Citation Nr: 21025142 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-24 392A DATE: April 27, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents and asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from August 1969 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that rating decision, the RO denied service connection for COPD. New and material evidence was subsequently received during the one-year appeal period following notice of the October 2009 rating decision, and the RO considered that evidence, but issued a May 2010 rating decision confirming and continuing the denial of service connection for COPD. The Veteran submitted a timely notice of disagreement (NOD) in November 2010, but the documents were misfiled in another claims file. This was discovered in December 2011 and the documents were added to the Veteran’s claims file; however, the RO did not take action on the claim until after a subsequent claim was filed in January 2013. The RO issued the Statement of the Case in June 2014, and the Veteran’s VA Form 9, substantive appeal to the Board was received in July 2014. In his July 2014 VA Form 9, the Veteran requested a hearing by live videoconference. A hearing was scheduled in November 2017 and August 2018, which were both rescheduled by request of the Veteran. The Veteran was, again, scheduled for a hearing in May 2019 but did not appear. Furthermore, he did not request an additional hearing. The April 2019 hearing letter was not returned as undeliverable. Accordingly, the Veteran’s hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). REFERRED The issue of entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) was raised in the July 2014 VA Form 9 and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. In a June 2014 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD). On a July 2014 VA Form 9, the Veteran requested an increase in his assigned PTSD disability rating. To the Board’s knowledge, the RO has not yet addressed this request, which was submitted prior to the March 2015 mandate requiring claims to be filed on a particular form. This matter is therefore referred to the agency of original jurisdiction for appropriate action. See 38 C.F.R. § 3.150(a) (2019) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904(b) (2019) (continuing to provide for Board referral of unadjudicated claims). Entitlement to service connection for (COPD) is remanded. The Veteran contends that his diagnosed COPD is due to exposure to herbicides, chemicals he breathed while working as a boatswain’s mate, or asbestos exposure. He contends that the USS Chipola (AO-63) traveled off of the coast of Vietnam. Post-service treatment records reflect that the Veteran was diagnosed with COPD in 2008. He also has respiratory diagnoses of bronchitis and asthma. VA denied service connection for COPD because it is not among the diseases listed at 38 C.F.R. § 3.309(e) for which service connection is warranted on a presumptive basis due to in-service herbicide agent exposure, and that there is no evidence the Veteran was exposed to herbicide agents. However, the Veteran is not precluded from establishing service connection for COPD due to herbicide exposure with proof of direct causation. Section 1116 of title 38, United States Code, provides that a Veteran who “served in the Republic of Vietnam” during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. 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. See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir. 2008). 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 (Federal Circuit) reversed the holding in Hass, by holding 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. As a result of the holding in Procopio, and during the pendency of this appeal, the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act) was enacted, and subsequently codified at 38 U.S.C. § 1116(A) (effective January 1, 2020). Under the Blue Water Navy Act, a veteran who served offshore within 12 nautical miles of the Republic of Vietnam from January 9, 1962 to May 7, 1975 shall be 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. 38 U.S.C. § 1116A(b) and (d). The Veteran’s personnel records show that he served aboard the USS Chipola (AO-63). An August 2009 response to VA’s request for information regarding the Veteran’s purported service in Vietnam revealed that they reported that “the Veteran served aboard the USS Chipola AO-63 which was in the official waters of the Republic of Vietnam from September 29, 1970 to October 6, 1970; October 10, 1970 to October 18, 1970; October 25, 1970 to November 9, 1970; January 11, 1971 to January 16, 2971; February 3, 1971 to February 14, 1971; February 21, 1971 to February 27, 1971; March 6, 1971 to March 14, 1971.” However, it is not clear whether the “official waters” of the Republic of Vietnam during which the USS Chipola sailed with the Veteran aboard, were inclusive of the 12 nautical miles off shore as defined by statute under 38 U.S.C. § 1116A. Accordingly, on remand, the RO should undertake development, including obtaining relevant deck logs of the USS Chipola (AO-63), if necessary, to determine whether it patrolled the waters within 12 nautical miles of Vietnam during the time that the Veteran served aboard. Additionally, upon receipt of the necessary documentation, the Agency of Original Jurisdiction (AOJ) should forward those documents to the Joint Services Records Research Center (JSRRC), for a determination as to whether the USS Chipola (AO-63) was within 12 nautical miles of Vietnam during the Veteran’s deployment. Additionally, the Veteran contends that claimed COPD is potentially related to asbestos or chemical exposure in service. He maintains that when he worked on the USS Chipola (AO-63) as a boatswain’s mate he was breathing multiple chemicals. To date, the AOJ has not addressed the Veteran’s contentions pertaining to asbestos, to include conducting development necessary to verify asbestos exposure. On remand, the AOJ must conduct any necessary development related to the asbestos and chemical exposure claim and adjudicate the issue of entitlement to service connection for COPD, claimed as secondary to asbestos or chemical exposure. Finally, in a November 2017 statement, the Veteran requested that his medical records are obtained from the Overton Brooks VAMC and VA North Texas Healthcare System. A review of the records does not reflect that VA attempted to obtain these records. On remand, the AOJ must obtain these VA treatment records requested by the Veteran. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records from Overton Brooks VAMC and VA North Texas Healthcare System. 2. After determining the dates during which the Veteran served aboard the USS Chipola (AO-63), undertake appropriate efforts to ascertain whether the USS Chipola (AO-63) was within the 12 nautical mile territorial sea of Vietnam during any period that the Veteran served onboard. 3. Conduct appropriate development to verify any potential exposure to asbestos and chemicals during the Veteran’s service, to include seeking information as to whether the Veteran was exposed to asbestos while working on the USS Chipola (AO-63). 4. If asbestos and/or chemical exposure aboard the USS Chipola (AO-63) is verified; or, if herbicide agent exposure is presumed based on verification of service within the 12 nautical mile territorial sea of Vietnam, then schedule the Veteran for a VA examination to determine the current nature and likely etiology of the Veteran’s COPD. A full medical history should be documented in the examination report. All opinions must be supported by a rationale. The examiner is asked to address the following: (a) Is it at least as likely as not (a 50 percent or higher probability) that the Veteran’s COPD had its onset during service, or was manifested to a compensable degree within the first post-service year? (b) If the answer to (a) is no, then is it at least as likely as not that the Veteran’s COPD is due to in-service asbestos and/or chemical exposure; or, in-service herbicide exposure, or some other cause? (c) The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.