Citation Nr: 21024131 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-59 307 DATE: April 22, 2021 ISSUES Entitlement to service connection for the Veteran's cause of death. Entitlement to survivor pension. Entitlement to accrued benefits. REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to survivor pension is remanded. Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1972 to September 2002. The Veteran died in April 2015. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge (VLJ) in a February 2021 Board video conference hearing. A transcript of this hearing has been associated with the claims file. The Board finds that further evidentiary development is required before the claims on appeal can be adjudicated 1. Entitlement to service connection for the Veteran's cause of death is remanded. The appellant has asserted that the Veteran’s cause of death is related to his active duty military service. The Veteran died in April 2015 and the cause of death listed on his death certificate is pancreatic cancer with extensive metastasis to the liver with failure. The appellant has raised multiple theories of entitlement to service connection including exposure to asbestos, mercury, ionizing radiation and additional environmental exposures related to Gulf War Service. Herbicide Exposure First, the appellant has argued that the Veteran’s pancreatic cancer may be due to exposure to herbicide agents, specifically Agent Orange while aboard several different ships during his active duty service. Service Connection Based on the Presumption of Herbicide Agent Exposure Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed. Id. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). In the Agent Orange Act of 1991, Congress created statutory presumptions of service connection for certain diseases caused by exposure to herbicides, and it also established a process for VA to add additional medical conditions to the list of presumptions. The diseases associated with herbicide exposure for purposes of the presumption currently include diabetes mellitus, type II. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). Previously, VA presumed that a veteran who served in Vietnam during the Vietnam era (January 9, 1962, to May 7, 1975) was exposed to herbicide agents if they: Served on land within the Republic of Vietnam (i.e., had "boots on the ground"), or had "brown water" service. See Haas v. Peake, 525 F.3d 1168, 1192-93 (Fed. Cir. 2008). There is no regulatory requirement as to how long the veteran was in Vietnam; even a few hours of service in country is sufficient to establish the presumption of exposure. 38 C.F.R. § 3.307(a)(6)(iii). "Brown water" service includes service aboard a ship that: 1) served on the inland waterways of Vietnam; 2) went ashore while his or her ship was operating in Vietnam's close coastal waters; or 3) docked in Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Procopio v. Wilkie and the Blue Water Navy Vietnam Veterans Act of 2019 On March 22, 2019, in Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed its precedent from over a decade earlier to hold that a veteran had "served in the Republic of Vietnam" if the veteran's only service was in the territorial sea of that country, instead of having set foot on land or navigated the inland waterways. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). In Procopio, the Federal Circuit interpreted "served in the Republic of Vietnam" in 38 U.S.C. § 1116(a)(1) to unambiguously include service in the territorial sea of that country. Procopio, 913 F.3d at 1376. The Federal Circuit expressly overruled Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), rev'd 913 F.3d 1371 (Fed. Cir. 2019), which had upheld VA's "foot-on-land" requirement over a decade earlier. Id. 913 F.3d at 1373, 1380. In response to Procopio, the Congress passed and the President signed into law on June 25, 2019 the Blue Water Navy Vietnam Veterans Act of 2019 ("the BWN Act"), Pub. L. 116-23, to be codified at 38 U.S.C. § 1116A(c). The BWN Act defines "offshore" as a geographical area "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" eleven points of latitude and longitude listed in a table. 38 U.S.C. § 1116A(d). Prior to Procopio, such veterans-known as Blue Water Navy Veterans-did not receive the presumption of herbicide exposure afforded by the Agent Orange Act. The BWN Act codified the Procopio holding. The Act further authorized VA to award disability benefits retroactively to Blue Water Navy veterans, or their survivors, who had previously submitted a claim for benefits that was denied by VA for lack of service on the landmass or inland waterways of Vietnam. The Act creates new statutory requirements for the adjudications of certain claims based on veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. In response to the BWN Act and its effective date of January 1, 2020, VA's Undersecretary of Benefits instituted procedures on January 2, 2020 for adjudicating claims under the additional space for presumptive service connection afforded by the BWM Act. Concession of qualifying service, to include