Citation Nr: 21030857 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-13 355 DATE: May 19, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to service connection for diabetes mellitus, Type II (diabetes), claimed as due to Agent Orange exposure, is remanded. Entitlement to service connection for lung cancer, claimed as due to Agent Orange and/or asbestos exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is remanded. REASONS FOR REMAND The Veteran had active service from September 1964 to November 1968. He died in September 2016. The appellant is the Veteran's surviving spouse. In addition to the appellant's own claim for service connection for the cause of the Veteran's death, the Veteran also had claims pending before VA at the time of his death. The appellant has been recognized as the substituted appellant for those claims. In January 2021, the appellant and T.O., the daughter of the appellant and the Veteran, testified at a virtual hearing before the undersigned Veterans Law Judge. At the hearing, and by the appellant's request, the record was held open 30 days for the submission of additional evidence. That evidence was received a few days later, also in January 2021. The Board also notes that in April 2021, VA sent notification to the Veteran's address, advising that a special review of his claims folder was being conducted, in accordance with Nehmer v. VA, because records showed VA might have previously decided a claim involving entitlement to benefits for several herbicide agent conditions, to include cancers of the lung and diabetes. 1. Entitlement to service connection for the cause of the Veteran's death, for diabetes, and for lung cancer, is remanded. The appellant contends that the Veteran's diabetes and lung cancer were due to in-service exposure to Agent Orange (herbicide agents). She also contends that the Veteran's lung cancer was due to asbestos exposure in service. Finally, she contends that the Veteran's cause of death was related to his lung cancer. The Veteran's service personnel records confirm he served onboard the USS Haleakala from approximately 1965 through 1968. He was awarded the Republic of Vietnam Campaign Medal based on his service onboard the USS Haleakala from December 1965 through May 1966. He was also awarded the Vietnam Service Medal for service onboard the USS Haleakala during the period from December 20, 1965 to December 30, 1965. In a statement dated in January 2015, the Veteran indicated that he served from 1964 to 1968 as an electrician, and that he served aboard the USS Haleakala (E25), a munitions ship, in the Tonkin Gulf from 1965 to 1968. A death certificate shows that the Veteran died in September 2016. The causes of death were listed as pneumonia, acute exacerbation of chronic obstructive pulmonary disease (COPD), and chronic respiratory failure; other significant conditions contributing to death but not resulting in the underlying cause included: anemia, hematuria, and history of lung cancer post pneumonectomy. In January 2021, the appellant and T.O. testified that the Veteran served during the Vietnam War aboard the USS Haleakala and that he was assigned to Subic Bay in the Philippines. As noted above, it is their contention that through this service, the Veteran exposed to Agent Orange. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to herbicide agents, unless there is affirmative evidence to the contrary. The phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the 12 nautical mile territorial sea of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area. In light of the record suggesting that at least a portion of the Veteran's service aboard the USS Haleakala may have been in the waters offshore of the Republic of Vietnam, a remand is warranted so that appropriate development may be conducted to determine whether the USS Haleakala was within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was onboard. With regard to whether the Veteran's lung cancer was related to asbestos exposure in service, VA has conceded that his military occupational specialty (MOS) of electrician's mate was probable for asbestos exposure. In July 2016, a VA examiner opined it was less likely than not that the Veteran's lung cancer was related to asbestos exposure in service, noting that enlistment and separation examinations were silent for respiratory conditions, private and VA treatment records were silent for a diagnosis of asbestosis, and based on Up To Date medical literature his squamous cell carcinoma was more likely due to cigarette smoking. At the hearing, T.O. testified that she was a physician's assistant and had conducted research, and indicated that with exposure to asbestos, one has a "16-fold" increased incidence of getting cancer with asbestos and cigarette smoking. In January 2021, T.O., on behalf of the appellant, submitted medical literature regarding asbestos exposure, smoking, and lung cancer, including one document that noted it was uncertain whether any type of asbestos alone could cause lung cancer in nonsmokers and another document which noted conclusions that any asbestos exposure, even in a heavy smoker, contributed to causation. Further, in January 2021, T.O. testified that the Veteran went on Social Security disability after he was treated for lung cancer. As the record does not indicate that the Veteran's records were obtained from the Social Security Administration (SSA), on remand, an attempt should be made to obtain such records. 2. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is remanded. In 2021, the appellant testified that the Veteran had a high anxiety level because of his lung cancer, and that he had anxiety and posttraumatic stress disorder. The issue of entitlement to service connection for an acquired psychiatric disorder is therefore inextricably intertwined with the issues remanded above; thus, it must also be remanded pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Undertake all necessary development, to include contacting the appropriate agency or agencies for a copy of the ship command history for the USS Haleakala, for the period from December 1965 through May 1966, to determine whether during that period the ship was within the 12 nautical mile territorial sea of the Republic of Vietnam. Negative replies should also be requested. 2. Request that the Social Security Administration (SSA) provide copies of any records in its possession pertaining to the Veteran's claim for disability benefits, including any medical records relied upon to make the decision. 3. If it is determined that the Veteran was not exposed to herbicide agents in service, request an addendum medical opinion from an appropriate clinician regarding whether the Veteran's lung cancer was is at least as likely as not related to his asbestos exposure in service. The examiner should specifically consider and address the medical opinion already of record as well as the January 2021 Board hearing testimony provided by the appellant and T.O, as well as the medical literature they submitted in January 2021. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.