Citation Nr: 21067559 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-60 441 DATE: November 4, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's cause of death is documented as dementia and Parkinson's disease. 2. The most probative evidence of record shows the USS Chicago did not operate on the inland waterways or within 12 nautical miles of the Vietnamese coast during the period in which the Veteran served aboard that vessel. 3. The Veteran's Parkinson's disease and dementia were not incurred in or related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1154, 1310, 5107;38C.F.R. §§3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1964 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, the Veteran passed away in December 2015, for which the Board extends its sympathies and recognizes his valuable service to this country in the military. The appellant is his surviving spouse. The appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2019. The transcript is of record. This matter was previously before the Board in June 2019 and June 2020, on which occasions it was remanded for additional development. It has been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for the cause of the Veteran's death The law provides that a surviving spouse of a qualifying Veteran who dies as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312 (a)-(c). Unfortunately, the Veteran passed away in December 2015, his death certificate listing dementia with underlying Parkinson's disease as the cause of death. The Veteran was not service connected for any disability at the time of his death, but the Board notes that Parkinson's disease is presumptively linked to Agent Orange exposure in those Veterans found to have served in the Republic of Vietnam during the Vietnam war, or aboard a ship that operated on its inland waterways or within twelve nautical miles of its coast. The appellant has indicated that the Veteran's service aboard the USS Chicago during the Vietnam War brought him within 12 nautical miles of the coast of the Republic of Vietnam, and accordingly, the Agent Orange presumption should be applied. The matter has been remanded on several occasions to determine whether the USS Chicago operated within 12 nautical miles of the Vietnamese coast during the Vietnam War. An August 2017 JSRRC Formal Finding stated that, based on a review of the vessel's command history, there was insufficient information to verify Agent Orange exposure in the Veteran's case, but because that finding was issued before passage of the Blue Water Navy Veterans Act of 2019, the Board accords it no probative value. A February 2020 VA memorandum concluded that there was no evidence the USS Chicago operated within the territorial waters of Vietnam but did not append any report or relate findings with respect to the vessel's operation within 12 nautical miles of the coast, for which reason the matter was again remanded, and for which reason the Board accords the memorandum no probative value. Finally, a June 2021 VA memorandum confirmed that, "[e]xposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23." Appended to that memorandum is a detailed diagram summarizing the recorded positions of the USS Chicago during the period of the Veteran's service aboard that vessel, taken from the vessel's logbooks, that demonstrate that the vessel did not operate on the inland waterways of the Republic of Vietnam, nor within 12 nautical miles of the Vietnamese coast. This most recent evidence is uncontroverted by any objective evidence of record, and the Board therefore accords it great probative value with regard to the central question in this matter, namely the positions of operation of the USS Chicago during the period during which the Veteran served aboard that vessel. Accordingly, the Board finds that the USS Chicago did not operate on the inland waterways or within 12 nautical miles of the Republic of Vietnam at any point during the Veteran's service aboard that vessel, and the Agent Orange presumption is therefore inapplicable in this matter. The appellant has not outlined an alternative theory of entitlement to service connection for the cause of the Veteran's death in this case. Thus, with every regret, the Board must conclude that the evidence cannot be said to be in equipoise, as no competent evidence has been introduced linking the Veteran's cause of death to any aspect of active duty service. While the Board has considered with sympathy the appellant's lay statements, it cannot afford probative weight to her assertions with respect to the nature of the Veteran's service during the Vietnam War, and specifically as regards the locations of the USS Chicago during that period. In sum, the evidence does not show that it is at least as likely as not that the Veteran's cause of death is related to active service, and as such, the claim for service connection for the cause of the Veteran's death must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.