD) and Parkinson’s disease during his lifetime. Further, by way of a March 2017 VA medical opinion a VA examiner concluded the Veteran most likely died as a result of complications from his Parkinson’s disease. The Board observes that if the Veteran’s service in the official waters of the Republic of Vietnam can be conceded his ASHD and Parkinson’s disease may be retroactively service-connected pursuant to orders of the United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816 ; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). As such, the Board finds additional development should be completed, to include utilization of the ship locator tool, and other development deemed necessary to determine whether herbicide exposure can be conceded. Additionally, the Board notes that while the March 2017 VA examiner concluded the Veteran’s ASHD was unrelated to his service-connected diabetes, the examiner failed to fully explain why the Veteran’s service-connected disabilities could not have been a contributing factor to his death. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). The Board observes that by way of a February 2016 letter, the Veteran’s private physician indicated the Veteran’s diabetes and chronic kidney disease may have contributed to his death. However, this clinician failed to explain how or why they came to this conclusion. Nonetheless, the Board finds sufficient evidence exists to obtain a medical opinion addressing this theory of DIC entitlement. Accordingly, this case is REMANDED for the following actions: 1. Undertake all indicated development to determine whether the Veteran served within 12 nautical miles of Vietnam from December 28, 1973 to May 7, 1975. Such development should include, but is not limited to, obtaining pertinent deck logs and utilization of the VA ship locator program to determine whether the U.S.S. Kawishiwi (AO 146) was in the official waters of the Republic of Vietnam. 2. Thereafter, if indicated, obtain a new VA medical opinion by a physician with sufficient expertise, who has not provided a prior opinion in this case, to determine whether the Veteran’s service-connected disabilities substantially contributed to his death. All pertinent evidence of record must be made available to and reviewed by the physician. Following a review of the record, the physician should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected diabetes mellitus, with consequentially associated upper and lower extremity neuropathy, nephropathy, retinopathy and hypertension, were sufficient either individually or in concert, to have substantially contributed to the production of the Veteran’s death. In this regard, the physician should consider and state whether the above-noted disabilities resulted in debilitating effects or a general impairment of health to such extent that they rendered the Veteran materially less capable of resisting the effects of his Parkinson’s disease or ASHD. A complete rationale must be provided for any proffered opinion. If the physician is unable to provide any requested opinions, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.