Citation Nr: 21074957 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-30 722 DATE: December 16, 2021 REMANDED Entitlement to service connection for residuals of transient ischemic attacks, to include as a result of in-service exposure to herbicide agents, is remanded. Entitlement to an initial compensable rating for the service-connected bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from March 1968 to March 1972. During the current appeal, and specifically in August 2021, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge (VLJ). Service connection for residuals of transient ischemic attacks, to include as a result of in-service exposure to herbicide agents The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents. The law also provides a presumption of exposure to such agents for veterans who served in the Republic of Vietnam between January 1962 and May 1975, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). For purposes of applying the herbicide presumption, "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii); 3.313(a). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that "Service in the Republic of Vietnam" also includes service on the landmass, inland waterways and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116(f) that they "served in the Republic of Vietnam," regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. In the current appeal, the Veteran seeks service connection for transient ischemic attacks, which he asserts are due to having been exposed to Agent Orange while serving aboard the U.S.S. William H. Standley off the coast of Vietnam during the Vietnam Era. His VA treatment records reflect a positive medical history for transient ischemic attacks and treatment for such in 2014. In this regard, the Board of Veterans' Appeals (Board) finds that the Veteran's service aboard the U.S.S. William H. Standley constitutes service in the Republic of Vietnam. His service personnel records (SPRs) reveal that he served aboard the U.S.S. William H. Standley during a period of time when it was noted as having been in "Vietnam waters." His service leave records indicate that he was stationed aboard the ship for all accounts of leave taken from September 1968 through January 1970 and that awards were given to service members aboard the U.S.S. William H. Standley, "which served in Vietnam waters from 27 January 1969 until 18 June 1969." Thus, his leave record places him aboard the ship while it was in waters around Vietnam. The Veteran has also provided details about the proximity of the U.S.S. William H. Standley to the Vietnam shores during his service thereon in written lay statements submitted throughout the appeal period and in his August 2021 testimony. His statements have been consistent that the ship was docked in the Tonkin Gulf merely yards from the shore of Vietnam. Further, he began to state this prior to Procopio becoming the governing caselaw on this issue (i.e., before there would have been an incentive to state that he was in blue waters within 12 nautical miles from the shores of the Republic of Vietnam). Thus, the Board finds his competent reports of the proximity of the U.S.S. William H. Standley to the shore of Vietnam during his time aboard it to be very credible and, thus, extremely probative. Accordingly, the Board affords the Veteran all benefit of the doubt on this issue and finds that the U.S.S. William H. Standley sailed within 12 nautical miles from the shores of the Republic of Vietnam while the Veteran was aboard. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the Veteran served above the U.S.S. William H. Standley when it was within 12 nautical miles from the shores of the Republic of Vietnam, the Board finds, in accordance with the Federal Circuit's recent holding in Procopio, that he had service in Vietnam during the Vietnam War. Having conceded in-service herbicide exposure for the Veteran, the in-service element of this claim has now been met. However, further development is needed as to other aspects of the claim before the Board can decide it. Specifically, the Veteran has not been afforded a VA examination to determine the current nature and etiology of his transient ischemic attacks or residuals thereof, as the Regional Office determined there was no in-service event to which they could possibly be linked. Although transient ischemic attacks are not a disability presumed to be connected to exposure to herbicide agents, service connection can still be awarded on a direct basis. Indeed, now that the Board has found the Veteran to have presumed in-service exposure to herbicide agents, an examination is needed to determine whether he has continued to suffer from transient ischemic attacks or residuals thereof at any time during the period on appeal (from July 2017 to present) and whether his transient ischemic attacks can be directly related to his active service, including his now conceded in-service exposure to herbicides. Further, the Veteran's VA treatment records were last associated with the claims file in January 2018, nearly four years ago. Updated records are needed as they could contain additional treatment for transient ischemic attacks more recent than 2014 which could help substantiate the Veteran's claim. An initial compensable rating for the service-connected bilateral hearing loss The Veteran also seeks a compensable rating for his bilateral hearing loss. He underwent a VA audiological examination in October 2017. He testified before the Board in August 2021 that his hearing had worsened since that time. As such, he should also be afforded a new VA examination to ascertain the current severity of his bilateral hearing loss before the Board can decide this claim. Accordingly, these matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2018 to present. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his transient ischemic attacks and any residuals thereof. The examiner should review the entire claims file, conduct all necessary tests and studies, and address the following: (a.) Clearly indicate whether the Veteran has, at any time during the appeal period (from January 2017 to the present), experienced transient ischemic attacks or any residual conditions resulting from earlier transient ischemic attacks. (b.) If so, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's transient ischemic attacks are related to any incident of active service, to include as a result of his conceded exposure to herbicide agents therein? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Also, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected bilateral hearing loss. His claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the file should be annotated in the examination report. The examiner should provide a full description of the disability and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairment due to his service-connected bilateral hearing loss alone and discuss the effect of the condition on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.