Citation Nr: 21001556 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-05 311 DATE: January 8, 2021 REMANDED Entitlement to service connection for stomach cancer, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to June 1969. In a February 2017 VA Form 9, the Veteran appeared to raise the issues of service connection for a heart condition and high blood pressure. The Veteran and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the Veteran wish to file such a claim, he and his representative should file the claim with the RO on the proper form. In January 2021, the Veteran was scheduled for a Board videoconference hearing before the undersigned Veterans Law Judge. The Veteran was unable to attend the hearing because on the date of the hearing the Veteran was being transported to the hospital. Thus, the Veteran’s representative motioned to testify on behalf of the Veteran. Given such, prior to the hearing, based on the fact that the Veteran was in an emergency situation, the undersigned Veterans Law Judge found the representative presented “good cause” with respect to the Veteran’s absence. Pursuant to 38 C.F.R. § 20.700(b), “[r]equests for appearances by representatives alone to personally present arguments to Members may be granted if good cause is shown.” Therefore, upon a finding of good cause, the undersigned Veterans Law Judge granted the representative’s motion to present arguments at the Board hearing. 1. Stomach Cancer Based on the representative’s arguments during the January 2021 Board hearing, as well as the evidence of record, the Board finds that a remand is warranted for the following reasons. Although the Veteran in this appeal was afforded a VA examination in June 2014, in which the VA examiner opined that it was less likely than not that the Veteran’s stomach cancer was related to his conceded exposure to asbestos, the Board finds that additional information is required to address the claim. Specifically, the VA examiner did not consider the Veteran’s conceded exposure to herbicide agents, nor did the VA examiner discuss the Veteran’s documented in-service complaints of stomach pain. See Barr v. Here, the Veteran’s military service records confirm he served on the USS Jenkins during the Vietnam war. Furthermore, in a March 2010 US JSRRC memorandum, it was confirmed that the USS Jenkins anchored in port DaNang, Republic of Vietnam, during the time of the Veteran’s service. Even though the RO noted that the USS Jenkins is not on the list of ships in which herbicide agents exposure can be conceded, the Board notes that since that determination the law has been amended. Congress enacted legislation entitled the Blue Water Navy Vietnam Veterans Act of 2019, which became effective January 1, 2020. Pursuant to this legislation, for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “service in the Republic of Vietnam” was expanded to include service in the offshore waters, which includes the territorial sea extending 12 nautical miles from the shores of that nation. 38 U.S.C. § 1116A. The statute further delineates latitudinal and longitudinal intersecting points within the territorial waters of Vietnam and Cambodia. Notably, as the Court of Appeals for the Federal Circuit has pointed out, the Republic of Vietnam specifically refers to what was, during the war, South Vietnam. Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). Thus, as the Veteran’s military records confirm that the Veteran’s ship was anchored at port DaNang, which is within 12 nautical miles of the Republic of Vietnam, even without direct evidence that the Veteran had “boots on the ground” within the Republic of Vietnam, his exposure to herbicide agents is conceded. Given such, a VA medical opinion is warranted to ascertain whether the Veteran’s conceded exposure to herbicide agents is related to his stomach cancer. Additionally, the Veteran’s service treatment records dated on October 21, 1966 and September 11, 1967, reflect that the Veteran was seen for stomach cramps. However, the VA examiner did not discuss the Veteran’s in-service stomach cramps complaints. As such, a VA medical opinion is warranted to ascertain whether the Veteran’s in-service complaints of stomach cramps were related to his service, to include as early manifestations of his stomach cancer. The matters are REMANDED for the following action: 1. Request updated medical records related to the Veteran’s claim on appeal. In doing so, the RO is asked to ensure all VA medical records, to include a search of all VA medical centers in which the Veteran received treatment, are included. 2. Upon completion of the above to the extent possible, schedule the Veteran for a VA examination, a telehealth examination if more practical, to ascertain the nature and etiology of the Veteran’s stomach cancer. After performing any required tests, and reviewing the entire record, the examiner should provide an opinion responding to the following: a) Whether the Veteran’s stomach cancer is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service, to include whether the Veteran’s in-service reports of stomach cramps were early manifestations of his stomach cancer. i) The examiner should discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of stomach pain. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. ii) The VA examiner must address the October 21, 1969 and September 11, 1967 service treatment records which document complaints of stomach cramps. b) Whether the Veteran’s stomach cancer is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service, to include the Veteran’s conceded exposure to herbicide agents. • The examiner is advised that the Board has conceded the Veteran’s exposure to herbicide agents during his service in the Republic of Vietnam. • The Board acknowledges that the Veteran’s disability of stomach cancer is not presumed to be associated with herbicide agents, thus, the VA examiner must discuss whether the Veteran’s conceded exposure to herbicide agents is related to his stomach cancer. • Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.