Citation Nr: 21072598 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-00 878 DATE: December 3, 2021 REMANDED Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Navy from August 1965 to November 1969. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in which the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for ischemic heart disease and prostate cancer. 1. Entitlement to service connection for ischemic heart disease is remanded. 2. Entitlement to service connection for prostate cancer is remanded. The Veteran contends that he is entitled to service connection for ischemic heart disease and prostate cancer due to exposure to herbicide agents (Agent Orange). He states his active service included service in the waters of the Republic of Vietnam. In Porcopio v. Wilkie, 913 F.3d 1371 (2019), the United States Court of Appeals for the Federal Circuit held that the term "Republic of Vietnam" as used in 38 U.S.C. § 1116 included the twelve-nautical-mile territorial seas of Vietnam. Congress passed and the President signed the Blue Water Navy Vietnam Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019), which, among other things, added 38 U.S.C. § 1116A to codify this interpretation of the "Republic of Vietnam" to include the twelve-nautical-mile territorial seas. The AOJ's initial adjudication of the Veteran's claim preceded these changes in law. Notably, the AOJ did not previously consider whether the Veteran has service within the twelve-nautical-mile territorial seas of Vietnam. See 38 U.S.C. § 1116A. The evidence of record demonstrates that the Veteran may have had service in the territorial waters of Vietnam. In correspondence dated October 2016, the Veteran stated that he had served aboard the U.S.S. O'Bannon from February 1967 to October 1969. He explained that during that time the U.S.S. O'Bannon made two Westpac cruises, one between September 1967 and April 1968 and another between April 1969 and October 1969. He stated that when he served aboard the U.S.S. O'Bannon, he spent time in Da Nang Harbor and in the Saigon and/or Mekong Rivers. In a December 2018 VA 21-4138, Statement in Support of Claim, the Veteran's representative stated the U.S.S. O'Bannon was anchored in Da Nang Harbor in December 1967. Military personnel records indicate that the Veteran served six months or longer in contiguous waters of South Vietnam. See Military Personnel Record, received January 2016. Under 38 U.S.C. § 1116A, whether the Veteran had service in the offshore waters of Vietnam while aboard the U.S.S. O'Bannon is integral to his claim, as it may establish presumptive exposure to herbicide agents. Thus, because the AOJ did not consider this in its previous adjudications of the matter on appeal, a remand is required to determine whether the Veteran's service aboard the U.S.S. O'Bannon from February 1967 to October 1969 involved service in the territorial waters of Vietnam. Additionally, in August 2016, the Veteran requested deck logs for the U.S.S. O'Bannon from Joint Services Records Research Center (JSRRC). He received a response from in August 2016 in which JSRRC informed him that JSRRC did not have records of documents created or maintained by the Department of the Navy. JSRRC advised that he should submit his request for deck logs to the National Archives and Records Administration (NARA) and command histories from the Naval History and Heritage Command, and suggested that he work with his local RO to obtain these records. In correspondence dated October 2016, the Veteran contacted VA and requested assistance in obtaining the deck logs and command histories as suggested by JSRRC. The AOJ is not shown to have responded to the Veteran's request for assistance and never requested the deck logs from NARA or the command histories from the Naval History and Heritage Command. The failure to assist the Veteran in obtaining deck logs and command histories after his October 2016 request for assistance is a duty to assist error. On remand, the AOJ should assist the Veteran by contacting NARA to request deck logs and the Naval History and Heritage Command to request command histories for the U.S.S. O'Bannon during the periods of time when the ship sailed in the official waters of the Republic of Vietnam from February 1967 to October 1969. The matters are REMANDED for the following action: Attempt to verify the Veteran's period of service aboard the U.S.S. O'Bannon and whether the U.S.S. O'Bannon sailed within 12 nautical miles of the Republic of Vietnam or sailed within the waters outlined in 38 U.S.C. § 1116A from February 1967 to October 1969. This should include obtaining relevant deck logs, command histories, or any other relevant records that might serve to verify the U.S.S. O'Bannon's position during the relevant period. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify him of the VA's inability to verify the in-service exposure to herbicide agents. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, Associate 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.