Citation Nr: 21068552 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-36 587 DATE: November 10, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The death certificate reveals that the Veteran died in April 2015 with causes of death listed as metastatic small cell lung cancer, liver failure from metastasis, metastasis to brain, and coronary artery disease (CAD). 2. The evidence is at least in relative equipoise as to whether the Veteran's active service qualifies as "brown water" or inland waterways service in the Republic of Vietnam during the Vietnam era. CONCLUSION OF LAW Resolving all reasonable doubt in the Appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1965 to October 1969. His DD 214 lists USS Mullinnix as the last duty assignment and indicates that he was the recipient of the Vietnam Service Medal as well as the Republic of Vietnam Medal. The Veteran died in April 2015. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a May 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for the cause of the Veteran's death. The Appellant's Notice of Disagreement (NOD) was received in May 2017. The Statement of the Case was issued in June 2017, and the Appellant's VA Form 9, substantive appeal to the Board, was received in July 2017. In October 2021, the Appellant and her representative appeared before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC. The transcript from the hearing has not yet been associated with the file, as the appeal is being processed under the Board's "One Touch" program. Entitlement to service connection for the cause of the Veteran's death. The Veteran died in April 2015. His death certificate lists his causes of death as metastatic small cell lung cancer, liver failure from metastasis, metastasis to the brain, and CAD as the causes of death. At the time of the Veteran's death, he was not in receipt of service connection benefits for any disability. The Appellant contends that the Veteran was exposed to Agent Orange during service on the inland waterways of the Republic of Vietnam aboard USS Mullinnix. In this case, the most probative evidence is in relative equipoise as to whether the Veteran's service qualifies as "brown water" or inland waterways service under the herbicide exposure presumption. See 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran's causes of death, lung cancer and CAD are enumerated in the list of disabilities presumed to be associated with exposure to Agent Orange. Accordingly, the remaining question is whether the Veteran's service aboard USS Mullinnix qualifies as service in the Republic of Vietnam under the herbicide exposure presumption. Of note, VA historically interpreted the statutory phrase "served in the Republic of Vietnam" as incorporating a requirement that the veteran served on land or inland waterways ("brown waters"). See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir, 2008). In the more recent case of Procopio v. Wilkie, the United States Court of Appeals for the Federal Circuit, however, held that veterans who served in the 12-mile nautical territorial sea of the Republic of Vietnam are entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116 provided they meet the other requirements of the statute. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir 2019) (en banc). Thus, service in the Republic of Vietnam includes the landmass or "inland waters" ("brown water") as well as within 12 nautical miles of the shores ("blue water"). In other words, with respect to inland waterway service, a veteran is entitled to the presumption of service connection under 38 C.F.R. § 3.307 (a)(1)(6)(iii), if they were present at some point on the landmass or "inland waters" (aka brown waters) of Vietnam. Haas v. Peake, 525 F.3d 1168, 1182-83 (Fed. Cir. 2008). Such inland waterways include "rivers, estuaries, canals and deltas 'inside the country.'" Gray v. McDonald, 27 Vet. App. 313, 321 (2015). The presumption of herbicide exposure is also extended to veterans who served on ships where deck logs reference "anchoring [in] or entering the 'mouth of' the Cua Viet River, Saigon River, Mekong River Delta, Ganh Rai Bay, and the Rung Sat Special Zone." Id. The Veteran's military personnel records indicate that he served aboard USS Mullinnix from April 1968 to October 1969. A March 1969 letter written by the captain of USS Mullinnix indicates that in February 1969, the ship left the Philippines for the "Gunline" off the coast of Vietnam close to the mouth of the Saigon River. It was noted that the ship arrived at the destination which is around the DMZ on March 3 and fired gunfire on targets ashore. It was also noted that enemy bunkers and ground structures were destroyed. The letter goes on to outline the USS Mullinnix mission, indicating that it would stand few miles offshore and would move closer in to continue firing rounds at various targets on the shore for several days. The Veteran also submitted a printout from a website outlining the deployment and history of USS Mullinnix. The printout indicates that the ship was in the West Pacific, Vietnam from January 1969 to August 1969. In May 2017, the VA obtained a medical opinion. Specifically, the VA examiner concluded that it is less likely than not that the Veteran's cause of death was related to his in-service asbestos exposure. The opinion did not mention exposure to herbicides. Based on the above, the evidence is at least in relative equipoise as to whether the Veteran's service aboard USS Mullinnix constitutes service in the inland waterways or brown water in the Republic of Vietnam. With all reasonable doubt resolved in the Appellant's favor, service connection for the cause of the Veteran's death is warranted. In this regard, the letter from the captain of USS Mullinnix indicates that the ship was docked in and around the shore of the Republic of Vietnam where it participated in a mission consisting of firing guns and destroying targets on the shore. The letter notes that the ship was docked near the mouth of the Saigon River and close enough to the shore to fire guns at targets on the shore. Moreover, the captain indicates that when the ship was not participating in combat missions, it was docked within "few miles" offshore. The Veteran's military personnel records confirm that he served aboard USS Mullinnix during this March 1969 mission. Thus, it is at least as likely as not that USS Mullinnix participated in combat in the brown water or the inland water ways, specifically the Saigon River, while the Veteran was serving aboard. While the March 1969 captain's letter does not explicitly state that the ship travelled through the inland waterways, there is mention of being docked near the Saigon River. In other words, if a ship is docked at or near the mouth of a river, it is reasonable to assume that the ship made contact with the waters of that river. With all reasonable doubt resolved in the Appellant's favor, the record supports the contention that the Veteran served in the inland waterways or the brown waters of the Republic of Vietnam. Accordingly, he is presumed to have been exposed to Agent Orange in service. As the Veteran is presumed to have been exposed to herbicides in service, and his death certificate lists lung cancer and CAD as causes of death, both of which are enumerated in 38 C.F.R. § 3.309(e), service connection for the cause of the Veteran's death is warranted. As previously mentioned, following enactment of the Blue Water Navy Vietnam Veterans Act of 2019 and codification of 38 U.S.C. § 1116 (A) (effective January 1, 2020), the definition of the official waters of the Republic of Vietnam was expanded to include 12 nautical miles from the shore of the country. In this case, the RO has not determined whether the Veteran served within 12 nautical of the shores of the Republic of Vietnam. However, such development is not necessary, as the record in this case illustrates that the Veteran at least as likely as not served in the inland waterways, which are clearly within 12 nautical miles of the Republic of Vietnam. In sum, the evidence is at least in relative equipoise as to whether the Veteran served in the inland waterways or the brown waters of the Republic of Vietnam. As such, in applying the benefit-of-the-doubt-rule, the Veteran had requisite service in the inland waters of the Republic of Vietnam, and therefore the Appellant is eligible for presumption of service connection under 38 C.F.R. § 3.307 (a)(1)(6)(iii). With the Veteran's death certificate listing lung cancer and CAD as the causes of death, service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.312. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.