Citation Nr: 21003316 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-20 405 DATE: January 21, 2021 REMANDED Entitlement to service connection for Hodgkin’s Lymphoma, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for a disability manifested by shortness of breath, to include chronic obstructive pulmonary disease (COPD), as secondary to Hodgkin’s Lymphoma, is remanded. Entitlement service connection right lower extremity peripheral neuropathy, as secondary to Hodgkin’s Lymphoma, is remanded. Entitlement service connection left lower extremity peripheral neuropathy, as secondary to Hodgkin’s Lymphoma, is remanded. REASONS FOR REMAND The Veteran had active service from October 1965 to September 1969. He testified at a virtual hearing before the undersigned in November 2020, a transcript is of record. The Board notes that the Veteran’s spouse is serving as his representative on a one-time basis under the provisions of 38 C.F.R. § 14.630. The Veteran assets that his Hodgkin’s Lymphoma should be presumed to be related to exposure to herbicide agents during service in Vietnam. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Hodgkin’s Lymphoma is among those diseases. In a December 2011 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for Hodgkin’s Lymphoma, a disability manifested by shortness of breath, and bilateral lower extremity peripheral neuropathy. The Veteran did not appeal the December 2011 rating decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. In September 2015, the Veteran initiated claims to reopen these four service-connection issues. These claims were denied, and the Veteran perfected this appeal. Since the prior rating decisions which denied these claims, however, the United States Court of Appeals for the Federal Circuit has held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the 12 nautical mile territory off the coast of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). More recently, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) (BWNVVA) (codified at 38 U.S.C. §§ 1116A, 1116B, 1822, 3703, 3731). The new law provides, in part, that the presumption of exposure to herbicide agents is available to veterans who served offshore of Vietnam if the location was not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting certain specified points of latitude and longitude. Given that new and material evidence is not required when an intervening liberalizing law creates a new basis for entitlement to benefits that did not exist at the time of the prior denial, Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), and given that this theory of the case has not been developed, the Board, after considering these claims de novo, finds further development to be required. In particular, the Veteran and his representative have submitted deck logs and lay statements supporting the Veteran’s contention that he served within 12 nautical miles off the coast of Vietnam while serving on board the USS Turner Joy. The Veteran’s personnel records confirm service from 1966 to 1969 on the USS Turner Joy, and the evidence presented by the Veteran and his representative compels VA to perform the research necessary to place the ship’s location within the appropriate areas now presumed to have been subject to herbicide exposure, as outlined under the law. On remand, all appropriate efforts should be taken to verify whether the Veteran’s service on the USS Turner Joy from May 1966 to September 1969 included service within 12-nautical miles of the Vietnam coast. Because a decision on the remanded issue of entitlement to service connection for Hodgkins Lymphoma could significantly impact a decision on these issues, the issues are inextricably intertwined. A remand of the claims is required. The matters are REMANDED for the following action: 1. All appropriate steps should be taken to determine whether the Veteran’s sea service during the Vietnam War included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam as outlined in the Blue Water Navy Vietnam Veterans Act of 2019. The Veteran’s service records confirm service aboard the USS Turner Joy from May 1966 to September 1969. 2. After the above development, and any additionally indicated development deemed necessary has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If the benefits sought are denied, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.