Citation Nr: 21008095 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-20 551 DATE: February 11, 2021 REMANDED Entitlement to service connection for coronary artery disease (claimed as ischemic heart disease) to include exposure to herbicide agents is remanded. Entitlement to service connection for prostate cancer to include exposure to herbicide agents is remanded. Entitlement to service connection for hypertension, to include as secondary to coronary heart disease, prostate cancer, or exposure to herbicide agents. Entitlement to service connection for a psychiatric condition including anxiety disorder, not otherwise specified (claimed as post-traumatic stress disorder) to include as secondary to prostate cancer is remanded. REASONS FOR REMAND The Veteran had active service from August 1966 to June 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for coronary artery disease (claimed as ischemic heart disease) to include exposure to herbicide agents is remanded. 2. Entitlement to service connection for prostate cancer to include exposure to herbicide agents is remanded. 3. Entitlement to service connection for hypertension, to include as secondary to coronary heart disease, prostate cancer, or exposure to herbicide agents. 4. Entitlement to service connection for a psychiatric condition including anxiety disorder, not otherwise specified (claimed as post-traumatic stress disorder) to include as secondary to prostate cancer is remanded. The Veteran seeks service connection for his coronary artery disease (claimed as ischemic heart disease and prostate cancer to include exposure to herbicide agents. The Veteran also seeks service connection for hypertension and a psychiatric condition including anxiety disorder, not otherwise specified (claimed as post-traumatic stress disorder), due to his asserted exposure to Agent Orange when he had foreign service. The Veteran also contends that his hypertension is secondary to his coronary heart disease (CAD), and that his psychiatric conditions are secondary to his prostate cancer. In July 2020, the Veteran testified at a Board hearing. The Veteran’s representative stated that the Veteran’s DD-214 indicated that the Veteran had foreign service of one year and one month. The Veteran testified that in January 1968 he left for Westpac and was on board the USS Saint Paul. The Veteran testified that he was stationed off of Vietnam because of “the gun line.” He also testified that the only place they stopped was the Philippines, and during the rest of the time he was off in Vietnam at the DMZ offering gun support. The Veteran testified that he “worked in CIC and they always referred to it as the gun line, areas on the charts where we fire from. We’d go wherever the spotters would call in for fire support, and we’d go in and shoot.” He indicated that he was with artillery, “Eight-inch. Saint Paul had nine eight-inch guns on it, about a dozen five-inch and six three-inch.” He also testified that they were a thousand yards from the coast, and that he was a Blue Water Navy Veteran. The Veteran testified that he did not realize it at the time, but he was exposed to Agent Orange. He stated that, They found out that because they were drawing our water supply from the ship was coming off the surface, the Agent Orange was running down into the ocean by the DMZ out of the rivers there. And the ship takes in water and uses an evaporator and uses it for cooking and washing and showering and whatever. They determined the Agent Orange was in the water we were taking in. The Veteran’s DD-214 indicates that his last duty assignment was the USS Saint Paul CA73 and he was awarded a national defense service medal. In the recent case Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the Court reversed its prior precedent and held that "the Republic of Vietnam" as it relates to a determination of who served in the Republic of Vietnam, was expanded from the previous definition of just the waters off shore and involving duty or visitation on the actual landmass or on the inland waterways of the Republic of Vietnam, to include the 12 nautical miles of the territorial sea of that nation. In this case, the Board cannot make a fully informed decision on the issues of service connection for the Veteran's asserted coronary artery disease (claimed as ischemic heart disease and prostate cancer until further development occurs that will enable the Board to determine whether the Veteran meets the new qualifications of serving in the 12 nautical miles of the territorial waters of the Republic of Vietnam that qualifies him to receive the presumption of exposure to herbicide agents. See Procopio, 913 F.3d 1371. On remand, efforts should be made to obtain copies of deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Saint Paul, CA73 during the Veteran's service period. A formal finding as to whether in-service herbicide agent exposure is shown should thereafter be generated. If the Veteran receives a formal finding that he was within 12 nautical miles of Vietnam, then the Veteran must be scheduled for an examination to determine the nature and etiology of any hypertension condition The Board notes that the claim for service connection for a psychiatric disability is based in part on a contention that it is secondary to a service-connected disability. Accordingly, the Board will defer action on that claim until after the other service connection claims have been adjudicated. The matter is REMANDED for the following action: 1. Contact the NARA, or any other appropriate repository of records, and request that they furnish copies of deck/ship logs, or any other documentation, detailing the movements and operations of the U.S.S. Saint Paul, CA73, from August 18, 1966 to June 1968. A request should be sent to the Veteran and his representative to provide any other evidence they may wish to submit in association with the claim, and the expansion of the term service in the Republic of Vietnam and a reasonable period of time for his response should be provided. All notice provided, requests made, actions taken, and records and responses received must be carefully documented in the record. The Veteran should be notified of any negative results of these efforts. 2. Following the completion of step one, request the NPRC or the JSRRC to review pertinent records in the Veteran's file in an attempt to corroborate the Veteran's assertions of in-service exposure to herbicide agents such as Agent Orange while serving in the Navy aboard the U.S.S. Saint Paul. The AOJ should include with the request copies of all pertinent service personnel records and any deck/ship logs obtained on remand. The NPRC/JSRRC is asked to provide any information it has regarding the probability that the Veteran was exposed to Agent Orange, given his rank, military occupational specialties, and duties. Importantly, the NRPC/JSRRC is asked to explain its definition of "official waters" as it relates to service in Vietnam, to include whether a finding of service in the "official waters" of the Republic of Vietnam indicates service within 12 nautical miles of its shores. 3. Following completion of steps one and two, make a formal finding as to whether in-service herbicide agent exposure is shown. 4. After obtaining any additional records to the extent possible, If, and only if, any records are located showing the Veteran served within 12 nautical miles of Vietnam, then schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any hypertension disability. The entire claims file, including a copy of this remand, must be provided to the examiner for review. Following the review of all the pertinent evidence, the examiner is asked to render an opinion for the following: Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s hypertension is related to military service, to include as a result of exposure to herbicides while he was in Vietnam? The examiner should consider that in November 2018, hypertension was moved by National Academies of Sciences to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. https://www.nationalacademies.org/news/2018/11/vietnam-veterans-and-agent-orange-exposure-new-report 5. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran’s theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 289 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained). 6. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 7. Then, the Veteran’s claim must be readjudicated. The claim for a psychiatric disorder should be adjudicated as a secondary service connection claim. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.