Citation Nr: 21074216 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-20 036 DATE: December 14, 2021 REMANDED Entitlement to service connection for ischemic heart disease (IHD), as due to chemical exposure, is remanded. Entitlement to service connection for diabetes mellitus (DM), as due to chemical exposure, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from October 1963 to May 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a member of the Board on May 14, 2019. However, the Veteran failed to appear. Without good cause shown, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (e). 1. Entitlement to service connection for ischemic heart disease (IHD), as due to chemical exposure 2. Entitlement to service connection for diabetes mellitus (DM), as due to chemical exposure The Veteran claims that his IHD and DM conditions are related to his military service. Specifically, he reported exposure to Agent Orange and hazardous material (such as benzene and methyl ethyl ketone (MEK)) in service, as due to his military occupational specialty (MOS), while serving aboard the U.S.S. America from February to December 1968. It is not in question that the Veteran has current disabilities, as he has been diagnosed with diabetes mellitus (DM) type II and coronary artery disease (CAD) during the appeal period. Although a VA medical nexus opinion addressing direct service connection was obtained post-Board remand (negative nexus opinions), the Board notes that DM type II and CAD are disabilities specifically enumerated as entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § 3.309 (e). On January 29, 2019, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase 'service in the Republic of Vietnam' in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). In this case, despite the VA memorandum/administrative decision bearing the following conclusion"exposure to Agent Orange is not conceded," the same June 2017 VA memoranda indicates that the "Veteran served aboard the U.S.S. American CVA-66, which was in the official waters of the RVN" (see June 2017 VA memorandum; see also September 2013 Agent Orange Decision)it appears that the Veteran's service might have included the territorial sea of the Republic of Vietnam. Notably, the Veteran's military records indicate he served in Vietnam and that he served aboard the U.S.S. America. However, the evidence is insufficient to determine whether the Veteran served within the 12-nautical mile territorial sea of Vietnam. Therefore, the Board finds a remand is warranted for further development. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. 4. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that he developed bilateral knee disabilities as a result of his service-connected back disability and/or left and right hip strain. Specifically, he explained that he placed greater pressure on his knees because of his back and/or hips, causing disabilities to occur. While a VA medical nexus opinion for secondary service connection for bilateral knee was obtained post-Board remand in August 2021, the examiner at the time failed to opine on the secondary aggravation (secondary service connection) for the right and the left knee disabilities, and also on the causation (secondary service connection) for the right knee disability. With regards to the opinion provided for the causation aspect of secondary service connection for the left knee disability, the Board notes the furnished opinion is conclusory, as the examiner merely stated that the Veteran's left knee disability "has no direct correlation" to his service-connected disabilities, without providing any rationales in support of such finding. Thus, the Board finds remand necessary for obtaining a medical addendum opinion that addresses secondary service connection (both causation and aggravation) for both knee disabilities. These matters are REMANDED for the following actions: 1. Verify whether the U.S.S. America sailed within 12-nautical miles of the Republic of Vietnam while the Veteran was aboard. Thereafter, issue a formal finding on whether the Veteran was presumed to have been exposed to herbicide agents during his service aboard the U.S.S. America. 2. Obtain a medical addendum opinion from the August 2021 VA examiner, but if not available, from another VA examiner. The examiner must review the complete claims file, including this Remand, and then address: Whether it is at least as likely as not (50 percent or better probability) that the Veteran's right and left knee disabilities were caused or aggravated by his service-connected a) right hip strain; b) left hip strain; and c) back disability. The examiner must provide a full supporting rationale and note his or her review of the complete claim file, including this remand. If any requested opinion is not possible without resort to mere speculation, then the examiner must explain why. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.