in-country Republic of Vietnam service, service on the inland waterways, and service on the eligible offshore waters as defined in the BWN Act is the sole responsibility of designated centralized processing teams and designated legacy appeal personnel. (Emphases added). See VA Adjudications Procedure Manual M21-1, Part IV, Subpart ii, 1.H.1 (updated January 2, 2020). As it relates to the case at hand, in a June 2016 Statement in Support of the Claim the appellant contended that it was her belief that while the Veteran was on two different ships, he was exposed to Agent Orange. Additionally, military personnel records reflect that the Veteran was deployed on many different ships. However, the record lacks the fundamental information of the ships’ geographic locations on certain days to ascertain whether any of the Veteran's ships were within Vietnam territorial waters at the time that he served on that ship pursuant to the BWN Act. Accordingly, the Board finds that additional development is warranted to determine whether the Veteran's service on the ships was within 12 nautical miles of the coast of Vietnam. This information is fundamental to the appellant's claim for service connection for cause of death, to include within the parameters outlined in the BWN Act. If and only if upon completion of the development of the claim, exposure to Agent Orange is found, an opinion should be obtained as to whether the Veteran's cause of death is a result of any herbicide agent exposure while in service. Ionizing Radiation Exposure The appellant also contends that while in service the Veteran was exposed to ionizing radiation. The Appellant testified at the February 2021 Board hearing that it was her belief that while serving on the U.S.S. Missouri and the U.S.S. New Jersey that the Veteran was exposed to radiation on the ships. She also testified that while on a ship the Veteran was attacked, and this led to radiation exposure. Additionally, in the April 2021 Informal Hearing Presentation (IHP) the appellant’s representative argued that the Veteran was likely exposed to ionizing radiation while he was serving on the U.S.S. Missouri from June 1989 to March 1991. Within that time period the Veteran reported that he was on a mission from January to February 1991 where he oversaw 40 gunfire support missions. In cases where the appellant has contended a condition is due to radiation exposure, additional development steps must be taken. Specifically, personnel records relating to radiation exposure must be obtained. Further, once any and all records relating to radiation exposure are obtained, they should be forwarded to the Under Secretary for Health for preparation of a dose estimate, in accordance with 38 C.F.R. § 3.311(a)(2). Based on that dose exposure estimate, an opinion should be obtained as to whether the Veteran's claimed disabilities are at least as likely as not due to radiation exposure. Id. Therefore, a remand is necessary to obtain records related to the Veteran's exposure to radiation while on active duty, to obtain a dose estimate based on those records, and to obtain an opinion as to whether the Veteran's cause of death is a result of any radiation exposure while on active duty. Mercury Exposure The appellant has asserted that while in service the Veteran was exposed to mercury and this contributed to his death from pancreatic cancer. At the February 2021 Board hearing the appellant testified that the Veteran had told her that while he was on his ship assignments he was exposed to mercury. Additionally, the Board notes that in the Veteran’s October 1991 Medical Surveillance Questionnaire he reported that he was exposed to mercury on several of his ship assignments. Also, the appellant has submitted medical literature which discusses a possible link between exposure to mercury and pancreatic cancer. In consideration of the above the Board finds upon remand an opinion should be obtained as to whether the Veteran's pancreatic cancer was related to any exposure to mercury while in service. Undiagnosed/ Unexplained Illness During the February 2021 Board hearing the appellant testified that the Veteran was “boots on [the] ground” in Kuwait, Iraq and Saudi Arabia during his Naval deployments and that she believes that his exposures during those times contributed to his death from pancreatic cancer. She testified that the Veteran’s symptoms came on suddenly and included a bright yellow appearance, swelling, edema of the stomach, loss of appetite and fatigue. The appellant also has argued that the Veteran did not have any family history of pancreatic cancer. As such, she has argued that the etiology or the pathophysiology of the Veteran’s pancreatic cancer is inconclusive. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). A multisymptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multisymptom illness, must be particular to the claimant's case. Id. at 291. Because the Veteran served in the Persian Gulf, the issue is raised as to whether any of his symptoms from his pancreatic cancer, including a bright yellow appearance, swelling, edema of the stomach, loss of appetite or fatigue are due to a chronic disability pattern resulting from an undiagnosed illness or from a diagnosable but medically unexplained multi-symptom illness (MUCMI) of unknown etiology or pathophysiology. