Citation Nr: 21075795 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-19 933 DATE: December 21, 2021 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for ischemic heart disease. New and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus. REMANDED Entitlement to service connection for ischemic heart disease for accrued benefits is remanded. Entitlement to service connection for diabetes mellitus for accrued benefits is remanded. Entitlement to service connection for the Veteran's cause of death is remanded. FINDINGS OF FACT 1. In December 2012, VA denied entitlement to service connection for ischemic heart disease; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence received since the December 2012 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for ischemic heart disease. 3. In May 2013, VA denied entitlement to service connection for diabetes mellitus; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 4. New evidence received since the May 2013 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The December 2012 rating decision that denied entitlement to service connection for ischemic heart disease is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The May 2013 rating decision that denied entitlement to service connection for diabetes mellitus is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to August 1974. Sadly, he died in May 2016. The Appellant is his surviving spouse and filed a claim for service connection for the cause of his death. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). The July 2016 rating decision reopened claims for service connection for ischemic heart disease and diabetes mellitus for accrued benefits purposes only. However, the claims were then denied on the merits, as was service connection for the Veteran's cause of death. The Appellant timely appealed. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. 1. New and material evidence has been received to reopen a claim for entitlement to service connection ischemic heart disease. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus. The Board notes that the July 2016 rating decision by the RO reopened the claims of entitlement to service connection for ischemic heart disease and diabetes prior to deciding the claims on the merits. However, determining whether to reopen a claim is a preliminary and necessary step prior to addressing the claim on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In a December 2012 rating decision, VA denied entitlement to service connection for ischemic heart disease based on a finding that the record did not contain supporting evidence showing the Veteran was exposed to herbicides while in service. Additionally, in a May 2013 rating decision, VA denied entitlement to service connection for diabetes as exposure to herbicides in service could not be verified by the record. The Veteran did not appeal these decisions and new and material evidence was not received within the one-year appeal periods. Thus, the decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In April 2016, the Veteran submitted a claim to reopen service connection for diabetes mellitus and ischemic heart disease, as due to Agent Orange exposure. Unfortunately he died before the claims were adjudicated and they were administratively closed out. When the Appellant filed her claim for service connection for the cause of death, the RO inferred and adjudicated the claims to reopen these two disabilities as part of her claim. New evidence added to the record since the final December 2012 and May 2013 rating decisions include private treatment records, VA medical records, statements from the Appellant, and the deck logbooks from the ship on which the Veteran served, the USS Enterprise. The Appellant asserts the Veteran told her of his exposure to herbicide agents while he was in service. This included his description of eating lunch on top of large barrels that the Veteran believed were filled with herbicide agents and swimming in the contaminated waters directly outside of Vietnam to include the Gulf of Tonkin. Additionally, the Appellant submitted a series of deck logbooks from the USS Enterprise that show the ship was positioned in the waters outside of Vietnam and in the Gulf of Tonkin. These new assertions and evidence are material in that they are related to an unestablished fact and raise a reasonable possibility of substantiating the service connection claims. The Board thus reopens the Veteran's claims for entitlement to service connection for ischemic heart disease and diabetes for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for diabetes mellitus. The Appellant contends that the Veteran was exposed to herbicide agents during service on the USS Enterprise from November 1972 to July 1974. She further asserts this exposure directly resulted in the Veteran's diabetes mellitus and ischemic heart disease which contributed to his passing. More information is needed before the Board can make a fully informed decision. The Appellant asserts the Veteran was exposed to herbicides while onboard the USS Enterprise and while swimming in the contaminated waters off the coast of Vietnam. Specifically, the Appellant asserts the Veteran was exposed while swimming in the Gulf of Tonkin. The Veteran also made these assertions in a May 2011 private treatment record prior to his passing. VA presumes exposure to herbicides for Veterans who served on ships operating temporarily within the 12 nautical miles of the territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A ; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). The deck logbooks added to the record in Janaury 2021 show the USS Enterpise located in the Gulf of Tonkin in February 1973. The file contains a Records Research Response where a professional researcher from the Veterans Benefits Administration, Compensation Service, Records Research Center, wrote an extremely detailed review of the deck logs and Veteran's service on the USS Enterprise. Unfortunately, this review only offered conclusions fitting the old herbicide exposure criteria, and not the new Blue Water Act criteria. The opinion found that the USS Enterprise did not anchor or dock in any bay or harbor or travel along rivers in the Republic of Vietnam. It does not address whether the ship traveled within 12 nautical miles of the Republic of Vietnam, as defined by 38 U.S.C. § 1116A(d). A VA memo was added to the Veteran's record in Janaury 2021 which stated the Veteran's exposure to herbicides while in service could not be conceded. The rationale stated there was no evidence of record to show the Veteran, "had duty or visitation in the Republic of Vietnam, or on its inland waters, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23." No explanation was provided, no analysis of his service locations, and this memorandum lacked required signatures from a "BWN Employee" and Records Research Specalist. As the logbooks show the Veteran served in the Gulf of Tonkin, parts of which are located directly adjacent to the shores of Vietnam, and VA has not clearly answered the question of whether the USS Enterprise was within the territorial waters of the Republic of Vietnam while the Veteran was aboard, clarification is required prior to adjudicating the claim. 3. Entitlement to service connection for the Veteran's cause of death. As stated above, the Veteran died in May 2016. The death certificate was received in May 2016 which showed the Veteran's primary cause of death to be, "acute hypoxemic arrest, congestive heart failure, and coronary artery disease." Diabetes mellitus and obstructive sleep apnea were listed as contributing causes of death. Because a decision on the remanded issues of entitlement to service connection for ischemic heart disease and diabetes could significantly impact a decision on the issue of entitlement to service connection for the Veteran's cause of death, the issues are inextricably intertwined. A remand of the claim of entitlement to service connection for the Veteran's cause of death is required. The matters are REMANDED for the following action: 1. Conduct all research necessary to verify whether the Veteran ever served in the offshore waters of the Republic of Vietnam while aboard the USS Enterprise. Specifically, when the ship was in the Gulf of Tonkin in February 1973 did it ever travel within the offshore territory as defined by 38 U.S.C. § 1116A(d)? If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken and notify the appellant of VA's inability to verify the in-service herbicide agent exposure. All formal finding and memoranda should include any required signatures. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.