Citation Nr: 21026658 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-09 879 DATE: May 3, 2021 REMANDED Entitlement to service connection for coronary artery disease, claimed as due to herbicide agent exposure is remanded. Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to December 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran and his wife presented testimony in a virtual hearing before the undersigned. A copy of the transcript has been associated with the claims folder. 1. Entitlement to service connection for coronary artery disease, claimed as due to herbicide agent exposure is remanded. 2. Entitlement to service connection for type II diabetes mellitus type II, claimed as due to herbicide agent exposure is remanded. The Veteran claims that his type II diabetes mellitus and coronary artery disease are related to herbicide agent exposure while he was aboard USS America in Vietnam waters. See e.g. February 2021 Board hearing trans. The Veteran's diagnoses of type II diabetes mellitus and coronary artery disease are noted in his VA treatment records. Regulations create a presumption of service connection for certain diseases, including type II diabetes mellitus and ischemic heart disease, found to be associated with exposure to an herbicide agent such as Agent Orange. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307 (d), 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that the herbicide exposure is established. Id. In October 2019, the Veteran was notified of the Blue Water Navy Vietnam Veterans Act of 2019 (the Blue Water Act), which extends the presumption of herbicide exposure to service within the offshore waters of the Republic of Vietnam. See October 2019 Notification Letter. The Blue Water 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. See 38 U.S.C. § 1116A(d). A review of the military personnel records confirm the Veteran was assigned to the USS America from March 12, 1967 to December 16, 1968. The Veteran's available service personnel records confirm that he served onboard the USS America and was awarded the Vietnam Campaign Medal with Device "based on service of 6 months outside the geographical limits of the republic of Vietnam" and the Vietnam Service Medal for "service aboard USS America while operating in contiguous waters of Vietnam." See October 1968 Military Personnel Record. The December 2011 Request for Information indicated that the USS America was in the official waters of the Republic of Vietnam between May and October 21968. However, according to the May 2020 Deferred Rating Decision, the USS America deck logs show travel between Subic Bay, Republic of the Philippines and Yankee Station in the Gulf of Tonkin including "Special Operations" areas corresponding with the general location of Yankee Station, but the ship remained north of the 17 parallel or east of the eligible offshore waters. Response from JSRRC confirmed that evidence does not document the Veteran's ship anchored/docked in a qualifying bay or harbor or traveled along inland waterway in Republic of Vietnam. A December 2020 Memorandum reflects that the exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Act. After reviewing the evidence of record, the Board concludes that further development is necessary to determine whether the ship operated within 12 nautical miles of the Republic of Vietnam while the Veteran was aboard that qualifies for the expanded presumption of service connection available under the Blue Water Act. It is unclear whether the JSRRC considered to points of latitude and longitude noted for the USS America in the logbooks. Of note, logbooks reflect that in June 1968 the USS America was located at 17.51 north latitude and 107.09 east longitude with similar coordinates noted in September and October 1968. This placed the Veteran's ship within very close proximity to, but it is unclear if the ship maneuvered within, the 12-mile Vietnam official waters or if these coordinates were considered. Furthermore, remand is warranted as there has been no attempt to verify whether the Veteran was exposed to herbicide agents through contact with aircraft on his ship. During the February 2021 Board hearing, he stated that he believed Agent Orange containers were aboard his carrier and he was on the F-4 aircraft. He contends that he was exposed to the chemicals in handling these aircrafts. Lastly, the Board notes that new evidence, to include the USS America logbooks, JSRRC response, and the December 2020 Memorandum were added to the claims file since the issuance of the March 2017 statement of the case. If additional evidence is received after the Agency of Original Jurisdiction (AOJ) furnishes the SOC, and that evidence is pertinent and not duplicative, the AOJ must furnish a Supplemental Statement of the Case (SSOC) as provided in 38 C.F.R. § 19.31. The AOJ has not issued a SSOC after receipt of this new evidence. See 38 C.F.R. §§ 19.31, 19.37. See Manlincon v. West, 12 Vet. App. 238, 240 - (1999). The Supplemental Statement of the Case must be issued unless the Veteran's claim is resolved, such as by a complete grant of the benefit sought, or unless the Veteran withdraws his appeal. The matters are REMANDED for the following actions: 1. Review the logbooks that have been associated with the claims file and determine whether the USS America (CVA 66) operated within 12 nautical miles of the Republic of Vietnam while the Veteran was attached to that ship. Consideration should be given to the all points of latitude and longitude noted in the logbooks particularly in June through October of 1968. 2. If the Veteran is not found to have served in the inland waters of the Republic of Vietnam or was within the 12 nautical miles of the country, conduct development as to whether he was exposed to herbicides from contact and handling of aircrafts aboard the USS America. Such development should include a request to the JSSRC as to whether the Veteran's service aboard the USS America involved exposure to herbicides based on contact with aircraft that flew over or was used in Vietnam. Any other appropriate development should be conducted and documented in the claims file. 3. Thereafter, the AOJ should readjudicate the Veteran's claims for entitlement to service connection for type II diabetes mellitus and coronary artery disease. If the benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case (SSOC), and allow an appropriate amount of time for a response. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.