Citation Nr: 21026325 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-23 082A DATE: April 30, 2021 ORDER Service connection for coronary artery disease is granted. Service connection for diabetes mellitus, type II, is granted. Service connection for prostate cancer is granted. REMANDED Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected coronary artery disease and/or diabetes mellitus, type II, is remanded. Entitlement to service connection for kidney disease, claimed as due to exposure to herbicide agents and/or as secondary to hypertension or service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents coincident with his service aboard the USS Boxer from March 1966 to July 1968, which traveled in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam in May 1966. 2. The Veteran’s coronary artery disease, which has manifested to a compensable degree, is presumptively related to his acknowledged in-service exposure to herbicide agents. 3. The Veteran’s diabetes mellitus, type II, which has manifested to a compensable degree, is presumptively related to his acknowledged in-service exposure to herbicide agents. 4. The Veteran’s prostate cancer, which has manifested to a compensable degree, is presumptively related to his acknowledged in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7005. 2. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.119, Diagnostic Code 7913. 3. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decisions issued in June 2017 and August 2017 by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waive Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the May 2018 statements of the case. 38 C.F.R. § 20.1305(c). Preliminarily, the Board notes the issues concerning service connection for coronary artery disease, diabetes mellitus, type II, prostate cancer, and hypertension were previously characterized as whether new and material evidence had been received to reopen such claims. In this regard, these claims were most recently denied in a final rating decision issued in June 2015. Generally, new and material evidence must be presented or secured to reopen a previously denied claim. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). However, there are some exceptions to this requirement; notably, new and material evidence is not required when an intervening liberalizing law creates a new basis for entitlement to benefits that did not exist at the time of the prior denial. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993). Under such circumstances, a de novo review of the previously denied claim is required because the change in law itself changes the factual basis of the claim. Id. at 289. As relevant to the instant case, since the issuance of the June 2015 rating decision, the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), in which it held that, for the purpose of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. Thereafter, on June 25, 2019, the President signed into law Blue Water Navy Vietnam Veterans Act of 2019, codified at 38 U.S.C. § 1116A, which provides that a veteran who, during active military, naval, or air service, served offshore of 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 during such service to an herbicide agent unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116A(b). Given the evidence described below, the Board finds the change in law creates a substantive right that did not exist at the time of the prior final denial of the Veteran’s claims. Thus, new and material evidence need not be received and the Veteran is entitled to a de novo review of his claims. Spencer, 4 Vet. App. at 289. 1. Entitlement to service connection for coronary artery disease, claimed as due to exposure to herbicide agents. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicide agents. 3. Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicide agents. The Veteran contends he is entitled to service connection for coronary artery disease, diabetes mellitus, type II, and prostate cancer on the basis that such are the result of exposure to herbicide agents during his service in the Vietnam era. He specifically asserts that his exposure occurred while serving aboard the USS Boxer as such sailed within 12 nautical miles off the shores of the Republic of Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As relevant to the instant case, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). As noted above, “service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation (emphasis added). Such further provides that, notwithstanding any other provision of law, for purposes of this section, the Secretary shall treat a location as being offshore of Vietnam if the location is 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 specified points. 38 U.S.C. § 1116A(d). For those veterans who have been exposed to herbicide agents, certain diseases, to include ischemic heart disease (including coronary artery disease), diabetes mellitus, type II, and prostate cancer, are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service with exceptions not applicable in the instant case. 38 C.F.R. § 3.307(a)(6)(ii). In the instant case, the Veteran’s personnel records show he served aboard the USS Boxer from March 1966 to July 1968. In this regard, the deck logs for the USS Boxer show the ship sailed in the coastal waters off the shore of the Republic of Vietnam in May 1966, and, more importantly, docked at the port of Da Nang Harbor in eight fathoms (48 feet) of water while offloading Marine helicopters, personnel, and equipment on May 22, 1966. Additional evidence concerning the history of the USS Boxer indicates the ship also