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(i), (ii). In this regard, the VA examiner should address whether either the etiology or the pathophysiology of the illness is inconclusive or whether both the etiology and the pathology of the illness are partly understood. See Stewart v. Wilkie, No. 15-4458, 2018 U.S. App. Vet. Claims LEXIS 1685, at *10 (Dec. 20, 2018). Outstanding Records Additionally, the Board notes that the record indicates that there appears to be outstanding records relevant to the Veteran's claim. Specifically, at the February 2021 Board hearing the appellant’s representative asserted that the Veteran was treated at a private facility for his final illness before his death. It does not appear as though these records have been associated with the claims file. VA has a duty to assist the Veteran in obtaining all relevant records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty has not been met with regard to the outstanding records, and therefore, on remand, the RO should follow proper procedures to obtain and associate these records with the claim file. 2. Entitlement to survivor pension is remanded. For the purposes of calculating a survivor pension the appellant has asserted that her son, J.R., should be recognized as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to the age of eighteen. Additional evidentiary development is required before the issue of recognition of the appellant’s son as a helpless child for VA compensation purposes is ready for Board adjudication. A child of a veteran may be considered a "child" after age 18 for purposes of VA benefits if found by a rating determination to have become, prior to age 18, permanently incapable of self-support. 38 U.S.C. § 101 (4)(A); 38 C.F.R. §§ 3.57, 3.315. A child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. Rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for determination by the rating agency on competent evidence of record in the individual case. 38 C.F.R. § 3.356. To establish "helpless child" status, the child's condition subsequent to the eighteenth birthday is not for consideration. In cases such as this, the "focus of the analysis must be on the claimant's condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). At the February 2021 Board hearing the Appellant testified that she is the guardian for her adult son, J.R., who currently lives with her. She testified that her son is 33 years old and had not been adopted by the Veteran before he passed. The appellant further testified that J.R. was a part of her and the Veteran’s household when the Veteran passed away. Furthermore, the appellant testified that J.R. has been disabled since birth and he is an intellectually disabled person. The appellant has testified that J.R. was incapable of self-support prior to his eighteenth birthday. The Board finds that a medical examination is required to clarify whether or not J.R. has any mental defect, to include an intellectual disability, and, if so, whether this condition manifested prior to his eighteenth birthday. Additionally, based on the February 2021 testimony, it appears that J.R. may be receiving disability benefits from the Social Security Administration (SSA). A remand is required to allow VA to request these records, which are potentially relevant to the claim. 3. Entitlement to accrued benefits is remanded. The appellant claims entitlement to accrued benefits. The Board finds however that the outcome of the unresolved claims of entitlement to service connection for cause of death and entitlement to service connection for survivor pension which are being remanded could significantly impact the issue of entitlement to service connection for accrued benefits. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, a final decision on this issue cannot be rendered at this time. Id. As these issues are inextricably intertwined a remand for this issue is required. The matters are REMANDED for the following action: 1. The appellant should be requested to provide names, addresses and approximate dates of treatment for the Veteran’s pancreatic cancer. The appellant should be provided the appropriate releases for VA to obtain any identified private sources of treatment.  Thereafter, the AOJ should attempt to obtain outstanding records from any identified sources for which the appellant has provided appropriate signed releases. Any records obtained should be associated with the claims file.  All attempts to obtain these records should be documented in the file. If the AOJ cannot obtain records identified by the appellant, a notation to that effect should be inserted in the file. The appellant is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review.  2. After the above development is complete, query the appellant as to any US naval vessel and the dates that she believes his ships were within the territorial waters of Vietnam as defined by the Act, and any other information the AOJ deems necessary or helpful to the Veteran's claim. 