Citation Nr: 21015373 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-34 975 DATE: March 17, 2021 REMANDED Entitlement to service connection for bone marrow cancer due to radiation exposure and due to herbicide agent exposure, for accrual purposes is remanded. Entitlement to service connection for kidney cancer due to radiation exposure and due to herbicide agent exposure, for accrual purposes is remanded. Entitlement to service connection for kidney disease as secondary to kidney cancer due to radiation exposure and due to herbicide agent exposure, for accrual purposes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States navy from July 1963 to May 1967. In May 2017 the Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a Travel Board Hearing in Columbia, South Carolina. A transcript of that proceeding has been prepared and is associated with the file. This appeal was last before the Board in August 2018 when it was remanded for additional development regarding the Veteran’s exposure to radiation. While on appeal, the Veteran died, and his spouse has subsequently been substituted. Although the remand directives for radiation exposure have been completed, the Board finds another remand is necessary as the Appellant has raised exposure to herbicide agents as a new theory of entitlement for service connection for accrual purposes, which requires further development. Stegall v. West, 11 Vet. App. (268) 1998. 1. Entitlement to service connection for bone marrow cancer due to radiation exposure and due to herbicide agent exposure, for accrual purposes is remanded. 2. Entitlement to service connection for kidney cancer due to radiation exposure and due to herbicide agent exposure, for accrual purposes is remanded. 3. Entitlement to service connection for kidney disease as secondary to kidney cancer due to radiation exposure and due to herbicide agent exposure, for accrual purposes is remanded. The Appellant asserts that the Veteran was exposed to herbicide agents while serving aboard the USS Liberty during the Vietnam War, and therefore is entitled to the presumption of service connection for bone marrow cancer, kidney cancer and kidney disease secondary to kidney cancer. See 38 C.F.R. § 3.309(e). The recent Blue Water Navy Vietnam Veterans Act of 2019 added 38 U.S.C. § 1116A, which in pertinent part, includes in the presumption of exposure to herbicide agents those veterans who served offshore of the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. “Offshore” is defined as a location not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at certain points. The Veteran’s military personnel records show that he served aboard the USS Liberty from May 1965 to May 1967. The records do not indicate whether service during that time was conducted within the 12 nautical mile territorial sea of the Republic of Vietnam. The Board finds that a remand is necessary to determine whether the USS Liberty was within the 12 nautical mile territorial sea of Vietnam. The Board notes that bone marrow and kidney cancer do not appear on the list of diseases set forth in 38 C.F.R. § 3.309(e) for presumptive service connection based on in-service herbicide agent exposure. However, the Board requires a medical opinion concerning the etiology of the Veteran’s cancers, to include as due to any herbicide agent exposure. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Determine whether the USS Liberty was within the 12 nautical mile territorial sea of Vietnam from May 1965 to May 1967. (Continued on the next page)   2. Then, obtain an addendum opinion to determine the nature and etiology of the Veteran’s bone marrow and kidney cancers. The examiner should opine whether either of the Veteran’s cancers, bone marrow cancer or kidney cancer, was 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 those cancers are not on the list of diseases that are presumptively associated with exposure to herbicide agents. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.