Citation Nr: 21064094 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-47 303 DATE: October 19, 2021 REMANDED Entitlement to service connection the cause of the Veteran's death is remanded. Entitlement to service connection for a heart condition, to include as due to herbicide exposure, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for retinopathy, to include as secondary to diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1964 to December 1968 and from August 1972 to August 1978. The Veteran died in January 2013. The Appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of the Veterans' Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran died in January 2013 and the immediate cause of death listed on his death certificate is probable myocardial infarction. Kidney failure due to diabetes mellitus is listed as a contributory cause. The Appellant contends that the Veteran's heart condition and diabetes mellitus were caused by herbicide exposure during the Veteran's naval service and that these conditions caused his death. However, VA has not conceded that the Veteran had herbicide agent exposure in service. The Appellant argues that the Veteran was exposed to Agent Orange while deployed aboard a naval vessel and military personnel records reflect that the Veteran was assigned to several different ships during his naval service, including the USS Wallace L. Lind and the USS Reasoner. Generally, a Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). However, during the pendency of this appeal, Congress enacted on June 25, 2019 the Blue Water Navy Vietnam Veterans Act of 2019 ("BWN Act"), Pub. L. 116-23, codified at 38 U.S.C. § 1116A(d). Now, service in the Republic of Vietnam is also service on a vessel in the 12 nautical mile territorial sea of Vietnam. 38 U.S.C. § 1116A(d); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). The 12 miles are measured seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at certain points (latitude North, longitude East); these are set out in a table. 38 U.S.C. § 1116A(d). A veteran's service must take place between January 9, 1962, and May 7, 1975. 38 U.S.C. § 1116A(a). Given the above, remand is required for the originating agency to address in the first instance whether the Veteran had herbicide agent exposure based on his service aboard any ships between January 9, 1962, and May 7, 1975, to include the Republic of Vietnam's 12 nautical mile territorial sea. See 38 U.S.C. § 1116A. 2. Entitlement to service connection for a heart condition, to include as due to herbicide exposure, is remanded. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded. 4. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, is remanded. 5. Entitlement to service connection for retinopathy, to include as secondary to diabetes mellitus, is remanded. Issues 2-5: The claims for service connection for a heart condition, diabetes mellitus, neuropathy of the bilateral lower extremities, and retinopathy were characterized by the RO as claims for accrued benefits. In Reliford v. McDonald, 27 Vet. App. 297, 304 (2015), the United States Court of Appeals for Veterans Claims (Court) explained that it is an appellant's right to choose whether she wishes to waive substitution when she files a claim for accrued benefits. While it has been previously construed that the Appellant's claim is for accrued benefits, the Appellant must be provided notice and an opportunity to decide whether she waives her right to substitution. Id. On remand, the AOJ should clarify whether the Appellant is pursuing these claims as a substitute for the Veteran or on an accrued benefits basis. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010). Also, on remand, once the Appellant clarifies whether she wishes to proceed with the claim for accrued benefits purposes or for substitution purposes, the AOJ should take appropriate action to include notice of the substantive law and regulations and adjudication of the claim in a decision. If the Appellant wishes to be a substitute claimant, the AOJ must decide the question of substitution in a decision or decisional letter and must notify the Appellant of all decisions and appellate rights. The matters are REMANDED for the following action: 1. Attempt to verify the asserted in-service exposure to herbicide agents based on his service aboard any ships between January 9, 1962, and May 7, 1975, to include service within the Republic of Vietnam's 12 nautical mile territorial sea. (Continued on the next page) 2. Provided the Appellant notice and an opportunity to decide whether she waives her right to substitution. Once the Appellant clarifies whether she wishes to proceed with the claim for accrued benefits purposes or for substitution purposes, the AOJ should take appropriate action to include notice of the substantive law and regulations and adjudication of the claim in a decision. If the Appellant wishes to be a substitute claimant, the AOJ must decide the question of substitution in a decision or decisional letter and must notify the Appellant of all decisions and appellate rights. 3. Conduct any other development deemed necessary following the above actions, and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.