Citation Nr: 21003157 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-29 131 DATE: January 19, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in March 2016; the certificate of death reflects that the immediate cause of death was respiratory failure, and CAD was listed as a significant condition contributing to his death; at the time of his death, the Veteran was not service-connected for any disability. 2. The Veteran is presumed to have been exposed to herbicide agents due to his service on the U.S.S. Yorktown within 12 nautical miles of Vietnam. 3. The Veteran’s CAD is presumptively related to his exposure to herbicide agents during service and contributed substantially and materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1116A, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312.  REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1964 to April 1968. He died in March 2016; the appellant is his surviving spouse. This matter is on appeal of an August 2016 rating decision. In March 2020, a hearing was held before the undersigned. A transcript of the hearing is of record. Following the issuance of the April 2017 statement of the case (SOC), VA has added additional relevant evidence to the Veteran’s claims file. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the RO’s SOC but prior to certification to the Board is to be addressed in an additional supplemental statement of the case (SSOC). 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 20.1304(c). Exceptions are when the appellant or her representative waives this review right, or when the Board grants the benefit being sought in full. Id. As the following determination is a full grant of the appeal, appellate review may proceed without prejudice to the appellant. Service Connection The Veteran’s March 2016 death certificate lists the immediate cause of his death as respiratory failure due to hypoxia due to asthma/chronic obstructive pulmonary disease (COPD). Other significant conditions contributing to death but not resulting in the underlying causes included coronary artery disease (CAD), status post quadruple bypass, cerebrovascular accident (CVA) and dementia. At the time of his death, service connection was not awarded for any of the Veteran’s disabilities.   The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). In order to constitute a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Where a veteran served for at least 90 days during a period of war and manifests certain chronic diseases, such as ischemic heart disease, which includes CAD, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). For veterans who served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, service connection may be granted for specific disabilities associated with exposure to herbicide agents, including ischemic heart disease or CAD. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307(a). Effective January 1, 2020, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67, which provides that if a Veteran’s service offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 is determined to be within the 12 nautical mile territorial sea of the Republic of Vietnam, as established by various latitude and longitude points listed in the Act, then a veteran will be presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116A(a)(d); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc).   The question for the Board is whether the Veteran had service in the official waters of Vietnam and was therefore presumptively exposed to herbicide agents. In this case, the Veteran’s military personnel records show that he served aboard the U.S.S. Yorktown from November 1964 to April 1968. The record contains deck logs from the U.S.S. Yorktown showing that it operated within 12 nautical miles of the Republic of Vietnam while the Veteran was aboard the ship in February 1966. Subsequently, an April 2020 VA memorandum regarding herbicide agent exposure verification shows that herbicide agent exposure is conceded based on the Veteran’s nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. This evidence shows that the Veteran served offshore of the Republic of Vietnam for the purposes of establishing presumptive herbicide agent exposure under 38 U.S.C. § 1116A. The Board notes that prior to his death, the Veteran had submitted a claim for service connection for CAD in October 2003, in which he alleged that his CAD was a result of his cigarette smoking which began when he served in the Navy. Although an April 2004 rating decision denied service connection for CAD on the basis that it was due to tobacco use, a review of the medical evidence of record shows that, while the Veteran’s history of tobacco use was frequently noted in private and VA treatment records, there is no medical opinion of record etiologically linking his CAD to his tobacco use. Thus, there is no competent evidence of record to rebut the presumptive provisions of 38 C.F.R. § 3.309 in this case. 38 C.F.R. § 3.307(d). As indicated, the March 2016 death certificate establishes that the immediate cause of the Veteran’s death was respiratory failure, with CAD listed as a significant condition contributing to death, but not resulting in an underlying cause. Therefore, the Board resolves any doubt in favor of the appellant and finds that the Veteran’s CAD is presumptively related to his exposure to herbicide agents during service aboard the USS Yorktown within the 12 nautical mile territorial sea of the   Republic of Vietnam and contributed substantially and materially to his death. Accordingly, service connection for the cause of the Veteran’s death is warranted. 38 C.F.R. § 3.312(c)(1). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. J. Wells-Green 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.