Citation Nr: 21062558 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-39 817 DATE: October 8, 2021 ORDER Service connection for ischemic heart disease is granted. Service connection for diabetes mellitus is granted. FINDING OF FACT The Veteran's ischemic heart disease and diabetes mellitus were related to herbicide exposure while serving within 12-nautical miles of the Republic of Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1963 to September 1965. The Veteran testified at a hearing held before the undersigned Veterans Law Judge in March 2019. In December 2019, the Veteran died. At the time of his death, he had a pending appeal for the issues set forth on the title page. The Veteran's surviving spouse, who is the appellant, has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. Historically, in December 2009, the Board denied entitlement to service connection for coronary artery disease and diabetes mellitus on direct and presumptive basis. Specifically, the Board found that the Veteran was not presumed to have been exposed to an herbicide agent as the evidence did not sufficiently establish that he served in the Republic of Vietnam. In Bingham v. Principi, the United States Court of Appeals for Veterans Claims (Court) held that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection." 18 Vet. App. 470, 474 (2004), aff'd sub nom. Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). Thus, a final VA decision is final as to the entire claim, not just those theories that were explicitly adjudicated. Bingham, 421 F.3d at 1349. However, in Spencer v. Brown, the Court recognized that when there has been an intervening liberalization of law that creates a new basis of entitlement to a benefit, an otherwise previously and finally denied claim may be readjudicated de novo on the same factual basis as the previously denied claim. 4 Vet. App. 283, 288 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the term "Service in the Republic of Vietnam" includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to an herbicide agent under 38 U.S.C. § 1116, so long as they meet the sections other requirements. See Procopio v. Wilkie, 913 F.3d. 1371 (2019) and see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966), codified at 38 U.S.C. § 1116(A). In this case, the Blue Water Navy Vietnam Veterans Act of 2019 is an intervening liberalization of law that creates a new basis of entitlement to the benefits sought as it provides a potential legal basis for finding exposure to an herbicide agent. As a result, the otherwise previously and finally denied claims of entitlement to service connection for coronary artery disease and diabetes mellitus must be readjudicated de novo. See Spencer, 4 Vet. App. at 288 (1993); Pelegrini v. Principi, 18 Vet. App. 112, 125 (2004) (characterizing addition of "respiratory cancers" to § 3.309(e) as intervening liberalizing regulation). In a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for cause of the Veteran's death. The AOJ explained that the Veteran's death certificate recorded his cause of death as myelodysplastic syndrome; multiple myeloma; chronic obstructive pulmonary disease; coronary artery disease; atrial fibrillation; congestive heart failure; amyloidosis; and diabetes mellitus. The AOJ explained that since exposure to herbicides used in Vietnam is conceded and ischemic heart disease, multiple myeloma, and diabetes mellitus are conditions recognized under the authority granted by the Agent Orange Act of 1991, service connection for the cause of the Veteran's death was warranted. In effect, the AOJ acknowledged that service connection is warranted for ischemic heart disease and diabetes mellitus. The Board agrees. Specifically, by the May 2020 rating decision, VA conceded that the Veteran was exposed to an herbicide agent while serving within 12 nautical miles of the Republic of Vietnam and that he had current diagnoses of ischemic heart disease and diabetes mellitus. Additionally, to the extent that the AOJ found these disabilities sufficient to warrant service connection for cause of the Veteran's death, VA conceded that the disabilities were at least compensably disabling. Under these circumstances, the Board finds that service connection for coronary artery disease and diabetes mellitus is warranted. In reaching this determination, because the Board has adjudicated this claim de novo in light of 38 U.S.C. § 1116A, the Board observes that in denying service connection in December 2009, the Board adjudicated the issues of service connection for diabetes mellitus and for heart disease on the merits. In doing so, the Board determined that pursuant to 38 C.F.R. § 3.156(c) (2009), the Board finds that, due to the newly submitted service treatment records, these issues must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen previously denied claims. 38 C.F.R. § 3.156(c). The Veteran filed a claim seeking nonservice-connected pension benefits on November 21, 1994, and the Veteran cited his diabetes mellitus and heart disease in support of that claim. In granting entitlement to nonservice-connected pension in a December 1994 rating decision, the RO acknowledged that both the Veteran's diabetes mellitus and his coronary artery disease were compensably disabling. Thereafter, the Veteran filed initially filed a claim seeking service connection for diabetes mellitus and heart disease on April 24, 2001, and these conditions were denied several times, as noted in the December 2009 Board decision. Throughout the period, the Veteran was diagnosed as having both diabetes mellitus, type II, and coronary artery disease. Here, pursuant to 38 U.S.C. § 1116A provides, "Notwithstanding subsection (g) of section 5110 of this title [38 USCS § 5110], the Secretary shall determine the effective date of an award based on a claim under this section for an individual described in subparagraph (B) by treating the date on which the individual filed the prior claim specified in clause (i) of such subparagraph as the date on which the individual filed the claim so awarded under this section." (Continued on the next page) In implementing the grants of service connection for diabetes mellitus and coronary artery disease, the RO must consider the set forth in 38 U.S.C. § 1116(A). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.