refueled at the ports of Nha Trang and Quy Nhon that same month. Based on this evidence, the Board finds the Veteran is presumed to have been exposed to herbicide agents coincident with his service aboard the USS Boxer from March 1966 to July 1968, which traveled in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam in May 1966, as defined in Procopio, supra, and the Blue Water Navy Vietnam Veterans Act of 2019. Additionally, as noted above, coronary artery disease, diabetes mellitus, type II, and prostate cancer are presumed to be related to the Veteran’s in-service exposure to herbicide agents. Further, the evidence shows such diseases manifested to a compensable degree of at least 10 percent or more after service. Specifically, the medical evidence of record indicates the Veteran’s coronary artery disease has required continuous medication. 38 C.F.R. § 4.104, Diagnostic Code 7005. Additionally, VA treatment records show the Veteran’s diabetes mellitus, type II, has been controlled by oral medications and a restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. Moreover, a July 2010 VA examination report indicates the Veteran’s diagnosis of prostate adenocarcinoma. 38 C.F.R. § 4.115a, Diagnostic Code 7528. Consequently, service connection is warranted for coronary artery disease, diabetes mellitus, type II, and prostate cancer as such are presumptively related to the Veteran’s acknowledged in-service exposure to herbicide agents. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND 4. Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected coronary artery disease and/or diabetes mellitus, type II. The Veteran asserts his hypertension is related to his acknowledged in-service exposure to herbicide agents or, in the alternative, is caused or aggravated by his now service-connected coronary artery disease and/or diabetes mellitus, type II. In this regard, while hypertension is not a disease for which service connection is provided on a presumptive basis when exposure to herbicide agents is acknowledged, the National Academy of Sciences (NAS) Institute of Medicine (IOM) has concluded there is “sufficient” evidence of an association to exposure to Agent Orange. Update 11 (2018). According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Additionally, while a July 2010 medical opinion reflects that it is less likely than not that the Veteran’s ischemic heart disease caused or aggravated his hypertension, the record does not include an opinion as to whether the Veteran’s hypertension is related to his now-acknowledged in-service exposure to herbicide agents, manifested within one year of separation from service, or is secondary to his now service-connected diabetes mellitus, type II. Consequently, the Board finds a remand is warranted for an addendum opinion to address such matters. 5. Entitlement to service connection for kidney disease, claimed as due to exposure to herbicide agents, and/or as secondary to hypertension or service-connected diabetes mellitus, type II. The Veteran contends he has kidney disease related to his acknowledged in-service exposure to herbicide agents or, in the alternative, is caused or aggravated by his hypertension. Additionally, as noted below, the record raises the theory as to whether such may be caused or aggravated by his now service-connected diabetes mellitus, type II. Initially, as the Veteran’s claim for service connection for hypertension is remanded herein for additional development, the Board finds that the adjudication of his claim for service connection for kidney disease would be premature at this time. Additionally, a July 2017 VA treatment record indicates both hypertension and diabetes mellitus, type II, the latter of which the Board herein awards service connection, are commonly associated with chronic kidney disease. Thus, the Board finds a remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of his chronic kidney disease. The matters are REMANDED for the following actions: 1. Forward the record to an appropriate clinician for an addendum opinion addressing the etiology of the Veteran’s hypertension. The need for additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents, or manifested within one year of his separation from service (by October 1970)? In rendering such opinion, the clinician should clearly address the NAS IOM Update 11 (2018) in which hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association. In this regard, according to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. (B) If the examiner provides a negative response to (A), is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is caused or aggravated by his diabetes mellitus, type II? For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed kidney disease. The Veteran’s claims file, to include a copy of this Remand, must be made available to the examiner and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify the nature of the Veteran’s kidney disease. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s kidney disease had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents? (B) If the examiner provides a negative response to (A), is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s kidney disease is caused or aggravated by, if service-connected hypertension or service-connected diabetes mellitus, type II? For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering the foregoing opinion, the examiner specifically should address the July 2017 VA treatment record indicating that both hypertension and diabetes mellitus, type II, are commonly associated with chronic kidney disease. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.