Citation Nr: 21027983 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-03 337 DATE: May 10, 2021 REMANDED The appeal for entitlement to service connection for basal cell carcinoma, claimed as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to August 1971, to include service aboard the aircraft carrier, USS Coral Sea from March 1970 to August 1971. This matter arises from a November 2013 Agency of Original Jurisdiction (AOJ) determination. The Veteran perfected an appeal to the Board of Veterans' Appeals (Board), and presented sworn testimony in support of his appeal during a July 2019 hearing before the undersigned Veterans Law Judge. In January 2020, the Board denied the appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court approved a Joint Motion for Remand offered by both parties to the appeal, vacated the Board's January 2020 decision, and remanded for further action consistent with the terms of the Joint Motion. In the Joint Motion, the parties agreed that the Board had not ensured that the VA's duty to assist was satisfied with respect to its finding that the Veteran had not been exposed to herbicides during service. It is important to note that the authors of the Joint Motion identified no inadequacies regarding the other conclusions made by the Board: that the Veteran's basal cell carcinoma was not incurred during service or initially manifested within one year of service. It is solely the herbicide theory of causation which was addressed in the Joint Motion. Service connection may be established for a disability on the basis of exposure to herbicidal agents. A Veteran who, during active military, naval, or air service, served between January 9, 1962, and May 7, 1975, in the Republic of Vietnam, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). By order set in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), and recently codified at 38 U.S.C. § 1116A, for the purposes of determining whether a Veteran may be presumed to have been exposed to herbicide agents, the phrase "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. More information is necessary before the VA can make a fully informed decision as to whether the USS Coral Sea was within 12 nautical miles from the shore of Vietnam, while the Veteran was serving aboard. We observe that if it is established that the Veteran served within 12 nautical miles of Vietnam, another evidentiary hurdle remains. Because basal cell cancer is not one of the regulatorily-defined disease which may be presumed under law to have been caused by herbicide exposure, additional evidence is required to show a causal relationship. A Veteran may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). In written argument received at the Board in December 2020, the Veteran argued that VA had failed to inform him that he can submit medical evidence establishing a link between his basal cell cancer and herbicide exposure to support his appeal. To ensure the Veteran is fully notified, on remand, he must be explicitly offered the opportunity to provide scientific or medical evidence showing that basal cell carcinoma may be medically associated with herbicide exposure. The matter is REMANDED for the following action: 1. Obtain the deck logs of the USS Coral Sea from March 1970 to August 1971. 2. Perform all other indicated evidentiary development to ascertain whether the USS Coral Sea was within 12 nautical miles from the shore of Vietnam between March 1970 and August 1971. 3. Provide notice of all findings and conclusions to the Veteran. Also inform the Veteran clearly that he may provide scientific or medical evidence showing that basal cell carcinoma may be medically associated with herbicide exposure to support his claim. Allow him a reasonable period of time to do so. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.