Citation Nr: 21073063 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-39 859 DATE: December 7, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active service in the Navy from August 1967 to August 1969. The Veteran died in November 1993 and the cause of death was cardiac arrest due to chronic hypertension. The Veteran had a diagnosis of coronary artery disease (CAD) during his lifetime. The appellant is the Veteran's widow. In February 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. The Board of Veterans Appeals (Board) previously remanded this matter in June 2019 and in March 2021 for further development. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Regional Office (RO) does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. Here, the RO did not substantially comply with the March 2021 remand and a remand is once again required. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant contends the Veteran traveled to Vietnam and was presumptively exposed to Agent Orange, that his CAD is thus entitled to service connection, and that his death from cardiac arrest is attributable to CAD and thereby warrants a finding of service connection for the cause of death. The Veteran's personnel records show that he was stationed on the USS Constellation from September 1968 through January 1969. The USS Constellation was an aircraft carrier and performed Special Operations from Yankee Station in the Gulf of Tonkin. The Board's March 2021 remand specifically instructed the RO to request unit histories for the Reconnaissance Attack Squadron Five (RVAH-5), the unit to which the Veteran was attached during his deployment aboard the USS Constellation. As a unit, RVAH-5 was deployed aboard the USS Constellation between May 1968 and January 1969, but the Veteran did not arrive and commence his sea duty aboard the ship until September 1968. Certain disabilities that become manifest to a degree of 10 percent or more at any time after service shall be service-connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, provided there is no affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6). Coronary artery disease is among those disabilities. 38 C.F.R. § 3.309(e). In order to establish the applicability of the provisions set forth in 38 C.F.R. § 3.307(a)(6), the evidence of record must show that the Veteran served in the Republic of Vietnam. This definition includes the 12 nautical mile territorial sea, during the period beginning on January 9, 1962, and ending on May 7, 1975. See Procopio v. Wilkie, 913 F.3d 1371(Fed. Cir. 2019) (en banc). The determination of whether a veteran served within the 12 nautical mile territorial sea of Vietnam should be made on consideration of all procurable and assembled data. Whether an appeal may be adjudicated or requires remand for further development is a matter of judicial discretion based on the evidence of record. VAOPGCPREC 1-2019. The evidence as reflected by the ship's deck logs indicates the USS Constellation was not within 12 nautical miles of the territorial waters of Vietnam at any point during the Veteran's deployment aboard that ship, i.e., it did not traverse either "brown waters" or "blue waters" of Vietnam. However, the ship's location is not the end of the inquiry in this case. The Veteran's wife testified he had informed her that he traveled to Vietnam on aircraft and assisted in recovering the bodies of deceased servicemembers and returning their bodies to the ship. Although the USS Constellation's deck logs do not reflect such activities, his wife testified that the Veteran indicated it was an "unofficial" duty he performed to "help out." As the Veteran is deceased, the Board cannot seek clarification from him and cannot ascertain whether the information he relayed to his wife was understood as he intended. Accordingly, the Board's March 2021 remand requested research pertaining to the unit history of RVAH-5 during its deployment aboard the USS Constellation to attempt to determine whether any unit members disembarked the aircraft carrier, traveled to Vietnam, or participated in the type of casualty recovery activities described by the Veteran's wife. In accordance with the Board's March 2021 remand, a request was initiated to the Military Records Research Center (MRRC) in April 2021, which referenced the remand, noted the Veteran's contention of presence within 12 nautical miles of Vietnam with RVAH-5, and requested unit histories between May 1968 and January 1969. The MRRC subsequently received an email from a VBA regional office field user in August 2021, requesting to cancel the research request and contending it was "done incorrectly" prior to other actions being taken to develop the claim. Accordingly, the research request was canceled, but it appears that no other actions were taken related to the research. Instead, after receiving the Veteran's military personnel records in September 2021, the RO issued a supplemental statement of the case, which noted it had reviewed, among other things, the August 2021 "records research response." However, this "records research response" was nothing more than a confirmation that the research request had been canceled as requested. Accordingly, the RO has failed to comply with the prior remand directive to request unit histories for the RVAH-5. The Board acknowledges that the evidence indicates the USS Constellation itself was not within 12 nautical miles of Vietnam at any point during the period of the Veteran's deployment aboard the ship (September 1968 through January 1969). Again, however, the Board reiterates that additional development is necessary given the Veteran's reported lay statements regarding travel to and activities in Vietnam. The matters are REMANDED for the following action: 1. Contact the appropriate agency or administration entity, to include the MRRC or NPRC, and request unit histories for the Reconnaissance Attack Squadron Five (RVAH-5) during the period covering the unit's deployment aboard the USS Constellation from May 1968 through January 1969. Although the Veteran did not arrive aboard the ship until September 1968, any prior unit history during the deployment may be relevant. Specifically, the RO is asked to research and attempt to ascertain whether any crew members from the USS Constellation, in general, or RVAH-5 personnel, in particular (to include the Veteran), disembarked the ship or were otherwise sent ashore or within the territorial waters of Vietnam to assist in casualty retrieval or other operations during the unit's deployment aboard the ship from May 29, 1968 through January 31, 1969. All inquiries and responses associated with this remand and attendant research should be added to the claim file. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.