Citation Nr: 21030563 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-35 915A DATE: May 19, 2021 REMANDED Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a gallbladder disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1961 to October 1963. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and August 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for ischemic heart disease, diabetes mellitus, type II, peripheral neuropathy of the bilateral upper and lower extremities, and prostate cancer because the evidence submitted was not new and material, denied service connection for a gallbladder disability, and denied entitlement to TDIU, respectively. In February 2021, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. As an initial matter, the Board notes that there was a defect in mailing with respect to an April 2017 Statement of the Case (SOC) which was issued in connection with a prior rating decision in October 2013 which, among other things, denied service connection for ischemic heart disease, diabetes mellitus, type II, peripheral neuropathy of the bilateral upper and lower extremities, and prostate cancer. Specifically, because the agency of original jurisdiction (AOJ) mailed the SOC to the Veteran's physical address, rather than his post office box, the SOC was returned by the U.S. Postal Service due to the lack of a mail receptacle. Thereafter, the AOJ did not take any action to correct the mailing defect. See, e.g., Lamb v. Peake, 22 Vet. App. 227, 231-32 (2008). As such, the October 2013 denial of service connection for ischemic heart disease, diabetes mellitus, type II, peripheral neuropathy of the bilateral upper and lower extremities, and prostate cancer remains pending and new and material evidence is not required to readjudicate these claims. The issues on the title page have been recharacterized accordingly. The Board also notes that in a December 2019 Board decision issued under the Appeals Modernization Act (AMA), the Board stayed the Veteran's claim of entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus, type II, until January 1, 2020, the effective date of the Blue Water Navy Vietnam Veterans Act of 2019. As the stay has now been lifted, adjudication of this issue should be resumed in accordance with the Board's docket order. 1. Entitlement to service connection for ischemic heart disease is remanded. 2. Entitlement to service connection for diabetes mellitus, type II is remanded. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 6. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 7. Entitlement to service connection for prostate cancer is remanded. 8. Entitlement to service connection for a gallbladder disability is remanded. The Veteran contends that in the Fall of 1963, his naval ship, the USS Oriskany, was located off the coast of Vietnam. He asserts that during that time, airplanes flew from his carrier to shore dropping chemicals. He contends that he did not know what the airplanes were dropping, however, when he replaced the liquid oxygen tanks on the airplanes, the empty tanks were covered with a "gooey" substance. He asserts that "it was impossible to handle these tanks without getting it on [himself]." See April 2020 Veteran's correspondence. To this end, VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). These diseases include ischemic heart disease, diabetes mellitus, early-onset peripheral neuropathy, and prostate cancer. With respect to diagnosis, it is undisputed that the Veteran is currently diagnosed with ischemic heart disease, diabetes mellitus, peripheral neuropathy, prostate cancer, and a gallbladder disability. See 2018-2020 VAMC records. As to in-service herbicide agent exposure, inquiry through the Personnel Information Exchange System (PIES) in July 2013 indicated that the USS Oriskany was in the official waters of the Republic of Vietnam from September 5, 1963 to September 13, 1963, however the record provided no conclusive proof of in-country service. A subsequent Memorandum dated in September 2013 indicated that the USS Oriskany was not one of the naval vessels associated with herbicide exposure in Vietnam. The Memorandum referenced the July 2013 PIES inquiry indicating that the USS Oriskany was in the territorial waters of Vietnam, however Vietnam service was inconclusive. The Memorandum also noted the Veteran's contentions that he was exposed to Agent Orange working on aircraft which contained chemical residue and indicated that there was no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. It was noted that the Veteran's exposure to Agent Orange or other tactical herbicides could not be conceded at that time. On January 29, 2019, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Specifically, the Federal Circuit increased the potential significance of any in-service presence within the 12-nautical mile territorial sea of the Republic of Vietnam during the Vietnam War in cases featuring alleged exposure to tactical herbicide agents. Congress implemented this holding, which is now under the provisions of 38 U.S.C. § 1116A, which states that VA must treat a location as being "offshore" of Vietnam (and therefore falling within the presumption of herbicide agent exposure) "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 the following points:" "Points Geographic Names Latitude North Longitude East At Hon Nhan Island, Tho Chu Archipelago Kien Giang Province 9°15.0 103°27.0 At Hon Da Island southeast of Hon Khoai Island Minh Hai Province 8°22.8 104°52.4 At Tai Lon Islet, Con Dao Islet in Con Dao-Vung Toa Special Sector 8°37.8 106°37.5 At Bong Lai Islet, Con Dao Islet 8°38.9 106°40.3 At Bay Canh Islet, Con Dao Islet 8°39.7 106°42.1 At Hon Hai Islet (Phu Qui group of islands) Thuan Hai Province 9°58.0 109°5.0 At Hon Doi Islet, Thuan Hai Province 12°39.0 109°28.0 At Dai Lanh point, Phu Khanh Province 12°53.8 109°27.2 At Ong Can Islet, Phu Khanh Province 13°54.0 109°21.0 At Ly Son Islet, Nghia Binh Province 15°23.1 109° 9.0 At Con Co Island, Binh Tri Thien Province 17°10.0 107°20.6 In consideration of Procopio, further inquiry was conducted in March 2020. A March 2020 Memorandum indicated that exposure to herbicides could not be conceded as the evidence of record did not show that 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 Navy Vietnam Veterans Act of 2019. Included with the Memorandum was a Deck Log Report indicating in map form the location of the USS Oriskany from December 1962 to October 1963. Additional inquiry through the Joint Services Research Records Center (JSRRC) in April 2020 indicated that all development had been exhausted and that based on the evidence of record, the Veteran did not set foot in the Republic of Vietnam, his ship, the USS Oriskany, did not travel up the inland waterways nor was the ship in the territorial waters of the Republic of Vietnam, and there was no other evidence of Agent Orange exposure. The inquiry noted that the Veteran was alleging that his ship entered the territorial waters of the Republic of Vietnam and requested further development as follows: "Please perform research to determine if there is any other evidence documenting entry into the territorial waters of the Republic of Vietnam. The veteran was on the USS Oriskany CVA-34 between December 19, 1962 and October 7, 1963." As it appears that the additional development requested in the April 2020 JSRRC inquiry has not been conducted, the Board finds that remand is warranted to allow the RO to determine if there is any other evidence documenting entry of the USS Oriskany into the territorial waters of the Republic of Vietnam during the Veteran's service aboard. 9. Entitlement to a TDIU due to service-connected disability is remanded. As resolution of the claims of entitlement to service connection for ischemic heart disease, diabetes mellitus, type II, peripheral neuropathy of the bilateral upper and lower extremities, prostate cancer, and a gallbladder disability may have an impact on the Veteran's claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Accordingly, the matters are REMANDED for the following action: 1. Undertake efforts to ascertain whether the USS Oriskany (CVA 34) was within the 12 nautical mile territorial sea of Vietnam at any time when the Veteran was stationed aboard, with particular attention to September 5, 1963 to September 13, 1963. If geographic coordinates of the ship's location on any dates within this time period are available, they must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, Associate 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.