Citation Nr: 21027780 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-46 184 DATE: May 6, 2021 ORDER Entitlement to service connection for coronary artery disease, to include as due to herbicide agent exposure, is granted. REMANDED Entitlement to service connection for kidney cancer, to include as due to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. The Veteran has confirmed service on a ship within 12 nautical miles of the Republic of Vietnam. 2. The Veteran's coronary artery disease is presumed to be related to his in-service exposure to toxic herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for coronary artery disease, to include as due to herbicide agent exposure, have been met. 38 U.S.C. § 1110, 5107(b), 7104; 38 C.F.R. §§ 3.102, 3.303(a), 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1969 to May 1973. The Veteran appeared and testified at a virtual teleconference hearing before the undersigned Veterans Law Judge in January 2021. A transcript is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as AL amyloidosis, chloracne or other acneform diseases consistent with ischemic heart disease, diabetes mellitus, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309(e). In short, if herbicide exposure is found on either an actual or presumptive basis, then service connection of a listed qualifying disability is all but guaranteed by statute. To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being "Agent Orange," unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. Congress enacted legislation entitled the Blue Water Navy Vietnam Veterans Act of 2019, which became effective January 1, 2020. 116 P.L. 23, 133 Stat. 966 (2019). Pursuant to this legislation, for the purposes of determining whether a Veteran may be presumed to have been exposed to herbicide agents, the term "service in the Republic of Vietnam" was expanded to include service in the offshore waters, which includes the territorial sea extending 12 nautical miles from the shores of that nation. 38 U.S.C. § 1116A. Notably, as the Court of Appeals for the Federal Circuit has pointed out, the Republic of Vietnam specifically refers to what was, during the war, South Vietnam. Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). The intersecting points in the statute bear this out. 1. Entitlement to service connection for coronary artery disease, to include as due to herbicide agent exposure The Veteran seeks entitlement to service connection for coronary artery disease, which he contends is due to Agent Orange exposure while serving aboard the USS Shangri-La between 1969 and 1971. After reviewing the evidence of record, the Board of Veterans' Appeals (Board) finds that service connection for coronary artery disease is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As an initial matter, the Board concedes that the Veteran served in the "territorial waters" of Vietnam. His personnel records reflect that he served on Board USS SHANGRI-LA (CV-38) from September 1969 through November 1970, with service in the contiguous water of Vietnam during the period from April 1970 to November 1970. As such, the Board concedes exposure to herbicides based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Next, the Board finds that the evidence is sufficient to establish a diagnosis of ischemic heart disease. Here, the Veteran's February 2020 VA examination and VA treatment records reflect a diagnosis of coronary artery disease (a type of ischemic heart disease). Accordingly, because the Veteran was presumptively exposed to toxic herbicide agents, his coronary artery disease is presumptively related to his active duty service under 38 C.F.R. § 3.309(e), and service connection is warranted. 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. REASONS FOR REMAND 1. Entitlement to service connection for kidney cancer, to include as due to herbicide agent exposure is remanded. The Veteran seeks entitlement to service connection for kidney cancer, asserting that is due to exposure to herbicide agents, specifically Agent Orange, during service. After a review of the evidence, the Board determines that the claim must be remanded. Although a VA examination for kidney disorders was conducted in February 2020, the Regional Office (RO) did not request a nexus opinion. Since the VA examination, the Veteran has submitted an article in February 2021 of a study performed at the VA Medical Center in Shreveport, LA suggesting that there may be a connection between in-service herbicide agent exposure and subsequent development of renal cancer. The medical records indicate that the Veteran was diagnosed with kidney cancer in 1995. The Board cannot make a fully informed decision on the listed issue because no VA medical nexus opinion has been provided. Acknowledging the duty to assist the Veteran in developing the claim, a remand is therefore necessary in order to obtain an addendum medical opinion. See 38 U.S.C. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Specifically, the Board requires a medical opinion to determine whether the Veteran's kidney cancer is related to his in-service herbicide agent exposure. The matters are REMANDED for the following action: 1. Forward the claims file to the VA examiner who conducted the February 2020 VA examination (or another VA examiner if the original is unavailable) for an addendum opinion as to whether the Veteran's kidney cancer is at least as likely as not (i.e. a 50 percent or greater probability) related to an in-service injury, event, or disease, to include as due to herbicide agent exposure. Specifically, the examiner should review and discuss the article submitted in February 2021 that suggests there may be a connection between herbicide agent exposure and renal cancer. The examiner should set forth a complete rationale for the conclusions reached. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel