Citation Nr: 21065495 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-48 099A DATE: October 26, 2021 REMANDED Service connection for residuals of prostate cancer. Service connection for erectile dysfunction. Service connection for hypertension. REASONS FOR REMAND The Veteran served on active duty from November 1966 to November 1970. The Veteran contends that his residuals of prostate cancer and hypertension are due to either Agent Orange or asbestos exposure. He argues that he was exposed to herbicide while he was stationed in Subic Bay, Philippines and that he was exposed to TCE, carbon tetrachloride, PCB and asbestos, as an electrician's mate onboard the USS Kitty Hawk. A May 1968 military personnel record states that the Veteran was "[a]uthorized to wear the Republic of Vietnam Campaign Medal with device (1960-) for service aboard the USS Kitty Hawk (CVA-63) during the period from December 1967 through May 1968..." A response from Records Management Center (RMC) for a request for the dates of the Veteran's service in Vietnam was received in December 2013 and reflected that they were unable to determine whether or not he served in the Republic of Vietnam. The response noted that he served aboard the USS Kitty Hawk which was in the official waters of the Republic of Vietnam. The dates during which the USS Kitty Hawk was in the official waters of the Republic of Vietnam were listed in the response. A June 2014 VA Memorandum for Herbicide Exposure found insufficient information to forward to JSRRC. The Memorandum found that there was no record of tactile herbicide used tested or stored in the Philippines. The Memorandum also noted that the Veteran served aboard the USS Kitty Hawk which was in the official waters of the Republic of Vietnam but that the records provided no conclusive proof of in country service. The Memorandum concluded that there was no evidence documented in the records of the Veteran having in-country service in the Republic of Vietnam or within inland waterways or evidence that could be used in generating a JSRRC request. On January 29, 2019, the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), holding that a veteran who served within the twelve nautical mile territorial waters of Vietnam was entitled to presumptive service connection under 38 U.S.C. § 1116 (f). Further, on June 25, 2019, Congress enacted the Blue Water Navy Vietnam Veterans Act of 2019, enabling presumptive service connection for veterans who served offshore within twelve nautical miles of Vietnam, but did not go ashore or visit the inland waterways. Pub. L. No. 116-23, 133 Stat. 966 (2019). The RO has not attempted to verify whether the USS Kitty Hawk entered within the 12 nautical mile territorial waters of Vietnam while the Veteran was stationed on the ship. A remand is warranted so that the RO can undertake this development. With regard to the claim for service connection for erectile dysfunction, the Veteran has asserted that erectile dysfunction is secondary to residuals of prostate cancer with leakage. As such, the claim is inextricably intertwined and must also be remanded pending adjudication of the intertwined issue. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Request the appropriate source to make a determination as to whether the Veteran was stationed on the USS Kitty Hawk while positioned 12 or less nautical miles from the Republic of Vietnam land mass in accordance with the standards and definitions set out in the Blue Water Navy Vietnam Veterans Act of 2019. 3. If it is determined that the Veteran served within the territorial waters of the Republic of Vietnam consistent with Procopio and the Blue Water Navy Vietnam Veterans Act of 2019, the RO should: Return the claims file to a clinician to determine the etiology of erectile dysfunction. Based on a review of the record, the clinician should: Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that erectile dysfunction was caused by, or was aggravated by the Veteran's residuals of prostate cancer. If the residuals of prostate cancer aggravated erectile dysfunction, the clinician should identify the percentage of disability which is attributable to the aggravation. A complete rationale for any opinion expressed should be provided in a report. 4. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.