Citation Nr: 21028326
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 16-15 791
DATE: May 11, 2021

REMANDED

Service connection for the cause of the Veteran's death.

REASONS FOR REMAND

The Veteran served on active duty from June 1970 to April 1972.

The Veteran died in April 2013 and the appellant is his surviving spouse.

The case is on appeal from an August 2013 rating decision.

In May 2021, the appellant testified at a Board hearing.

Service connection for cause of the Veteran's death.

In general, a surviving spouse of a veteran who died from a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC).  See 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312.  38 C.F.R. § 3.312 states that "[t]he death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death."

The Veteran's death certificate listed diabetes type II as a "significant condition[] contributing to death."  Certain diseases, to include diabetes, warrant presumptive service connection for veterans who were exposed to designated herbicide agents (e.g., Agent Orange) during their active service.  See 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307(a), 3.309(e).  After the February 2016 statement of the case (SOC), the law was changed to allow for a presumption of exposure to herbicide agents for veterans who "served offshore of the Republic of Vietnam."  See 38 U.S.C. § 1116A(b).  38 U.S.C. § 1116A(d) specifically explains how to determine if a location is offshore of the Republic of Vietnam.  An April 2003 response from the National Personnel Records Center (NPRC) stated that "the Veteran served aboard the USS Sacramento (AOE1) which was in the official waters of the Republic of Vietnam" at various date ranges in 1971.  It is unclear based on the evidence of record if the "official waters of the Republic of Vietnam" as referenced by the NPRC meets the specific statutory criteria under 38 U.S.C. § 1116A to be "offshore of the Republic of Vietnam."  As such, remand is warranted pursuant to VA's duty to assist to take appropriate efforts to determine whether the Veteran "served offshore of the Republic of Vietnam" under 38 U.S.C. § 1116A.

While on remand, VA treatment records should also be obtained (the August 2013 rating decision and February 2016 SOC noted as evidence VA treatment records that are not of record).

The matters are REMANDED for the following action:

1. Obtain outstanding VA treatment records noted in the August 2013 rating decision and February 2016 SOC, specifically "Outpatient treatment records, White City VAMC, from April 11, 2003 through April 19, 2013."

2. Take appropriate efforts to determine whether the Veteran "served offshore of the Republic of Vietnam" under 38 U.S.C. § 1116A.  

Attention is invited to:

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(a.) An April 2003 response from the NPRC that stated that "the Veteran served aboard the USS Sacramento (AOE1) which was in the official waters of the Republic of Vietnam" at various date ranges in 1971.  

(b.) A service personnel record that reflected that the Veteran reported to the USS Sacramento in September 1970 and was transferred from the boat in April 1972.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoopengardner, 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.