3. Thereafter the AOJ should obtain from the appropriate source, copies of deck logs and/or command histories from the relevant ships. Make as many requests as are necessary to obtain the relevant records and end such efforts only if the records sought do not exist or further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159. Associate any records or negative responses with the claims file. 4. Upon receipt of the deck logs, the AOJ should forward the deck logs to the Joint Services Records Research Center (JSRRC) and request them to determine whether the relevant ships were within 12 nautical miles of Vietnam during the time the Veteran served on them, as claimed by the appellant, based upon an analysis of the longitude and latitude position charts. 5. Thereafter, obtain any available records concerning the Veteran's in-service exposure to radiation from appropriate sources, as outlined in the VA Adjudication Procedure Manual (M21-1), Part IV, Subpart ii, Chapter 1, Section C. Forward such records to the Under Secretary for Health for preparation of a dose estimate, in accordance with 38 C.F.R. § 3.311(a)(2). All records and responses should be associated with the claims file. 6. Obtain a VA medical opinion to determine the nature and etiology of the Veteran's pancreatic cancer. Following a complete review of the Veteran's claims file the examiner should address the following: (a) Is the Veteran's pancreatic cancer consistent with: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI) of unknown etiology or pathophysiology, (3) a diagnosable chronic multi-symptom illness with a partially explained etiology and pathophysiology, or (4) a disease with a clear and specific etiology and diagnosis. (b) The examiner should note that an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. It is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. The determination of whether a condition is a MUCMI must be based on an individual's circumstances rather than the illness as it is understood in the general public. Therefore, in answering this question, the rationale must be specific to this Veteran and address BOTH the etiology and the pathophysiology of this Veteran's illness. (c) If after reviewing the claims file, the examiner determines that the Veteran's disease pattern is (1) and undiagnosed illness, (2) a MUCMI, or (3) a disease with a clear and specific etiology and diagnosis, the examiner should provide an opinion as to the following: (1) For any symptomatology that is due to an undiagnosed illness or MUCMI, the examiner should comment on the severity of such symptomatology and report signs and symptoms necessary for evaluating the illness under the rating criteria. (2) Is it at least as likely as not that (50 percent probability or greater) the Veteran’s Pancreatic cancer is a least as likely as not related to any event or circumstance of his service, to include an verified herbicide agent exposure, verified radiation exposure or, Gulf War exposure or mercury exposure. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records, private treatment records and evaluations and medical treatise evidence. The examiner is also asked to consider and discuss the medical treatise evidence which discusses a possible link exposure to mercury and pancreatic cancer. A detailed rationale must be provided for any opinion offered. 7. Obtain the federal records from the Social Security Administration (SSA) for J.R. Document all requests for information as well as all responses in the claims file. Request for the appellant to complete a VA Form 21-4142 for all medical providers seen for mental and/or physical disorders that precluded J.R. the ability for self-support existing prior to or at age 18 years old. Ideally, these records identified would include those dated prior to or at age 18 years old. Thereafter, request the authorized records from all identified sources. 8. Schedule J.R. for a medical examination by an appropriate clinician to determine whether he has any current mental defect, to include an intellectual disability, and whether it is at least as likely as not (50 percent probability or greater) that any mental incapacity existed before or on his eighteenth birthday. The severity of any mental defect or impairment should be clearly identified. Additionally, after reviewing the evidence of record, the examiner should clearly identify all of J.R.’s physical and/or mental impairments, permanent in nature, along with their severity, which interfere with and/or preclude his ability for self-support prior to or as of his 18th birthday, to include, but not limited to, an intellectual disability. 9. After completing the requested actions, readjudicate the claims, including the inextricably intertwined issue of entitlement to service connection for accrued benefits, in light of all pertinent evidence and legal authority. If the benefits sought remains denied, furnish to the appellant and her representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.