Citation Nr: 21026030 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-46 379 DATE: April 29, 2021 ORDER Entitlement to service connection for diabetes mellitus (DM) is granted. Entitlement to service connection for coronary artery disease (CAD) is granted. Entitlement to service connection for Parkinson's Disease is granted. REMANDED Entitlement to service connection for residuals of a stroke is remanded. FINDINGS OF FACT 1. The Veteran has DM and was exposed to herbicide agents while in service. 2. The Veteran has CAD and was exposed to herbicide agents while in service. 3. The Veteran has Parkinson’s Disease and was exposed to herbicide agents while in service. CONCLUSIONS OF LAW 1. The criteria for service connection for DM have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for Parkinson’s Disease have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for DM and CAD. The Veteran also appeals a June 2017 rating decision that denied service connection for Parkinson’s Disease and residuals of a stroke. A Board hearing was held in January 2020. A transcript is of record. The Veteran contends that his disabilities are a result of exposure to herbicide agents in service. Notably, the Veteran asserts he served offshore of Vietnam during active service aboard the U.S.S. Meredith. See Board Hearing Tr. at 2-3. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The presumption is applicable where the disease manifests to a compensable degree in a veteran who had active service for at least 90 days in the Republic of Vietnam between January 9, 1962 and May 7, 1975, even where there is no record of such disease during service. Id. However, the presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Even if a veteran is not entitled to the presumption, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, to benefit from the presumption, the Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e), which includes DM, CAD, and Parkinson’s Disease, and have been exposed to an herbicide agent. Importantly, a Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f) 38 C.F.R. § 3.307(a)(6). In a Federal Circuit decision, Veterans serving within 12 nautical miles of Vietnam during the presumptive period are extended the presumption of herbicide agent exposure. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Subsequent to Procopio, legislation was enacted providing in part for a presumption of herbicide agent exposure for Veterans who served offshore of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 U.S.C. § 1116A. Offshore is defined as being in 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 several specific latitude and longitude points. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (June 25, 2019). Here, the Veteran was diagnosed with DM, CAD, and Parkinson’s Disease. See February 2020 VA examination reports and February 2020 VA treatment records. Therefore, the Veteran has diseases enumerated in 38 C.F.R. § 3.309(e). The Veteran served aboard the U.S.S. Meredith from February 1969 to January 1971. See military personnel records. The U.S.S. Meredith was within 12 nautical miles of Vietnam on July 26, 1969. See February 2020 VA memorandum. Indeed, the Veteran has submitted evidence showing that his command noted providing gunfire support off of Danang Harbor in sight of land. See December 2013 and January 2018 correspondence. Moreover, the Veteran has earned the Vietnam Service Medal and Vietnam Campaign Medal. See DD-214. Thus, the Board finds the Veteran served within 12 nautical miles of the Republic of Vietnam during the presumptive period. As such, he is presumed to have been exposed to herbicide agents. Accordingly, the Board finds that the Veteran was exposed to an herbicide agent and has been diagnosed with DM, CAD, and Parkinson’s Disease, diseases enumerated in 38 C.F.R. § 3.309(e). The Veteran has met the criteria necessary to enjoy the presumption of service connection. Therefore, the criteria for service connection for DM, CAD, and Parkinson’s Disease due to herbicide agent exposure has been met, and the claim is granted. See 38 C.F.R. §§ 3.102, 3.307, 3.309; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND The Veteran contends that he has residuals of a stroke that was caused by his CAD or exposure to an herbicide agent. VA treatment records describe the stroke as an acute ischemic stroke that one physician stated could be explained by carotid disease. See February 2020 VA treatment records. The Veteran has not been afforded a VA examination for his asserted residuals of a stroke. There is no competent medical evidence of record for the Board to determine whether the Veteran’s stroke was caused by either his presumed exposure to an herbicide agent or his now service-connected CAD. Thus, a VA examination is required on remand. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his stroke residuals that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his residuals of a stroke. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all residuals of his stroke present. As to the Veteran’s stroke, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s stroke, was incurred in, or is otherwise related, to his time on active service, to include a presumed exposure to an herbicide agent? B. Is it at least as likely as not that the Veteran’s stroke was (a.) caused or (b.) aggravated by his service-connected disabilities, to include CAD? The examiner is to discuss VA treatment records that describe the stroke as an acute ischemic stroke that could be explained by carotid disease. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.