Citation Nr: 21022759 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-19 538A DATE: April 19, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from January 1964 to July 1968. He died in April 1993. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the appellant testified before the undersigned Veterans Law Judge at a hearing. Entitlement to service connection for cause of death is remanded. The appellant contends that the Veteran’s cause of death is a result of exposure to herbicide agents while serving aboard the U.S.S. Yorktown during active duty. She contends that the Veteran’s mission was to spray Agent Orange in the war zone and was involved for 56 days in the South China Sea and the Tonkin Gulf in direct support of Carrier Task Force 77. See July 2013 and March 2014 VA Forms 21-4138, Statement in Support of Claim. The Veteran’s DD Form 214 show that he was assigned aboard Air anti-submarine Squadron 25 and participated in defense, counter-offensive, counter-offensive phase II, and June 1967 campaigns during the Vietnam war. His military occupational specialty (MOS) was as aviation electronics technician. Service records verify service aboard the U.S.S. Yorktown as an air crewman and was indeed in an operation in the South China Sea and the Tonkin Gulf, in direct support of Carrier Task Force 77. In the RO’s request for official service records, the response was that the squadron could have been assigned to a ship or to shore. The unit was credited, for Department of Defense (DoD) purposes, with ‘Vietnam service’ from February 26, 1966 to March 25, 1966; April 14, 1966 to April 27, 1966; May 31, 1966; June 3, 1966 to June 4, 1966; June 11, 1966 to June 12, 1966; and from June 25, 1966 to July 3, 1966, but no ‘conclusive proof of in-country service.’ Additional information is needed before the Board can make a fully informed decision. A veteran who, during active service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. VA had historically interpreted the statutory phrase “served in the Republic of Vietnam” as incorporating a requirement that the Veteran served on land or inland waterways. But, of the records and service verified, to include the operation in the South China Sea and the Tonkin Gulf, in direct support of Carrier Task Force 77, none have yet to show service on land or in the inland waterways. Recently, however, in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. There is insufficient evidence of record to determine whether, at any point during his service aboard the U.S.S. Yorktown, the Veteran is considered to have had qualifying service, per Procopio. At the hearing before the undersigned, the appellant’s representative asserted that the U.S.S. Yorktown was within 12 nautical mile territorial sea of the ‘Republic of Vietnam’ in May 1968 and March 1966. Accordingly, on remand, the RO should conduct appropriate development (such as obtaining deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Yorktown during the Veteran’s service period) to determine whether he is considered to have served in the Republic of Vietnam, such that herbicide agent exposure can be presumed. Respiratory cancers (cancers of the lung, bronchus, larynx, or trachea) are recognized by VA as a disease for which presumptive service connection is available as due to herbicide exposure. 38 C.F.R. § 3.309(e). On her claim application, the appellant asserted that the Veteran died from larynx cancer. The Veteran had a ‘working diagnosis’ of larynx cancer when he was admitted to Holmes Regional in April 1993. The Veteran’s death certificate, however, shows the immediate cause of death was ‘head and neck cancer.’ The claims file does not include medical records from Holmes Regional. These should be obtained on remand. The matter is REMANDED for the following actions: 1. Ask the appellant to complete a VA Form 21-4142 for Holmes Regional, and any other physician(s)/facility(ies) that have treated the Veteran’s cancer. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Take appropriate steps to attempt to determine whether, at any point during the Veteran’s service aboard the U.S.S. Yorktown from January 1964 to July 1968, the vessel was in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ based on deck logs, ship logs, or any other documents detailing the movements and operations of the vessel. Issue a formal finding outlining the steps taken to verify herbicide agent exposure based on qualifying service in the Republic of Vietnam. 3. If the Veteran is found to have had herbicide agent exposure based on qualifying service in the Republic of Vietnam, then conduct any additional development deemed appropriate to include obtaining medical nexus opinions if necessary. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.