Citation Nr: 21003087 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-07 181 DATE: January 19, 2021 ORDER Entitlement to service connection for small cell carcinoma of the lung (lung cancer) for substitution benefits purposes is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Exposure to herbicide agents is presumed because the Veteran served aboard a ship that traveled within the 12 nautical mile territorial sea of the Republic of Vietnam during the Vietnam War era. 2. The Veteran’s lung cancer was presumptively associated with his exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for lung cancer for substitution benefits purposes have been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to April 1971. He died in November 2014. The Appellant is his surviving spouse and the substitute claimant in this appeal. See November 2016 notification letter. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ), and a transcript is of record. The record contains additional evidence that the AOJ has not yet considered. However, since this decision is wholly favorable and the Appellant’s representative submitted the evidence, a waiver of initial AOJ review is unnecessary. See 38 U.S.C. § 7105(e) (2012). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). The Blue Water Navy Vietnam Veterans Act of 2019 became effective on January 1, 2020. 116 P.L. 23, 133 Stat. 966 (2019). Pursuant to this legislation, for purposes of determining whether a veteran was presumptively 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, the Republic of Vietnam specifically refers to what was South Vietnam during the Vietnam War. See Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). On March 29, 2019, VA’s Principal Deputy General Counsel issued an advisory opinion providing non-precedential guidance to the Board for adjudicating appeals impacted by Procopio. VAOPGCADVIS 1-19, “Issues Relating to Implementation of Procopio v. Wilkie.” The advisory opinion held, in pertinent part, “[I]f the file contains sufficient evidence for such a determination [whether the veteran served within the 12 nautical mile territorial sea of Vietnam], the Board should decide the case.” Id. at 1. It further explained: [S]ome cases may be capable of immediate decision. For example, if the record contains persuasive evidence that a given veteran entered a bay or harbor recognized as within Vietnam’s territorial sea, or if the record contains a deck log establishing that the ship went within 12 miles of the mainland while the veteran was serving on board, this evidence would support the conclusion that the veteran entered the territorial sea of Vietnam. Id. at 3-4, ¶ 6. After a full review of the record, the claim is granted on a presumptive basis. Initially, it is undisputed that the Veteran was diagnosed with extensive small cell carcinoma of the lung. See, e.g., May 2014 VA physician’s letter, treatment records, and pathology report. Respiratory cancers, including cancers of the lung, are presumptively associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). Moreover, the evidence shows that the Veteran served in the “territorial waters” of Vietnam during his Vietnam War era service. October 7, 1970 deck logs from the U.S.S. Bon Homme Richard (CV-31) show that the ship traveled from Yankee Station, Gulf of Tonkin and anchored in Da Nang Harbor. Service personnel records confirm the Veteran’s service aboard the ship at that time. Therefore, exposure to herbicide agents during active service is presumed. See 38 U.S.C. § 1116A; see also 38 C.F.R. § 3.307(a)(6)(iii). In conclusion, entitlement to service connection for lung cancer is granted on a presumptive basis. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Janofsky, 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.