Citation Nr: 21010698 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-02 990 DATE: February 25, 2021 ORDER Entitlement to service connection for ischemic heart disease is granted. REMANDED Entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma, is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with ischemic heart disease. 2. The Veteran’s ship was docked in Da Nang in November 1967; he is presumed to have been exposed to herbicide agents. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease, diagnosed as coronary atherosclerosis, have been met. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to March 1968. This matter is before Veterans’ Appeals (Board) on appeal from a May 2014 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO) denying entitlement to service connection for ischemic heart disease and basal cell carcinoma. VA has previously characterized the issue as needing new and material evidence to reopen a prior final denial. However, new and material evidence was submitted in a May 2014 statement in support of the Veteran’s claim within weeks of the May 2014 rating decision; therefore, that denial did not become final. The appeal before the Board stems from the original November 26, 2013 claim for service connection. The Veteran testified before the undersigned at virtual hearing in November 2020. At the hearing, the issue of basal cell carcinoma was expanded to skin cancer, to include basal cell carcinoma and squamous cell carcinoma. While the Veteran originally claimed entitlement to service connection for basal cell carcinoma, the United States Court of Appeals for Veterans Claims has held that “a claimant’s identification of the benefit sought does not require any technical precision.” Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). In light of the Veteran’s diagnoses of record, the Board has recharacterized the issue as reflected on the title page. 1. Entitlement to service connection for ischemic heart disease The Veteran seeks service connection for ischemic heart disease on a presumptive basis due to exposure to Agent Orange as a Blue Water Navy Veteran in Vietnam. As the below discussion is favorable regarding presumptive service connection as a Blue Water Navy Veteran, no other theories of entitlement will be addressed. A Veteran who, during military service, served "in-country" in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.30 (a)(6)(iii). The United States Court of Appeals for the Federal Circuit held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). On June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those Veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (effective January 1, 2020). Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Ischemic heart disease is listed under 38 C.F.R. § 3.309(e) as a disability being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). Ischemic heart disease is defined as "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina." 38 C.F.R. § 3.309(e). Here, the Veteran has a current diagnosis of ischemic heart disease. See medical treatment record (received 11/26/2013). As such, the Board finds that the current disability element for entitlement to service connection is met. The Veteran’s military personnel records indicate that he served on the USS Goldsborough from March 1967 to February 1968. See March 1967 military personnel record, enlisted performance record (received 3/29/2014, pp. 28). According to the ship logs for the USS Goldsborough, the ship participated in several “bombardments” in the waters outside the Republic of Vietnam from about September 1967 to January 1968. See military personnel record (received 9/25/2011). Deck logs establish the ship was docked in Da Nang Harbor, Vietnam in November 1967. See military personnel record received June 5, 2020. Further, the ship logs indicate that “USS Goldsborough had previously destroyed enemy coastal defense sites” in November 1967 indicating the ship was close to land. The Board finds credible evidence that Veteran is a Blue Water Navy Veteran and is entitled to the presumptions of 38 C.F.R. § 3.309(e). The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for skin cancer, to include basal cell carcinoma and squamous cell carcinoma, is remanded. The Veteran originally contended that his skin cancer is a result of Agent Orange exposure in the waters off the coast of Vietnam. However, the Veteran, during the November 2020 hearing, indicated that his skin cancer may be a result of long-term sun exposure while onboard the USS Goldsborough. The Veteran stated he was tasked with painting the outside of the ship without any sunblock or further sun protection. He also asserts he was encouraged not to seek treatment for his sunburns, causing him to self-medicate the burns with a topical “cream.” VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has not been afforded an VA examination for his skin cancer. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran has offered evidence of a diagnosis of basal cell carcinoma and squamous cell carcinoma. See April 1972 and November 2011 medical treatment record (received 11/26/2013, pp. 3, 8). At the November 2020 hearing the Veteran recalled experiencing many sunburns while in service yet he continued to work without further protection to his skin. Additionally, the Veteran testified at the hearing the he noticed a small growth on his throat directly after leaving service in 1968 that was later diagnosed as cancerous. As there is evidence indicating a current diagnosis, an in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his skin cancer disability. The examiner must review the claims file. The examiner should pay close attention to the Veteran’s lay statements regarding the extent of his sunburns while in service, the growth on his throat directly after service in 1968, and the subsequent diagnoses given in April 1972 and November 2011. The examiner is asked to provide a response to the following: (a.) Is the Veteran’s skin cancer at least as likely as not related to service, including long term exposure to the sun without UV protection? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (b.) Is the Veteran’s skin cancer at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that skin cancer is not on the list of diseases that are presumptively associated with exposure to herbicide agents. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.